Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/20

16 The Secretary must arrest those aliens guilty of a predicate offense. And subsection (c)(2) limits subsection (a)’s second sentence by cutting back the Secretary’s discretion over the decision to release: The Secretary may not release aliens “described in” subsection (c)(1)–that is, those guilty of a predicate offense. Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and so, contrary to the Court of Appeals’ view, that fact alone will not spare them from subsection (c)(2)’s prohibition on release. This reading comports with the Government’s practice of applying to the arrests of all criminal aliens certain procedural requirements, such as the need for a warrant, that appear only in subsection (a). See Tr. of Oral Arg. 13–14.

The text of §1226 itself contemplates that aliens arrested under subsection (a) may face mandatory detention under subsection (c). The second sentence in subsection (a)–which generally authorizes the Secretary to release an alien pending removal proceedings–features an exception “as provided in subsection (c).” But if the Court of Appeals were right that subsection (c)(2)’s prohibition on release applies only to those arrested pursuant to subsection (c)(1), there would have been no need to specify that such aliens are exempt from subsection (a)’s release provision. This shows that it is possible for those arrested under subsection (a) to face mandatory detention under subsection (c). We draw a similar inference from the fact that subsection (c)(2), for its part, does not limit mandatory detention to those arrested “pursuant to” subsection (c)(1) or “under authority created by” subsection (c)(1)–but to anyone so much as “described in” subsection (c)(1). This choice of words marks a contrast with Congress’s reference–in the immediately preceding subsection–to actions by the Secretary that are “authorized under” subsection (a). See §1226(b). Cf. 18 U. S. C. §3262(b) (referring to “a person arrested under subsection (a)” (emphasis