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Syllabus
Syllabus
Held: The judgments are reversed, and the cases are remanded.
831 F. 3d 1193 and 667 Fed. Appx. 966, reversed and remanded.
JUSTICE ALITO delivered the opinion of the Court with respect to
Parts I, III–A, III–B–1, and IV, concluding that the Ninth Circuit’s
interpretation of §1226(c) is contrary to the plain text and structure
of the statute. Pp. 10–17, 20–26.
(a) The statute’s text does not support the argument that because
respondents were not arrested immediately after their release, they
are not “described in” §1226(c)(1). Since an adverb cannot modify a
noun, §1226(c)(1)’s adverbial clause “when . . . released” does not
modify the noun “alien,” which is modified instead by the adjectival
clauses appearing in subparagraphs (A)–(D). Respondents contend
that an adverb can “describe” a person even though it cannot modify
the noun used to denote that person, but this Court’s interpretation
is not dependent on a rule of grammar. The grammar merely com-
plements what is conclusive here: the meaning of “described” as it
appears in §1226(c)(2)—namely, “to communicate verbally . . . an ac-
count of salient identifying features,” Webster’s Third New Interna-
tional Dictionary 610. That is the relevant definition since the indis-
putable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for
the Secretary which aliens she must arrest immediately “when [they
are] released.” Yet the “when . . . released” clause could not possibly
describe aliens in that sense. If it did, the directive given to the Sec-
retary in §1226(c)(1) would be incoherent. Moreover, Congress’s use
of the definite article in “when the alien is released” indicates that
the scope of the word “alien” “has been previously specified in con-
text.” Merriam-Webster’s Collegiate Dictionary 1294. For that noun
to have been previously specified, its scope must have been settled by
the time the “when . . . released” clause appears at the end of para-
graph (1). Thus, the class of people to whom “the alien” refers must
be fixed by the predicate offenses identified in subparagraphs (A)–
(D). Pp. 10–14.
(b) Subsections (a) and (c) do not establish separate sources of ar-
rest and release authority; subsection (c) is a limit on the authority
conferred by subsection (a). Accordingly, all the relevant detainees
will have been arrested by authority that springs from subsection (a),
and that fact alone will not spare them from subsection (c)(2)’s prohi-
bition on release. The text of §1226 itself contemplates that aliens
arrested under subsection (a) may face mandatory detention under
subsection (c). If §1226(c)’s detention mandate applied only to those
arrested pursuant to subsection (c)(1), there would have been no need
for subsection (a)’s sentence on the release of aliens to include the
words “[e]xcept as provided in subsection (c).” It is also telling that
subsection (c)(2) does not limit mandatory detention to those arrested
Cite as: 586 U. S. ____ (2019) 3
Syllabus
ALITO, J., announced the judgment of the Court and delivered the
4 NIELSEN v. PREAP
Syllabus
opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, in
which ROBERTS, C. J., and THOMAS, GORSUCH, and KAVANAUGH, JJ.,
joined, and an opinion with respect to Parts II and III–B–2, in which
ROBERTS, C. J., and KAVANAUGH, J., joined. KAVANAUGH, J., filed a con-
curring opinion. THOMAS, J., filed an opinion concurring in part and
concurring in the judgment, in which GORSUCH, J., joined. BREYER, J.,
filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN,
JJ., joined.
Cite as: 586 U. S. ____ (2019) 1
No. 16–1363
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——————
2006) (an alien was subject to mandatory detention based on a deter-
mination that the alien had solicited funds for a terrorist group).
6 NIELSEN v. PREAP
Opinion
Opinion of
of the Court
ALITO, J.
Opinion
Opinion of
of the Court
ALITO, J.
Opinion
Opinion of
of the Court
ALITO, J.
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5 For this reason, it is irrelevant that (as the dissent notes, see post,
B
In reaching the contrary conclusion, the Ninth Circuit
thought that the very structure of §1226 favors respond-
ents’ reading. In particular, the Ninth Circuit reasoned,
each subsection’s arrest and release provisions must work
together. Thus, aliens must be arrested under the general
arrest authority in subsection (a) in order to get a bond
hearing under subsection (a)’s release provision. And in
order to face mandatory detention under subsection (c),
criminal aliens must have been arrested under subsection
(c). But since subsection (c) authorizes only immediate
arrest, the argument continues, those arrested later fall
under subsection (a), not (c). Accordingly, the court con-
cluded, those arrested well after release escape subsection
(c)’s detention mandate. See 831 F. 3d, at 1201–1203. But
this argument misreads the structure of §1226; and in any
event, the Ninth Circuit’s conclusion would not follow even
if we granted all its premises about statutory structure.
1
Although the Ninth Circuit viewed subsections (a) and
(c) as establishing separate sources of arrest and release
authority, in fact subsection (c) is simply a limit on the
authority conferred by subsection (a).
Recall that subsection (a) has two sentences that pro-
vide the Secretary with general discretion over the arrest
and release of aliens, respectively. We read each of sub-
section (c)’s two provisions—paragraph (1) on arrest, and
paragraph (2) on release—as modifying its counterpart
sentence in subsection (a). In particular, subsection (a)
creates authority for anyone’s arrest or release under
§1226—and it gives the Secretary broad discretion as to
both actions—while subsection (c)’s job is to subtract some
of that discretion when it comes to the arrest and release
of criminal aliens. Thus, subsection (c)(1) limits subsec-
tion (a)’s first sentence by curbing the discretion to arrest:
16 NIELSEN v. PREAP
Opinion
Opinion of
of the Court
ALITO, J.
Opinion
Opinion of
of the Court
ALITO, J.
Opinion
Opinion of
of the Court
ALITO, J.
for a delay if it thought that either way, the Secretary would get to
22 NIELSEN v. PREAP
mandatory detention had not been charged with any crime. Rather, in
a hearing to consider his application for adjustment of status, an
immigration judge found that the alien had engaged in terrorism-
related activity identified in §1182(a)(3)(B)(iv)(IV)(cc), which qualified
him for mandatory detention under §1226(c)(1)(D). Id., at *3, *24.
Cite as: 586 U. S. ____ (2019) 25
No. 16–1363
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HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
No. 16–1363
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Opinion of THOMAS, J.
Opinion of THOMAS, J.
Opinion of THOMAS, J.
Opinion of THOMAS, J.
Opinion of THOMAS, J.
No. 16–1363
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AppendixBA , J.,
to the
REYER dissenting
opinion of BREYER, J.
APPENDIXES
A
8 U. S. C. §1226. “Apprehension and detention of aliens
AppendixBA , J.,
to the
REYER dissenting
opinion of BREYER, J.
“(2) Release
“The Attorney General may release an alien described in
paragraph (1) only if the Attorney General decides pursu-
ant to section 3521 of title 18 that release of the alien from
custody is necessary to provide protection to a witness, a
potential witness, a person cooperating with an investiga-
tion into major criminal activity, or an immediate family
member or close associate of a witness, potential witness,
or person cooperating with such an investigation, and the
alien satisfies the Attorney General that the alien will not
pose a danger to the safety of other persons or of property
and is likely to appear for any scheduled proceeding. A
decision relating to such release shall take place in ac-
cordance with a procedure that considers the severity of
the offense committed by the alien.” (Emphasis added.)
20 NIELSEN v. PREAP
AppendixBB , J.,
to the
REYER dissenting
opinion of BREYER, J.
B
The following citations support the claims made supra,
at 4, regarding the breadth of the Government’s reading of
the statute. I do not intend to suggest that these citations
provide a complete description of the many aliens who are
detained without a bail hearing under 8 U. S. C. §1226(c).
See Jennings v. Rodriguez, 583 U. S. ___, ___ (2018)
(BREYER, J., dissenting) (slip op., at 3) (indicating that
thousands of aliens are eligible to be detained under sub-
section (c), that many are held for six months or longer,
and that “[n]early 40% of those who have served criminal
sentences receive relief from removal”); Preap v. Johnson,
831 F. 3d 1193, 1197 (CA9 2016) (noting that one respond-
ent was detained 11 years after his release from prison);
Brief for Advancement Project et al. as Amici Curiae 12
(presenting data from a recent lawsuit in Massachusetts
indicating that more than one in five aliens detained
under subsection (c) were taken into custody more than
five years after their release from prison); §1226(c)(1)(A)
(referencing §1182(a)(2), which includes aliens who have
committed federal or state controlled substance offenses
for which the maximum term of imprisonment exceeds one
year); §1226(c)(1)(C) (referencing §1227(a)(2)(A)(i), which
applies to aliens convicted of certain crimes “involving
moral turpitude”); Hashish v. Gonzales, 442 F. 3d 572, 576
(CA7 2006) (illegally downloading music is a crime of
“moral turpitude”); Michel v. INS, 206 F. 3d 253, 261 (CA2
2000) (possessing stolen bus transfers is a crime of “moral
turpitude”); §1226(c)(1)(D) (referencing §1182(a)(3)(B),
which covers the “spouse or child” of certain aliens en-
gaged in terrorist activity); §1229b (identifying the re-
quirements for obtaining cancellation of removal).