Hosh v. Lucero

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

HOSH MOHAMED HOSH, 
Petitioner-Appellee,
v.
ENRIQUE LUCERO, Field Office
Director, Office of Enforcement
and Removal, U.S. Immigration
and Customs Enforcement; JOHN
MORTON, Director, U.S.
Immigration and Customs
Enforcement; JAMES CHAPPARO,
Executive Associate Director, U.S.
Immigration and Customs  No. 11-1763
Enforcement; JANET NAPOLITANO,
Secretary, Department of
Homeland Security; ERIC H.
HOLDER, JR., Attorney General,
Respondents-Appellants,
and
DAVID L. SIMONS, Superintendent,
Hampton Roads Regional Jail,
Respondent.


2 HOSH v. LUCERO

ASSOCIATION OF MEXICANS IN NORTH 
CAROLINA; DETENTION WATCH
NETWORK; FAMILIES FOR FREEDOM;
IMMIGRANT DEFENSE PROJECT;
IMMIGRANT RIGHTS CLINIC;
IMMIGRATION EQUALITY; LEGAL AID
JUSTICE CENTER’S IMMIGRANT
ADVOCACY PROGRAM; NATIONAL
IMMIGRANT JUSTICE CENTER;

NATIONAL IMMIGRATION PROJECT;
KATHRYN O. GREENBERG
IMMIGRATION JUSTICE CLINIC;
AMERICAN IMMIGRATION LAWYERS
ASSOCIATION,
Amici Supporting Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Anthony J. Trenga, District Judge.
(1:11-cv-00464-AJT-TRJ)

Argued: March 20, 2012

Decided: May 25, 2012

Before KEENAN and FLOYD, Circuit Judges, and
Norman K. MOON, Senior United States District Judge for
the Western District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Senior Judge
Moon wrote the opinion, in which Judge Keenan and Judge
Floyd concurred.
 HOSH v. LUCERO 3
COUNSEL

ARGUED: Gisela Ann Westwater, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appel-
lants. Ofelia Lee Calderon, CALDERON, RACINE & DER-
WIN, PLC, Arlington, Virginia, for Appellee. ON BRIEF:
Neil H. MacBride, United States Attorney, Julie Edelstein,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia; Tony West,
Assistant Attorney General, Civil Division, Elizabeth J. Ste-
vens, Assistant Director, District Court Section, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellants. Alina Das, WASHINGTON SQUARE
LEGAL SERVICES, New York, New York, for Association
of Mexicans in North Carolina, Detention Watch Network,
Families for Freedom, Immigrant Defense Project, Immigrant
Rights Clinic, Immigration Equality, Legal Aid Justice Cen-
ter’s Immigrant Advocacy Program, National Immigrant Jus-
tice Center, National Immigration Project, and Kathryn O.
Greenberg Immigration Justice Clinic, Amici Supporting
Appellee. Andres C. Benach, DUANE MORRIS LLP, Wash-
ington, D.C.; Russell R. Abrutyn, MARSHAL E. HYMAN &
ASSOCIATES, Troy, Michigan; Stephen W. Manning,
IMMIGRATION LAW GROUP, PC, Portland, Oregon, for
American Immigration Lawyers Association, Amicus Sup-
porting Appellee.

OPINION

MOON, Senior District Judge:

Title 8, United States Code, Section 1226(c) requires the
mandatory federal detention, without the possibility of bond,
of certain deportable criminal aliens "when" those aliens are
released from other custody. The issue in this case is whether,
as the district court held, Appellee, a deportable criminal alien
4 HOSH v. LUCERO
who was not immediately taken into federal custody upon his
release from other custody, is exempt from § 1226(c)’s man-
datory detention provision and therefore is entitled to a bond
hearing.

Immigration law is at once highly technical and deeply
controversial; in this case, however, settled law provides the
answer. Deferring to the Board of Immigration Appeals
("BIA")’s decision on this question, we hold that Appellee is
not exempt from mandatory detention, and we therefore
reverse the district court’s decision to grant a bond hearing.

I.

Appellee Hosh Mohamed Hosh is a citizen of Somalia. He
entered the United States on or about January 19, 1999, as a
derivative asylee, and he has been a lawful permanent resident
of the United States since June 5, 2007. On March 4, 2008,
in the Circuit Court of Fairfax County, Virginia, Hosh was
convicted of unlawful wounding in violation of Virginia Code
§ 18.2–51 and grand larceny in violation of Virginia Code
§ 18.2–95. Hosh received a concurrent two-year sentence for
each offense, but the circuit court suspended both sentences
in their entirety, and placed Hosh on supervised probation for
a period of two years.

United States Immigration and Customs Enforcement
("ICE") arrested Hosh at his home on March 21, 2011, and
detained him at the Hampton Roads Regional Jail in Ports-
mouth, Virginia. ICE issued a Notice to Appear and charged
Hosh with removability under the Immigration and National-
ity Act ("INA") for having committed an aggravated felony
after entry into this country. See 8 U.S.C. § 1227(a)(2)(A)(iii)
(providing that "[a]ny alien who is convicted of an aggravated
felony at any time after admission is deportable"); 8 U.S.C.
§ 1101(a)(43)(F) and (G) (defining "crime[s] of violence" and
"theft offense[s]" for which the possible terms of imprison-
ment are at least one year as "aggravated felon[ies]").
 HOSH v. LUCERO 5
After his arrest, Hosh requested a bond hearing. The immi-
gration judge, however, found that Hosh was subject to man-
datory detention under 8 U.S.C. § 1226(c), and denied the
hearing. Hosh filed a petition for a writ of habeas corpus in
the Eastern District of Virginia. Hosh did not dispute the fact
that he was an alien, or that he had been convicted of two
aggravated felonies, or that such convictions rendered him
deportable; rather, he argued that he was not subject to man-
datory detention under § 1226(c) because ICE had not taken
him into custody immediately upon his release from state cus-
tody.

The district court granted Hosh’s petition, in part, and
remanded the matter to the immigration court with instruc-
tions to hold a bond hearing within ten days. Relying on three
prior Eastern District of Virginia cases,1 the district court
found that "the release provisions of Section 1226(c)(2) apply
only in those instances where the Attorney General has acted
in compliance with Section 1226(c)(1)," i.e., when the Attor-
ney General has taken the criminal alien into federal custody
at the time the alien is released from any custody pertaining
to a designated offense. Hosh v. Lucero, Civil Action No.
1:11–cv–464, 2011 WL 1871222, at *3 (E.D. Va. May 16,
2011).

II.

Matters of statutory construction present questions of law,
1
The district court cited Cummings v. Holder, Case No. 1:10–cv–1114,
2011 U.S. Dist. LEXIS 53626, at *4–5 (E.D. Va. Jan. 14, 2011) (alien
detained nine years after release from state custody), Bracamontes v.
Desanti, Case No. 2:09cv480, 2010 WL 2942757, at *1 (E.D. Va. July 26,
2010) (alien detained eight years after release from state custody), and
Waffi v. Loiselle, 527 F. Supp. 2d 480, 488 (E.D. Va. 2007) (alien detained
over a month after release from state custody). As indicated in note 3,
infra, in the time since the district court granted Hosh’s petition, other
Eastern District of Virginia cases implicating § 1226(c) have also held in
favor of petitioning aliens.
6 HOSH v. LUCERO
which we generally review de novo. Midi v. Holder, 566 F.3d
132, 136 (4th Cir. 2009) (citation omitted). However, when a
statutory provision of the INA is ambiguous, "the BIA’s inter-
pretations . . . must be given controlling weight unless those
interpretations are ‘arbitrary, capricious, or manifestly con-
trary to the statute.’" Fernandez v. Keisler, 502 F.3d 337, 344
(4th Cir. 2007) (quoting Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, at 844 (1984)).

In our view, although § 1226(c) may arguably be suscepti-
ble to more than one interpretation, the BIA’s interpretation
of the statute in In re Rojas, 23 I. & N. Dec. 117 (BIA 2001),
is a permissible, and more plausible, construction. We there-
fore give deference to the BIA’s interpretation, and we must
reverse the holding below.

III.

A.

Chevron sets forth a two-step analysis. First, the reviewing
court considers "whether Congress has directly spoken to the
precise question at issue." 467 U.S. at 842. If the court
answers this threshold question in the affirmative, "that is the
end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Con-
gress." 467 U.S. at 842–43. However, if

the court determines Congress has not directly
addressed the precise question at issue, the court
does not simply impose its own construction on the
statute, as would be necessary in the absence of an
administrative interpretation. Rather, . . . the ques-
tion for the court is whether the agency’s answer is
based on a permissible construction of the statute.

Id. at 843 (footnote omitted). Notably, "[t]he court need not
conclude that the agency construction was the only one it per-
 HOSH v. LUCERO 7
missibly could have adopted to uphold the construction, or
even the reading the court would have reached . . . ." Id. at
843 n.11 (citations omitted).

No circuit court has yet considered the meaning and appli-
cability of § 1226(c) under these precise circumstances, and
the numerous district courts previously considering § 1226(c)
have reached different conclusions. Some district courts have
agreed with the holding we reach herein, finding ambiguity in
the statute and giving deference to the BIA’s prior interpreta-
tion of § 1226(c) in Rojas.2 Other district courts, however,
including several courts within the Fourth Circuit, have held
that the plain meaning of § 1226(c) requires a decision in the
detainee’s favor.3
2
See, e.g., Guillaume v. Muller, No. 11 Civ. 8819(TPG), 2012 WL
383939, at *4–6 (S.D.N.Y. Feb. 7, 2012); Hernandez v. Sabol, ___ F.
Supp. 2d. ___, 2011 WL 4949003, at *3 (M.D. Pa. Oct. 18, 2011); Garcia
Valles v. Rawson, No. 11–C–0811, 2011 WL 4729833, at *3 (E.D. Wis.
Oct. 7, 2011); Diaz v. Muller, No. 11–4029 (SRC), 2011 WL 3422856, at
*2–3 (D.N.J. Aug. 4, 2011); Gomez v. Napolitano, No. 11–cv–1350(JSR),
2011 WL 2224768, at *4 (S.D.N.Y. May 31, 2011); Sulayao v. Shanahan,
No. 09–cv–7347(PKC), 2009 WL 3003188, at *3–7 (S.D.N.Y. Sept. 15,
2009); Serrano v. Estrada, No. 3–01–CV–1916–M, 2002 WL 485699, at
*3 (N.D. Tex. Mar. 6, 2002); Saucedo-Tellez v. Perryman, 55 F. Supp. 2d
882, 884–85 (N.D. Ill. 1999).
3
See, e.g., Ortiz v. Holder, No. 2:11CV1146 DAK, 2012 WL893154, at
*3–4 (D. Utah Mar. 14, 2012); Harris v. Lucero, Civil Action No.
1:11–cv–692, 2012 WL 603949, at *3 (E.D. Va. Feb. 23, 2012); Jaghoori
v. Lucero, No. 1:11–cv–1076, 2012 WL 604019, at *3 (E.D. Va. Feb. 22,
2012); Parfait v. Holder, Civil No. 11–4877 (DMC), 2011 WL 4829391,
at *4–9 (D.N.J. Oct. 11, 2011); Beckford v. Aviles, No. 10–235 (JLL),
2011 WL 3515933, at *7 (D.N.J. Aug. 9, 2011); Rianto v. Holder, No.
CV–11–0137–PHX–FJM, 2011 WL 3489613, at *3 (D. Ariz. Aug. 9,
2011); Keo v. Lucero, No. 1:11cv614, 2011 WL 2746182, at *3–5 (E.D.
Va. July 13, 2011); Sylvain v. Holder, Civil No. 11–3006 (JAP), 2011 WL
2580506, at *4–6 (D.N.J. June 28, 2011); Cummings, 2011 U.S. Dist.
LEXIS 53626, at *4–5; Louisaire v. Muller, 758 F. Supp. 2d 229, 235–36
(S.D.N.Y. 2010); Gonzalez v. DHS, No. 1:CV–10–0901, 2010 WL
2991396, at *1 (M.D. Pa. July 27, 2010); Bracamontes, 2010 WL
2942757, at *1; Dang v. Lowe, Civil No. 1:CV–10–0446, 2010 WL
8 HOSH v. LUCERO
The meaning of § 1226(c) is not plain to us. To be sure,
"when" in § 1226(c) can be read, on one hand, to refer to "ac-
tion or activity occurring ‘at the time that’ or ‘as soon as’
other action has ceased or begun." Waffi v. Loiselle, 527 F.
Supp. 2d 480, 488 (E.D. Va. 2007) (citing 20 The Oxford
English Dictionary 209 (2d ed. 1989); The American Heritage
Dictionary of the English Language (4th ed. 2000)). On the
other hand, "when" can also be read to mean the temporally
broader "at or during the time that," "while," or "at any or
every time that . . . ." Free Merriam-Webster Dictionary,
available at http://www.merriam-webster.com/dictionary/
when (last visited April 30, 2012). We must therefore con-
sider the BIA’s interpretation.

In Rojas, the BIA considered the natural and ordinary read-
ing of the statute, the overall statutory context, certain pre-
decessor provisions, and practical considerations that the BIA
had previously addressed in In re Noble, 21 I. & N. Dec. 672,
681–82 (BIA 1997).4 In parts most relevant to the instant
appeal, the BIA determined that "the respondent is subject to
mandatory detention pursuant to [§ 1226(c)], despite the fact

2044634, at *1–2 (M.D. Pa. May 20, 2010); Mongestime v. Reilly, 704 F.
Supp. 2d 453, 458 (S.D.N.Y. 2010); Khodr v. Adduci, 697 F. Supp. 2d
774, 778–80 (E.D. Mich. 2010); Scarlett v. DHS, 632 F. Supp. 2d 214,
219–20 (W.D.N.Y. 2009); Waffi, 527 F. Supp. 2d at 486–88; Bromfield v.
Clark, No. C06–757RSM, 2007 WL 527511, at *3–4 (W.D. Wash. Feb.
14, 2007); Roque v. Chertoff, No. C06 0156 TSZ, 2006 WL 1663620, at
*4–5 (W.D. Wash June 12, 2006); Zabadi v. Chertoff, No. C 05–03335
WHA, 2005 WL 3157377, at *3–5 (N.D. Cal. Nov. 22, 2005); Quezada-
Bucio v. Ridge, 317 F. Supp. 2d 1221, 1227–31 (W.D. Wash. 2004); Alik-
hani v. Fasano, 70 F. Supp. 2d 1124, 1130 (S.D. Cal. 1999).
4
The practical considerations entertained by the BIA in Noble, a case in
which the BIA evaluated the applicability of certain Transition Period
Custody Rules not at issue in the instant appeal, included congressional
unease about the growing criminal alien population in this country and
"the failure to effectuate the removal of many of these aliens." In re Noble,
21 I. & N. Dec. 672, 681 (BIA 1997) (citing H.R. Rep. No. 104-469(I)
(1996)).
 HOSH v. LUCERO 9
that he was not taken into [federal] custody immediately upon
his release from state custody." Rojas, 23 I. & N. Dec. at 127.
While disagreeing with the majority’s interpretive approach,
two BIA Board Members concurred in the result, explaining
that "[i]t is difficult to conclude that Congress meant to prem-
ise the success of its mandatory detention scheme on the
capacity of the [Immigration and Naturalization] Service5 to
appear at the jailhouse door to take custody of an alien at the
precise moment of release." Id. at 128.

Applying Chevron, we conclude that the BIA’s determina-
tion that criminal aliens like Hosh are subject to mandatory
detention, despite not having been detained immediately upon
release from state custody, is based on a permissible construc-
tion of § 1226(c).

Context assures us that the BIA permissibly construed 8
U.S.C. § 1226(c). In enacting § 1226(c), Congress had a range
of options available to it with respect to how aggressively it
sought to detain criminal aliens. If we accept that "when . . .
released" means "at the moment of release," then we must
conclude that Congress intended to take an aggressive stance
against criminal aliens, i.e., Congress wanted federal authori-
ties to detain criminal aliens immediately upon their release
from other custody. We cannot, however, take another step
and find that, if the criminal alien was not immediately
detained after release due to an administrative oversight or
any other reason, then Congress’s clear intent was to have that
criminal alien no longer be subject to the mandatory detention
provision of § 1226(c). With this in mind, we conclude that
it is far from plain, and indeed unlikely, that "when . . .
released" means "at the moment of release, and not later."
While that conclusion is possible, we think that it is strained.6
5
The Immigration and Naturalization Service, or INS, is now known as
ICE.
6
At oral argument, counsel for Appellee invited the Court to conclude
that Congress, by using the phrase "when . . . released," intended to
10 HOSH v. LUCERO
Supporting our opinion that the BIA reasonably construed
§ 1226(c) is the description of the statutory scheme provided
by the Supreme Court of the United States in Demore v. Kim,
538 U.S. 510, 518 (2003). In Demore, the Court considered
the constitutionality of § 1226(c) and, in upholding the stat-
ute, observed that "Congress adopted [§ 1226(c)] against a
backdrop of wholesale failure by the INS to deal with increas-
ing rates of criminal activity by aliens." Id. (citations omit-
ted). That backdrop included the fact that federal authorities
suffered from a "near-total inability to remove deportable
criminal aliens," due in large part to the INS’s "failure to
detain those aliens during their deportation proceedings"
under the statutes previously in force, which gave the Attor-
ney General broad discretion to release criminal aliens pend-
ing their removal proceedings. Id. at 519 (citations omitted).
Because "deportable criminal aliens who remained in the
United States often committed more crimes before being
removed," id. at 518, and because "[o]nce released, more than
20% of deportable criminal aliens failed to appear for their
removal hearings," id. at 519 (citing S. Rep. No. 104-48, at 1
(1995)), Congress endeavored to amend the immigration
scheme that was in place before the passage of § 1226(c).

Thus, while we agree that Congress’s command to the
Attorney General to detain criminal aliens "when . . .
released" from other custody connotes some degree of imme-
diacy, we cannot conclude that Congress clearly intended to
exempt a criminal alien from mandatory detention and make

exempt a criminal alien from mandatory custody if the alien was released
from state custody and then got as far as the adjacent parking lot before
being detained by federal authorities. We cannot deem it clear that Con-
gress would, on one hand, be so concerned with criminal aliens commit-
ting further crimes, or failing to appear for their removal proceedings, or
both, that Congress would draft and pass the mandatory detention provi-
sion, but on the other hand, decide that if, for whatever reason, federal
authorities did not detain the alien immediately upon release, then manda-
tory detention no longer applies.
 HOSH v. LUCERO 11
him eligible for release on bond if the alien is not immediately
taken into federal custody.7

B.

Because numerous district courts have found that § 1226(c)
requires a result contrary to our ruling today, we explain that,
even if we assume that the statute commands federal authori-
ties to detain criminal aliens at their exact moment of release
from other custody, we still conclude that a criminal alien
who is detained after that exact moment is not exempt from
mandatory detention.

As the Supreme Court of the United States explained in
Barnhart v. Peabody Coal Co., 537 U.S. 149, 161 (2003), "a
statute directing official action needs more than a mandatory
‘shall’ before the grant of power can sensibly be read to
expire when the job is supposed to be done." In other words,
"if a statute does not specify a consequence for noncompli-
ance with statutory timing provisions, the federal courts will
not in the ordinary course impose their own coercive sanc-
tion." United States v. James Daniel Good Real Prop., 510
U.S. 43, 63 (1993) (citations omitted).

In United States v. Montalvo-Murillo, 495 U.S. 711, 713-14
(1990), the Court considered whether the Government was
required to release a suspect when it had failed to provide a
detention hearing "immediately upon the [suspect’s] first
7
Both parties look beyond the text to argue that the grammatical struc-
ture of the statute supports their respective positions on the interpretation
of "when." Additionally, in accordance with the canon of statutory inter-
pretation that courts should "give effect, if possible, to every clause and
word of a statute," Montclair v. Ramsdell, 107 U.S. 147, 152 (1883), the
parties each claim that the other’s reading renders certain parts of the stat-
ute superfluous, and is therefore impermissible. We do not expressly take
up these matters, however, because they are, in large part, bound up in the
parties’ arguments about the plain meaning of "when," and they do not
resolve the ambiguity.
12 HOSH v. LUCERO
appearance before the judicial officer" pursuant to 18 U.S.C.
§ 3142(f). Due to a magistrate judge’s sua sponte continuance
that did not comply with § 3142(f), the district court and the
court of appeals held that pretrial release of the defendant (on
conditions) was required. 495 U.S. at 716.

The Supreme Court, however, found that "[n]othing in
§ 3142(f) indicates that compliance with the first appearance
requirement is a precondition to holding the hearing or that
failure to comply with the requirement renders such a hearing
a nullity," and that "a failure to comply with the first appear-
ance requirement does not defeat the Government’s authority
to seek detention of the person charged." Id. at 717. The Court
observed that "construction of the Act must conform to the
‘great principle of public policy, applicable to all govern-
ments alike, which forbids that the public interests should be
prejudiced by the negligence of the officers or agents to
whose care they are confided.’" Id. at 718 (quoting Brock v.
Pierce Cnty., 476 U.S. 253, 260 (1986)). In situations like
these,

in realistic and practical terms, it is inevitable that,
despite the most diligent efforts of the Government
. . . , some errors in the application of the time
requirements of § 3142(f) will occur. . . . In these sit-
uations, there is no reason to bestow upon the defen-
dant a windfall and to visit upon the Government
and the citizens a severe penalty by mandating
release of possibly dangerous defendants every time
some deviation from the strictures of § 3142(f)
occurs.

Id. at 720.

Like the statute at issue in Montalvo-Murillo, § 1226(c)
does not specify any consequence for the Government’s fail-
ure to detain a criminal alien immediately upon release, and
therefore even if "the duty is mandatory, the sanction for
 HOSH v. LUCERO 13
breach is not loss of all later powers to act." Id. at 718.8 Thus,
although the Government would retain the ability to detain
criminal aliens after a bond hearing under the district court’s
reading of § 1226(c), Congress intended those aliens to be
mandatorily detained without a bond hearing. The negligence
of officers, agents, or other administrators, or any other natu-
ral circumstance or human error that would prevent federal
authorities from complying with § 1226(c), cannot be allowed
to thwart congressional intent and prejudice the very interests
that Congress sought to vindicate.

We emphasize that § 3142(f), at issue in Montalvo-Murillo,
was unquestionably written for the benefit of defendant-
arrestees. Part of the Bail Reform Act, § 3142(f) required the
Government to meet a statutory burden before pretrial deten-
tion would be allowed. Here, § 1226(c) was undeniably not
written for the benefit of criminal aliens facing deportation
like Hosh. The Montalvo-Murillo holding that the Govern-
ment does not forfeit its ability to detain a defendant after a
failure to comply with a statutory immediacy requirement
written for the defendant’s benefit is therefore doubly persua-
sive in the instant setting.

C.

Finally, we take a moment to explain why we have
declined to apply the rule of lenity to this case. In immigration
cases, the rule of lenity stands for the proposition that
ambiguities in deportation statutes should be construed in
favor of the noncitizen. See Fong Haw Tan v. Phelan, 333
8
Because the Government would retain discretionary authority to hold
a criminal alien under § 1226(a), Hosh argues that his reading of § 1226(c)
"would not render a person immune from detention because of a timing
violation," while a ruling against the Government in Montalvo-Murillo
would have resulted in a total defeat of the Government’s ability to detain
a defendant. Although this distinction is valid, we cannot say that it makes
the Montalvo-Murillo decision any less applicable to this appeal.
14 HOSH v. LUCERO
U.S. 6, 9-10 (1948).9 The rule exists "because deportation is
a drastic measure and at times the equivalent of banishment
or exile," id. at 10, and courts are reluctant to construe such
statutes against individuals whose rights would be affected
without an affirmative indication from Congress that courts
should do so.

In some instances, as here, the rule of lenity and Chevron
point in opposite directions. Deciding whether to apply the
rule of lenity or whether to instead give deference to an
agency interpretation is no small task. See generally Elliot
Greenfield, A Lenity Exception to Chevron Deference, 58
Baylor L. Rev. 1, 41 (2006) ("Court of appeals decisions indi-
cate a split of opinion on the issue of how Chevron interacts
with the rule of lenity."); Brian G. Slocum, The Immigration
Rule of Lenity and Chevron Deference, 17 Geo. Immigr. L.J.
515, 517 (2003) ("[T]he role of the immigration rule of lenity
in deportation proceedings is not clear due to the competing
[Chevron] deference doctrine . . . .").

In this particular instance, we defer to the BIA without
invoking the rule of lenity. We do so because "[t]he rule of
lenity is a last resort, not a primary tool of construction,"
United States v. Ehsan, 163 F.3d 855, 858 (4th Cir. 1998),
and "[t]o invoke the rule, we must conclude that there is a
grievous ambiguity or uncertainty in the statute," Muscarello
v. United States, 524 U.S. 125, 138–39 (1998) (emphasis
added) (citations and internal quotation marks omitted). See
also Barber v. Thomas, 130 S. Ct. 2499, 2509 (2010) (declin-
ing to invoke the rule of lenity because the Court did "not
believe that there remain[ed] a ‘grievous ambiguity or uncer-
tainty’ in the statutory provision before [it]."); United States
v. Hayes, 555 U.S. 415, 429 (2009) (acknowledging that the
9
While the rule of lenity applies in the immigration setting, its earliest
applications can be traced to strictly criminal statutes. See Liparota v.
United States, 471 U.S. 419, 424 (1985) (citing United States v. Hudson,
11 U.S. (7 Cranch) 32 (1812)). We cite the rule in both forms herein.
 HOSH v. LUCERO 15
statute at issue was "not a model of the careful drafter’s art,"
but rejecting the applicability of the rule of lenity because the
statute was not grievously ambiguous).

Although we have acknowledged that some ambiguity
exists in § 1226(c), we find that such ambiguity does not rise
to a level of grievousness that would require us to call upon
the rule of lenity. See Moskal v. United States, 498 U.S. 103,
108 (1990) (A provision is not "ambiguous for purposes of
lenity merely because it [is] possible to articulate a construc-
tion more narrow that that urged by the Government.") (cita-
tion and internal quotation marks omitted). Thus, the
conditional requirement needed to invoke the rule of leni-
ty—that the statutory ambiguity be "grievous"—does not
exist in this case. In the Chevron analysis, however, deference
should be afforded to an agency interpretation when Congress
has not directly addressed the precise question at issue, pro-
vided that the agency’s interpretation is based on a permissi-
ble construction of the statute. 467 U.S. at 843. As we have
already explained, the conditional requirements needed to
invoke Chevron do exist, and we therefore rely on Chevron
instead of the rule of lenity.

Moreover, we doubt that § 1226(c) is the type of provision
to which the rule of lenity should rightly apply, given the
rule’s express rationale. In immigration cases, courts apply
the rule of lenity because deportation is such a drastic mea-
sure. Although the rule of lenity has not been expressly con-
fined to cases strictly involving deportation, cf. Lok v. INS,
548 F.2d 37, 39 (2d Cir. 1977) (stating that the immigration
rule of lenity was "especially pertinent" in a deportation case)
(emphasis added), we have found no judicial opinions apply-
ing the rule of lenity to the interpretation of § 1226(c)’s man-
datory detention provision. After all, a criminal alien in
Hosh’s position would be subject to deportation proceedings
whether or not § 1226(c) existed; the provision merely with-
16 HOSH v. LUCERO
draws the Attorney General’s discretion to release such an
alien on bond pending those proceedings.10

IV.

We hold that the BIA’s interpretation of § 1226(c) in Rojas
was reasonable, and must be afforded deference. Moreover,
the Government’s supposed failure to comply with a statutory
immediacy requirement—when the statute does not specify a
consequence for such noncompliance—does not bestow a
windfall upon criminal aliens. Hosh, therefore, remains sub-
ject to mandatory detention.

REVERSED AND REMANDED

10
Hosh relies on INS v. St. Cyr, 533 U.S. 289 (2001) for the proposition
that courts should apply the rule of lenity before deferring to an agency
determination under Chevron, but St. Cyr requires no such thing. The rule
of lenity did "buttress[ ]" the Court’s decision in St. Cyr, 533 U.S. at 320,
and the Court indeed did not defer to an agency determination under Chev-
ron. However, the Court expressly relied on a prior case, Landgraf v. USI
Film Products, 511 U.S. 244, 264 (1994), in which the Court, in turn,
invoked the presumption against retroactivity, a hallmark of statutory con-
struction, to hold that a statute that is ambiguous with respect to its retro-
active application must be construed as unambiguously prospective. St.
Cyr, 533 U.S. at 320 n.45; see Landgraf, 511 U.S. at 265 ("[T]he pre-
sumption against retroactive legislation is deeply rooted in our jurispru-
dence, and embodies a legal doctrine centuries older than our Republic.")
(footnote omitted). The prospect of retroactivity does not arise in the
instant matter. St. Cyr, therefore, turned primarily on considerations that
are not before this Court, and it does not compel us to invoke the rule of
lenity.