Mony Preap v. Jeh Johnson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MONY PREAP; EDUARDO VEGA Nos. 14-16326
PADILLA; JUAN LOZANO 14-16779
MAGDALENO,
Plaintiffs-Appellees, D.C. No.
4:13-cv-05754-YGR
v.

JEH JOHNSON, Secretary, OPINION
Department of Homeland
Security; LORETTA E. LYNCH,
Attorney General; TIMOTHY S.
AITKEN; GREGORY
ARCHAMBEAULT; DAVID
MARIN,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted July 8, 2015
Seattle, Washington

Filed August 4, 2016

Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen,
and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Nguyen
2 PREAP V. JOHNSON

SUMMARY *

Immigration

The panel affirmed the district court’s class certification
order and preliminary injunction in a class action habeas
petition brought by criminal aliens subject to mandatory
detention under 8 U.S.C. § 1226(c).

The panel held that under the plain language of 8 U.S.C.
§ 1226(c), the government may detain without a bond
hearing only those criminal aliens it takes into immigration
custody promptly upon their release from the triggering
criminal custody.

The panel specified that it was holding that the
mandatory detention provision of § 1226(c) applies only to
those criminal aliens detained promptly after their release
from criminal custody, not to those detained long after.

COUNSEL

Hans Harris Chen (argued) and Troy D. Liggett, Trial
Attorneys; Elizabeth J. Stevens, Assistant Director; William
C. Peachey, Director, District Court Section; Civil Division,
Office of Immigration Litigation, United States Department
of Justice, Washington, D.C.; for Defendants-Appellants.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 PREAP V. JOHNSON 3

Theresa H. Nguyen (argued) and Ashok Ramani, Keker &
Van Nest LLP, San Francisco, California; Michael K.T. Tan,
ACLU Immigrants’ Rights Project, New York, New York;
Julia Harumi Mass, ACLU Foundation of Northern
California, San Francisco, California; Anoop Prasad, Asian
Law Caucus, San Francisco, California; for Plaintiffs-
Appellees.

OPINION

NGUYEN, Circuit Judge:

Every day in the United States, the government holds
over 30,000 aliens in prison-like conditions while
determining whether they should be removed from the
country. 1 Some are held because they were found, in a bond
hearing, to pose a risk of flight or dangerousness. 8 U.S.C.
§ 1226(a); 8 C.F.R. § 1236.1(d). Others, however, are held
without bond because they have committed an offense
enumerated in a provision of the Immigration and
Naturalization Act (“INA”). 8 U.S.C. § 1226(c). Aliens in
this latter group are subject to the INA’s mandatory
detention provision, which requires immigration authorities
to detain them “when [they are] released” from criminal
custody, 8 U.S.C. § 1226(c)(1), and to hold them without
bond, 8 U.S.C. § 1226(c)(2). A broad range of crimes is
covered under the mandatory detention provision, from
serious felonies to misdemeanor offenses involving moral

1
U.S. Immigration and Customs Enforcement, ERO Facts and
Statistics 3 (2011), http://www.ice.gov/doclib/foia/reports/ero-facts-
and-statistics.pdf.
4 PREAP V. JOHNSON

turpitude and simple possession of a controlled substance.
8 U.S.C. §§ 1226(c)(1)(A)–(D).

This mandatory detention provision has been challenged
on various grounds. See, e.g., Demore v. Kim, 538 U.S. 510,
513 (2003) (upholding the constitutionality of the provision
against a due process challenge); Rodriguez v. Robbins,
804 F.3d 1060, 1078–81 (9th Cir. 2015) (Rodriguez III),
cert. granted sub nom., Jennings v. Rodriguez, No. 15-1204,
2016 WL 1182403 (June 20, 2016) (holding that detainees
are entitled to a bond hearing after spending six months in
custody). 2 Here, we are faced with another such challenge;
this time, regarding the meaning of the phrase “when [they
are] released” in § 1226(c)(1), and whether it limits the
category of aliens subject to detention without bond under
§ 1226(c)(2). Specifically, we must decide whether an alien
must be detained without bond even if he has resettled into
the community after release from criminal custody. If the
answer is no, then the alien may still be detained, but he may
seek release in a bond hearing under § 1226(a) by showing
that he poses neither a risk of flight nor a danger to the
community.

Addressing this issue requires us to consider the
interaction of the two paragraphs of the mandatory detention
provision, 8 U.S.C. § 1226(c). Paragraph (1) requires the
Attorney General (“AG”) to “take into custody any alien
who [commits an offense enumerated in subparagraphs (A)–
(D)] when the alien is released [from criminal custody].”
8 U.S.C. § 1226(c)(1). Paragraph (2) prohibits the release of
“an alien described in paragraph (1)” except in limited

2
For a detailed history of decisions from the Supreme Court and this
court dealing with the various immigration detention statutes, see
Rodriguez III, 804 F.3d at 1067–70.
 PREAP V. JOHNSON 5

circumstances concerning witness protection. 8 U.S.C.
§ 1226(c)(2). Plaintiffs argue that the phrase “when . . .
released” in paragraph (1) applies to paragraph (2) as well,
so that an alien must be held without bond only if taken into
immigration custody promptly upon release from criminal
custody for an enumerated offense. The government, by
contrast, argues that “an alien described in paragraph (1)” is
any alien who commits a crime listed in §§ 1226(c)(1)(A)–
(D) regardless of how much time elapses between criminal
custody and immigration custody. According to the
government, individuals not detained “when . . . released”
from criminal custody as required by paragraph (1) are still
considered “alien[s] described in paragraph (1)” for
purposes of the bar to bonded release in paragraph (2).

To date, five of our sister circuits have considered this
issue, and four have sided with the government.
Significantly, however, there is no consensus in the
reasoning of these courts. The Second and Tenth Circuits
found that the phrase “an alien described in paragraph (1)”
was ambiguous, and thus deferred to the BIA’s interpretation
of the phrase to mean “an alien described in subparagraphs
(A)–(D) of paragraph (1).” See Lora v. Shanahan, 804 F.3d
601, 612 (2d Cir. 2015) (“Consistent with Chevron, we are
not convinced that the interpretation is ‘arbitrary, capricious,
or manifestly contrary to the statute.’” (quoting Adams v.
Holder, 692 F.3d 91, 95 (2d Cir. 2012))); Olmos v. Holder,
780 F.3d 1313, 1322 (10th Cir. 2015) (“The text, the
statutory clues, and canons of interpretation do not
definitively clarify the meaning of § 1226(c).”). The Fourth
Circuit has held that “when . . . released” means any time
after release, but it did so under a misconception that the BIA
6 PREAP V. JOHNSON

had so interpreted the phrase. 3 Hosh v. Lucero, 680 F.3d
375, 380–81 (4th Cir. 2012). Finally, the Second, Third, and
Tenth Circuits applied the loss-of-authority rule, finding that
the AG’s duty to detain criminal aliens under § 1226(c)(1)
continues even if the government fails to comply with the
“when . . . released” condition. See, e.g., Sylvain v. Atty Gen.
of United States, 714 F.3d 150, 157 (3d Cir. 2013) (holding
that “[e]ven if the statute calls for detention ‘when the alien
is released,’ and even if ‘when’ implies something less than
four years, nothing in the statute suggests that immigration
officials lose authority if they delay”); see also Lora,
804 F.3d at 612; Olmos, 780 F.3d at 1325–26.

On the other hand, the government’s position has been
rejected by most district courts to consider the question and,
most recently, by three of six judges sitting en banc in the
First Circuit. 4 See Castañeda v. Souza, 810 F.3d 15, 18–43
(1st Cir. 2015) (en banc) (Barron, J.). In an opinion written
by Judge Barron, these three judges concluded that the
statutory context and legislative history make clear that
aliens can be held without bond under § 1226(c)(2) only if
taken into immigration custody pursuant to § 1226(c)(1)

3
As other circuits have recognized, the BIA has never formally
interpreted the phrase “when the alien is released.” See, e.g., Sylvain v.
Atty Gen. of United States, 714 F.3d 150, 157 n.9 (3d Cir. 2013) (“The
specific term interpreted in Rojas is the phrase ‘an alien described in
paragraph (1).’”). In fact, far from interpreting the phrase in the manner
suggested by the Fourth Circuit, the BIA has said in passing that “when
. . . released” does require immediacy. In re Rojas, 23 I. & N. Dec. 177,
122 (BIA 2001) (“The statute does direct the [AG] to take custody of
aliens immediately upon their release from criminal confinement.”).
4
Because the First Circuit split evenly on the question, its opinions are
not binding on lower courts. The district court’s judgments were
affirmed. Castañeda, 810 F.3d at 19.
 PREAP V. JOHNSON 7

“when . . . released” from criminal custody, not if there is a
lengthy gap after their release. See id. at 36, 38.

We agree with Judge Barron and his two colleagues. The
statute unambiguously imposes mandatory detention
without bond only on those aliens taken by the AG into
immigration custody “when [they are] released” from
criminal custody. And because Congress’s use of the word
“when” conveys immediacy, we conclude that the
immigration detention must occur promptly upon the aliens’
release from criminal custody.

I.

The named Plaintiffs in this case are lawful permanent
residents who have committed a crime that could lead to
removal from the United States. Plaintiffs served their
criminal sentences and, upon release, returned to their
families and communities. Years later, immigration
authorities took them into custody and detained them
without bond hearings under § 1226(c). Plaintiffs argue that
because they were not detained “when . . . released” from
criminal custody, they were not subject to mandatory
detention under § 1226(c). 5

Mony Preap, born in a refugee camp after his family fled
Cambodia’s Khmer Rouge, has been a lawful permanent
resident of the United States since 1981, when he
immigrated here as an infant. He has two 2006 misdemeanor
convictions for possession of marijuana. Years after being

5
Plaintiffs raised both a statutory challenge and a Due Process
challenge before the district court. The district court resolved the case
on statutory grounds, and thus did not reach the Due Process question.
Preap v. Johnson, 303 F.R.D. 566, 574 n.5 (N.D. Cal. 2014). Neither do
we.
8 PREAP V. JOHNSON

released at the end of his sentences for these convictions,
Preap was transferred to immigration detention upon serving
a short sentence for simple battery (an offense not covered
by the mandatory detention statute) and held without a bond
hearing. Since the instant litigation began, Preap has been
granted cancellation of removal and released from
immigration custody. 6

Eduardo Vega Padilla has been a lawful permanent
resident since 1966, shortly after he came to the United
States as an infant. Padilla also has two drug possession
convictions—one from 1997 and one from 1999—and a
2002 conviction for owning a firearm with a prior felony
conviction. Eleven years after finishing his sentence on that
last conviction, he was placed in removal proceedings and
held in mandatory detention. Padilla eventually obtained
release after receiving a bond hearing under our decision in
Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1144
(9th Cir. 2013), in which we held that the government’s
detention authority shifts from § 1226(c) to § 1226(a) after a
detainee has spent six months in custody; Rodriguez v.

6
The district court rejected the government’s argument that Preap’s
cancellation of removal mooted his claim, and the government has not
challenged that determination. We agree that the claims of the named
Plaintiffs on behalf of the class are not mooted by Plaintiffs’ release from
detention or termination of removal proceedings because the claims are
“transitory in nature and may otherwise evade review.” Pitts v. Terrible
Herbst, Inc., 653 F.3d 1081, 1090-91 (9th Cir. 2011); see also U.S.
Parole Comm’n v. Geraghty, 445 U.S. 388, 398 (1980) (explaining when
a “claim on the merits is ‘capable of repetition, yet evading review,’ the
named plaintiff may litigate the class certification issue despite loss of
his personal stake in the outcome of the litigation” (quoting Gerstein v.
Pugh, 420 U.S. 103, 110 n.11 (1975))); Haro v. Sebelius, 747 F.3d 1099,
1110 (9th Cir. 2014) (holding that Article III justiciability requirements
were satisfied despite the expiration of the named plaintiff’s claim for
injunctive relief).
 PREAP V. JOHNSON 9

Robbins, 804 F.3d 1060, 1078–81 (9th Cir. 2015) (Rodriguez
III), cert. granted sub nom., Jennings v. Rodriguez, No. 15-
1204, 2016 WL 1182403 (June 20, 2016).

Juan Lozano Magdaleno has been a lawful permanent
resident since he immigrated to the United States as a
teenager in 1974. Magdaleno has a 2000 conviction for
owning a firearm with a prior felony conviction, and a 2007
conviction for simple possession of a controlled substance.
He was sentenced to six months on the possession charge
and released from jail in January 2008. Over five years later,
Magdaleno was taken into immigration custody and held
without bond pursuant to § 1226(c). He also was later
released from detention following a Rodriguez hearing.

These three Plaintiffs filed a class action petition for
habeas relief in the Northern District of California. The
district court granted their motion for class certification,
certifying a class of all “[i]ndividuals in the state of
California who are or will be subjected to mandatory
detention under 8 U.S.C. section 1226(c) and who were not
or will not have been taken into custody by the government
immediately upon their release from criminal custody for a
Section 1226(c)(1) offense.” The district court also issued a
preliminary injunction requiring the government to provide
all class members with bond hearings under § 1226(a). 7
Preap v. Johnson, 303 F.R.D. 566, 571, 584 (N.D. Cal.
2014). This appeal followed.

7
The district court held that if the named Plaintiffs prevailed in their
interpretation of § 1226(c), then they would have met their burden under
all four prongs of the preliminary injunction test set forth in Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). The
government has waived any challenge to that determination by declining
to dispute it on appeal.
10 PREAP V. JOHNSON

II.

We have jurisdiction to review this class action habeas
petition under 28 U.S.C. § 1291. The jurisdiction-stripping
provision of 8 U.S.C. § 1226(e), which bars judicial review
of discretionary agency decisions regarding immigrant
detention, does not bar us from hearing “challenges [to] the
statutory framework that permits [petitioners’] detention
without bail.” Demore v. Kim, 538 U.S. 510, 517 (2003).
We review questions of statutory construction de novo.
United States v. Bert, 292 F.3d 649, 651 (9th Cir. 2002).

III.

The government’s authority to detain immigrants in
removal proceedings arises from two primary statutory
sources. 8 The first, 8 U.S.C. § 1226(a), grants the AG
discretion to arrest and detain any alien upon the initiation of
removal proceedings. 9 Under this provision, the AG may
then choose to keep the alien in detention, or allow release
on conditional parole or bond. 8 U.S.C. § 1226(a)(1)–(2). 10

8
Other provisions of the Immigration and Nationality Act (INA)
govern the detention of individuals considered “applicants for
admission,” see 8 U.S.C. § 1225(b), or those awaiting deportation after
entry of a final order of removal, see 8 U.S.C. § 1231(a), among other
categories. These detention provisions are not implicated here.
9
The Homeland Security Act of 2002, Pub. L. No. 107-296 § 471, 116
Stat. 2135 (2002), moved many immigration enforcement
responsibilities from the Department of Justice to the Department of
Homeland Security. See Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2
(9th Cir. 2003). Because the statute at issue refers to the Attorney
General, we will continue to do so here.
10
The discretionary detention provision reads as follows:
 PREAP V. JOHNSON 11

If the AG opts for detention, the alien may seek review of
that decision at a hearing before an immigration judge (“IJ”),
8 C.F.R. § 236.1(d)(1), who may overrule the AG and grant
release on bond, id. § 1003.19. The alien bears the burden
of proving his suitability for release, and the IJ should
consider whether he “is a threat to national security, a danger
to the community at large, likely to abscond, or otherwise a
poor bail risk.” Matter of Guerra, 24 I. & N. Dec. 37, 40
(BIA 2006); see also 8 § C.F.R. 1236.1(c)(8).

The second provision is 8 U.S.C. § 1226(c), the
mandatory detention provision at issue in this case.
Importantly, this provision operates as a limited exception to
§ 1226(a). See 8 U.S.C. § 1226(a). (“Except as provided in
subsection (c) of this section . . .”). Section 1226(c) reads as
follows:

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision on
whether the alien is to be removed from the United
States. Except as provided in subsection (c) of this
section and pending such decision, the Attorney
General–

(1) may continue to detain the arrested alien; and

(2) may release the alien on–

(A) bond of at least $1,500 with security
approved by, and containing conditions
prescribed by, the Attorney General; or

(B) conditional parole[.]

8 U.S.C. § 1226(a).
12 PREAP V. JOHNSON

(c) Detention of criminal aliens

(1) Custody

The Attorney General shall take into custody
any alien who –

(A) is inadmissible by reason of having
committed any offense covered in
section 1182(a)(2) of this title,

(B) is deportable by reason of having
committed any offense covered in
section 1227(a)(2)(A)(ii), (A)(iii),
(B), (C), or (D) of this title,

(C) is deportable under section
1227(a)(2)(A)(i) of this title on the
basis of an offense for which the alien
has been sentence [sic] to a term of
imprisonment of at least 1 year, or

(D) is inadmissible under section
1182(a)(3)(B) of this title or
deportable under section
1227(a)(4)(B) of this title

when the alien is released, without regard to
whether the alien is released on parole,
supervised release, or probation, and without
regard to whether the alien may be arrested or
imprisoned again for the same offense.
 PREAP V. JOHNSON 13

(2) Release

The Attorney General may release an
alien described in paragraph (1) only if
the Attorney General decides pursuant to
[the Federal Witness Protection Program]
that release of the alien from custody is
necessary . . . [and] the alien will not pose
a danger to . . . safety . . . and is likely to
appear for any scheduled proceeding.

8 U.S.C. § 1226(c) (emphases added) (footnote omitted).
We must decide the proper scope of this mandatory
detention exception, and specifically whether it applies to
aliens who are not promptly placed in removal proceedings
upon their release from criminal custody for an offense listed
in § 1226(c)(1)(A)–(D).

The government advances three arguments to support its
view that Plaintiffs are subject to mandatory detention under
§ 1226(c). First, it argues that we should give Chevron
deference, as have the Second and Tenth Circuits, to the
BIA’s interpretation that the phrase “an alien described in
Paragraph (1)” means “an alien described in subparagraphs
(A)–(D) of paragraph (1),” thus subjecting all criminal aliens
who have committed one of the listed crimes to mandatory
detention regardless of when they were taken into
immigration custody. See In re Rojas, 23 I. & N. Dec. 117,
121 (BIA 2001). Second, the government argues that we
should follow the Fourth Circuit in holding that “when . . .
released” is a duty-triggering clause, not a time-limiting
clause, and that, as such, it merely informs the AG when the
duty to detain arises, not when the duty must be performed.
14 PREAP V. JOHNSON

Hosh v. Lucero, 680 F.3d 375, 381 (4th Cir. 2012). 11 Third,
the government argues that we should follow the Second,
Third, and Tenth Circuits in holding that, even if Congress
intended that immigration authorities promptly detain
criminal aliens when they are released from criminal
custody, Congress did not clearly intend that they would lose
the authority to do so in the event of delay.

We find all three arguments unpersuasive. We agree
with Judge Barron and his colleagues on the First Circuit in
Castañeda, 810 F.3d at 19, that the government’s positions
contradict the intent of Congress expressed through the
language and structure of the statute.

A.

We first address the government’s argument that we
should defer to the BIA’s interpretation of § 1226(c)(2)’s
phrase “an alien described in paragraph (1)” to mean “an
alien described in subparagraphs (A)–(D) of paragraph (1).”
See Rojas, 23 I. & N. Dec. at 125 (“We construe the phrasing
‘an alien described in paragraph (1),’ as including only those
aliens described in subparagraphs (A) through (D) of section
[(c)(1)], and as not including the ‘when released’ clause.”).
Under this interpretation, § 1226(c)(2)’s detention-without-
bond requirement applies to any alien who has committed an
offense enumerated in § 1226(c)(1), regardless of how long
after release from criminal custody he or she was taken into
immigration custody. This interpretation is at odds with the
statute, which unambiguously links the “when . . . released”

11
The Fourth Circuit incorrectly attributed this interpretation to the
BIA. See Hosh, 680 F.3d at 380 (reasoning that the phrase “when . . .
released” is ambiguous and deferring to the BIA’s “permissible
construction”).
 PREAP V. JOHNSON 15

custody instruction in § 1226(c)(1) to the without-bond
instruction in § 1226(c)(2), such that the latter applies only
after the former is satisfied.

When faced with a question of statutory interpretation,
our analysis begins “with the text of the statute.” Yokeno v.
Sekiguchi, 754 F.3d 649, 653 (9th Cir. 2014). The words of
a statute should be accorded their plain meaning, as
considered in light of “the particular statutory language at
issue, as well as the language and design of the statute as a
whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988). We cannot look to the statute’s language in isolation
because “[t]he meaning—or ambiguity—of certain words or
phrases may only become evident when placed in context.”
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132 (2000). “If the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842–43 (1984).

Starting with the text, we find that § 1226(c)(2) is
straightforward. It refers simply to “an alien described in
paragraph (1),” not to “an alien described in subparagraphs
(1)(A)–(D).” We must presume that Congress selected its
language deliberately, thus intending that “an alien described
in paragraph (1)” is just that—i.e. an alien who committed a
covered offense and who was taken into immigration
custody “when . . . released.” See Int’l Ass’n of Machinists
& Aerospace Workers, Local Lodge 964 v. BF Goodrich
Aerospace Aerostructurers Grp., 387 F.3d 1046, 1051 (9th
Cir. 2004) (“[C]ourts must presume that a legislature says in
a statute what it means and means in a statute what it says
there.” (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253–54 (1992))). Certainly, had Congress wanted to refer
16 PREAP V. JOHNSON

only to “an alien described in subparagraphs (A)–(D),” it
could have done so. And while we recognize that “Congress
has not always been consistent in how it refers to other
subsections in the same statute,” Olmos, 780 F.3d at 1320
(describing a separate provision where Congress referred to
“subparagraph (a)” but the context made it obvious that
Congress was referring to only subparts (i) and (ii)), we
observe that, unlike the example cited by the Third Circuit
in Olmos, this section’s context supports, rather than
contradicts, the plain meaning. 12

As mentioned, there are two relevant sources of authority
for the government’s detention of aliens in removal
proceedings—§ 1226(a) and § 1226(c). Section 1226(a)
provides for discretionary detention of any alien in removal
proceedings, while § 1226(c) provides a limited exception of
mandatory detention for a specified group of aliens. Thus,
if the government is not authorized to detain an alien under
the narrow exception of § 1226(c), it may only do so under
the general rule of § 1226(a). Critically, however, each of
these sections includes its own corresponding instructions
for releasing detained aliens—§ 1226(a) provides for
possible release on bond, while § 1226(c) forbids any release
except under special circumstances concerning witness
protection. There is one important consequence of this
structure: under both the general detention provision in
§ 1226(a) and the mandatory detention provision in
§ 1226(c), the authority to detain and the authority to release
go hand in hand. That is, an alien detained under § 1226(a)

12
We are thus unpersuaded by the government’s argument that there
is ambiguity in whether the phrase “when the alien is released” modifies
the noun “alien” or only the verb “take into custody.” Even if we agreed
that the phrase were ambiguous standing alone, it is not ambiguous
within the section’s structure and surrounding language.
 PREAP V. JOHNSON 17

is clearly subject to the release provisions of § 1226(a),
whereas one detained under § 1226(c) is subject to the
release provisions in § 1226(c). Accordingly, if an alien is
not detained in immigration custody “when . . . released”
from criminal custody, as required under § 1226(c)(2), then
the government derives its sole authority to detain that alien
from § 1226(a)(1), and, as a consequence, it must provide
the alien with a bond hearing as required under § 1226(a)(2).

The BIA’s interpretation in In re Rojas flouts this
structure. The BIA held that the “when . . . released” clause
was “address[ed] . . . to the statutory command that the
‘Attorney General shall take into custody’ certain categories
of aliens,” but that it did not define the categories of aliens
subject to the prohibition on bonded release in § 1226(c)(2).
In re Rojas, 23 I. & N. Dec. at 121. The BIA thereby held,
in essence, that the AG can fail to comply with the “when . . .
released” requirement of § 1226(c)(1)—thereby necessarily
relying on § 1226(a) for its authority to take custody of an
alien—but still apply the release conditions of § 1226(c)(2).
In other words, even if § 1226(c)(1) authorizes the custody
of only those aliens who are detained “when [they are]
released” from criminal custody, not those who are detained
at a later time, the BIA would still apply § 1226(c)(2)’s
proscription on bonded release from immigration custody.
This reading simply fails to do justice to the statute’s
structure. See Castañeda, 810 F.3d at 26 (noting that under
the BIA’s reading, the statute is “oddly misaligned” because
it necessarily “de-link[s] the ‘Custody’ directive in
§ 1226(c)(1) from the bar to ‘Release’ in (c)(2)”).

The headings in § 1226(c) further illustrate this point.
Section 1226(c) as a whole is entitled “Detention of criminal
aliens.” This heading conveys to the reader that the section
provides an exception to the general detention rule of
18 PREAP V. JOHNSON

§ 1226(a), and that this exception concerns the detention of
certain criminal aliens. The two paragraphs within the
section are entitled “Custody” and “Release.” These
headings inform the reader that the section governs the full
life cycle of the criminal aliens’ detention, with the first
paragraph specifying the requirements for taking them into
custody, and the second specifying the restrictions on their
release. This structure suggests only one logical conclusion:
the release provisions of § 1226(c)(2) come into effect only
after the government takes a criminal alien into custody
according to § 1226(c)(1). And, correspondingly, if the
government fails to take an alien into custody according to
§ 1226(c)(1), then it necessarily may do so only under the
general detention provision of § 1226(a), and we never reach
the release restrictions in § 1226(c)(2).

Rojas’s contrary reading, as Judge Barron explained,
would mean that Congress directed the AG to hold without
bond aliens “who had never been in criminal custody”—
because with the “when . . . released” clause rendered
inoperative for purposes of § 1226(c)(2), there would be
nothing to impose a requirement of the aliens ever having
been in custody. 13 Castañeda, 810 F.3d at 27. At the same
time, Rojas’s reading would leave the AG “complete

13
This effect occurs because, as Judge Barron noted in Castañeda,
“there are a variety of offenses for which an alien may be . . . subject to
mandatory detention under [§ 1226(c)(1)(A)], but that may never give
rise to a formal charge, let alone an indictment, trial or conviction.”
810 F.3d at 26 (alterations in original) (quoting Saysana v. Gillen,
590 F.3d 7, 14 (1st Cir. 2009)). “In consequence, some aliens who fall
within subparagraphs (A)–(D) will not be subject to (c)(1) because they
will never have even been ‘released’ from criminal custody as the ‘when
. . . released’ clause requires.” Id. at 27. Such aliens can only be taken
into immigration custody under the discretionary detention provision in
§ 1226(a).
 PREAP V. JOHNSON 19

discretion to decide not to take [such aliens] into
immigration custody at all.” Id. These incongruous
consequences further persuade us to reject the BIA’s
reading.

Notably, neither the BIA nor those circuits that deferred
to the BIA adequately addressed the structure of the
relationship between § 1226(a) and § 1226(c). Indeed, the
BIA and the Second Circuit failed to address it at all. See
Lora v. Shanahan, 804 F.3d 601, 611 (2d Cir. 2015)
(deeming it ambiguous whether the “when . . . released”
clause “is part of the definition of aliens subject to
mandatory detention” without considering statutory
context); In re Rojas, 23 I. & N. Dec. at 121–22 (considering
statutory context but failing to acknowledge the relationship
between § 1226(a) and § 1226(c)). The Tenth Circuit did
address it, and even seemed to agree with our conclusion that
custody must be authorized under paragraph (1) of § 1226(c)
in order for paragraph (2) to take effect. Olmos, 780 F.3d at
1321 (recognizing that the authority to detain “arises in
Paragraph ‘1’” and that “the [AG] must exercise this
responsibility ‘when the alien is released’”). But, applying
the loss-of-authority doctrine, that court concluded that the
government maintains its authority to take custody of an
alien under § 1226(c)(1) even when it fails to comply with
the “when . . . released” requirement. Olmos, 780 F.3d at
1321–22 (“With the alien in the [AG’s] custody under his
delayed enforcement of § 1226(c)(1), there would be
nothing odd about § 1226(c)(2)’s restrictions on when the
alien can be released.”). Finding that the “when . . . released”
requirement imposed no actual limitations on the
government, the Tenth Circuit thus concluded that the BIA’s
interpretation—reading out the “when . . . released”
requirement—was reasonable. Id. We disagree. As we later
explain, the loss-of-authority doctrine does not apply to
20 PREAP V. JOHNSON

§ 1226(c). And absent this doctrine, we are left with the
conclusion that the AG must comply with § 1226(c)(1),
including the “when . . . released” requirement, before it can
apply § 1226(c)(2).

In sum, we conclude that paragraph (2)’s limitations on
release unambiguously depend upon paragraph (1)’s
mandate to take custody. “An alien described in paragraph
(1)” is therefore one who is detained according to the
requirements of paragraph (1). These requirements include
the mandate that the government take the alien into custody
“when . . . released.” The BIA’s interpretation to the
contrary is impermissible. 14

B.

We must next decide whether the AG is in compliance
with § 1226(c)(1)’s custody mandate—and thus
§ 1226(c)(2)’s limitations on release apply—even if the AG
takes an alien into custody after substantial time has passed
since the alien’s release from criminal custody. Plaintiffs
argue that § 1226(c)(1)’s mandate requiring the AG to detain
criminal aliens “when [they are] released” from criminal
custody means that they must be taken into custody promptly
after release, not years later, as were the named Plaintiffs
here. The government, on the other hand, argues that the
phrase “when . . . released” is ambiguous, supporting either
Plaintiffs’ reading or a broader reading requiring mandatory
detention of any criminal alien arrested by the AG at any
point after release from criminal custody. The government’s

14
“Because the statutory language is unambiguous, we end our inquiry
at Chevron’s first step, and need not reach the question [of] whether the
BIA’s approach is based on a permissible construction of the statute.”
Aragon-Salazar v. Holder, 769 F.3d 699, 706 (9th Cir. 2014).
 PREAP V. JOHNSON 21

argument wrongly assumes that the BIA had so construed
“when . . . released.” On the contrary, the BIA explicitly
stated that “[t]he statute does direct the [AG] to take custody
of aliens immediately upon their release from criminal
confinement.” Rojas, 23 I. & N. Dec. at 122 (emphasis
added). And even if the BIA had construed the phrase not to
require immediate confinement, the statute would foreclose
that construction because “when . . . released”
unambiguously requires promptness.

Again, we start with the plain language: “The Attorney
General shall take into custody any alien who [commits an
enumerated offense] when the alien is released [from
criminal custody].” 8 U.S.C. § 1226(c). As Judge Barron
observed, the first thing that leaps out is that “Congress
chose a word, ‘when,’ that naturally conveys some degree of
immediacy as opposed to a purely conditional word, such as
‘if.’” Castañeda, 810 F.3d at 37 (citation omitted). Of
course, the word “when” has multiple dictionary
definitions. 15 But looking to context, which of these
meanings is the intended one is clear. The word “when”
used in a command such as this one requires prompt action.
Consider a teacher’s common instruction to stop writing
when the exam ends. There is no doubt that such an
instruction requires the student to immediately stop writing

15
See, e.g. Black’s Law Dictionary 1842 (3d ed. 1933) (defining
“when” alternatively as “[i]mmediately after; as soon as” and as “[i]n
case of; on condition that; provided; if”); see also Hosh, 680 F.3d at 379–
80 (reasoning that the term “when” “can be read, on one hand, to refer to
‘action or activity occurring at the time that or as soon as other action
has ceased or begun’” or “[o]n the other hand, . . . to mean the temporally
broader ‘at or during [which] time’” (first quoting Waffi v. Louiselle,
527 F. Supp. 2d 480, 488 (E.D. Va. 2007), then quoting
Free Merriam-Webster Dictionary, http://www.merriam-webster.com/
dictionary/when)).
22 PREAP V. JOHNSON

at the end of the exam period. Or as one district court noted,
“if a wife tells her husband to pick up the kids when they
finish school, implicit in this command . . . is the expectation
that the husband is waiting at the moment” school ends.
Sanchez-Penunuri v. Longshore, 7 F. Supp. 3d 1136, 1155
(D. Colo. 2013); see also Khoury v. Asher, 3 F. Supp. 3d 877,
887 (W.D. Wash. 2014) (“A mandate is meaningless if those
subject to it can carry it out whenever they please.”).
Similarly, the use of the phrase “when . . . released,” when
paired with the directive to detain, unambiguously requires
detention with “some degree of immediacy.” Hosh v.
Lucero, 680 F.3d 375, 381 (4th Cir. 2012).

Indeed, “[i]f Congress really meant for the duty in (c)(1)
to take effect ‘in the event of’ or ‘any time after’ an alien’s
release from criminal custody, we would expect Congress to
have said so, given that it spoke with just such directness
elsewhere in the IIRIRA.” Castañeda, 810 F.3d at 38 (citing
8 U.S.C. § 1231(a)(5) (“[T]he alien shall be removed under
the prior order at any time after the reentry.” (emphasis
added)); see also Quezada-Bucio v. Ridge, 317 F. Supp. 2d
1221, 1230 (W.D. Wash. 2004) (noting that Congress
“easily could have used the language ‘after the alien is
released,’ ‘regardless of when the alien is released,’ or other
words to that effect”). But instead Congress chose words
that signal an expectation of immediate action. See Jones v.
United States, 527 U.S. 373, 389 (1999) (“Statutory
language must be read in context [as] a phrase ‘gathers
meaning from the words around it.’” (quoting Jarecki v. G.
D. Searle & Co., 367 U.S. 303, 307 (1961))). This word
choice must be given its due weight.

Moreover, unlike the government’s interpretation, our
reading is consistent with Congress’s purposes in enacting
the mandatory detention provision—to address heightened
 PREAP V. JOHNSON 23

risks of flight and dangerousness associated with aliens who
commit certain crimes, which are serious enough to give rise
to criminal custody. See Demore, 538 U.S. at 518–19
(describing evidence before Congress). These purposes are
ill-served when the critical link between criminal detention
and immigration detention is broken and the alien is set free
for long stretches of time. Congress’s concerns over flight
and dangerousness are most pronounced at the point when
the criminal alien is released. Consequently, we can be
certain that Congress did not intend to authorize delays in
the detention of these criminal aliens. And correspondingly,
without considering the aliens’ conduct in any intervening
period of freedom, it is impossible to conclude that the risks
that once justified mandatory detention are still present.
These considerations are prudently reflected in Congress’s
decision that these individuals must be detained “when . . .
released,” and that if they aren’t, the AG may detain them
only if warranted under the general detention provision of
8 U.S.C. § 1226(a), upon a bond hearing during which an
individualized assessment of risks is conducted. We
therefore conclude that the phrase “when . . . released”
connotes some degree of immediacy.

C.

Finally, we turn to the government’s argument that even
if § 1226(c)(1) unambiguously requires prompt detention,
we should nonetheless uphold the AG’s authority to detain
without bond an alien who committed a covered offense
even when the AG has violated the mandate of § 1226(c)(1).
The government points to a line of cases holding that: “[i]f a
statute does not specify a consequence for noncompliance
with statutory timing provisions, the federal courts will not
in the ordinary course impose their own coercive sanction.”
Barnhart v. Peabody Coal Co., 537 U.S. 149, 159 (2003)
24 PREAP V. JOHNSON

(quoting United States v. James Daniel Good Real Property,
510 U.S. 43, 63 (1993)); see also id. at 158 (“Nor, since
Brock [v. Pierce County, 476 U.S. 253 (1986)], have we ever
construed a provision that the government ‘shall’ act within
a specified time, without more, as a jurisdictional limit
precluding action later.”); United States v. Nashville, C & St.
L. Ry., 118 U.S. 120, 125 (1886); United States v. Dolan,
571 F.3d 1022, 1027 (10th Cir. 2009). Under this “loss-of-
authority” line of cases, the government’s argument goes,
the AG’s failure to timely take into custody a criminal alien
in no way affects her ability to act pursuant to the mandatory
detention provision of § 1226(c)(2). Several circuits have
agreed. See Sylvain, 714 F.3d at 157; Lora, 804 F.3d at 612–
13; Olmos, 780 F.3d at 1324–26.

The courts adopting this reasoning rely on United States
v. Montalvo-Murillo, 495 U.S. 711 (1990), in which the
Supreme Court interpreted a provision of the Bail Reform
Act that required judicial officers to hold a bond hearing
“immediately upon the [defendant]’s first appearance before
the judicial officer.” 18 U.S.C. § 3142(f)(2). Montalvo-
Murillo didn’t receive a timely hearing under this provision,
and the district court released him from custody. The
Supreme Court reversed, holding that “a failure to comply
with the first appearance requirement does not defeat the
government’s authority to seek detention of the person
charged.” 495 U.S. at 717. The Court noted that nowhere
did the statute provide for the release of pretrial detainees as
a remedy for the failure by judicial officers to provide
prompt hearings. Id. And it concluded that “[a]utomatic
release contravene[d] the object of the statute, to provide fair
bail procedures while protecting the safety of the public and
assuring the appearance . . . of defendants . . . .” Id. at 719.
To hold otherwise, the Court reasoned, would “bestow upon
the defendant a windfall” and impose on the public “a severe
 PREAP V. JOHNSON 25

penalty” by “mandating release of possibly dangerous
defendants every time some deviation” from the statute
occurred. Id. at 720. Looking to this decision, our sister
circuits have treated Montalvo-Murillo as a “close[] analog”
to the dispute over § 1226(c)’s limitations. Sylvain, 714 F.3d
at 158. We find, however, that Montalvo-Murillo is readily
distinguishable.

Critically, unlike in Montalvo-Murillo, the government
here invokes the loss-of-authority doctrine to justify
extending a statutory provision that in fact curtails, rather
than expands, the government’s discretionary authority. See
Farrin R. Anello, Due Process and Temporal Limits on
Mandatory Immigration Detention, 65 Hastings L. J. 363,
367 (2014) (“The [mandatory detention provision] strips the
immigration judge of her power to conduct a bond hearing
and decide whether the individual poses any danger or flight
risk, and likewise precludes DHS from making discretionary
judgments about whether detention is appropriate.”).16
Indeed, the sole practical effect of the district court’s
decision in this case is to reinstate the government’s general
authority, under § 1226(a), to decline to detain, or to release
on bond, those criminal aliens who are not timely detained
under § 1226(c). In short, we decline to apply the loss-of-
authority doctrine where, as here, there is no loss of
authority.

16
Congress’s purposes in enacting the provision further demonstrate
its desire to curtail the authority of the immigration judge and DHS to
release recently incarcerated criminals from immigration custody. See
Demore v. Kim, 538 U.S. 510, 518-19 (2003) (noting Congress’s
concerns that immigration authorities had a “near-total inability to
remove deportable criminal aliens” and often made detention decisions
on the basis of “funding and detention space”).
26 PREAP V. JOHNSON

Moreover, unlike the district court’s ruling in Montalvo-
Murillo, our holding does not craft a new remedy
inconsistent with the statutory scheme. Whereas in
Montalvo-Murillo the statute at issue did not identify a
remedy for a delayed hearing, see United States v. Montalvo-
Murillo, 876 F.2d 826, 831 (10th Cir. 1989) (per curiam)
(noting that “Congress did not provide . . . the remedy” for
a violation of § 3142(f)), overruled by Montalvo-Murillo,
495 U.S. at 722), here the statutory structure makes clear
precisely what occurs in the absence of prompt detention
under 8 U.S.C. § 1226(c): the general detention provision,
8 U.S.C. § 1226(a), applies. Far from imposing a judicially-
created remedy for untimely detention, we are merely
holding that under the statute, the conditions for the
mandatory detention exception are not met when detention
is too long delayed. See Castañeda, 810 F.3d at 40–41
(distinguishing several cases where courts improperly
fashioned their own sanctions).

We do not share the Third Circuit’s concern that failing
to apply the loss-of-authority doctrine “would lead to an
outcome contrary to the statute’s design: a dangerous alien
would be eligible for a hearing—which could lead to his
release—merely because an official missed the deadline.”
Sylvain, 714 F.3d at 160. Congress’s design of protecting the
public by detaining criminal aliens is undoubtedly premised
on the notion that recently released criminal aliens may be
presumed a risk. Such a presumption carries considerably
less force when these aliens live free and productive lives
after serving their criminal sentences. See Saysana v. Gillen,
590 F.3d 7, 17–18 (1st Cir. 2009) (“By any logic, it stands
to reason that the more remote in time a conviction becomes
and the more time after a conviction an individual spends in
a community, the lower his bail risk is likely to be.”).
Indeed, the imposition of robotic detention procedures in
 PREAP V. JOHNSON 27

such cases not only smacks of injustice, but also drains
scarce detention resources that should be reserved for those
aliens who pose the greatest risks.

We therefore hold that the mandatory detention
provision of 8 U.S.C. § 1226(c) applies only to those
criminal aliens who are detained promptly after their release
from criminal custody, not to those detained long after.

IV.

In so holding, we are not suggesting that the mandate to
detain “when . . . released” necessarily requires detention to
occur at the exact moment an alien leaves criminal custody.
The plain meaning of “when . . . released” in this context
suggests that apprehension must occur with a reasonable
degree of immediacy. Accord Hosh, 680 F.3d at 381 (“[W]e
agree that Congress’s command . . . connotes some degree
of immediacy . . . .”); Rojas, 23 I. & N. Dec. at 122 (“The
statute does direct the [AG] to take custody of aliens
immediately upon their release from criminal
confinement.”). Thus, depending on the circumstances of an
individual case, an alien may be detained “when . . .
released” even if immigration authorities take a very short
period of time to bring the alien into custody.

This appeal, however, does not present the question
exactly how quickly detention must occur to satisfy the
“when . . . released” requirement. The class was defined as
those who were not “immediately detained” but were still
taken into mandatory custody, and the government did not
challenge the class definition on the ground that it required
further clarification as to the meaning of “immediately.”
Nor did the government appeal class certification on the
ground that the named class members were not typical of the
class as a whole—even though the named Plaintiffs spent
28 PREAP V. JOHNSON

years in their home communities after completing their
criminal sentences, whereas some class members
presumably were released for shorter times. We thus need
not decide for purposes of the instant appeal exactly how
promptly an alien must be brought into immigration custody
after being released from criminal custody for the transition
to be immediate enough to satisfy the “when . . . released”
requirement. The district court granted preliminary
injunctive relief to a class of aliens who were not
“immediately detained” when released from criminal
custody, and that grant of relief accords with our
interpretation of the statutory requirements.

* * *

Under the plain language of 8 U.S.C. § 1226(c), the
government may detain without a bond hearing only those
criminal aliens it takes into immigration custody promptly
upon their release from triggering criminal custody.

AFFIRMED.