APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge]
Leon Fresco, Deputy Assistant Attorney General, Office of Immigration Litigation, with whom Sarah B. Fabian, Senior Litigation Counsel, United States Department of Justice, Civil Division, Office of Immigration Litigation, Elianis N. Perez, Senior Litigation Counsel, Joyce R. Branda, Acting Attorney General, Benjamin C. Mizer, Acting Assistant Attorney General, Civil Division, William C. Peachy, Director, Office of Immigration Litigation, District Court Section, Elizabeth Stevens, Assistant Director, Hans. H. Chen, Trial Attorney, were on brief, for respondents-appellants.
Gregory Romanovsky, with whom Livia Lungulescu and Romanovsky Law Offices were on brief, for petitioner-appellee Castañeda.
Matthew R. Segal, with whom Adriana Lafaille, American Civil Liberties Union Foundation of Massachusetts, Judy Rabinovitz, Michael Tan, Anand Balakrishnan, ACLU Foundation Immigrants' Rights Project, Elizabeth Badger, and Kids in Need of Defense c/o Nutter McClennan & Fish LLP, were on brief, for petitioner-appellee Gordon.
Alina Das, Esq., and Washington Square Legal Services, Inc., Immigrant Rights Clinic, on brief for Immigration Law Professors, American Immigration Lawyers Association, Boston College Law School Immigration Clinic, Boston University Law School International Human Rights Clinic, Detention Watch Network, Families for Freedom, Greater Boston Legal Services, Harvard Immigration and Refugee Clinical Program, Immigrant Defense Project, Immigrant Legal Resource Center, Immigrant Rights Clinic, National Immigrant Justice Center, National Immigration Project of the National Lawyers Guild, Political Asylum/Immigration Representation Project, Suffolk University Law School Immigration Law Clinic, and University of Maine School of Law Immigrant and Refugee Rights Clinic, as amici curiae in support of petitioners-appellees and in support of affirmance.
Mathew E. Price, Lindsay C. Harrison, and Jenner & Block LLP, on brief for amici curiae Former Immigration Judges and Department of Homeland Security Officials in support of petitioners-appellees.
Before Howard, Chief Judge, Torruella, Lynch, Thompson, Kayatta, and Barron, Circuit Judges.
BARRON, Circuit Judge
The judgments entered in the district courts are affirmed by an equally divided en banc court. See Savard v. Rhode Island, 338 F.3d 23, 25 (1st Cir. 2003) (en banc).
Congress has long given the Attorney General discretion to decide whether to take aliens who are subject to removal into immigration custody. Congress also has long given the Attorney General discretion to decide whether to release on bond aliens who are in immigration custody while their removal proceedings are pending. Nearly thirty years ago, however, Congress began enacting a succession of similar but slightly revised immigration detention mandates that limited the Attorney General's detention discretion in certain respects. These consolidated appeals require us to decide the scope of the present version of this detention mandate, codified in 8 U.S.C § 1226(c).
Much like its precursors, this detention mandate first directs that the Attorney General shall take into custody certain "criminal aliens" -- as defined by their commission of specified offenses -- "when [they are] released" from criminal custody. And, much like its precursors, this detention mandate then bars the Attorney General from releasing certain aliens on bond once they have been placed in immigration custody. The key point of dispute concerns the class of aliens to whom this bar to bonded release applies.
We conclude that Congress intended for the present detention mandate to operate like its precursors and thus that its bar to bonded release applies only to those specified criminal aliens whom the Attorney General took into custody "when [they were] released" from criminal custody. We further conclude that the two aliens who bring these habeas petitions were not taken into immigration custody "when [they were] released" from criminal custody because they had been released from criminal custody years before their immigration custody started. As a result, we conclude that the present detention mandate does not bar either petitioner from seeking release on bond pursuant to the Attorney General's discretionary release authority.
Two district courts of this Circuit reached the same conclusion in granting the petitioners the right to an individualized bond hearing at which they could seek release prior to the completion of the removal process. See Gordon v. Johnson, 991 F.Supp.2d 258 (D. Mass. 2013); Castañeda v. Souza, 952 F.Supp.2d 307 (D. Mass. 2013). A panel of this Circuit affirmed. See Castañeda v. Souza, 769 F.3d 32 (1st Cir. 2014). This Court then agreed to rehear the case en banc, and is now, by a vote of three to three, evenly divided. In consequence, the judgments of the district courts are affirmed, as we believe they should be given Congress's evident intention not to deny aliens like petitioners the chance to seek bonded release, the consequential nature of the decision to deny aliens such a chance, and the reality that removal proceedings can stretch on for months or even years.
The key parts of the Immigration and Naturalization Act are codified in 8 U.S.C. § 1226, and, in particular, two subsections of it: (a) and (c). Through subsection (a), Congress gave the Attorney General broad discretion to decide whether to take into custody an alien who is in the removal process. Congress also gave the Attorney General, through that same subsection, broad discretion to release on bond those aliens whom she had placed in custody so that they would not have to be detained for the often lengthy removal process.
To govern the exercise of this release power, the Attorney General issued regulations pursuant to subsection (a). These regulations authorize immigration judges (subject to review by the Board of Immigration Appeals (BIA) and ultimately the Attorney General) to make individualized bond determinations based on a detainee's flight risk and danger to the community. See 8 C.F.R. § 1236.1(c)(8), (d)(1), and (d)(3).
As a result of § 1226(a) and its implementing regulations, these two petitioners, Leiticia Castañeda and Clayton Gordon, plainly may be detained for the entirety of the removal process if they are found to pose sufficient bond risks. There is a question, however, whether they must be detained for the entirety of that process regardless of the showing they could make at a bond hearing.
The question arises due to the contested scope of the limited exception to § 1226(a) that is carved out by § 1226(c). The exception appears in two paragraphs of subsection (c) under the single heading, "Detention of Criminal Aliens."
Together, the paragraphs establish the latest version of a detention mandate Congress first enacted in 1988. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), tit. 111 § 303, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-585. In each prior version, Congress required first that the Attorney General "shall take into [immigration] custody any alien convicted" of an enumerated felony offense "upon completion" of the alien's sentence (1988 mandate) or "upon [the alien's] release" from criminal custody (later mandates). And, in each prior version, Congress then required that the Attorney General "shall not release such felon from [immigration] custody." See Anti-Drug Abuse Amendments Act of 1988, § 7343(a), Pub. L. No. 100-690, 102 Stat. 4181, 4470; Immigration Act of 1990, § 504(a), Pub. L. No. 101-649, 104 Stat. 4978, 5049-50; Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 440(c), Pub. L. No. 104-132, 110 Stat. 1214, 1277.
The version of the detention mandate that is at issue here was enacted in 1996 and follows this same structure. The first paragraph, identified as § 1226(c)(1), appears under the heading "Custody." Like the portion of the earlier enacted detention mandates that contained the "upon completion" or "upon release" clauses, this paragraph sets forth the following custody directive: the Attorney General "shall take into [immigration] custody" an alien who has committed certain offenses or engaged in certain concerning behavior -- specified in subparagraphs (A)-(D) of (c)(1) -- "when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation . . . ."
The second paragraph, identified as § 1226(c)(2), follows directly after (c)(1) and appears under the heading "Release." Like the portion of the earlier enacted detention mandates that contained the "such felon" clause, this paragraph sets forth the following bar to bonded release from immigration custody: the Attorney General "may release an alien described in paragraph (1) only if" the alien satisfies certain limited criteria not at issue here.
Under petitioners' view, (c)(1) and (c)(2) operate in tandem just as the earlier detention mandates did. In consequence of the words "when" and "released" in the first paragraph, the Attorney General must timely take specified aliens coming out of criminal custody into immigration custody. The second paragraph, by referring to the prior paragraph, then requires the Attorney General not to release on bond the specified aliens that she has timely taken into immigration custody following their release from criminal custody in accordance with the directive in (c)(1).
Petitioners contend that this reading of § 1226(c) makes sense not only as a matter of text, structure, and history, but also on its own terms. Petitioners point to the substantive differences between aliens taken into immigration custody "when . . . released" from criminal custody and those aliens who are taken into immigration custody some time after they have been "released" from criminal custody. Petitioners emphasize that "the experience of having one's liberty stripped away is drastically different from the experience of not having it restored." See Castañeda v. Souza, 952 F.Supp.2d 307, 318 n.10 (D. Mass. 2013). They also note that their intervening period of freedom makes it possible to take account of their post-release conduct in evaluating the flight risk or danger they may pose. And amici contend that Congress had practical reasons to limit the scope of the mandate in this way, given resource constraints on detention capacity. See Amicus Br. of Frm. Imm. Judges and DHS Sec. Officials at 17-20.
On the basis of this reading of § 1226(c), petitioners contend that the exception to § 1226(a) that (c) carves out does not apply to them due to the remoteness of their release from criminal custody. Accordingly, petitioners argue they may seek discretionary release on bond under (a) just like any other alien placed in custody by the Attorney General pursuant to that subsection.
The government counters that petitioners' argument fails at the threshold on the basis of the interpretation of § 1226(c)(2) that the BIA set forth in In re Rojas, 23 I. & N. Dec. 117 (BIA 2001). The BIA held in Rojas that only subparagraphs (A)-(D) of (c)(1) (which enumerate predicate offenses and other qualifying misconduct) limit (c)(2). Rojas thus makes the rest of (c)(1) --including the "when . . . released" clause and its trailing language specifying what counts as a "release" from criminal custody -- irrelevant to the application of (c)(2). See Rojas, 23 I. & N. Dec. at 121 ("The 'when released' clause is no more a part of the description of an alien who is subject to detention than are the other concluding clauses." (emphasis in original)).
The government contends we must defer to Rojas's conclusion that whatever limitations the words "when" and "released" impose on § 1226(c)(1) do not matter for (c)(2) because the text of (c)(2) is not clear on that key point. The government claims we must do so because Rojas reasonably construed (c)(2) to reduce the chance that an alien with an (A)-(D) offense might be released due to a mistaken evaluation of bond risk. The government therefore argues that Rojas requires petitioners' mandatory detention without bond -- notwithstanding their years of living freely -- because each petitioner committed an (A)-(D) offense and nothing more is required for (c)(2) to apply.
In the alternative, the government asserts that even if Rojas is wrong and the "when . . . released" clause is relevant to (c)(2), the petitioners were in fact taken into immigration custody "when . . . released." The government argues that the word "when" is best read in context to mean "if" or "any time after." As a fallback, the government argues that the word "when" at most triggers a duty to act promptly that persists indefinitely. Either way, the government argues, § 1226(c)(2) applies to aliens with predicate offenses who were taken into immigration custody even years after their release from criminal custody.
We consider each argument in turn. We explain first why we conclude that the "when . . . released" clause in § 1226(c)(1) also modifies the scope of (c)(2). We then explain why we conclude that the "when . . . released" clause imposes a deadline for picking up an alien coming out of criminal custody that limits the application of (c)(2)'s bar to bonded release.
We start with the question whether we must defer to Rojas's reading of § 1226(c)(2), under which the "when . . . released" clause in (c)(1) is wholly irrelevant to the scope of (c)(2). In undertaking this inquiry, we apply the two- step test set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). At step one, we must decide whether Congress spoke clearly to the precise question at issue. Id. at 842. If so, that ends the matter. Id. at 842-43. If not, then, at step two, we must defer to the administering agency's interpretation if it is reasonable. Id. at 843.
Our focus is on step one, which is where we conclude Rojas went wrong. For while Chevron is a famous doctrine, much precedent cautions us not to be so star-struck by it that we must defer to the agency at the first sign of uncertainty about the meaning of the words that Congress chose. Rather, under Chevron, we must be mindful that "a statute may foreclose an agency's preferred interpretation despite such textual ambiguities if its structure, legislative history, or purpose makes clear what its text leaves opaque." See Council for Urological Interests v. Burwell, 790 F.3d 212, 221 (D.C. Cir. 2015) (quoting Catawba Cnty., N.C. v. E.P.A, 571 F.3d 20, 35 (D.C. Cir. 2009)); see also Chemical Manufacturers Ass'n v. N.R.D.C., 470 U.S. 116, 126 (1984) ("We should defer to [the administering agency's view of the statutory language] unless the legislative history or the purpose and structure of the statute clearly reveal a contrary intent.").
And that is the case here. In light of both the Act's structure, see F.D.A. v. Brown & Williamson Tobacco Co., 529 U.S. 120, 132-34 (2000) (analyzing the words of a statute in view of the "overall statutory scheme" at Chevron step one); Saysana, 590 F.3d at 13-15 (emphasizing the structure of § 1226(c) in declining to defer to the BIA's interpretation by noting that "the 'plain meaning' of a statutory provision is often made clear not only by the words of the statute but by its structure"), and the legislative history, see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987) (considering legislative history at step one of the Chevron analysis in declining to defer to Immigration and Naturalization Service (INS) interpretation of statute); Succar v. Ashcroft, 394 F.3d 8, 31 (1st Cir. 2005) ("Our view is that where traditional doctrines of statutory interpretation have permitted use of legislative history, its use is permissible and even may be required at stage one of Chevron."), we conclude that Congress plainly intended for the "when . . . released" clause in (c)(1) to apply to (c)(2) as well.
Rojas identified a clear choice between two possible readings of the words in the cross-reference in § 1226(c)(2), "an alien described in paragraph (1)." See Rojas, 23 I. & N. Dec. at 119. Given the text of the cross-reference, the alien to whom (c)(2) refers is either (as Rojas held) an alien who has committed an offense specified in subparagraphs (A)-(D) of (c)(1) or (as petitioners contend) an alien who was taken into custody pursuant to the duty imposed by paragraph (1) as a whole.
This choice matters because it determines whether the "when . . . released" clause -- and whatever limits it imposes through the words "when" and "released" -- modifies the scope of § 1226(c)(2). If "an alien described in paragraph (1)" refers to an alien who was taken into custody pursuant to the duty imposed by (c)(1) as a whole, then the cross-reference would not merely refer to an alien who has committed an (A)-(D) offense. It would instead refer to an alien who has committed an (A)-(D) offense and whom the Attorney General took into immigration custody "when" the alien was "released" from criminal custody, as the "when . . . released" clause sets forth the conditions under which that duty applies. Rojas, 23 I. & N. Dec. at 121-22. And (c)(2), then, would come into play as a bar to the release of only those aliens picked up after the duty in (c)(1) had been discharged. See id. at 119 (noting that the cross-reference in (c)(2) could be read to "refer to an alien who is taken into [immigration custody] 'when the alien is released'").
In our view, the words "an alien described in paragraph (1)" comfortably support petitioners' reading. Consistent with the ordinary meaning of the word "described, " § 1226(c)(2) refers to a "mental image, an impression, or an understanding of the nature and characteristics, " see Webster's Third New International Dictionary 610 (2002), of the alien whom (c)(1) as a whole calls to mind. And thus "an alien described in paragraph (1)" refers to an alien who has committed an enumerated offense and whom the Attorney General has taken into immigration custody "when . . . released" from criminal custody. See also The American Heritage Dictionary of the English Language 476 (5th ed. 2011) (defining "describe" as "[t]o convey an idea or impression of" or "[t]o trace the form or outline of").
No rule of grammar counsels against this reading. Antecedents to cross-references may be found in verbal and adverbial phrases in prior paragraphs not just because (as our colleagues suggest) users of English sometimes use language awkwardly. Antecedents to cross-references may be found in such places because people also use language efficiently.
One thus commits no offense against the English language by saying that the narrator "described in" Frost's famous poem is the one who "took the road less travelled, " even though the narrator's first-person account of his past actions in the poem is not cast in what our colleagues would consider inherently descriptive terms. And, in fact, Congress has itself relied on the "described in paragraph (1)" formulation to refer not just to the inherently descriptive adjectival portion of the prior paragraph but to the adverbial portion, too. See 28 U.S.C § 1441(c)(1)-(2) (in referring to an "action described in paragraph (1), " Congress clearly intended to capture the trailing adverbial portion of paragraph (1), which states that the "entire action may be removed if the action would [otherwise] be removable").
The petitioners' reading finds additional support in the fact that the text of the cross-reference does not expressly state, as one might have expected if Rojas were right, that the only part of § 1226(c)(1) that is relevant to (c)(2) is the part that denominates the (A)-(D) offenses. Rather than straightforwardly refer to "an alien described in subparagraphs (A)-(D), " Congress instead expressly referred to "an alien described in paragraph (1), " even though Congress singled out similar offenses to those set forth in (A)-(D) in the parallel detention mandate set forth elsewhere in the IIRIRA. See IIRIRA § 303(b)(3), 110 Stat. 3009-587 ("The Attorney General may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii)." (emphasis added)).
Nevertheless, we agree that, standing alone, the words "an alien described in paragraph (1)" could be read as Rojas reads them. As a textual matter, the "described in" language in the cross-reference could be read to refer the reader only to subparagraphs (A)-(D) of paragraph (1), as they plainly do describe the alien in (c)(1). One could thus read this cross-reference as directing the reader to identify the alien whom (c)(1) itself refers to in characteristically descriptive terms, rather than directing the reader to identify the alien whom (c)(1) as a whole calls to mind.
To determine if Congress chose between the two possible antecedents to the cross-reference in § 1226(c)(2), we thus must do what Rojas did: look beyond the words of the cross-reference. See Rojas, 23 I. & N. Dec. at 121-24 (reviewing the structure of the act in which § 1226 appears and its legislative history, as well as the predecessor provisions to § 1226). And it makes particular sense to do so here, as there is good reason to question whether Congress would have intended to leave the precise issue unresolved. To find that Congress did not intend to choose an antecedent, one would have to believe Congress was content to let the very executive branch officials that it did not trust to make certain detention decisions determine the extent of that distrust through their choice between the two possible antecedents. See American Bar Ass'n v. F.T.C., 430 F.3d 457, 469 (D.C. Cir. 2005) (noting that "the sort of ambiguity giving rise to Chevron deference is a creature not of definitional possibilities, but of statutory context" and declining to defer to an agency's interpretation given the sort of ambiguity at issue (quotation marks and citation omitted)). Accordingly, before we conclude that Congress did not speak to this issue, we need to consider the relevant words in context, as is required under Chevron step one.
A key part of that context is the structure of the IIRIRA as a whole, as we are obliged to construe § 1226(c) in light of the whole act in which that provision appears. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 484 (2001). The structure of that act, however, is hard to square with Rojas. And thus the structure of the IIRIRA supports the conclusion that Congress chose to refer to an alien "described in paragraph (1)" rather than more specifically to an alien "described in subparagraphs (A)-(D)" because Congress intended to refer to an alien called to mind by the paragraph as a whole.
We start first with the structure of § 1226, which is oddly misaligned unless we look beyond subparagraphs (A)-(D) of (c)(1) to the "when . . . released" clause to identify the alien to whom (c)(2) refers. Cf. Whitman, 531 U.S. at 484-86 (declining to defer to an agency's interpretation under Chevron where such interpretation was "so at odds with [the statute's] structure, " in that it rendered certain parts of a carefully delimited exception to the agency's otherwise broad discretion "nugatory"). The misalignment arises because Rojas necessarily reads the cross-reference to de-link the "Custody" directive in § 1226(c)(1) from the bar to "Release" in (c)(2).
Rojas has this effect because, for example, as the government has previously informed us, "there are a variety of offenses for which an alien may be . . . subject to mandatory detention under [§ 1226(c)(1)(A)], but that may never give rise to a formal charge, let alone an indictment, trial or conviction." See Saysana, 590 F.3d at 14 (quotation marks omitted) (restating the government's argument). In consequence, some aliens who fall within subparagraphs (A)-(D) will not be subject to (c)(1) because they will never have even been "released" from criminal custody as the "when . . . released" clause requires. See Rojas, 23 I. & N. Dec. at 122. According to Rojas, however, such aliens -- if taken into custody pursuant to § 1226(a) -- would still be subject to the bar to bonded release that (c)(2) establishes.
Rojas necessarily would apply the bar to bonded release to such aliens because Rojas makes an alien's "release" from criminal custody irrelevant to the application of § 1226(c)(2). After all, it is the "when . . . released" clause and not subparagraphs (A)-(D) that ensures that an alien taken into custody pursuant to (c)(1) is an alien who has been "released" from criminal custody. Thus, Rojas incongruously (and without even acknowledging the incongruity) requires one to believe that Congress was so concerned about certain aliens who had never been in criminal custody, as the "when . . . released" clause contemplates, being out and about that it directed the Attorney General to hold them without bond even though Congress left her complete discretion to decide not to take them into immigration custody at all.
Petitioners' reading avoids this oddly half-hearted understanding of the detention mandate. Petitioners read the release-from-criminal-custody constraint that appears outside subparagraphs (A)-(D) and in the "when . . . released" clause to limit both the "Custody" and "Release" aspects of the detention mandate. Under this more natural reading, § 1226 as a whole coheres quite well. Pursuant to § 1226(a), the Attorney General would have the discretion to release on bond those aliens she had the discretion not to take into custody. And, pursuant to § 1226(c), the Attorney General would be mandated to keep in custody only those she was mandated to take into custody. See Saysana, 590 F.3d at 9, 13-16 (analyzing the meaning of the "when . . . released" clause and its trailing language in (c)(1) in order to determine whether an alien was properly held without bond under (c)(2)). In this way, Congress would have crafted a detention mandate that, from start to finish, covers the same class of aliens (whatever the word "when" might mean) that it had identified as a cause for concern.
Two other parts of the IIRIRA lend further support to petitioners' reading of the cross-reference, in which the "when . . . released" clause in (c)(1) applies as a constraint across the whole of (c). These parts of the IIRIRA are set forth in the Transition Period Custody Rules (TPCR). These rules apply instead of § 1226(c) for a one- or two-year transition period, but only if they are invoked by the Attorney General. IIRIRA § 303(b)(2), Pub. L. No. 104-208, 110 Stat. at 3009-586.
The first instructive part lies in the TPCR's parallel detention mandate. The TPCR's mandate shares the same structure as § 1226(c). And, notably, like § 1226(c), the predicate offenses that trigger the custody directive in the TPCR do not require an alien to have been "released" from criminal custody. See Matter of Garvin-Noble, 21 I. & N. Dec. 672, 680-81 (BIA 1997). The TPCR's mandate thus presents the same interpretive question that § 1226(c) presents as to whether the "when . . . released" clause -- and thus its release-from-criminal-custody constraint -- in that mandate's custody directive limits that mandate's follow-on bar to bonded release. And because this mandate presents the same interpretive question, it also presents the same potential structural misalignment.
Tellingly, the TPCR presents its custody directive (including its "when . . . released" clause) under the heading "In General" and the bar to bonded release under the subsequent heading, "Release." This presentation indicates that the "when . . . released" clause constrains both the custody directive and the bar to bonded release, such that the bar applies to the very people encompassed by the "General" directive, rather than to some people who were not encompassed by that directive at all because they were never "released" from criminal custody.
The second instructive part of the IIRIRA lies in section 303(b)(2), Pub. L. No. 104-208, 110 Stat. at 3009-586. This TPCR provision mediates the shift from the transition rules to the permanent regime. The provision clearly provides that § 1226(c) as a whole -- both with respect to its custody directive and its bar to bonded release -- applies only to aliens "released after" the TPCR expires. And the BIA has rightly read this "released after" clause to mean that an alien must have been "released" from criminal custody to be subject to § 1226(c) going forward. See In re Adeniji, 22 I. & N. Dec. 1102, 1108-11 (BIA 1999). This clause thus ensures that a release-from-criminal-custody constraint does now limit the scope of both (c)(1) and (c)(2).
If we applied Rojas's analysis of (c)(2) to the TPCR's equivalent to (c)(2), however, no such "released" constraint would limit the scope of that portion of the TCPR's detention mandate because the "when . . . released" clause in its custody directive would not apply to the mandate as a whole. Under Rojas, therefore, the "released after" clause would -- in this key respect -- make the permanent mandate's bar to bonded release less sweeping than the supposedly more flexible TPCR mandate's bar had been, even though Congress clearly intended the latter to be less encompassing. No such anomalous narrowing of the detention mandate would occur upon the expiration of the TPCR if, by contrast, the "when . . . released" clause limits the bar to bonded release that appears in both the transition and the permanent rules.
For these reasons, the structure of the IIRIRA as a whole strongly indicates that Congress did intend for the cross-reference in § 1226(c)(2) to reach beyond subparagraphs (A)-(D) to the "when . . . released" clause and thus to refer to an alien taken into custody pursuant to the duty imposed by (c)(1) as a whole. And thus the IIRIRA's structure indicates that Congress referred to paragraph (1) rather than more specifically to the subparagraphs within in it because Congress intended to link the "Custody" and "Release" aspects of the detention mandate so that they would work together. Before we conclude that Congress clearly chose the broader antecedent to "an alien described in paragraph (1), " however, we must still "exhaust the traditional tools of statutory construction." See Sierra Club v. EPA, 551 F.3d 1019, 1027 (D.C. Cir. 2008). And so we now turn to the legislative history.
The legislative history confirms that Congress intended the cross-reference in § 1226(c)(2) to refer to an alien taken into custody pursuant to the duty imposed by (c)(1) as a whole rather than only to an alien described in subparagraphs (A)-(D). And thus the legislative history helps to make clear that the "when . . . released" clause -- and whatever limitations it imposes -- applies across the whole of (c). This conclusion follows from the legislative history directly tied to the IIRIRA and from the many precursors to § 1226(c). The text and history of those precursors show that Congress intended for those versions of the detention mandate to operate in just the linked manner that Rojas rejects in construing (c), and the evidence also indicates that Congress did not mean to alter this aspect of the longstanding scheme in passing the IIRIRA. Milner v. Department of the Navy, 562 U.S. 562, 572 (2011) ("Those of us who make use of legislative history believe that clear evidence of congressional ...