Gordon v. Lynch

United States Court of Appeals
For the First Circuit

No. 14-1729

CLAYTON RICHARD GORDON, on behalf of himself and others
similarly situated; NHAN PHUNG VU; GUSTAVO RIBEIRO FERREIRA;
VALBOURN SAHIDD LAWES; CESAR CHAVARRIA RESTREPO,

Petitioners, Appellees,

PRECIOSA ANTUNES,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General; JOHN SANDWEG, Acting
Director; SEAN GALLAGHER, Acting Field Office Director;
CHRISTOPHER J. DONELAN, Sheriff; JEH CHARLES JOHNSON, Secretary
of Homeland Security; MICHAEL G. BELLOTTI, Sheriff; STEVEN W.
TOMPKINS, Sheriff; THOMAS M. HODGSON, Sheriff; JOSEPH D.
MCDONALD, JR., Sheriff,

Respondents, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch and Selya, Circuit Judges,
and Burroughs,* District Judge.

* Of the District of Massachusetts, sitting by designation.
 Hans H. Chen, Office of Immigration Litigation, Civil
Division, United States Department of Justice, with whom Sarah B.
Fabian, Senior Litigation Counsel, District Court Section, Office
of Immigration Litigation, Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Civil Division, Leon Fresco, Deputy
Assistant Attorney General, Civil Division, and William C.
Peachey, Director, District Court Section, Office of Immigration
Litigation, were on brief, for appellants.
Adriana Lafaille, with whom Matthew R. Segal, American Civil
Liberties Union of Massachusetts, Judy Rabinovitz, Michael Tan,
and ACLU Foundation Immigrants' Rights Project were on brief, for
appellees.
Matthew E. Price, Emily A. Bruemmer, and Jenner & Block LLP
on brief for the American Immigration Lawyers Association, amicus
curiae.
George N. Lester, Erin Brummer, Victoria Morte, Stephanie S.
Pimentel, Daniel Ruemenapp, and Fragomen, Del Rey, Bernsen & Loewy,
LLP on brief for Families for Freedom, Greater Boston Legal
Services, Immigrant Defense Project, National Immigrant Justice
Center, and University of Maine School of Law Immigrant and Refugee
Rights Clinic, amici curiae.

November 21, 2016
 LYNCH, Circuit Judge. This court, sitting en banc in

Castañeda v. Souza, 810 F.3d 15 (1st Cir. 2015) (en banc), divided

evenly over the question of whether the "when . . . released"

clause in 8 U.S.C. § 1226(c)(1) limits the scope of § 1226(c)(2).

More specifically, the question was whether § 1226(c)(2)

categorically "bars the Attorney General from releasing certain

aliens on bond once they have been placed in immigration custody"

only if she takes those aliens into immigration custody "'when

[they are] released' from criminal custody." Castañeda, 810 F.3d

at 18-19 (opinion of Barron, J.) (alteration in original).

The result of the Castañeda deadlock was a non-

precedential affirmance of the district court judgments as to two

specific petitioners (but not necessarily of the reasoning

underlying those judgments). Those judgments had found

unreasonable the government's years-long delay in detaining the

specific petitioners at issue (Gordon and Castañeda) and had

granted their individual requests for habeas relief, in the form

of individualized bond hearings. See id. at 38; Gordon v. Johnson,

991 F. Supp. 2d 258 (D. Mass. 2013); Castañeda v. Souza, 952

F. Supp. 2d 307 (D. Mass. 2013).

We will recapitulate only briefly the positions of the

judges on each side of the Castañeda divide. To reiterate, the

disagreement focused on whether § 1226(c)(2) bars bonded release

(1) for any alien who committed a crime described in

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§ 1226(c)(1)(A)–(D), regardless of when the alien was taken into

immigration custody; or (2) for only those aliens who committed

such a crime and were taken into immigration custody within some

defined or reasonable period following their release from criminal

custody.

Judge Barron, writing for himself and two other members

of the en banc court, stated that "Congress's evident intent,"

Castañeda, 810 F.3d at 36, was for "the cross-reference in

§ 1226(c)(2) to refer to an alien taken into custody pursuant to

the duty imposed by [§ 1226](c)(1) as a whole rather than only to

an alien described in subparagraphs (A)–(D)," id. at 30. 1 Judge

Barron's opinion further concluded that, "at least absent an

1 Subparagraphs (A)–(D) of § 1226(c)(1) delineate four
categories of aliens convicted of crimes and subject to mandatory
immigration detention under § 1226(c). These categories,
collectively, cover aliens who were convicted of certain crimes of
moral turpitude, controlled substance offenses, aggravated
felonies, firearm offenses, or acts associated with terrorism.
Specifically, § 1226(c) pertains to any alien who:
(A) is inadmissible by reason of having committed any
offense covered in [8 U.S.C. §] 1182(a)(2) . . . ,
(B) is deportable by reason of having committed any
offense covered in [8 U.S.C. §] 1227(a)(2)(A)(ii),
(A)(iii), (B), (C), or (D) . . . ,
(C) is deportable under [8 U.S.C. §] 1227(a)(2)(A)(i)
. . . on the basis of an offense for which the alien
has been sentence[d] to a term of imprisonment of
at least 1 year, or
(D) is inadmissible under [8 U.S.C. §] 1182(a)(3)(B)
. . . or deportable under [§] 1227(a)(4)(B) . . . .

8 U.S.C. § 1226(c)(1)(A)–(D).

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authoritative agency construction of § 1226(c)(2), . . . the word

'when' does set forth a time constraint on [§ 1226](c) that expires

after a reasonable time." Id. at 43.

Judge Kayatta, writing for himself and two other members

of the en banc court, disagreed on several grounds. As a matter

of statutory interpretation, his opinion maintained that a

"reasonable jurist c[ould] read the phrase 'as described in

[§ 1226(c)(1)]' as not incorporating into [§ 1226(c)(2)] the phrase

'when released.'" Id. at 58 (opinion of Kayatta, J.). And even

if Judge Barron's opinion was right on that first point, Judge

Kayatta's opinion went on, it still "d[id] not follow that the

mandate of [§ 1226(c)](2) is also contingent upon prompt compliance

with the mandate of [§ 1226(c)](1)." Id. at 59.

While that particular issue concerning the

interpretation of § 1226(c) was on appeal -- first to a panel of

this court, Castañeda v. Souza, 769 F.3d 32 (1st Cir. 2014)

(withdrawn panel opinion), and then to the full en banc court --

the district court issued two orders. The first order, issued on

March 27, 2014, certified the following class of present and future

detainees who had committed (or would commit) serious crimes:

all aliens who are or will be detained in Massachusetts
under 8 U.S.C. § 1226(c), whom the government alleges to
be subject to a ground of removability as described in
8 U.S.C. § 1226(c)(1)(A)–(D), and who were not taken
into immigration custody within forty-eight hours (or,
if a weekend or holiday intervenes, within no more than

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 five days) of release from the relevant predicate
custody.

Gordon v. Johnson, 300 F.R.D. 28, 30 (D. Mass. 2014) (emphasis

added).

In the second order, issued on May 21, 2014, the district

court further explained its reasoning on class certification,

granted summary judgment to the class, and issued declaratory and

injunctive relief. Gordon v. Johnson, 300 F.R.D. 31 (D. Mass.

2014). This second order ("the remedial order") -- which builds

on the class-certification order -- is at issue in this appeal.

Consistent with the class-certification order, the

remedial order provided relief on a class-wide basis and

established a class-wide, bright line rule as to relief, eschewing

any attempt to fashion individualized relief or to permit the Board

of Immigration Appeals or the Department of Homeland Security

("DHS") to address the appropriate remedy. In pertinent part, the

court ordered the following:

 Defendants shall immediately cease and desist
subjecting all current and future class members --
that is, aliens not detained within forty-eight
hours of release from the relevant prior non-DHS
custody (or if a weekend or holiday intervenes,
within no more than five days) -- to mandatory
detention under 8 U.S.C. § 1226(c).

 Defendants shall immediately determine the custody
of every current class member under 8 U.S.C.
§ 1226(a) and timely provide a bond hearing to every
class member that seeks a redetermination of his

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 or her custody by an Immigration Judge pursuant to
8 C.F.R. § 1003.19 & 1236.1(d).

 Defendants shall determine the custody of every
future class member under 8 U.S.C. [§] 1226(a) and
provide a bond hearing to every class member that
seeks a redetermination of his or her custody by an
Immigration Judge pursuant to 8 C.F.R. § 1003.19 &
1236.1(d).

Id. at 43.

We held in abeyance the government's appeal of the

remedial order, pending our decision in Castañeda, because of the

obvious relevance of each appeal to the other. The district court

entered the remedial order on May 21, 2014, long before this court

expressed its views in the en banc Castañeda opinions. Therein

lies the rub.

The government now argues in this appeal that the

remedial order is inconsistent with the opinions in Castañeda,

along several lines of reasoning: (1) that neither Judge Barron's

opinion nor Judge Kayatta's opinion contemplated class-wide,

bright line relief of this sort; (2) that 48 hours, a deadline

imposed by the district court, is a plainly unreasonable choice

for a bright line rule, given the variety of possible reasons for

DHS delay in apprehending a § 1226(c)-eligible alien after the

moment of release from criminal custody; and (3) that in any event,

it is initially within the authority of DHS, and not a federal

district court, to determine what constitutes a reasonable time

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between release from criminal custody and DHS detention.2 The

government has also argued that 8 U.S.C. § 1252(f)(1) and the

Castañeda opinions forbade the district court from issuing a class-

wide injunction and thereby interfering with DHS's enforcement of

the statute.3

The primary difficulty with the government's post-

Castañeda arguments to us is that those arguments have never been

presented to the district court, post-Castañeda, nor has the

government asked the district court to modify the remedial

injunction in light of that decision and other developments. We

think it best to leave these matters for the district court to

address on remand in the first instance. In reaching this

2 The American Civil Liberties Union, representing the
petitioners, argues that the government's sparse brief has waived
all arguments aside from the argument that neither Castañeda
opinion contemplated class-wide, bright line relief. We disagree;
these arguments are interrelated.
Regardless, in situations that heavily implicate the
public interest and questions of comity between federal
institutions, we have the discretion to consider arguments that
might ordinarily be deemed waived. Nat'l Ass'n of Soc. Workers v.
Harwood, 69 F.3d 622, 627–29 (1st Cir. 1995); see also Chestnut v.
City of Lowell, 305 F.3d 18, 21 (1st Cir. 2002) (en banc) (per
curiam); United States v. La Guardia, 902 F.2d 1010, 1013 (1st
Cir. 1990).
3 Under the heading "Limit on injunctive relief,"
§ 1252(f)(1) provides that "no court (other than the Supreme Court)
shall have jurisdiction or authority to enjoin or restrain the
operation of the provisions of [§§ 1221–1232] . . . other than
with respect to the application of such provisions to an individual
alien against whom proceedings under such [sections] have been
initiated."

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conclusion, we wish to be clear that we take seriously the argument

that the logic of both principal opinions in Castañeda is

inconsistent with the assumptions underlying the district court's

remedial order -- both as to deference to agency expertise and as

to the need for individualized relief, tailored to the factual

circumstances presented.

With respect to agency expertise, the Supreme Court has

often reiterated that "the well-reasoned views of the agencies

implementing a statute 'constitute a body of experience and

informed judgment to which courts and litigants may properly resort

for guidance.'" Bragdon v. Abbott, 524 U.S. 624, 642 (1998)

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944));

see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) ("It is

clear that principles of Chevron deference are applicable to this

statutory scheme." (citing Chevron U.S.A. Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 842 (1984))). Neither of the two

principal Castañeda opinions abandoned that principle of

deference.

In addition, neither opinion contemplated as an

appropriate remedy a bright line rule (e.g., 48 hours), fashioned

judicially without any agency input. Judge Kayatta's opinion

plainly did not endorse such a rule: by his reading, the government

can reasonably interpret § 1226(c)(2)'s bar to bonded release as

entirely unrestricted by the "when . . . released" clause of

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§ 1226(c)(1), and so "whether the Attorney General complied with

[§ 1226(c)(1)'s] mandate right away" is irrelevant to the

applicability of § 1226(c)(2). Castañeda, 810 F.3d at 59 (opinion

of Kayatta, J.). Moreover, his opinion identified numerous factors

that might increase the reasonableness of a delay in taking a

criminal alien into DHS custody: an alien might have evaded

detention and gone into hiding upon release from criminal custody,

or state officials might have failed to provide federal authorities

with timely and accurate information about the impending release

of a § 1226(c)-eligible alien.4 See id. at 51–52.

Nor did Judge Barron's opinion contemplate a bright line

test for the reasonableness of a gap in custody. His opinion

interpreted the "when . . . released" clause as imposing a

limitation on the applicability of § 1226(c)(2) -- but only "a

time constraint . . . that expires after a reasonable time," not

a line in the sand. Id. at 43 (opinion of Barron, J.) (emphasis

added); see also id. at 38 ("[W]e need not define the bounds of

reasonableness in this case as they were plainly exceeded.").

In light of the affirmance via deadlock in Castañeda, it

is open to question whether the district court erred by reading

4 At oral argument in this case, the government offered an
additional hypothetical: a federal official who is unable to
collect a § 1226(c)-eligible alien promptly at the end of the
alien's criminal sentence because of adverse weather conditions or
other barriers to interstate travel.

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the "when . . . released" clause as imposing some sort of

reasonable immediacy requirement on the government's ability to

invoke § 1226(c)(2)'s bar to bonded release in this circuit. But

a class-wide, bright line rule of a mere 48 hours, with no mention

of an alien's potential culpability for delay, is inconsistent

with the reasoning and logic of both Castañeda opinions.5

Accordingly, we vacate the remedial order's grant of

summary judgment, declaratory judgment, and injunctive relief.6

We believe the district court would benefit from requiring the

agency to articulate its position on what constitutes a reasonable

custody gap under § 1226(c), as well as what practical problems,

if any, have resulted from the remedial order since its issuance

in May 2014. We also believe the district court should reexamine

5 Moreover, the district court's bright line rule is
inconsistent with the approach taken by the Ninth Circuit in Preap
v. Johnson, 831 F.3d 1193 (9th Cir. 2016) (motion for extension of
time to file petition for rehearing or rehearing en banc granted
Nov. 3, 2016). Adopting the position from Judge Barron's Castañeda
opinion that "§ 1226(c) applies only to those criminal aliens who
are detained promptly after their release from criminal custody,"
id. at 1206, the Preap court declined to determine "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,"
id. at 1207. Instead, the preliminary injunctive relief in Preap
applied "to a class of aliens who were not 'immediately detained'
when released from criminal custody." Id. The court did note,
however, that "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." Id.
6 The May 21, 2014 remedial order is the only judgment
before us.

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its position on the inapplicability of § 1252(f)(1) -- which

expressly provides a "[l]imit on injunctive relief" in the context

of this statutory scheme -- particularly in light of our Castañeda

opinions. Finally, we direct the district court to consider the

parallel due process issues in Reid v. Donelan, 819 F.3d 486 (1st

Cir. 2016), and this court's disposition of that case, in

conjunction with the Supreme Court's impending consideration of

related due process issues. See Rodriguez v. Robbins, 804 F.3d

1060 (9th Cir. 2015), cert. granted sub nom. Jennings v. Rodriguez,

136 S. Ct. 2489 (2016) (No. 15-1204).

In light of this disposition, our final task is to

address the fact that the remedial injunction is currently in

effect -- and has been for more than two years. If the government

has identified practical problems with that relief, it must say so

and not remain silent. We stay our judgment vacating the

injunction, for a period of 90 days, to permit the district court

to determine how to proceed on remand. If there is delay by the

government in responding to orders of the district court, the

petitioners may apply to this court for an extension of the stay.7

No costs are awarded.

So ordered.

7 We gratefully acknowledge the two amicus curiae briefs,
filed by American Immigration Lawyers Association and by Families
for Freedom et al., respectively.

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