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8 U.S.C.S. § 1226(a) applies to most aliens who are believed to be subject to removal, and it sets out the general rule regarding their arrest and detention pending a decision on removal. Section 1226(a) contains two sentences, one dealing with taking an alien into custody and one dealing with detention. The first sentence empowers the Secretary of Homeland Security to arrest and hold an alien pending a decision on whether the alien is to be removed from the United States. The second sentence generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. If the alien is detained, he may seek review of his detention by an officer at the Department of Homeland Security and then by an immigration judge (both exercising power delegated by the Secretary), 8 C.F.R. §§ 236.1(c)(8) and (d)(1), 1003.19, 1236.1(d)(1) (2018); and the alien may secure his release if he can convince the officer or immigration judge that he poses no flight risk and no danger to the community. 8 C.F.R. §§ 1003.19(a), 1236.1(d). But while § 1226(a) generally permits an alien to seek release in this way, that provision’s sentence on release states that all this is subject to an exception that is set out in 8 U.S.C.S. § 1226(c).
Federal immigration law empowered the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 8 U. S. C. §1226(a). §1226(c) has set out four categories of aliens who were inadmissible or deportable for bearing certain links to terrorism or for committing specified crimes. Respondents, two classes of aliens, detained under 8 U. S. C. §1226(a), alleged that because they were not immediately detained by immigration officials after their release from criminal custody, they were not aliens described in 8 U.S.C.S. § 1226(c)(1), even though all of them fall into at least one of the four categories covered by §§1226(c)(1)(A)-(D). Because the Government must rely on §1226(a) for their detention, respondents argued that they were entitled to bond hearings to determine if they should be released pending a decision on their status. The District Courts ruled for respondents, and the Ninth Circuit affirmed.
Were the respondents exempt from mandatory detention under 8 U.S.C.S. § 1226(c) because of the fact that they were not detained by immigration officials after their release from criminal custody?
The Court held that the appellate court erred when it ruled that respondent criminal aliens who were not arrested immediately upon release were thereby exempt from mandatory detention under 8 U.S.C.S. § 1226(c) because both of § 1226(c)’s mandates, for arrest and for release, applied to any alien linked with a predicate offense identified in 8 U.S.C.S. § 1226(c)(1)(A)-(D), regardless of exactly when or even whether the alien was released from criminal custody. According to the Court, the scope of “the alien” was fixed by the predicate offenses identified in § 1226(c)(1)(A)-(D); and since only those subparagraphs settled who was described in 8 U.S.C.S. § 1226(c)(1), anyone who fit their description fell under 8 U.S.C.S. § 1226(c)(2)’s detention mandate, even if the Secretary of Homeland Security did not arrest them immediately when they were released.