The Ninth Circuit Strikes (Out) Again

By Dan Cadman, August 11, 2016

I recently wrote a blog on a decision of the Ninth Circuit Court of Appeals that deprived a statute of its logic by means of a tortured reading of the language used in the law. In that case, using linguistic acrobatics worthy of Rio olympians, they determined that a woman convicted of commercial piracy of Microsoft and other software didn't lack the good moral character needed to become a naturalized citizen.

They've done it again, once more delving into the arcane mysteries of the English language in order to arrive at a decision that deprives an immigration detention statute of meaning and common sense.

In the instant case, the circuit court affirmed a class of aliens who had filed appeals of their detention without bond under Section 236(c) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. Section 1226(c). All of the aliens are criminals subject to mandatory detention under the provision of law in question — or, at least they were until the Ninth Circuit decided otherwise within the boundaries of its jurisdiction, which constitutes a wide swath of the western states: Alaska, Washington, Oregon, California, Idaho, Montana, Nevada, and Arizona.

In this case, the court upheld a lower court's decision that the aliens filing the appeal (and all other aliens similarly situated) are in fact entitled to bond hearings at which an immigration judge may decide to release them, and they will not be deemed to be subject to mandatory detention.

The crux of the argument is this: the statute requiring detention says:

(c)(1) The Attorney General shall take into custody any alien who-
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(D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B), when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. (Emphasis added.)

The appellants argued, and the district and circuit courts agreed, that the "plain language" of the statute only requires mandatory detention of aliens who are promptly taken into custody upon their release. If, on the other hand, the government does not take custody of these individuals right away, then according to the courts' logic, mandatory detention no longer applies.

That is a tortured construction of the phrase, which is more readily and sensibly understood to be a congressional instruction to the immigration authorities that they are not to attempt to take custody of alien criminals for the period of time during which they are incarcerated and under the custody of state or local correctional officials. It is a way of ensuring that the immigration removal process isn't used to subvert the due process systems of the sovereign states by using deportation as means to undercut sentences meted out by their judicial authorities.

How can I be sure my interpretation is more rational — in fact the only reasonable construction of the language, given the two alternatives? Take a moment to ponder this: Would it be reasonable or likely for Congress to reward scofflaws by saying to them "If you can avoid being taken into immediate custody by immigration agents upon your release from state or local jail [which is easy enough these days with 300-plus sanctuary jurisdictions actively obstructing federal immigration enforcement efforts], and if you manage to remain a fugitive from the immigration process for long enough, we will reward you for defeating the ends of justice by letting you post bond and disappear again, unlike your less fortunate comrades in crime, who are taken into custody directly from local or state jails, and who will be subject to mandatory detention." Because that, in effect, is the consequence of the district and appellate courts' interpretation of the statute.

To draw such a conclusion defies logic. But then this is the Ninth Circuit we're talking about — a kind of wonderland where both reason and the English language more closely resemble Jabberwocky.