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Gordon v. Lynch

United States Court of Appeals, First Circuit

November 21, 2016

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,
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. PRECIOSA ANTUNES, Petitioner,

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, Hon. Michael A. Ponsor, U.S. District Judge

          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.

          Before Lynch and Selya, Circuit Judges, and Burroughs, [*] District Judge.

          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 § 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 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, ...

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