Immigration - AG's detention mandate. Statutory interpretation, En banc, 107 pp.
3-1-3 split. District courts decision requiring bond hearings for aliens affirmed, in line with the first opinion, viz:
(3)
When an antecedent portion of a statute refers to an entity later described in the statute, it is assumed that the full modifier is incorporated in the later reference, i.e., a statute referring to an alien as described above refers to the type of alien described above, and not aliens generally, some of whom fall into the category described above, and some of whom don't.
Chevron analysis, TKO'd on step one - agency adjudication deserves no deference, as the statute isn't ambiguous.
Additionally, as agency only decided whether statute's requirements attach on release or after release, there is no agency guidance on relative duration of release.
Loss-of-authority canon.
(1)
Concurrence in J.
14A bars indefinite detention without access to bail or bond of anybody in the US. Yick Wo.
(3)
Dissent
Statutory interpretation - the adverbial modifier in the previous clause shouldn't attach to the second clause.
Circuit split flagged.
Legislative intent, surplussage.
Where a statutory mandate is not implemented, a second clause referring to the entities in the mandate continues to describe them as as an independent referent, though not acted upon by the terms of the previous mandate.
Constitutional avoidance.
http://media.ca1.uscourts.gov/pdf.opinions/13-1994P2-01A.pdf
