Certain Aliens Must Be Detained By ICE Without Bond Hearing

Olmos v. Holder, 1296598 (3/24/15) (Col.) (Published) - The AG must detain certain inadmissible or deportable aliens listed in 8 U.S.C. 1226(c) without a bond hearing after they are released from a prison or jail, even if there is a gap between release from prison or jail and detention by ICE. The 10th found the statute to be ambiguous in this regard. It could mean the government must detain those folks only when they are immediately taken into ICE custody or it could mean they must detain the aliens any time after release as well. The 10th goes through a fascinating exploration of statutory construction considerations: grammatical structure, legislative history; how subsections were referred to in other parts of the statute; paragraph structure; policy; and "flush language" [this has nothing to do with toilets, just whether the words begin at the left margin or not]. The canon of constitutional avoidance and lenity have no bearing on the issue in this case because if the statute is ambiguous then the 10th must defer to the BIA's reading of the statute, not to one that favors the alien or the constitution. In any event, mandatory detention of someone who was free for 6 days after release from prison, as in this case, didn't seem unconstitutional to the 10th. And the AG has a continued duty to detain these particular kinds of aliens even if they have been free for awhile. Missing the deadline for detaining the alien doesn't remove that duty.