tv Nielsen v. Preap Oral Argument CSPAN October 13, 2018 12:00am-1:04am EDT
versus preop. looked at a federal immigration provision which makes detention of criminal aliens mandatory. the cases brought by a group of lawful permanent residents who were arrested and detained years after the answer time for their crimes. and without a court hearing they face deportation. the ninth circuit court of appeals in california ruled in favor of the group for the trump and ministration disagreed with the ruling and believed it would prevent efforts to conduct deportation quickly. next, the full hour of argument before the supreme court. >> we will hear in case 1663, nielsen second day: insecurity versus preop. mr. tripp. >> mr. chief justice in may it please the court, criminal alien does not become exempt from mandatory detention by the happenstance that dhs did not arrest them immediately or
probably after they got out of jail or prison. ... st way to illustrate the point is to look at the statutory text. the key provision we're talking about here is 1220 6c2, is a prohibition against releasing a detained criminal alien.this is on page 4. what it says is that, the secretary may release an alien described in paragraph one, only if it is for witness protection. and it is undisputed here that the witness protection exception does not apply and the categorically prohibits the release on bond of anybody who is an alien described in paragraph one. the question is, who are the aliens and paragraph when it is on the prior page, it answers that and it is in no uncertain terms. he says the secretary shall take into custody quote - any alien who is inadmissible or is deportable under these different provisions that relate to their criminal
history or terrorist activities. and so, an alien described in paragraph one is any alien who is inadmissible or deportable under one of these provisions. the next part of the statute -- >> when the alien is released, does it command you to do anything? >> the key function of that, so, is to tell the secretary when to act. right? it is aligned flush left along with command that the secretary -- >> you do not see any sense of urgency in your acting? no sense of encouraging you? >> no -- >> to actually do the statute says? >> this conveys a sense of urgency and i think we are in full agreement with respondents that this is directing, it is an urgent priority, a mandate you know and it kicks in and is triggered as soon as the alien is released. our key point is that when the alien is released -- >> tell me, why would you have me transition rules? under your reading of the
statute? which there were, the transition rules, you have two years essentially to put in place, enough personnel and facilities to do what the statute requires you to do. why did you need that two year period if in your view, you have absolute discretion to pick and alien up when you want to anyway. >> i think it is really not a fair characterization of our position. our understanding is this is a mandate it is triggered immediately and a very large number of cases, the arrest will occur medially. and the real concern with transition. rules with lack of -- under both interpretations is, it will drive up the number of aliens arrested. >> why do you need the transition rules at all? if you have discretion, as you
claim to have, to decide when you will pick up an alien, either the date of release or in one case, before us, 11 years later. you did not need the transition rules. you could have just done what you needed to do to create the best base or get the personnel and start arresting people when you thought you could. >> again, want to be clear. we do not interpret this to say we can arrest a person whenever we want. we understand this to be a continuing, urgent obligation to arrest them right now. we need to arrest them when they get out, we need to arrest them the next day, the next month. whenever it happens. but sometimes it may not occur for years. dhs does not know where the person is. >> let's go to the release provision. >> right. >> paragraph one. an entire paragraph. it describes a type of alien and an alien who is picked up at a particular time. so, if the statute intended,
this lack of authority to kick in, if an alien only met a through d. why does the statute same that- say that? >> those are the only portions of the statute that describe, they actually describe the alien. the phrase when the alien is released, does not describe him, it takes -- >> what type of alien are we talking about? it describes the person who is subject to this provision. >> i don't think that's right because it says, that might be right if it says something like the secretary shall take into custody any alien who is inadmissible and deportable and who has not been released for more than such and such amount of time. but that is not what it says produces when the alien is released, which i think it has a ready been described. but i think another important answer to this is the text of
1226 a, which owed also to walk through. the basic theory is that the arrestor happening under a. i don't think they're right but if so they were still loose. this is actually at 141 a. 1226 a, this is the background rule. and it has like c the first is about rest and the second about custody. the first sentence says on a warrant issued by the attorney general them and alien may be arrested and detained pending a decision on whether he is to be removed. so what c one does it it turns in into a mandate that she shall arrest mr. criminal alien. >> your position, is totally irrelevant whether the change in custody is immediate? or seven years down the road. whenever it occurs.
the attorney general has no discretion to have a bond hearing. whenever it occurs, seven years, eight years, 10 years. the person is detained without -- >> that is absolutely our understanding of c2. >> along those lines, mr. tripp, does the government have any view, if ever, the obligation under lapses?could be -- >> under c1? >> yes the obligation to take into custody. 30 years and the government was aware of them the whole time and chose not to act. is there any limit? >> we understand that c1 to be a continuing obligation does not lapse. but effective follow-through with the text of a and how it supports us on custody determination i think it would be helpful. there is the first discretionary authority to arrest the alien. the next sentence talks about, what do you do after he's been
arrested? what it says is, except as provided in subsection c, secretary either may continue to detain him or release him on bond. but see -- c says you cannot at all. >> with respect to a group of people not involved here, as i understand it the eight 3d categories include some people who have never been in criminal custody at all. spouses and children of terrace for their number of categories of people that have never been in custody at all. so they fit within this a through d category. i'm wondering where you think the authority to detain them comes from? is the authority to detain them come from c or a? >> the authority to -- i think actually for all of them, the authority to do the arrest comes from a. but what happens
with c is, c1 makes the arrest mandatory. and we do think it makes it mandatory and clean for those that have never been in custody at all. that when the alien is released, describes when the duty is triggered but there is some alien in particular with the c1, d category, the national security terrorist ones where the person is never been in any prior custody. but again it really -- >> well, it's sort of matters to me. >> i think. >> you could be saying, if i understand your view of described in paragraph one, these aliens are not described in paragraph one even though they've never been in criminal custody. >> that's right. >> that would suggest that c1 is authorizing the detention. and that is what you are saying. >> no, i'm sorry -- c1 is about rest just like the first sentence of a is about arrest.
>> how are you resting these people? are you doing it under c1? >> i think frankly we are resting under both a and c1. the arrest, you have to be upon a warrant, the requirement comes from a, all of this is pending the determination whether the alien is to be removed. >> we say you are resting them under both, they say that with respect to everybody under c1? you're also arresting them under a? >> yes. >> that i am not interested in. you are saying that those people are under c1. to the same extent as people who have been in criminal custody. >> that's right. >> so that seems odd to me. because c1 seems to me, all about people who have been in criminal custody. you have this question about how about if there is a gap between the criminal custody? but you are interpretation, necessitates that you understand even people have never been in criminal custody, as part of the c1 group.
>> that's right. i think what the i would point out is in the overwhelming majority of applications, it is still totally sensible because in the overwhelming majority applications, the person is a bad criminal. in all the criminal there will be some prior criminal custody. >> there's a small group, relatively, but definitely a group. there are quite a number of subcategories that have never been in criminal custody. we could go over what they are if anyone is interested but there is a number. your statutory interpretation particularly, your narrow view of the term described in paragraph one, requires that those people be understood as within the c1 custody authority and i don't know, i look at the c1 custody authority and it is all about criminal custody and what happens when you release criminal custody and that makes me think that your interpretation of the words described in paragraph one, is wrong.
>> i think it is more that you may disagree about whether the duty to, the mandate to arrest them in c1 kicks in when an alien has not been in prior custody, some prior state or federal custody. but even if you disagree with us on that, first of all, all respondents here have been in some prior custody. and of course, what we are really saying is that you know, the timing of the arrest, the timing of their release is just, is totally irrelevant when it comes to c2. >> what about the first -- i mean, we have read the brief, you have read them. it seems to me people have been detained for 11 years. >> they have been arrested. >> 14 years of being released. one for a bus transfer.
for stealing bus transfers. all you have to do is read the briefs. to me, i'm not saying to you. that is a parade of possible future horribles. those are the horribles. every person in the united states, just about, if arrested, has the right to a bail hearing. as you note for my opinion, i think it is unconstitutional. but the court did not decide the contrary. so, assume as i am assuming, that this paragraph is ambiguous at most in your favor. and if it is ambiguous, and if there is a huge, as i think, a huge constitutional question, then don't reread it, not to apply or to apply to those who have been properly r i take itel you don't think the government can come back 50 years later and arrest somebody whose grandfather or -- 50 years
earlier, is that what you think? a couple of -- >> couple of responses. first, of course, our topline answer is that it is not ambiguous, -- >> fifty years later, who is on his deathbed, after some bus transfers, this paragraph says, the attorney general shall reading hold hold and release him. triple ax murderer is given bail. >> a couple of more answers. first, i don't think that hypothetical would hold out. it can be a crime involved anymore to the dude butld both e deportability and the provisions on crimes in moral to put dude, deportablele aliens. >> the question is my question. i wish you would answer it. their legion, their legion.
whether it's a bus transfer, whatever hypothetical, it doesn't matter. fifty years later, a minor crime, you say, the government must come and arrest him. >> i'm not trying to go over the moral to the dude. >> this paragraph, it says, shall be arrested upon release, applies to a person who has been released 50 years the four. what is your position? >> absolutely, this applies regardless. it went to affect 1958. to get into the -- >> let me ask another question. i have the answer to this. my second question is, there is support for your position. in the cases that support it, i thought with a cases that says when the government misses a
bail deadline, then you can go ahead and have the bail hearing anyway. when there's a bail deadline, it's because that's not really set about what happens when you miss the bail. the same is true here. that is your strong argument. this is my question. i thought that, is this like those cases? wagot the answer was, well, yes. in a sense. no statement of what happens when you miss the deadline, right there. the government wants. but there is a big difference. in the bail cases, the result of missing the deadline, the result of reading and, no deadline is you're going to have a bail hearing, the committee will be protected, right?
the community will be protected with a bail hearing. the individual will not be hurt much. he will only be missing. the hearing that he should have had anyway. but in this case, if you read the statute the same way, but you are doing to the individual is many more -- no danger to the community. you're depriving the hearing that could be released, and said you're keeping for 11, 12, 14 years. what you are doing to the community, reading that you are right, if we read in the opposite way. nothing. you have the bail hearing, they won't get out. i thought in terms of the, are you following what i'm saying? the purposes of the bail statute, for this statute or any other statute, we read it, technically, your way.
we heard everybody. in her terms of the purposes. we read itay oppositely and we hurt virtually nobody. >> i think thisir is better late than never cases are squarely on.for our understanding of and see one and the key.as you said, is a couple of things, what in the authority that we would lose? c2.th the ability to hold on without bail. the statute is to stop doing bail hearings on the traditional bear factories. that's the entire.not. they worked with it for years and years and years. i think basically at the end of the day, the answer was, enough is enough. if you're an alien, you c commit one of these crimes, whatever right you have, in the communi community. can back, the defeat the purpose of the statute. we have two very powerful examples here. we have mr. preop, out for seven
years. read arrested for domestic abuse charge. we haveth -- >> he did get cancellation of removal. but he was out for three years, on hearing, release, attempted to murder his ex-girlfriend and succeeded in murdering her new boyfriend. >> was the definition, it consists of wholly of people who have been, who were released from criminal custody many years ago? >> not even close. any criminal who is not arrested in medially. so there's an extraordinary mismatch tween the claims that i think respondents were getting out for long, long term. i think -- >> any sense of understanding,
estimate -- in the whole class, how many people who were detained that later -- how many people were detained a plus later? >> the short answer, we really don't know. no record on that. one thing that my help, if i could take a step back and explain why it can occur and why they are fairlyn long. in order to arrest an alien under one of these provisions, they need to know, the person is actually alien, if they have actually committed one of these crimes. in many cases, by dhs officers on the ground, pulling the records of conviction, the statute comparing the elements. i think the courts are painfully aware that that can be painfully long and time-consuming. a reasonable cost, the word --
>> the words that we know are there. on his release, a reasonablehe time within his release. a reasonable time. therefore the people weapon hiding in the mountains for ten years, that's a reasonable time. but the people who have families and have jobs and have lived r tizens as can in the community for 14 years. that was not a reasonable time. fourteen years later. what about that typical legal term in order to satisfy the government says as you say, major interest. >> couple of responses. first, the two doesn't have a timing requirement at all. that's the statute that we are relying on.n. secondly, i think the force of what you are saying, is that it feels different when aliens have been out for a long period of time. what that is getting at is, i think that it would have been rational for congress to add statute of limitations.
to say something into c2, an alien may be released only -- hasn't gotten into trouble in ten years. >> are you saying that there is no constitutional claim as to any of these people? even if a person hasas been out arr 15 years and has established prize in the community? are you saying there is no constitutional problem with that? >> we certainly don't think there is a substantial problem with that. squarely upheld this statute, they are not asking the court to overrule. they are not saying it's wrong. the only argument is that the moral only applies with the person who was arrested within a day. >> that is what i'm saying. assume that this class were made up of people who hadn't -- who had lived after release from criminal custody for a substantial period of time. whatever it is, five, ten, 15 years.
with a have constitutional, serious constitutional years in your you? >> i think the answer is no. c when they are put into proceedings, they not been happened, the incentive to fleet is not substantial. there criminal conviction is always going to -- it's not going to look -- >> what is eligible for release? >> only some criminal aliens and lpr's have eligibility for release. if you are not in lpr, the barrier is much broader. but also, i think again, even the facts of this case, showed the danger of cynicism is not just pure -- >> do me one favor. assume i am right. assume that there is a constitutional problem in a country particularly with the
triple asked murderer. these people don't. all you're involved is a bail waree. assume another thing with me. the statute is ambiguous. if i'm right on those two things, why would the government really care? why does the government care? why wouldn't want to say, let's give them a bail hearing? the ones who were knows risk -- >> i think the real concern is, congress was getting at here is that taking this prediction of which criminal aliens are going to fleet in which will reoffend, it was hard. the example is, it drive to home. with the criminal alien in front of them. on basis of the traditional bail factors. they areon aces -- too many of
them were released. they experimented with this, that was a rule for many decades until congress started narrowing down in building out these -- >> they push on the question whether there might be some circumstances in which an alien who was otherwise within the statute would have a right to a healing hearing. we agreed to decide, related to what -- the requirement that the alien that homeland security take the alien into custody medially. the class aliens that was certified by the district court. if we were to reverse that determination, with that preclude a challenged? challenge by an alien who fell within the circumstances that
have been described? >> course not. it's always available in much more stable than what congress was trying -- >> you agree that an alien could bring that challenge notwithstanding,al 1226e? the jurisdictional -- winning the challenge? >> aliens bring these claims with some frequency. if i could serve for that one. >> thank you counsel. >> mr. chief justice. the government's reading is contrary to the text, structure in the purpose of the statute.
in at least three ways. one, indicates congress directive to use finite mandatory detention resources on those who would otherwise be released into the community from criminal custody. second, it's not true that congress wanted to detain and deport all criminal aliens as the government claims in his replied on page 12. three, if congress really wanted what the executive branch claims here, it would have simply rich in a statute that says, people in these four categories shall be detained without a hearing until removed. that is not what congress did. instead, congress wrote a statute, 1226c as an exception to the general detention seeing in 1226 a. it applies, except as provided in subsection c. not as except as provided in section c2. as the government would have it. congress wrote, section 1226c
into paragraphs. the first paragraph says, who gets taken into custody and when. the second paragraph says, of those people, in paragraph one, who can be released. the government claims instead, in a stretch of a reading, that you focus only on paragraph a through d. and paragraph one. in other words they say, section c2 stands alone as an authorization for mandatory detention. but that's not what congress said. it said, except as an alien described in paragraph one. not an alien described in paragraph one a through g. the government's reading tried to pull section two, c2, out in the freestanding authorization three serious anomalies. they struggled tost explain. the first anomaly is, as you notice, that the transition
rule, which were meant to be a ramp up to the permanent rule, are completely separate bliss. if the government really could delay for whatever reason, picking up people to mandatory detention for as long as it needs or wants, and congress would not need to have that intermediate step. the second and only with the government's reading, is in the governments struggled with this in response again to your question, is that if the only qualification to be subject to mandatory detention is that you fall into one of the four categories in a through g, they necessarily read-out the prior criminal custody wire met. in addition, a child or spouse over terror list, there is a typical situation.
by an immigrant, i show up with my green card interview. i live in california or washington and i constantly say, yes, i use marijuana on a regular basis. i've never been arrested, i've never been convicted, but they some by admission, a controlled substance, unlike then, subject to mandatory detention as i sit there, in sevis office under a reading. the government acknowledges that eliminating i higher criminal custody requirement will be anomalous. and they do acknowledge as a prior criminal custody requirement. but instead of finding that in the natural obvious place in the four corners of the statute, that is, as they pointed out, the phrase when the alien is released, they go hunting around, back to the effective date provision for section 1226c. it says it applies to aliens
>> and you are taken into custody if you are released from criminal custody and in the witness protection purposes mandatory detention. >> and i ask you that if i don't get a hearing and someone who has the benefit does get a hearing. >> my first response to you justice ginsburg is that is what the statute provides in the second response that the court decided in 2003 that
applying mandatory detention that what before is before the court now is constitutional and to answer the question that there are two reasons the government says better late than never there are lots of reasons why this congress did not because of the return statute which would indicate if the person was not taken into custody bydy ice then you get a hearing. >> does that mean immediately? . >> yes your honor. >> so when they walk out of the jail to take them into
custody? . >> i we would ask them to affirm the ninth circuit which said a reasonable degree of immediacy is appropriate. >> what does a reasonable bldegree mean? how many people from criminal custody today so how is the federal government going to be able to determine within 48 hours or short period of time whether those individuals would be subject to the mandatory detention of the statute? california will not tell the federal government was person is not an alien or a citizen how are they supposed to do that? . >> congress was thinking about
state and local cop cooperation at the same time they were enacting section 1226c so they set up hchanisms with federal authorities through statute and also as a 287 agreements but that major innovation that congress wanted during that same timeframe is described in the senate report with the y tomated fingerprint system. when congress raises rating the section all the pieces needed in the mac and mechanism to work. >> the first part of your answer is the state government and municipal governments are going to provide this
information. >> that is what congress anticipated when it wrote the statute. >> largely what is happening now set up from 1996 through the data we have cited that in fiscal year 15 through 1794 percent of federal request for local jurisdictions were complied with. and the larger point is that we have to agree what congress was doing in 1996. and with controversies that what does shed light on what congress made. >> but what they enacted was that attorney general. t but any alien that satisfies certain requirements when it was released? . >> and to that extent looking
at state and local cooperation they dealt with at the those other three statutes and automated fingerprinting through state and local jurisdictions but the court dealt with similar parallel arguments and the court said with these practical considerations looking at the words that congress wrote in that practical consideration that pertain in the current environment in 2018 don't shed light. >> but when the alien is released means in the ninth circuit means immediately or within 48 hours or within a reasonable period were after the release? that is the question before us quick. >> yes your honor. we the court again to say the government should act to take
into custody with reasonable degree of immediacy. so that immigration appeals said 48 hours is outside that time limit. we think the same day is appropriate. we don't think if ice shows up to pick them up on the release date and then they encounter them at the parking lot or the bus stop or anywhere on the same date. >> a reasonable time in the law courts have managed to deal with this. so why wouldn't we avoid these problems if they say release we say a reasonable time quick. >> exactly. there is a reasonable degree of immediacy that is not immediate.ed
so which one are you asking for a reasonable degree of shmediacy which strikes me as a very short time or a reasonable time? that would depend on example the resources available to the department of homeland security it isn't reasonable if they don't have enough people to do it i don't know what is reasonable that that immediacy is something else otherwise that isn't immediate. >> the ninth circuit was using the phrase reasonable not withh respect to making reasonable efforts but acting in good faith but the statute says when? . >> but as the judge pointed out in his opinion, if it's not immediate then maybe it is one year? maybe it is six months. >> i think it is certainly not
when it is released one year would not suffice. tithink the same day would be fine or as the dia said the government asked the court to defer to that 48 hours is not within the scope. >> so reasonable time isn't giving any flexibility of statute if it has to be 48 hours. >> we think that is too long. >> you think it is the same day quick. >> we think it is the same day to get to the justices doubt tothere is no accuse us to cherry pick the cases. in fact, the date that government provided in the parallel case in the first circuit says that years delay
to show the average delay between criminal custody release is three years. >> in your class what percent of the class has been out more than a year? . >> justice kagan we didn't get the discovery in this case we only have it of the first circuit so i don't have the numbers. >> what was the answer in that case quick. >> the average delay was three years the median was 13 months in that class. and again that is what the government provided us. >> let's assume a hypothetical situation. the government goes to the jail that day that they will get out at 10:00 in the morning but he gets out at
7:00 so then they go looking for him but now he's gone underground. doesn't show up at parole office never talks to family or friend friends. they look for him periodically over a period of time now all of a sudden he is rearrested. do you see that as a different reasonable time situation than what happens and the government for example, that i understand from the briefs that they put in a detainer and don't bother to show up quick. right justice soto mayor. > if there is a difference than why are we marking a central limit on what reasonable effort to comply of the statutes might mean? it seems that justice breyer is right that the law is filled with reasonable efforts
to comply with terms of command but i don't know how we can set thato limit in the way that you are promoting. >> i. >> i think you can justice soto mayor because i'm trying to go through the words that congress wrote they use the phrase when the alien's release that everybody hasn a component not mandatory detention for reasonable effort and just to give a counterexample i agree with you the record here by the advancement project shows most of these people who are picked up years later like rodriguez who was detained many years after he was released from criminal custody at home.
even the ninth circuit noted in argument that they voluntarily appear with the agency. it's not a case whereui the government is dealing with someone who is a fugitive who is trying to hide. so i will cut to the chase. but i do think the statute that congress wrote so for whatever reason it doesn't take custody when the alien is released, within the same day is fine, then the person gets a hearing under subsection a and that is the only consequence from justice breyer. >> okay. you hinge a lot on the language and after 1996 in response to justice soto mayor
when the alien is released. but if we focus carefully on the language what do we do about the fact that is the adverbial phrase? you are asking us to suggest it modify the noun to limit the class of aliens alien is a noun. that usually doesn't modify a noun it will modify a verb and the verb is taking into custody so why isn't it that the duty shall take into custody is modified by the adverb when the alien is released? so the obligation begins at that moment. the class of aliens the new has nothing to do with the adverb now that is the question of my fifth grade grammar. n[laughter] . >> the reason why justice
because adverbial phrases do describe a noun just as they do in the statute. first for all the reasons i have already said. -- usually they modify the verb. you are asking us to take a rather unusual view of grammar's wife to go deep into the footnotes. why would i do that quick. >> is not the first time congress had poor grammar. [laughter] two reasons just discourse which for the reasons that he already said from the structure of the statute that congress meant paragraph two togr describe the subset of people who were taken into custody from paragraph one and all of paragraph one we are y not omitting the language as my friend describe said that
yes it may be uncommon from the adverbial phrase to describe the noun but it can happen. i will give you a hypothetical example. i may tell you in a two paragraph instruction number one harvest the grapes when they write the number two make the wine from the grapes described from paragraphth one. the grapes refer to the temporal component not when they are over or under ripe but from those. >> i don't follow the example but i'm not sure i buy it and i will tell you why. i command you. [laughter] i think my fifth grade grammar teacher would love this discussion. but i wouldra say there you are modifying the verb when you are supposed to harvest that
is the first section then you say whenever you harvested the grapes that we have described you haved, harvested so it still depends upon the verb in that paragraph so i'm not sure that gets around the problem. >> justice gorsuch another way to put this that the government is referring to as the adverbial phrase could be rephrased as an adjectiveut tnte hypothetical that we gave in the brief of the redhead and in theou blue jacket when he arrives on the 3:00 train is a characteristic of the man that is described. in the same way that i think congress in paragraph two by using the phrase in alien described in paragraph one not a through d but it fits the whole and and in the entirety of paragraph one to describe
the alien in that paragraph. . >> that congress would have known or thought it wouldn't be immediate in many cases. . >> but yes on - - but yet there was no time limit of reasonable time as justice breyer or one year or two years or six months or 48 hourss.. when you combine those congress knew it would not be immediate but yet congress did not put in a time limit so that raises the real question for me if we should be superimposing a time limit in the statute when congress itself did not do so. >> justice kavanaugh we are not asking you to superimpose a timend limit we want you to give meaning to the words of the statute law - - the statute that congress enacted. >> that when you say when it
is a time limit of immediate or same day and my point is that is very odd when you think what congress is doing in 1996 they were well aware that would not happen because of resources or they were not learning about it right away. it would be odd to think that is what the statute means even though not often effectuated in that way. >> your i honor, again, as justice breyer noted congress will often have a soft target when they legislate in this way and remember. >> a soft target that justice breyer may say a reasonable time in congress could have put that in and that is a good idea but congress did not do that. >> your honor that congress says when, that is in the
common sense within a reasonable time of the eventa happening. >> then follow up on the chief justice's point if reasonable immediacy versus reasonable time? . >> i think the ninth circuit used reasonable degree intermediatelyd - - immediately interchangeably or immediacy as pointed out and that is in the primary dictionary definition. but i do want to say one other thing in response justice kavanaugh. subsection c mandatory detention without an individual hearing is written as then exception to subsection a. to all the consequences is the hearing. so the bad ones as justice breyer said they will be detained. >> but congress did not trust
those hearings for certain classes my understanding. correct me if i'm wrong but congress was concerned that those hearings were not working in a way that congress wewanted and therefore for certain class of criminal terrorist or aliens they said no more. >> that's right. but the question is what is the class. congress wrote the statute to say take them into custody when released. otherwise except as provided in paragraph c or subsection c. so i want to point out the bipartisan group the former ins council said they agree with our reading of the statute and they say detention under 1226 a. >> but every other circuit disagrees. >> some of the circuits your
honor deferred that the government asked to defer to and partly not because they disagreed with paragraph one but not with paragraph two. in the fourth circuit actually read the decision incorrectly and deferred on the when released ground. i think for the ninth circuit and below they got it right. that reading gives full meaning to every word in the statute. it makes sense of the two paragraph structure and the way it is written as the acceptance to letter a. at the time congress wrote the statute, this congress - - this court had never before approved a civil or executive detention without individual risk of danger so congress should have presumed to have written that narrowly as the
ninth circuit and judge baron pointed out as justice breyer was alluding to come it is one thing for the court to say to constitutionally apply a categorical presumption. >> is that presumption based on what was really going through congress his mind at the time? or based on a constitutional overlay? what wasme really going through the time in 1996 was hardship. is that not right? . >> congress was certainly trying to deal with they presumed to be a problem and who were they targeting with the statute? i think the words that congress chose our narrow. they clearly say people had to be in criminal custody under these foregrounds. and a serious constitutional problem. >> i can see the equities when the alien has been there a
number of years that congress thought this class of aliens was dangerous and should not be district on - - trusted. c would say this requires detention as soon as they get out. if that's the case and it obviously is why would congress think about someone who's been out for a week? . >> two reasons. the legislativeon history makes it clear that congress wanted ice instead of ins to focus limited capacity to detain on people on already criminal custody in other words, don't spread yourself too thin. it takes more effort to go find people in the community that's right. >> what do you think of
reasonable time? does that concern a case that these people were detained without bail hearings for less than six months does that imply a six-month limitation on other but related holding of aliens? so what would you think from reading the statute in my opinion because that is not the magna carta. so we read the statute the same way. there it is. and m we say six months. . >> i think justice breyer i think months would be an extraordinary amount of time
and a little far afield from the words congress chose and i remind you the board of immigration appeals said 48 hours was too long. if the court wishes to draw a line as you did in that case i think that is fine but we should follow the words that congress wrote. >> thank you. . >> i have a couple of points. the key question is not the meaning of when but who are the aliens described in paragraph one and the answer is any alien with the requisite criminal history at the time is not relevant. >> that exclusion they did not say paragraph one they said the entire paragraph. why is the verb or adverb part of the noun? in that situation? because if they want to limit it to that class that is the
easiest thing to have done to list 1226 a then they would've said that. >> a couple of responses but the main one is that the phrase when the alien is released it doesn't modify who it is that is already been fully described. >> when he is released identifies the alien they are looking at but you said there is a command you have to follow to try to take these people into custody. there is a command to do it but you don't have to you can choose not to i don't know what type of command that is. but at least you recognize
there is a sense of urgency and you should do this. so why doesn't that describe the noun? . >> three responses. first we don't think it modifies who the alien is at all even if you think that it does and there is a requirement this court has said again and again and again it's better to be late than never and then that one is ecabout arrest one is custody