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Defining “the”: In Nielsen v. Preap the Court relies on language arts to justify detention of immigrants

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01 Apr 2019
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April 1, 2019

Nielsen v. Preap, 586 U.S. ___ (2019) (Alito, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2018)
Slip Opinion | SCOTUSblog

Defining “the”: In Nielsen v. Preap the Court relies on language arts to justify detention of immigrants

What does “when” mean? Is it evident what the definition of “the” is? If you are generally comfortable that these words are clear and unlikely to generate controversy, please spare a few moments to consider the Court’s recent opinion in Nielsen v. Preap.1

At issue in the case was the meaning of 8 U.S.C. § 1226, a provision that addresses the detention and apprehension of noncitizens.2 The titular respondent, Mony Preap, represented a class of individuals certified in the District Court for the Northern District of California whose case was joined to a separate class action out of the Western District of Washington (collectively, “the respondents”). Preap, a lawful permanent resident of the U.S., was detained by immigration officials in 2013, seven years after he had been released from criminal custody. Preap’s claim on behalf of the class challenged the government’s denial of an opportunity to seek bail under § 1226(c)(1), the so-called mandatory detention provision of 8 U.S.C. Under that provision, the Secretary of Homeland Security (“the Secretary”) “shall take into custody” certain categories of individuals who fall within four subsections set out at § 1226(c)(1)(A)–(D). Further, § 1226(c)(2) limits the opportunity of those described in section (c)(1) to seek release on bail to only a small category of individuals whose release is necessary for witness protection or cooperation with an investigation.3

Perhaps the only point on which all parties to Preap agreed was that the (c)(2) exception was not at issue here. Instead, Preap et al. argued that § 1226(c) was wholly inapplicable to them, and that their immigration proceedings should instead be viewed under 8 U.S.C. § 1226(a) which establishes the Secretary’s discretionary detention authority while also providing that she “may release the alien on . . .bond . . .or [] conditional parole.”4 While the respondents did not dispute that they fell under one of the categories set out at § 1226(c)(1)(A)–(D) (describing individuals who have committed certain crimes, who have engaged in certain terrorist activities, or who share certain family relationships with those who have engaged in terrorist activities), they argued before the lower courts that the description of whom is governed by § 1226 includes additional modifying language outside of the (A) through (D) subparagraphs.

Namely, the respondents argued that those subsections flow to and incorporate the remainder of the statutory language at (c)(1) which states that, “[t]he [Secretary] shall take into custody any alien who – [sets forth the classifications at (c)(1)(A)–(D)] when the alien is released.”5 Because the respondents were not detained until years after they were released from criminal custody, they contended that—and the lower courts up through the Ninth Circuit Court of Appeals agreed—they were not governed by § 1226(c). This decision resulted in a circuit split with four other Courts of Appeals, leading the Supreme Court to grant review.

In a 5–4 decision authored by Justice Alito, the Court applies a theory of statutory construction heavily reliant on grammar and dictionary definitions to hold that the Ninth Circuit’s reading of § 1226(c) is not supported in the plain language of the statute. In a highly pedantic analysis likely to evoke images of AP English for some, the Court concludes, “[s]ince an adverb cannot modify a noun, § 1226(c)(1)’s adverbial clause ‘when . . .released’ does not modify the noun ‘alien,’ which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D).”6 Confident that the “‘rules of grammar govern’ statutory interpretation ‘unless they contradict legislative intent or purpose’”7 the Court proceeds to the dictionary to support its construction of § 1226(c). In holding that the respondents are brought under the authority of § 1226(c) the Court looks to the Webster’s definition of “describe” to discern its meaning. In so doing, the Court finds that the provision at (c)(2) narrows the opportunities for individuals “described” in (c)(1) to be considered for release to the exception for witness protection. The Court then finds support in Merriam-Webster’s definition of “the” to establish that (c)(1)’s reference to “when the alien is released” refers to the definite categories listed in (A)–(D), thereby refuting the respondents’ argument that this phrase functions as an additional modifier on whom (c)(1) reaches.8

Yet, when it comes to deciphering the meaning of the temporal aspect of that key phrase, the Court slams the dictionary shut. Instead, in a part of the decision joined only by a plurality of the Court, Justice Alito concludes that the meaning of “when” in “when the alien is released” was intended by Congress to set a temporal starting point, not a statute of limitation, establishing the earliest possibility during which the Secretary could detain a noncitizen (any time after release from criminal custody, but no sooner).

What the plurality of the Court declines to look up, the dissent is pleased to crack open. Writing for the four dissenting judges, Justice Breyer looks to the Ninth Circuit’s understanding of “when” to include the definitions “[a]t the time that,”9 or “just after the moment that.”10 But the dissent discards these meanings of “when” and their connotations of immediacy, relying instead on Oxford English Dictionary’s recognition that the word “only ‘[s]ometimes impl[ies] suddenness.’”11

Instead, the dissent largely avoids the debate on grammar, and focuses its discussion on the constitutional implications of the majority’s approach.12 Invoking his dissent in last term’s Jennings v. Rodriguez, Justice Breyer reaffirms his concern that immigration detention without the possibility for periodic bond review violates the Fifth Amendment’s guarantee of due process.13 Drawing on Jennings and on the Court’s opinion in Zadvydas v. Davis,14 Justice Breyer would read a six month limit (as interpreted in Zadvydas and found in comparable parts of the immigration statute) into the meaning of the government’s authority to detain these individuals “when they are released.” In this way, Breyer would bring the individuals set out at §§ (A)–(D) within the ambit of § 1226(c)(1) only if they are detained within six months of release from criminal custody. Breyer explains that to interpret the statute otherwise would create a constitutional question that must be avoided. “The issue may sound technical,” Justice Breyer observes, but “[t]hese are not mere hypotheticals.”15 While the majority focuses on grammar and avoiding a potential burden to the government, the dissent is concerned about the immediate harms to individuals facing unreviewable prolonged detention for possibly minor offenses.

Having recently returned from providing legal services to immigrant detainees with the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI), Justice Breyer’s concerns are particularly salient for me. In rural Georgia, SIFI staff work with individuals detained at the Stewart Detention Center.16 While SIFI aims to meet the needs of nearly two thousand individuals cycling in and out of the facility at any given time, the program’s pro bono legal representation is narrowly focused on securing bond or parole for eligible individuals. This narrow scope is still incredibly fraught, with routine denials of applications for bond and parole.17 Even where immigrants appearing before the Stewart Immigration Court in Lumpkin, Georgia are afforded an opportunity for a bond hearing, only 34% of applications for release were granted between 2007 and 2018.18 Nationwide, the number is higher, but still less than 50%.19

As Justice Breyer observes, his outcome would not provide guaranteed release on bail, it would simply afford a noncitizen the opportunity to demonstrate why he should be released. The immigration court is then free to approve or (more likely) deny the application. The Preap majority declines to provide this opportunity, interpreting the statute to foreclose the possibility for these individuals to even try for release. The Court’s majority takes care to avoid deciding the constitutional issues that the dissent so gamely tackles head on. The result, long term detention of several categories of individuals without the opportunity for judicial review, should be justified with some stronger stuff than the mere diagramming of sentences.

Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times among others.

    1. No. 16-1363 (U.S. Mar. 19, 2019).
    2. 8 U.S.C. § 1226 (2012).
    3. Id. § (c)(2).
    4. Id. §§ (a)(2)(A)–(B).
    5. Id. § (c)(1) (emphasis added).
    6. Preap, slip op., at 2 (syllabus of the Court).
    7. Id. at 14 (majority opinion). Here the Court quotes A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012) (which in turn cites Costello v. INS, 346 U.S. 120, 122–26 (1964)).
    8. Preap, slip op. at 14 ((“‘the’ is ‘a function word . . . indicat[ing] that a following noun or noun equivalent is definite or has been previously specified by context’” (quoting Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005))).
    9. Id. at 15 (Breyer, J., dissenting) (citing American Heritage Dictionary, at 1971).
    10. Id. (citing Webster’s Third New International Dictionary, at 2602).
    11. Id. (citing Oxford English Dictionary 209 (2d. ed. 1989)).
    12. Perhaps as an expression of his view on the level of grammatical expertise required to decide this case, Breyer refers to the individuals who fall under § 1226’s mandatory detention scheme as “‘ABCD’ aliens.” Id. at 3.
    13. Id. at 12 (citing U.S. Const. amend. V; Jennings v. Rodriguez, 583 U.S. ___ (2018) (dissenting opinion)).
    14. 533 U.S. 678 (2001).
    15. Preap, slip op. at 4 (Breyer, J., dissenting).
    16. See Southeast Immigrant Freedom Initiative (SIFI),Southern Poverty Law Center, https://www.splcenter.org/our-issues/immigrant-justice/southeast-immigrant-freedom-initiative-en.
    17. See Syracuse University, Report on Immigration Bond Hearings and Related Decisions for Lumpkin Immigration Court, TRAC Immigration Project, https://trac.syr.edu/phptools/immigration/bond/.
    18. Id.
    19. Id. (searching bond data from all immigration courts between 2005 and 2018 which reflects that of 73,785 only 35,449 or roughly 48%, were granted).

Recommended Citation
Cori Alonso-Yoder, Response, Defining “the”: In Nielsen v. Preap the Court relies on language arts to justify detention of immigrants, Geo. Wash. L. Rev. On the Docket (Apr. 1, 2019), https://www.gwlr.org/defining-the-in-nielsen-v-preap-the-court-relies-on-language-arts-to-justify-detention-of-immigrants/.

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