Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/41

2 alien described in paragraph (1)” refer only to those aliens whom the Secretary, following paragraph (1)’s instructions, has “take[n] into custody… when the alien is released” from, say, state or federal prison? Or do these words refer instead to all aliens who have ever committed one of the offenses listed in paragraph (1), regardless of when these aliens were “released” from prison?

For present purposes, I accept the Court’s holding in Jennings v. Rodriguez, 583 U. S. ___ (2018), that paragraph (2) forbids bail hearings for aliens “described in paragraph (1).” But see id., at ___ (, dissenting) (slip op., at 2) (interpreting paragraph (2) as not forbidding bail hearings, as the Constitution likely requires them); id., at ___ (majority opinion) (slip op., at 29) (declining to reach constitutional question). Here, however, the Court goes much further. The majority concludes that paragraph (2) forbids bail hearings for aliens regardless of whether they are taken into custody “when… released” from prison. Under the majority’s view, the statute forbids bail hearings even for aliens whom the Secretary has detained years or decades after their release from prison.

The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordinary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation all argue convincingly to the contrary. I respectfully dissent.

The relevant statute, 8 U. S. C. §1226, is entitled “Apprehension and detention of aliens.” See Appendix A, infra. Its first subsection, subsection (a), is entitled “Arrest, detention, and release.” Subsection (a) sets forth the background rule. It gives the Secretary of Homeland Security (formerly the Attorney General) the authority to “arres[t] and detai[n]” an “alien… pending a decision on