Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/16

12 categories of aliens covered by subparagraphs (A)–(D) of that provision. An alien covered by these subparagraphs is not “described in” §1226(c)(1), respondents contend, unless the alien was also arrested “when [he or she was] released” from criminal custody. Indeed, respondents insist that the alien must have been arrested immediately after release. Since they and the other class members were not arrested immediately, respondents conclude, they are not “described in” §1226(c)(1). So to detain them, the Government must rely not on §1226(c) but on the general provisions of §1226(a). And thus, like others detained under §1226(a), they are owed bond hearings in which they can earn their release by proving that they pose no flight risk and no danger to others–or so they claim. But neither the statute’s text nor its structure supports this argument. In fact, both cut the other way.

First, respondents’ position runs aground on the plain text of §1226(c). Respondents are right that only an alien “described in paragraph (1)” faces mandatory detention, but they are wrong about which aliens are “described in” paragraph (1).

Paragraph (1) provides that the Secretary “shall take” into custody any “alien” having certain characteristics and that the Secretary must do this “when the alien is released” from criminal custody. The critical parts of the provision consist of a verb (“shall take”), an adverbial clause (“when… released”), a noun (“alien”), and a series of adjectival clauses (“who… is inadmissible,” “who… is deportable,” etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense “describ[e]”) the noun “alien” or that the adverbial clause “when… released” modifies the verb “shall take.” And since an adverb cannot modify a noun, the “when released” clause cannot modify “alien.” Again, what modifies (and