NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
DAVID JENNINGS, et al., PETITIONERS v.
ALEJANDRO RODRIGUEZ, et al., individ- ually and on behalf of all others similarly situated
on writ of certiorari to the united states court of appeals for the ninth circuit
[February 27, 2018]
Justice Alito delivered the opinion of the Court, except as to Part II.[1
Every day, immigration officials must determine whether to admit or remove the many aliens who have arrived at an official “port of entry” (e.g.,
an international airport or border crossing) or who have been apprehended trying to enter the country at an unauthorized location. Immigration officials must also determine on a daily basis whether there are grounds for removing any of the aliens who are already present inside the country. The vast majority of these determinations are quickly made, but in some cases deciding whether an alien should be admitted or removed is not as easy. As a result, Congress has authorized immigration officials to detain some classes of aliens during the course of certain immigration proceedings. Detention during those proceedings gives immigration officials time to determine an alien’s status without running the risk of the alien’s either absconding or engaging in criminal activity before a final decision can be made.
In this case we are asked to interpret three provisions of U. S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings. All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention. But by relying on the constitutional-avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.
Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems. But a court relying on that canon still must interpret
the statute, not rewrite it. Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings.
To implement its immigration policy, the Government must be able to decide (1) who may enter the country and (2) who may stay here after entering.
That process of decision generally begins at the Nation’s borders and ports of entry, where the Government must determine whether an alien seeking to enter the country is admissible. Under122Stat.867,8 U. S. C. §1225, an alien who “arrives in the United States,” or “is present” in this country but “has not been admitted,” is treated as “an applicant for admission.” §1225(a)(1). Applicants for admission must “be inspected by immigration officers” to ensure that they may be admitted into the country consistent with U. S. immigration law. §1225(a)(3).
As relevant here, applicants for admission fall into one of two categories, those covered by §1225(b)(1) and those covered by §1225(b)(2). Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. See §1225(b)(1)(A)(i) (citing §§1182(a)(6)(C), (a)(7)). Section 1225(b)(1) also applies to certain other aliens designated by the Attorney General in his discretion. See §1225(b)(1)(A)(iii). Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not covered by §1225(b)(1) (with specific exceptions not relevant here). See §§1225(b)(2)(A), (B).
Both §1225(b)(1) and §1225(b)(2) authorize the detention of certain aliens. Aliens covered by §1225(b)(1) are normally ordered removed “without further hearing or review” pursuant to an expedited removal process. §1225(b)(1)(A)(i). But if a §1225(b)(1) alien “indicates either an intention to apply for asylum . . . or a fear of persecution,” then that alien is referred for an asylum interview. §1225(b)(1)(A)(ii). If an immigration officer determines after that interview that the alien has a credible fear of persecution, “the alien shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii). Aliens who are instead covered by §1225(b)(2) are detained pursuant to a different process. Those aliens “shall be detained for a [removal] proceeding” if an immigration officer “determines that [they are] not clearly and beyond a doubt entitled to be admitted” into the country. §1225(b)(2)(A).
Regardless of which of those two sections authorizes their detention, applicants for admission may be temporarily released on parole “for urgent humanitarian reasons or significant public benefit.” §1182(d)(5)(A); see also 8 CFR §§212.5(b), 235.3 (2017). Such parole, however, “shall not be regarded as an admission of the alien.”8 U. S. C. §1182(d)(5)(A). Instead, when the purpose of the parole has been served, “the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” Ibid.
Even once inside the United States, aliens do not have an absolute right to remain here. For example, an alien present in the country may still be removed if he or she falls “within one or more . . . classes of deportable aliens.” §1227(a). That includes aliens who were inadmissible at the time of entry or who have been convicted of certain criminal offenses since admission. See §§1227(a)(1), (2).
Section 1226 generally governs the process of arresting and detaining that group of aliens pending their removal. As relevant here, §1226 distinguishes between two different categories of aliens. Section 1226(a) sets out the default rule: The Attorney General may issue a warrant for the arrest and detention of an alien “pending a decision on whether the alien is to be removed from the United States.” §1226(a). “Except as provided in subsection (c) of this section,” the Attorney General “may release” an alien detained under §1226(a) “on bond . . . or conditional parole.” Ibid.
Section 1226(c), however, carves out a statutory category of aliens who may not
be released under §1226(a). Under §1226(c), the “Attorney General shall take into custody any alien” who falls into one of several enumerated categories involving criminal offenses and terrorist activities. §1226(c)(1). The Attorney General may release aliens in those categories “only if the Attorney General decides . . . that release of the alien from custody is necessary” for witness-protection purposes and “the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.” §1226(c)(2). Any release under those narrow conditions “shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.” Ibid.
In sum, U. S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§1225(b)(1) and (b)(2). It also authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings under §§1226(a) and (c). The primary issue is the proper interpretation of §§1225(b), 1226(a), and 1226(c).
Respondent Alejandro Rodriguez is a Mexican citizen. Since 1987, he has also been a lawful permanent resident of the United States. In April 2004, after Rodriguez was convicted of a drug offense and theft of a vehicle, the Government detained him under §1226 and sought to remove him from the country. At his removal hearing, Rodriguez argued both that he was not removable and, in the alternative, that he was eligible for relief from removal. In July 2004, an Immigration Judge ordered Rodriguez deported to Mexico. Rodriguez chose to appeal that decision to the Board of Immigration Appeals, but five months later the Board agreed that Rodriguez was subject to mandatory removal. Once again, Rodriguez chose to seek further review, this time petitioning the Court of Appeals for the Ninth Circuit for review of the Board’s decision.
In May 2007, while Rodriguez was still litigating his removal in the Court of Appeals, he filed a habeas petition in the District Court for the Central District of California, alleging that he was entitled to a bond hearing to determine whether his continued detention was justified. Rodriguez’s case was consolidated with another, similar case brought by Alejandro Garcia, and together they moved for class certification. The District Court denied their motion, but the Court of Appeals for the Ninth Circuit reversed. See Rodriguez
, 591 F. 3d 1105, 1111 (2010). It concluded that the proposed class met the certification requirements of Rule 23 of the Federal Rules of Civil Procedure, and it remanded the case to the District Court. Id.,
at 1111, 1126.
On remand, the District Court certified the following class:
“[A]ll non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified.” Class Certification Order in Rodriguez
, CV 07–03239 (CD Cal., Apr. 5, 2010).
The District Court named Rodriguez as class representative of the newly certified class, ibid.
, and then organized the class into four subclasses based on the four “general immigration detention statutes” under which it understood the class members to be detained: Sections 1225(b), 1226(a), 1226(c), and 1231(a). See Order Granting Plaintiff’s Motion for Class Certification in Rodriguez
, CV 07–03239 (CD Cal., Mar. 8, 2011) (2011 Order); Rodriguez
, 715 F. 3d 1127, 1130–1131 (CA9 2013). Each of the four subclasses was certified to pursue declaratory and injunctive relief. 2011 Order. On appeal, the Court of Appeals held that the §1231(a) subclass had been improperly certified, but it affirmed the certification of the other three subclasses. See Rodriguez
, 804 F. 3d 1060, 1074, 1085–1086 (CA9 2015).
In their complaint, Rodriguez and the other respondents argued that the relevant statutory provisions—§§1225(b), 1226(a), and 1226(c)—do not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. Absent such a bond-hearing requirement, respondents continued, those three provisions would violate the Due Process Clause of the Fifth Amendment. In their prayer for relief, respondents thus asked the District Court to require the Government “to provide, after giving notice, individual hearings before an immigration judge for . . . each member of the class, at which [the Government] will bear the burden to prove by clear and convincing evidence that no reasonable conditions will ensure the detainee’s presence in the event of removal and protect the community from serious danger, despite the prolonged length of detention at issue.” Third Amended Complaint in Rodriguez
, CV 07–03239, p. 31 (CD Cal., Oct. 20, 2010). Respondents also sought declaratory relief. Ibid.
As relevant here, the District Court entered a permanent injunction in line with the relief sought by respondents, and the Court of Appeals affirmed. See 804 F. 3d,
at 1065. Relying heavily on the canon of constitutional avoidance, the Court of Appeals construed §§1225(b) and 1226(c) as imposing an implicit 6-month time limit on an alien’s detention under these sections. Id.,
at 1079, 1082. After that point, the Court of Appeals held, the Government may continue to detain the alien only under the authority of §1226(a). Ibid.
The Court of Appeals then construed §1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial 6-month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified. Id.,
at 1085, 1087.
The Government petitioned this Court for review of that decision, and we granted certiorari. 579 U. S. ___ (2016).
Before reaching the merits of the lower court’s interpretation, we briefly address whether we have jurisdiction to entertain respondents’ claims. We discuss two potential obstacles, 8 U. S. C. §§1252(b)(9) and 1226(e).
“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§1225 and 1226] shall be available only in judicial review of a final order under this section.”
This provision does not deprive us of jurisdiction. We are required in this case to decide “questions of law,” specifically, whether, contrary to the decision of the Court of Appeals, certain statutory provisions require detention without a bond hearing. We assume for the sake of argument that the actions taken with respect to all the aliens in the certified class constitute “action[s] taken . . . to remove [them] from the United States.”[3
] On that assumption, the applicability of §1252(b)(9) turns on whether the legal questions that we must decide “aris[e] from” the actions taken to remove these aliens.
It may be argued that this is so in the sense that if those actions had never been taken, the aliens would not be in custody at all. But this expansive interpretation of §1252(b)(9) would lead to staggering results. Suppose, for example, that a detained alien wishes to assert a claim under Bivens
v. Six Unknown Fed. Narcotics Agents
,403 U. S. 388 (1971), based on allegedly inhumane conditions of confinement. See, e.g., Ziglar
, 582 U. S. ___, ___–___ (2017) (slip op., at 23–29). Or suppose that a detained alien brings a state-law claim for assault against a guard or fellow detainee. Or suppose that an alien is injured when a truck hits the bus transporting aliens to a detention facility, and the alien sues the driver or owner of the truck. The “questions of law and fact” in all those cases could be said to “aris[e] from” actions taken to remove the aliens in the sense that the aliens’ injuries would never have occurred if they had not been placed in detention. But cramming judicial review of those questions into the review of final removal orders would be absurd.
Interpreting “arising from” in this extreme way would also make claims of prolonged detention effectively unreviewable. By the time a final order of removal was eventually entered, the allegedly excessive detention would have already taken place. And of course, it is possible that no such order would ever be entered in a particular case, depriving that detainee of any meaningful chance for judicial review.
In past cases, when confronted with capacious phrases like “ ‘arising from,’ ” we have eschewed “ ‘uncritical literalism’ ” leading to results that “ ‘no sensible person could have intended.’ ” Gobeille
v. Liberty Mut. Ins. Co.
, 577 U. S. ___, ___ (2016) (slip op., at 6) (interpreting phrase “relate to” in the Employee Retirement Income Security Act of 1974’s pre-emption provision). See also, e.g., FERC
v. Electric Power Supply Assn.
, 577 U. S. ___, ___–___ (2016) (slip op., at 15–16) (interpreting term “affecting” in Federal Power Act); Maracich
,570 U. S. 48–61 (2013) (interpreting phrase “in connection with” in Driver’s Privacy Protection Act); Dan’s City Used Cars, Inc.
,569 U. S. 251–261 (2013) (interpreting phrase “related to” in Federal Aviation Administration Authorization Act); Celotex Corp.
,514 U. S. 300,308 (1995) (interpreting phrase “related to” in Bankruptcy Act). In Reno
v. American-Arab Anti-Discrimination Comm.
,525 U. S. 471,482 (1999), we took this approach in construing the very phrase that appears in §1252(b)(9). A neighboring provision of the Immigration and Nationality Act refers to “any cause or claim by or on behalf of any alien arising from
the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”8 U. S. C. §1252(g) (emphasis added). We did not interpret this language to sweep in any claim that can technically be said to “arise from” the three listed actions of the Attorney General. Instead, we read the language to refer to just those three specific actions themselves. American-Arab Anti-Discrimination Comm.
, at 482–483.
The parties in this case have not addressed the scope of §1252(b)(9), and it is not necessary for us to attempt to provide a comprehensive interpretation. For present purposes, it is enough to note that respondents are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances, §1252(b)(9) does not present a jurisdictional bar.[4
We likewise hold that §1226(e) does not bar us from considering respondents’ claims.
That provision states:
“The Attorney General’s discretionary judgment regarding the application of [§1226] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” §1226(e).
As we have previously explained, §1226(e) precludes an alien from “challeng[ing] a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.” Demore
,538 U. S. 510,516 (2003). But §1226(e) does not preclude “challenges [to] the statutory framework that permits [the alien’s] detention without bail.” Id.,
Respondents mount that second type of challenge here. First and foremost, they are challenging the extent of the Government’s detention authority under the “statutory framework” as a whole. If that challenge fails, they are then contesting the constitutionality of the entire statutory scheme under the Fifth Amendment. Because the extent of the Government’s detention authority is not a matter of “discretionary judgment,” “action,” or “decision,” respondents’ challenge to “the statutory framework that permits [their] detention without bail,” ibid.
, falls outside of the scope of §1226(e). We may therefore consider the merits of their claims.
When “a serious doubt” is raised about the constitutionality of an act of Congress, “it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell
,285 U. S. 22,62 (1932). Relying on this canon of constitutional avoidance, the Court of Appeals construed §§1225(b), 1226(a), and 1226(c) to limit the permissible length of an alien’s detention without a bond hearing. Without such a construction, the Court of Appeals believed, the “ ‘prolonged detention without adequate procedural protections’ ” authorized by the provisions “ ‘would raise serious constitutional concerns.’ ” 804 F. 3d, at 1077 (quoting Casas-Castrillon
, 535 F. 3d 942, 950 (CA9 2008)).
The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Clark
,543 U. S. 371,385 (2005). In the absence of more than one plausible construction, the canon simply “ ‘has no application.’ ” Warger
, 574 U. S. ___, ___ (2014) (slip op., at 10) (quoting United States
v. Oakland Cannabis Buyers’ Cooperative
,532 U. S. 483,494 (2001)).
The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. In Parts III–A and III–B, we hold that, subject only to express exceptions, §§1225(b) and 1226(c) authorize detention until the end of applicable proceedings. And in Part III–C, we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation.
As noted, §1225(b) applies primarily to aliens seeking entry into the United States (“applicants for admission” in the language of the statute). Section 1225(b) divides these applicants into two categories. First, certain aliens claiming a credible fear of persecution under §1225(b)(1) “shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii). Second, aliens falling within the scope of §1225(b)(2) “shall be detained for a [removal] proceeding.” §1225(b)(2)(A).
Read most naturally, §§1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded. Section 1225(b)(1) aliens are detained for “further consideration of the application for asylum,” and §1225(b)(2) aliens are in turn detained for “[removal] proceeding[s].” Once those proceedings end, detention under §1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And neither §1225(b)(1) nor §1225(b)(2) says anything whatsoever about bond hearings.
Despite the clear language of §§1225(b)(1) and (b)(2), respondents argue—and the Court of Appeals held—that those provisions nevertheless can be construed to contain implicit limitations on the length of detention. But neither of the two limiting interpretations offered by respondents is plausible.
First, respondents argue that §§1225(b)(1) and (b)(2) contain an implicit 6-month limit on the length of detention. Once that 6-month period elapses, respondents contend, aliens previously detained under those provisions must instead be detained under the authority of §1226(a), which allows for bond hearings in certain circumstances.
There are many problems with this interpretation. Nothing in the text of §1225(b)(1) or §1225(b)(2) even hints that those provisions restrict detention after six months, but respondents do not engage in any analysis of the text. Instead, they simply cite the canon of constitutional avoidance and urge this Court to use that canon to read a “six-month reasonableness limitation” into §1225(b). Brief for Respondents 48.
That is not how the canon of constitutional avoidance works. Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to “choos[e] between competing plausible
interpretations of a statutory text.” Clark
, at 381 (emphasis added). To prevail, respondents must thus show that §1225(b)’s detention provisions may plausibly be read to contain an implicit 6-month limit. And they do not even attempt to defend that reading of the text.
In much the same manner, the Court of Appeals all but ignored the statutory text. Instead, it read Zadvydas
,533 U. S. 678 (2001), as essentially granting a license to graft a time limit onto the text of §1225(b). Zadvydas,
however, provides no such authority.
concerned §1231(a)(6), which authorizes the detention of aliens who have already been ordered removed from the country. Under this section, when an alien is ordered removed, the Attorney General is directed to complete removal within a period of 90 days,8 U. S. C. §1231(a)(1)(A), and the alien must be detained during that period, §1231(a)(2). After that time elapses, however, §1231(a)(6) provides only that certain aliens “may
be detained” while efforts to complete removal continue. (Emphasis added.)
, the Court construed §1231(a)(6) to mean that an alien who has been ordered removed may not be detained beyond “a period reasonably necessary to secure removal,” 533 U. S., at 699, and it further held that six months is a presumptively reasonable period, id.,
at 701. After that, the Court concluded, if the alien “provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,” the Government must either rebut that showing or release the alien. Ibid.
Court justified this interpretation by invoking the constitutional-avoidance canon, and the Court defended its resort to that canon on the ground that §1231(a)(6) is ambiguous. Specifically, the Court detected ambiguity in the statutory phrase “may
be detained.” “ ‘[M]ay,’ ” the Court said, “suggests discretion” but not necessarily “unlimited discretion. In that respect the word ‘may’ is ambiguous.” Id.,
at 697. The Court also pointed to the absence of any explicit statutory limit on the length of permissible detention following the entry of an order of removal. Ibid.
represents a notably generous application of the constitutional-avoidance canon, but the Court of Appeals in this case went much further. It failed to address whether Zadvydas
’s reasoning may fairly be applied in this case despite the many ways in which the provision in question in Zadvydas
, §1231(a)(6), differs materially from those at issue here, §§1225(b)(1) and (b)(2). Those dif- ferences preclude the reading adopted by the Court of Appeals.
To start, §§1225(b)(1) and (b)(2), unlike §1231(a)(6), provide for detention for a specified period of time. Section 1225(b)(1) mandates detention “for further consideration of the application for asylum,” §1225(b)(1)(B)(ii), and §1225(b)(2) requires detention “for a [removal] proceeding,” §1225(b)(2)(A). The plain meaning of those phrases is that detention must continue until immigration officers have finished “consider[ing]” the application for asylum, §1225(b)(1)(B)(ii), or until removal proceedings have concluded, §1225(b)(2)(A). By contrast, Congress left the permissible length of detention under §1231(a)(6) unclear.
Moreover, in Zadvydas,
the Court saw ambiguity in §1231(a)(6)’s use of the word “may.” Here, by contrast, §§1225(b)(1) and (b)(2) do not use the word “may.” Instead, they unequivocally mandate that aliens falling within their scope “shall” be detained. “Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.” Kingdomware Technologies, Inc.
v. United States
, 579 U. S. ___, ___ (2016) (slip op., at 9). That requirement of detention precludes a court from finding ambiguity here in the way that Zadvydas
found ambiguity in §1231(a)(6).
reasoning is particularly inapt here because there is a specific provision authorizing release from §1225(b) detention whereas no similar release provision applies to §1231(a)(6). With a few exceptions not relevant here, the Attorney General may “for urgent humanitarian reasons or significant public benefit” temporarily parole aliens detained under §§1225(b)(1) and (b)(2).8 U. S. C. §1182(d)(5)(A). That express exception to detention implies that there are no other
circumstances under which aliens detained under §1225(b) may be released. See A. Scalia & B. Garner, Reading Law 107 (2012) (“Negative-Implication Canon[:] The expression of one thing implies the exclusion of others (expressio unius est exclusio al- terius
)”). That negative implication precludes the sort of implicit time limit on detention that we found in Zadvydas
In short, a series of textual signals distinguishes the provisions at issue in this case from Zadvydas
’s interpretation of §1231(a)(6). While Zadvydas
found §1231(a)(6) to be ambiguous, the same cannot be said of §§1225(b)(1) and (b)(2): Both provisions mandate detention until a certain point and authorize release prior to that point only under limited circumstances. As a result, neither provision can reasonably be read to limit detention to six months.
In this Court, respondents advance an interpretation of the language of §§1225(b)(1) and (b)(2) that was never made below, namely, that the term “for,” which appears in both provisions, mandates detention only until the start
of applicable proceedings rather than all the way through to their conclusion. Respondents contrast the language of §§1225(b)(1) and (b)(2) authorizing detention “for” further proceedings with another provision’s authorization of detention “pending” further proceedings. See8 U. S. C. §1225(b)(1)(B)(iii)(IV) (“Any alien . . . shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed”). According to respondents, that distinction between “for” and “pending” makes an enormous difference. As they see things, the word “pending” authorizes detention throughout subsequent proceedings, but the term “for” means that detention authority ends once subsequent proceedings begin. As a result, respondents argue, once the applicable proceedings commence, §§1225(b)(1) and (b)(2) no longer authorize detention, and the Government must instead look to §1226(a) for continued detention authority.
That interpretation is inconsistent with ordinary English usage and is incompatible with the rest of the statute. To be sure, “for” can sometimes mean “in preparation for or anticipation of.” 6 Oxford English Dictionary 24 (2d ed. 1989). But “for” can also mean “[d]uring [or] throughout,” id.,
at 26, as well as “with the object or purpose of,” id.,
at 23; see also American Heritage Dictionary 709 (3d ed. 1992) (“Used to indicate the object, aim, or purpose of an action or activity”; “Used to indicate amount, extent, or duration”); Random House Dictionary of the English Language 747 (2d ed. 1987) (“with the object or purpose of”; “during the continuance of”); Webster’s Third New International Dictionary 886 (1993) (“with the purpose or object of”; “to the . . . duration of”). And here, only that second set of definitions makes sense in the context of the statutory scheme as a whole.
For example, respondents argue that, once detention authority ends under §§1225(b)(1) and (b)(2), aliens can be detained only under §1226(a). But that section authorizes detention only “[o]n a warrant issued” by the Attorney General leading to the alien’s arrest. §1226(a). If respondents’ interpretation of §1225(b) were correct, then the Government could detain an alien without a warrant at the border, but once removal proceedings began, the Attorney General would have to issue an arrest warrant in order to continue detaining the alien. To put it lightly, that makes little sense.
Nor does respondents’ interpretation of the word “for” align with the way Congress has historically used that word in §1225. Consider that section’s text prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,110Stat.3009–546. Under the older version of §1225(b), “[e]very alien” within its scope “who may not appear . . . to be clearly and beyond a doubt entitled to [entry] shall be detained for further inquiry to be conducted by a special inquiry officer.”8 U. S. C. §1225(b) (1994 ed.). It would make no sense to read “for further inquiry” as authorizing detention of the alien only until the start of the inquiry; Congress obviously did not mean to allow aliens to feel free to leave once immigration officers asked their first question.
In sum, §§1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin. Of course, other provisions of the immigration statutes do authorize detention “pending” other proceedings or “until” a certain point. See post,
at 22–23 (Breyer, J., dissenting) (quoting §1225(b)(1)(B)(iii)(IV)). But there is no “canon of interpretation that forbids interpreting different words used in different parts of the same statute to mean roughly the same thing.” Kirtsaeng
v. John Wiley & Sons, Inc.
,568 U. S. 519,540 (2013). We decline to invent and apply such a canon here.
While the language of §§1225(b)(1) and (b)(2) is quite clear, §1226(c) is even clearer. As noted, §1226 applies to aliens already present in the United States. Section 1226(a) creates a default rule for those aliens by permitting—but not requiring—the Attorney General to issue warrants for their arrest and detention pending removal proceedings. Section 1226(a) also permits the Attorney General to release those aliens on bond, “[e]xcept as provided in subsection (c) of this section.” Section 1226(c) in turn states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and terrorist activities.8 U. S. C. §1226(c)(1). Section 1226(c) then goes on to specify that the Attorney General “may release” one of those aliens “only if
the Attorney General decides” both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk. §1226(c)(2) (emphasis added).
Like §1225(b), §1226(c) does not on its face limit the length of the detention it authorizes. In fact, by allowing aliens to be released “only if” the Attorney General decides that certain conditions are met, §1226(c) reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute. And together with §1226(a), §1226(c) makes clear that detention of aliens within its scope must
continue “pending a decision on whether the alien is to be removed from the United States.” §1226(a).
In a reprise of their interpretation of §1225(b), respondents argue, and the Court of Appeals held, that §1226(c) should be interpreted to include an implicit 6-month time limit on the length of mandatory detention. Once again, that interpretation falls far short of a “plausible statutory construction.”
In defense of their statutory reading, respondents first argue that §1226(c)’s “silence” as to the length of detention “cannot be construed to authorize prolonged mandatory detention, because Congress must use ‘clearer terms’ to authorize ‘long-term detention.’ ” Brief for Respondents 34 (quoting Zadvydas
, 533 U. S., at 697). But §1226(c) is not
“silent” as to the length of detention. It mandates detention “pending a decision on whether the alien is to be removed from the United States,” §1226(a), and it expressly prohibits release from that detention except for narrow, witness-protection purposes. Even if courts were permitted to fashion 6-month time limits out of statutory silence, they certainly may not transmute existing statutory language into its polar opposite. The constitutional-avoidance canon does not countenance such textual alchemy.
Indeed, we have held as much in connection with §1226(c) itself. In Demore
, 538 U. S., at 529, we distinguished §1226(c) from the statutory provision in Zadvydas
by pointing out that detention under §1226(c) has “a definite termination point”: the conclusion of removal proceedings. As we made clear there, that “definite termination point”—and not some arbitrary time limit devised by courts—marks the end of the Government’s detention authority under §1226(c).
Respondents next contend that §1226(c)’s limited authorization for release for witness-protection purposes does not imply that other forms of release are forbidden, but this argument defies the statutory text. By expressly stating that the covered aliens may be released “only if” certain conditions are met,8 U. S. C. §1226(c)(2), the statute expressly and unequivocally imposes an affirmative prohibition
on releasing detained aliens under any other conditions.
Finally, respondents point to a provision enacted as part of the PATRIOT Act[6
] and contend that their reading of §1226(c) is needed to prevent that provision from being superfluous. That argument, however, misreads both statutory provisions. Although the two provisions overlap in part, they are by no means congruent.
Two differences stand out. First, §1226(c) and the PATRIOT Act cover different categories of aliens. Both apply to certain terrorist suspects, but only §1226(c) reaches aliens convicted of other more common criminal offenses. See §§1226(c)(1)(A)–(C) (aliens inadmissible or deportable under §1182(a)(2); §§1227(a)(2)(A)(ii), (A)(iii), (B), (C), and (D); and §1227(a)(2)(A)(i) under certain conditions). For its part, the PATRIOT Act casts a wider net than §1226(c) insofar as it encompasses certain threats to national security not covered by §1226(c). See §1226a(a)(3) (aliens described in §§1182(a)(3)(A)(i), (iii), and 1227(a)(4)(A)(i), (iii), as well as aliens “engaged in any other activity that endangers the national security of the United States”). In addition, the Government’s detention authority under §1226(c) and the PATRIOT Act is not the same. Under §1226(c), the Government must detain an alien until “a decision on whether
the alien is to be removed” is made. §1226(a) (emphasis added). But, subject to exceptions not relevant here, the PATRIOT Act authorizes the Government to detain an alien “until the alien is removed
.” §1226a(a)(2) (emphasis added).
Far from being redundant, then, §1226(c) and the PATRIOT Act apply to different categories of aliens in different ways. There is thus no reason to depart from the plain meaning of §1226(c) in order to avoid making the provision superfluous.
We hold that §1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings “only if” the alien is released for witness-protection purposes.
Finally, as noted, §1226(a) authorizes the Attorney General to arrest and detain an alien “pending a decision on whether the alien is to be removed from the United States.” §1226(a). As long as the detained alien is not covered by §1226(c), the Attorney General “may release” the alien on “bond . . . or conditional parole.” §1226(a). Federal regulations provide that aliens detained under §1226(a) receive bond hearings at the outset of detention. See 8 CFR §§236.1(d)(1), 1236.1(d)(1).
The Court of Appeals ordered the Government to provide procedural protections that go well beyond the initial bond hearing established by existing regulations—namely, periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary. Nothing in §1226(a)’s text—which says only that the Attorney General “may release” the alien “on . . . bond”—even remotely supports the imposition of either of those requirements. Nor does §1226(a)’s text even hint that the length of detention prior to a bond hearing must specifically be considered in determining whether the alien should be released.
For these reasons, the meaning of the relevant statutory provisions is clear—and clearly contrary to the decision of the Court of Appeals. But the dissent is undeterred. It begins by ignoring the statutory language for as long as possible, devoting the first two-thirds of its opinion to a disquisition on the Constitution. Only after a 19-page prologue does the dissent acknowledge the relevant statutory provisions.
The dissent frames the question of interpretation as follows: Can §§1225(b), 1226(c), and 1226(a) be read to require bond hearings every six months “without doing violence to the statutory language,” post,
at 20 (opinion of Breyer, J.)? According to the dissent, the answer is “yes,” but the dissent evidently has a strong stomach when it comes to inflicting linguistic trauma. Thus, when Congress mandated that an “alien shall be detained,” §1225(b)(1)(B)(ii), what Congress really meant, the dissent insists, is that the alien may be released from custody provided only that his freedom of movement is restricted in some way, such as by “the imposition of a curfew,” post,
at 21. And when Congress stressed that “[t]he Attorney General may release an alien . . . only if
. . . release . . . from custody is necessary” to protect the safety of a witness, §1226(c)(2) (emphasis added), what Congress meant, the dissent tells us, is that the Attorney General must release an alien even when no witness is in need of protection—so long as the alien is neither a flight risk nor a danger to the community, see post,
at 25–27. The contortions needed to reach these remarkable conclusions are a sight to behold.
Let us start with the simple term “detain.” According to the dissent, “detain” means the absence of “unrestrained freedom.” Post,
at 21. An alien who is subject to any one of “numerous restraints”—including “a requirement to obtain medical treatment,” “to report at regular intervals,” or even simply to comply with “a curfew”—is “detained” in the dissent’s eyes, even if that alien is otherwise free to roam the streets. Ibid.
This interpretation defies ordinary English usage. The dictionary cited by the dissent, the Oxford English Dictionary (OED), defines “detain” as follows: “[t]o keep in confinement or under restraint; to keep prisoner
.” 4 OED 543 (2d ed. 1989) (emphasis added); see also OED (3d ed. 2012), http://www.oed.com/view/Entry/51176 (same). Other general-purpose dictionaries provide similar definitions. See, e.g.,
Webster’s Third New International Dictionary 616 (1961) (“to hold or keep in or as if in custody ”); Webster’s New International Dictionary 710 (2d ed. 1934) (“[t]o hold or keep as in custody”); American Heritage Dictionary 508 (def. 2) (3d ed. 1992) (“To keep in custody or temporary confinement”); Webster’s New World College Dictionary 375 (3d ed. 1997) (“to keep in custody; confine”). And legal dictionaries define “detain” the same way. See, e.g., Ballentine’s Law Dictionary 343 (3d ed. 1969) (“To hold; to keep in custody; to keep”); Black’s Law Dictionary 459 (7th ed. 1999) (“The act or fact of holding a person in custody; confinement or compulsory delay”).
How does the dissent attempt to evade the clear meaning of “detain”? It resorts to the legal equivalent of a sleight-of-hand trick. First, the dissent cites a passage in Blackstone stating that arrestees could always seek release on bail. Post,
at 8–9. Then, having established the obvious point that a person who is initially detained may later be released from detention, the dissent reasons that this means that a person may still be regarded as detained even after he is released from custody. Post,
at 21. That, of course, is a nonsequitur. Just because a person who is initially detained may later be released, it does not follow that the person is still “detained” after his period of detention comes to an end.
If there were any doubt about the meaning of the term “detain” in the relevant statutory provisions, the context in which they appear would put that doubt to rest. Title 8 of the United States Code, the title dealing with immigration, is replete with references that distinguish between “detained” aliens and aliens who are free to walk the streets in the way the dissent imagines. Section 1226(a), for instance, distinguishes between the power to “continue to detain the arrested alien” and the power to “release the alien on . . . bond.” But if the dissent were right, that distinction would make no sense: An “alien released on bond” would also
be a “detained alien.” Here is another example: In §1226(b), Congress gave the Attorney General the power to “revoke” at any time “a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien.” It beggars belief that Congress would have given the Attorney General the power to detain a class of aliens who, under the dissent’s reading, are already
“detained” because they are free on bond. But that is what the dissent would have us believe. Consider, finally, the example of §1226(c). As noted, that provision obligates the Attorney General to “take into custody” certain aliens whenever they are “released, without regard to whether the alien is released on parole, supervised release, or probation.” On the dissent’s view, however, even aliens “released on parole, supervised release, or probation” are “in custody”—and so there would be no need for the Attorney General to take them into custody again.[7
Struggling to prop up its implausible interpretation, the dissent looks to our prior decisions for aid, but that too fails. The best case it can find is Tod
,266 U. S. 547 (1925), a grant of a petition for rehearing in which the Court clarified that “[n]othing in [its original] order . . . shall prejudice an application for release on bail of the respondents pending compliance with the mandate of this Court.” Id.,
at 548. According to the dissent, that two-page decision from almost a century ago supports its reading because the underlying immigration statute in that case—like some of the provisions at issue here—mandated that the relevant class of aliens “ ‘shall be detained’ ” pending the outcome of an inspection process. See post,
at 21–22 (quoting Act of Feb. 5, 1917, §16,39Stat.886).
That reads far too much into Waldman
. To start, the Court did not state that the aliens at issue were entitled to bail or even that bail was available to them. Instead, the Court merely noted that its decision should not “prejudice” any application the aliens might choose to file. That is notable, for in their petition for rehearing the aliens had asked the Court to affirmatively “authorize
[them] to give bail.” Petition for Rehearing in Tod
, O. T. 1924, No. 95, p. 17 (emphasis added). By refusing to do so, the Court may have been signaling its skepticism about their request. But it is impossible to tell. That is precisely why we, unlike the dissent, choose not to go beyond what the sentence actually says. And Waldman
says nothing about how the word “detain” should be read in the context of §§1225(b), 1226(c), and 1226(a).[8
Neither does Zadvydas
. It is true, as the dissent points out, that Zadvydas
found “that the words ‘ “may be detained” ’ [are] consistent with requiring release from long-term detention,” post,
at 23 (quoting 533 U. S., at 682), but that is not because there is any ambiguity in the term “detain.” As we have explained, the key statutory provision in Zadvydas
said that the aliens in question “may,” not “shall,” be detained, and that provision also failed to specify how long detention was to last. Here, the statutory provisions at issue state either that the covered aliens “shall” be detained until specified events take place, see8 U. S. C. §1225(b)(1)(B)(ii) (“further consideration of the application for asylum”); §1225(b)(2)(A) (“a [removal] proceeding”), or provide that the covered aliens may be released “only if” specified conditions are met, §1226(c)(2). The term that the Zadvydas
Court found to be ambiguous was “may,” not “detain.” See 533 U. S., at 697. And the opinion in that case consistently used the words “detain” and “custody” to refer exclusively to physical confinement and restraint. See id.,
at 690 (referring to “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint
” (emphasis added)); id.,
at 683 (contrasting aliens “released on bond” with those “held in custody”).[9
The dissent offers no plausible interpretation of §§1225(b), 1226(c), and 1226(a). But even if we were to accept the dissent’s interpretation and hold that “detained” aliens in the “custody” of the Government include aliens released on bond, that would still
not justify the dissent’s proposed resolution of this case. The Court of Appeals held that aliens detained under the provisions at issue must be given periodic
bond hearings, and the dissent agrees. See post,
at 2 (“I would interpret the statute as requiring bail hearings, presumptively after six months of confinement”). But the dissent draws that 6-month limitation out of thin air. However broad its interpretation of the words “detain” and “custody,” nothing in any
of the relevant provisions imposes a 6-month time limit on detention without the possibility of bail. So if the dissent’s interpretation is right, then aliens detained under §§1225(b), 1226(c), and 1226(a) are entitled to bail hearings as soon as their detention begins rather than six months later. “Detained” does not mean “released on bond,” and it certainly
does not mean “released on bond but only after six months of mandatory physical confinement.”
The dissent’s utterly implausible interpretation of the statutory language cannot support the decision of the court below.
Because the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to consider respondents’ constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” Cutter
,544 U. S. 709, n. 7 (2005), we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance.
Before the Court of Appeals addresses those claims, however, it should reexamine whether respondents can continue litigating their claims as a class. When the District Court certified the class under Rule 23(b)(2) of the Federal Rules of Civil Procedure, it had their statutory challenge primarily in mind. Now that we have resolved that challenge, however, new questions emerge.
Specifically, the Court of Appeals should first decide whether it continues to have jurisdiction despite8 U. S. C. §1252(f )(1). Under that provision, “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§1221–1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Section 1252(f )(1) thus “prohibits federal courts from granting classwide injunctive relief against the operation of §§1221–123.” American-Arab Anti-Discrimination Comm.
, 525 U. S., at 481. The Court of Appeals held that this provision did not affect its jurisdiction over respondents’ statutory
claims because those claims did not “seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct . . . not authorized by the statutes.” 591 F. 3d, at 1120. This reasoning does not seem to apply to an order granting relief on constitutional grounds, and therefore the Court of Appeals should consider on remand whether it may issue classwide injunctive relief based on respondents’ constitutional claims. If not, and if the Court of Appeals concludes that it may issue only declaratory relief, then the Court of Appeals should decide whether that remedy can sustain the class on its own. See, e. g.,
Rule 23(b)(2) (requiring “that final injunctive relief or corresponding
declaratory relief [be] appropriate respecting the class as a whole” (emphasis added)).
The Court of Appeals should also consider whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for respondents’ claims in light of Wal-Mart Stores, Inc.
,564 U. S. 338 (2011). We held in Dukes
that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id.,
at 360. That holding may be relevant on remand because the Court of Appeals has already acknowledged that some members of the certified class may not be entitled to bond hearings as a constitutional matter. See, e. g.,
804 F. 3d, at 1082; 715 F. 3d, at 1139–1141 (citing, e. g., Shaughnessy
v. United States ex rel. Mezei
,345 U. S. 206 (1953)). Assuming that is correct, then it may no longer be true that the complained-of “ ‘conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’ ” Dukes
, at 360 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009)).
Similarly, the Court of Appeals should also consider on remand whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve respondents’ Due Process Clause claims. “[D]ue process is flexible,” we have stressed repeatedly, and it “calls for such procedural protections as the particular situation demands.” Morrissey
,408 U. S. 471,481 (1972); see also Landon
,459 U. S. 21,34 (1982).
We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings.
It is so ordered.
Justice Kagan took no part in the decision of this case.