Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/50

Rh that subsection (c) would apply only to aliens “released” from state or federal prison. As noted, clauses A, B, C, and D in paragraph (1) cover some aliens who have never been in criminal custody. Supra, at 4. Even the majority acknowledges that it would be bizarre if these aliens could be detained without a bail hearing. Ante, at 23. The transition statute confirms as much: It indicates that “the provisions of [subsection (c)] shall apply to individuals released after” the transition period concludes. IIRIRA, §303(b)(2), 110 Stat. 3009–586 (emphasis added). From this it follows that Congress saw paragraph (2) as forbidding bail hearings only for aliens who have been “released.” That, however, can be true only if the “when… released” provision limits the class of aliens subject to paragraph (2)’s “no-bail-hearing” requirement. The majority’s contrary reading, under which paragraph (2) applies “regardless of… whether the alien was released from criminal custody,” ante, at 25, conflicts with how Congress itself described the scope of subsection (c) when it enacted the statute.

Even if statutory text and structure were not enough to resolve these cases, the Government’s reading would fail for another reason. A well-established canon of statutory interpretation provides that, “if fairly possible,” a statute must be construed “so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). See Edward J. DeBartolo Corp. v. ''Florida Gulf Coast Building & Constr. Trades Council'', 485 U. S. 568, 575 (1988) (using word “serious” instead of “grave”). The Government’s reading of the statute, which the majority adopts, construes the statute in a way that creates serious constitutional problems. That reading would give the Secretary authority to arrest and detain aliens years after