Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/26

22 rules not been adopted, the Secretary’s failure to make an arrest immediately upon a covered alien’s release would not have exempted the alien from mandatory detention under §1226(c).

The Court of Appeals objected that the Government’s reading of §1226(c) would have the bizarre result that some aliens whom the Secretary need not arrest at all must nonetheless be detained without a hearing if they are arrested. 831 F. 3d, at 1201–1203. This rather complicated argument, as we understand it, proceeds as follows. Paragraph (2) requires the detention of aliens “described in paragraph (1).” While most of the aliens described there have been convicted of a criminal offense, this need not be true of aliens captured by subparagraph (D) in particular–which covers, for example, aliens who are close relatives of terrorists and those who are believed likely to commit a terrorist act. See §1182(a)(3)(B)(i)(IX). But if, as the Government maintains, any alien who falls under subparagraphs (A)–(D) is thereby ineligible for release from immigration custody, then the Secretary would be forbidden to release even these aliens who were