Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/48

Rh Second, consider the structural similarity between subsections (a) and (c). See Appendix A, infra. The first sentence of subsection (a) sets forth a detention rule: An “alien may be arrested and detained” pending a decision on the alien’s removal. 8 U. S. C. §1226(a). And the second sentence sets forth a release rule that allows for release on bond and parole. Ibid. Subsection (c) has a parallel structure. The first sentence (namely, paragraph (1)) says that the Secretary must “take into custody” a subset of those aliens “when the alien is released” from criminal custody. §1226(c)(1). And the second sentence (namely, paragraph (2)) sets forth the rule that “an alien described in paragraph (1)” generally may not be released. §1226(c)(2).

It is obvious that the second sentence of (a) applies only to those aliens who are detained following the rule in (a)’s first sentence. Parallel structure suggests that the same is true in (c): The second sentence of (c) applies only to those detained following the rule in (c)’s first sentence. Subsection (a)’s reference to (c) strengthens this structural inference: Subsection (a) says that its release rule applies “[e]xcept as provided in subsection (c)”–that is, except as provided in the whole of subsection (c), not simply paragraph (2) or the few lines the majority picks from (c)’s text.

Thus, the release rule in each subsection (the second sentence) applies only if the Secretary complies with the detention rule in that subsection (the first sentence). In light of “the parallel structures of these provisions,” it would “flou[t] the text” to find that an alien is subject to (c)’s release rule, which forbids release, without also finding that the alien was detained in accordance with (c)’s detention rule, which requires the alien to be detained “when… released.” Chan v. Korean Air Lines, Ltd., 490 U. S. 122, 132 (1989).

The majority responds that subsections (a) and (c) do not “establis[h] separate sources of arrest and release