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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Michael A. Ponsor, U.S. District Judge.
Elianis N. Pérez, Senior Litigation Counsel, United States Department of Justice, Civil Division, Office of Immigration Litigation, with whom Sarah B. Fabian, Trial Attorney, District Court Section, Stuart F. Delery, Assistant Attorney General, Civil Division, Colin A. Kisor, Director, Office of Immigration Litigation, and Elizabeth J. Stevens, Assistant Director, were on brief, for respondents-appellants Steve Souza, Eric H. Holder, Jr., John Sandweg, Sean Gallagher, Christopher J. Donelan, Michael G. Bellotti, Steven W. Tompkins, Thomas M. Hodgson, Joseph D. McDonald, Jr., and Jeh C. Johnson.
Gregory Romanovsky, with whom Livia Lungulescu and Romanovsky Law Offices were on brief, for appellee Castañeda.
Matthew R. Segal, with whom Adriana Lafaille, American Civil Liberties Union of Massachusetts, Judy Rabinovitz, Eunice Lee, Michael Tan, ACLU Foundation Immigrants' Rights Project, Elizabeth Badger, and Lutheran Social Services were on brief, for appellee Gordon.
Alina Das, Sean McMahon, Legal Intern, Etan Newman, Legal Intern, and Washington Square Legal Services, Inc., Immigrant Rights Clinic, on brief for Detention Watch Network, Families for Freedom, Greater Boston Legal Services, Harvard Immigration and Refugee Clinical Program, Immigrant Defense Project, Immigrant Rights Clinic, Maine People's Alliance, National Immigrant Justice Center, Political Asylum/Immigration Representation (PAIR) Project, University of Maine School of Law Immigrant and Refugee Rights Clinic, as amici curiae in support of petitioners-appellees Castañeda & Gordon.
Prasant D. Desai and Iandoli & Desai, P.C., on brief for American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Massachusetts, American Immigration Lawyers Association, and the National Immigration Project of the National Lawyers Guild, as amici curiae in support of petitioner-appellee Castañeda.
Before Torruella, Dyk,[*] and Thompson, Circuit Judges.
DYK, Circuit Judge.
In these consolidated habeas cases, we must determine whether the petitioners,
two aliens, are subject to the mandatory detention provision of the Immigration and Nationality Act, 8 U.S.C. § 1226(c). Subsection 1226(c) provides that the Attorney General " shall take into custody any alien," who has committed certain predicate crimes, " when the alien is released." Unlike other aliens facing the possibility of removal from the United States, aliens subject to mandatory detention are generally ineligible for bail even if they show to the Attorney General's satisfaction that they are not dangerous and are likely to appear at removal hearings.
Each of the petitioners here committed a predicate crime listed in § 1226(c) but was not taken into custody by the Attorney General until years after being released from state custody. Because § 1226(c) only applies to aliens detained " when . . . released" from criminal custody, and because the petitioners were not timely detained under any reasonable interpretation of the statute, we conclude that the petitioners are not subject to mandatory detention under § 1226(c) and are entitled to an individualized bail hearing under § 1226(a). We therefore affirm the district court's grant of habeas corpus relief in each case.
The mandatory detention provision of section 1226, subsection (c), is part of a section of the Immigration and Nationality Act which governs the arrest and detention of aliens subject to removal from the United States. See generally 8 U.S.C. § 1226. The general rule under that section is that aliens arrested and charged with removal may be released on bond pending removal proceedings:
(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) [the mandatory detention provision] 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 . . . ; or
(B) conditional parole . . . .
Id. § 1226(a) (emphasis added). The statute thus provides that after an alien's arrest the Attorney General " may continue to detain the arrested alien" or " may release the alien" on bond or parole. Id. § 1226(a)(1), (2). We refer to this provision, subsection (a), as the general detention provision. The general detention provision does not require the Attorney General to release an alien under any particular circumstances, nor does it limit the factors that the Attorney General may consider in deciding whether to detain or release an alien. See id.
The process by which the Attorney General determines whether an alien will be released on bond pursuant to subsection (a) is governed by administrative regulations. See generally 8 C.F.R. § 1236.1. The first step in the process is a bond
determination by an immigration enforcement officer. See id. § 1236.1(c)(8). To be released, an alien must prove " to the satisfaction of the officer" that his release would not endanger other persons or property and that he is likely to appear for any future proceedings. Id. Release may be revoked (if it is granted at all) " at any time in the discretion of" the immigration enforcement officer. Id. § 1236.1(c)(9).
An alien dissatisfied with his initial bond determination may request a redetermination of bond by an administrative immigration judge. Id. § 1236.1(d)(1). The immigration judge applies the same standard as the enforcement officials and reaches an independent judgment about the alien's eligibility for release. See id. If the alien is still dissatisfied with his bond decision, he may take a further appeal to the Board of Immigration Appeals (BIA). Id. § 1236.1(d)(3).
No judicial review is available for an alien's bond determination. The statute provides:
The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
8 U.S.C. § 1226(e). Thus, the exclusive authority to make and review bond determinations lies with the executive branch, whose discretionary decisions are generally immune from review in Article III courts.
The mandatory detention provision, § 1226(c), is framed as an exception to § 1226(a)'s general detention provision. See id. § 1226(a) (" Except as provided in subsection (c) . . . ." ). Under this exception, aliens who have committed one or more predicate crimes are to be detained by the Attorney General " when . . . released" from criminal custody, and may not be released on bond except in rare circumstances not present here. The sole procedural safeguard for such aliens is a " Joseph" hearing at which the alien " may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the INS [now ICE] is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention." Demore v. Kim, 538 U.S. 510, 514 n.3, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003); see also 8 C.F.R. § 3.19(h)(2)(ii); In re Joseph, 22 I. & N. Dec. 799 (BIA 1999).
The predicate crimes for mandatory detention include aggravated felonies, crimes of moral turpitude, human trafficking, certain firearm offenses, treason, espionage, terrorism, and various others. See id. § 1226(c)(1)(A)-(D). Of relevance here, they also include violations of state, federal, or foreign laws relating to controlled substances, from drug trafficking to simple possession. See id. § § 1226(c)(1)(A), 1182(a)(2). As this court held in Saysana v. Gillen, 590 F.3d 7, 15-17 (1st Cir. ...