Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/52

Rh §1226(c)(1)(A) (incorporating §1182(a)(2), which covers controlled substance offenses for which the maximum penalty exceeds one year); Brief for Advancement Project et al. as Amici Curiae 19, 24, 29 (describing examples). That fact simply aggravates the constitutional problem.

Although the Court of Appeals correctly concluded that paragraph (2)’s prohibition on release applies only to an alien whom the Secretary “take[s] into custody… when the alien is released” from criminal custody, it also held that the phrase “when the alien is released” means that the Secretary must grant a bail hearing to any alien who is not “ ‘immediately detained’ when released from criminal custody.” Preap v. Johnson, 831 F. 3d 1193, 1207 (CA9 2016). I disagree with the Court of Appeals as to the meaning of the phrase “when the alien is released.”

As an initial matter, the phrase “when the alien is released” imposes an enforceable statutory deadline. I cannot agree with, who writes for a plurality of the Court on this point, that our cases holding certain statutory deadlines unenforceable are applicable here. Ante, at 17. See, e. g., Barnhart v. Peabody Coal Co., 537 U. S. 149, 152 (2003) (holding that the Government’s untimeliness did not bar it from taking action beyond the statutory deadline); United States v. Montalvo-Murillo, 495 U. S. 711, 713–714 (1990) (holding that a provision requiring a detention hearing to “ ‘be held immediately’ ” did not bar detention in the event of a late hearing); Brock v. Pierce County, 476 U. S. 253, 266 (1986) (holding that the Government’s failure to observe a 120-day statutory deadline did not deprive it of authority under the statute).

I disagree with the plurality on this point because our case law makes clear that a statutory deadline against the