Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/54

Rh the default detention and release provision. Critically, subsection (a) does not guarantee release. Rather, it leaves much to the Government’s judgment: By regulation, aliens who are subject to subsection (a)’s default detention and release rules will simply receive a hearing at which they can attempt to demonstrate that, if released, they will not pose a risk of flight or a threat to the community. 8 CFR §§236.1(d)(1), 1236.1(d)(1).

Finally, I have already mentioned the many harms that could befall aliens whom the Secretary does not detain “when… released.” They range from long periods of detention, to detention years or even decades after the alien’s release from criminal custody, to the risk of splitting up families that are long established in a community. Supra, at 4. Thus, unlike some of our prior cases, the harm from a missed deadline hardly can be described as “insignificant.” Montalvo-Murillo, supra, at 719.

The plurality objects that “Congress could not have meant for judges to ‘enforce’ ” the mandatory detention requirement “in case of delay by–of all things–forbidding its execution.” Ante, at 19. But treating the “when the alien is released” clause as an enforceable limit does not prohibit the Secretary from detaining the aliens that subsection (c) requires her to detain. Rather, the Secretary’s failure to comply with the “when the alien is released” clause carries only one consequence: The Secretary cannot deny a bail hearing.

So what does the phrase “when the alien is released” mean? The word “when” can, but does not always, mean “[a]t the time that,” American Heritage Dictionary, at 1971, or “just after the moment that,” Webster’s Third New International Dictionary, at 2602. But the word only “[s]ometimes impl[ies] suddenness.” 20 Oxford English Dictionary 209 (2d ed. 1989). It often admits of at least