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,
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,
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS, Hon. Michael A. Ponsor, U.S. District Judge
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
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.
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.
Lynch and Selya, Circuit Judges, and Burroughs, [*] District Judge.
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).
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).
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
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
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.
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.
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, ...