Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/19

Rh In reaching the contrary conclusion, the Ninth Circuit thought that the very structure of §1226 favors respondents’ 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 concluded, 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.

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 provide the Secretary with general discretion over the arrest and release of aliens, respectively. We read each of subsection (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 subsection (a)’s first sentence by curbing the discretion to arrest: