NO BOND FOR YOU! Interpreting the “When” Clause IN 5 U.S.C. § 1226(c)(1)

Monica Welker, Associate Member, University of Cincinnati Law Review

Ramon was a lawful permanent resident (LPR) who moved to the U.S. from the Dominican Republic with his family when he was seven.

Immigrants who committed crimes, released into the public, and commit no further crimes should be held according to the conditions of 8 U.S.C. §1226(a), which permits him bond, and not the stricter §1226(c).


The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) has increased the number of LPRs deported.[2] The relevant portion of the law, codified in 8 U.S.C. § 1226, states that the Attorney General (AG) has the right to grant bail to immigrants pending deportation hearings “except as provided in subsection (c).” In short, the AG may release aliens on bond while their deportation hearings are pending. Subsection (c) defines “criminal aliens” as those having committed crimes enumerated in § 1182 or § 1227.[3] § 1226(c) orders the AG to “take into custody any [criminal alien] . . . when the alien is released” and denies the AG the authority to release any criminal alien unless the alien is in the witness protection program.

Thus, the question explored herein is whether the statutory language “when the alien is released” permits a gap of months or years between an alien’s release and his detention without bail. Turning to the case of Ramon, he became deportable with his two drug convictions, and he should have been picked up by ICE when he was released from his five-day custodial sentence and held without bail, pending a deportation hearing. ICE did not pick him up for seven years. Therefore, does he fall within §1226(a), which permits him a bond hearing, or §1226(c), which would not permit him to be released on bond pending his removal hearing?


Many cases on this topic cite Chevron, U.S.A., inc. vs. National Resources Defense Council, Inc.[4] There, the Supreme Court laid out when and how a court should defer to an administrative agency’s interpretation of ambiguous language within a statute. The Chevron test’s first step is to determine if Congress had a clear purpose to the provision. The second step is to determine if the administrative agency’s interpretation is reasonable.

The crux of this circuit split is whether the Chevron test applies to cases regarding
§ 1226(c). The Court directly connected the Chevron ruling to cases before the Board of Immigration Appeals (BIA) in INS v. Aguirre-Aguirre, where it ruled that the Attorney General, by giving the BIA the authority to hear cases and make determinations, had passed on his agency’s Chevron deference to the BIA.[5] In other words, the BIA’s interpretation of how to fill in gaps in ambiguously worded immigration statutes should be considered authoritative by a court unless the interpretation is unreasonable. This becomes important when considering the circuit opinions, as some have relied on this while others have explicitly rejected it.


The Fourth Circuit considered the issue first, in 2012’s Hosh v. Lucero.[6] The court acknowledged the statutory language was ambiguous, and applied the ruling in Chevron by looking to see if the BIA or the AG had interpreted the ambiguous language of “when the alien is released.”[7] In 2001, the BIA considered the meaning of “when the alien is released” and found it to place no importance on the timing of the alien’s being taken into custody.Thus, the court held that the BIA’s interpretation was reasonable and its interpretation should be used.[9]

The Third Circuit ruled on the issue next, in Sylvain v. Att’y Gen. of the U.S.[10] It too looked to Chevron/Aguirre/Rojas and found the BIA interpretation authoritative.[11]

The Tenth Circuit followed in Olmos v. Holder, where it agreed with its sister circuits and cited Chevron.[12] It also ruled that because the statute says the AG “shall take into custody any alien”, it imposed a duty on the AG that did not go away with the passage of time after the release of the criminal alien.[13]

October 2015 brought Lora v. Shanahan to the Second Circuit.[14] In addition to citing Chevron,[15] the court also held that a criminal alien cannot be held for more than six months without a bail hearing.[16]

An unusual en banc split occurred in the First Circuit in December of 2015 when the court considered the issue of timeliness of a criminal alien’s arrest after release.[17] The three judges who found that a criminal alien who wasn’t arrested immediately upon release from prison, and therefore were eligible for a bond hearing, rejected the notion that Chevron applied to the case before them.[18] The first opinion found 1227(c) was not ambiguous when considered in light of previous legislation, which used the phrase “upon release” in a similar statutory structure.[19]Thus, the panel wrote, the statute’s intent was clear and was not subject to Chevron considerations.[20] The opinion went on to determine that “upon release” and “when the alien is released” imply a time-sensitive directive, and that criminal aliens not apprehended reasonably soon after release were subject to §1226(a) considerations, including a bond hearing.

In 2016, the Ninth Circuit explicitly rejected the notion that the issue required Chevron deference.[21] The court agreed with the first opinion in Castañeda that “when” was time limiting.[22]


The plain text of the statute reveals the First and Ninth Circuit opinions to be more persuasive, but still ambiguous. The phrase “The Attorney General shall take into custody any [criminal alien] when the alien is released” is ambiguous even after examining the plain language meaning of the statute. The Second, Third, Fourth and Tenth Circuit courts interpret the logical meaning of the phrase to be like that of the order, “John shall take out the garbage when John gets home from school.” Inherent in that meaning is the implication that John will not be excused from the duty if he first plays video games and takes a nap. He will still have the duty of taking out the trash. The interpretation of the Ninth and half of the First Circuits views the meaning of “when” to be that of phrase, “Dr. Smith shall prescribe opioids when Jill is in chronic, serious pain.” In this directive, the duty of Dr. Smith is definitely time limited to the condition enumerated after the word “when.”

The first interpretation of “when” is flawed because John’s duty to take out the garbage is limited. While the duty still exists after he takes a nap, the duty will eventually end: his mother will soon give up and take out the garbage herself, or the duty will be reimposed upon him with different conditions (e.g. John shall take the garbage out when he is getting ready for bed). It all comes down to the word “when” in the statute. Merriam-Webster’s definitions of “when” fits both definitions. When can mean “at which time” or “at what time”, but it can also mean “and then.”[23] If after examining the plain text meaning of a statute, and it still appears ambiguous, one can look to the doctrine of constitutional avoidance.[24]This doctrine prevents ambiguous statutory language from threatening constitutional rights. In other words, if ambiguous language makes the meaning of a statute unclear, the ambiguous language cannot be interpreted to take away constitutional protections. It is unreasonable to decide that LPRs, without exigent circumstances (such as being a flight risk), should not have bond hearings.  Giving Chevron deference to an agency interpretation that is contrary to the Constitution’s Fifth Amendment protections to LPRs violates the doctrine of constitutional avoidance.

Specifically, in the circuit opinions that don’t believe “when the alien is released” is time limiting, one notes that two opinions acknowledged that LPRs are guaranteed constitutional protections. Olmos dealt directly with the issue of constitutional avoidance, but the facts of that case allowed it to dismiss the concern as the Olmos had only been released six days prior to his detention by ICE.[25] The Second Circuit in Lora acknowledged denying LPRs a bond hearing had constitutional issues when it guaranteed them a bond hearing after six months in detention.

LPRs cannot be held indefinitely without bail any more than an ordinary citizen can. Both groups are guaranteed protection from unlawful search and seizure and guaranteed habeas corpus rights. To deny one group those rights because of an “immigration crisis” could lead to more and more groups having rights taken away as a result of other perceived crises.


LPRs are due Fifth Amendment protections and only an exigent circumstance should permit the AG to detain a criminal alien without a bond hearing. In §1227(c), Congress sought to prevent certain criminal aliens from fleeing deportation, presumably because it found that some were flight risks.[27] If the flight risk is diminished because the criminal alien has been out of trouble for years, then the exigent circumstances are no longer in place and the LPRs should be granted their Fifth Amendment right to a bond hearing.

[1] These are the facts in Rodriguez v. Shanahan, 84 F. Supp. 3d 251 (S.D.N.Y. 2015).

[2] Aarti Kohli, Does the Crime Fit the Punishment?: Recent Judicial Actions Expanding the Rights of Noncitizens, 2 Calif. L. Rev. Circuit 1, 15.

[3] These crimes include crimes of moral turpitude, drug offenses, multiple convictions, high speed light, and not registering as a sex offender.

[4] 467 U.S. 837 (1984).

[5] 526 U.S. 415, 424-425 (1999).

[6] 680 F.3d 375 (4th Cir. 2012).

[7] Id. at 380.

[8] In re Rojas, 23 I. & N. Dec. 117, 10-13 (B.I.A. May 18, 2001).

[9] Hosh, 680 F.3d at 381.

[10] 714 F.3d 150 (3rd Cir. 2013).

[11] Id. at 156-157.

[12] 780 F.3d 1313, 1322 (10th Cir. 2015).

[13] Id. at 1324-1325.

[14] 804 F.3d 601 (2nd Cir. 2015).

[15] Id. at 611-612.

[16] Id. at 616.

[17] Castañeda v. Souza, 810 F.3d 15, 18 (1st Cir. 2015).

[18] Id. at 23-24.

[19] Id. at 19.

[20] Id. at 23-24.

[21] 831 F.3d 1193, 1197 (9th Cir. 2016).

[22] 1204.

[23] Merriam-Webster Online, “when”

[24] Valenzuela Gallardo v. Lynch, 818 F.3d 808, 816-817 (9th Cir 2016).

[25] Olmos, 780 F.3d 1320-1324.

[26] See supra n. 16.

[27] Olmos, 780 F.3d 1319.


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