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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–1204

															_________________

															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.

															I

															A

															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.

															1

															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. 2

															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. [ 2 ]

															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).

															B

															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 v. Hayes , 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 v. Hayes , 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 v. Holder , CV 07–03239 (CD Cal., Mar. 8,
2011) (2011 Order); Rodriguez v. Robbins , 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 v. Robbins , 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 v. Holder , 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).

															II

															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).

															A

															Under §1252(b)(9):

															“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 v. Abbasi , 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 v. Spears ,570 U. S. 48–61 (2013) (interpreting phrase “in
connection with” in Driver’s Privacy Protection Act); Dan’s City
Used Cars, Inc. v. Pelkey ,569 U. S. 251–261 (2013)
(interpreting phrase “related to” in Federal Aviation
Administration Authorization Act); Celotex Corp. v. Edwards ,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. , supra , 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 ]

															B

															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 v. Kim ,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., at 517.

															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.

															III

															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 v. Benson ,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 v. DHS , 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 v. Martinez ,543 U. S. 371,385 (2005). In
the absence of more than one plausible construction, the canon
simply “ ‘has no application.’ ” Warger v. Shauers , 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.

															A

															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.

															1

															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 , supra ,
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 v. Davis ,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. Zadvydas 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.)

															In Zadvydas , 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. The Zadvydas 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. Zadvydas 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). Zadvydas ’s 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 .[ 5 ]

															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.

															2

															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.

															B

															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 v. Kim , 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.

															C

															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.

															IV

															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 v. Waldman ,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 v. Waldman , 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.

															V

															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 v. Wilkinson ,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[2].” 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. v. Dukes ,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 , supra ,
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 v. Brewer ,408
U. S. 471,481 (1972); see also Landon v. Plasencia ,459 U. S. 21,34 (1982).

															VI

															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. Notes 1 * Justice Sotomayor joins only Part
III–C of this opinion. 2 Anyone who believes that he is not
covered by §1226(c) may also ask for what is known as a
“ Joseph hearing.” See Matter of Joseph , 22
I. & N. Dec. 799 (BIA 1999). At a Joseph hearing, that person “may avoid mandatory detention by
demonstrating that he is not an alien, was not convicted of the
predicate crime, or that the [Government] is otherwise
substantially unlikely to establish that he is in fact subject to
mandatory detention.” Demore v. Kim ,538 U. S.
510, n. 3 (2003). Whether respondents are entitled to Joseph hearings is not before this Court. 3 It is questionable whether this is
true for aliens who are detained under8 U. S. C.
§1225(b)(1)(B)(ii) for consideration of their asylum
applications. 4 The concurrence contends that
“detention is an ‘action taken . . . to remove’ an
alien” and that therefore “even the narrowest reading of ‘arising
from’ must cover” the claims raised by respondents. Post, at
6. We do not follow this logic. We will assume for the sake of
argument that detention is an action taken “to remove an alien,” i.e. , for the purpose of removing an alien, rather than
simply an action aimed at ensuring that the alien does not flee or
commit a crime while his proceedings are pending. But even if we
proceed on the basis of that assumption, we do not see what it
proves. The question is not whether detention is an action
taken to remove an alien but whether the legal questions in
this case arise from such an action. And for the reasons explained
above, those legal questions are too remote from the actions taken
to fall within the scope of §1252(b)(9). 5 According to the dissent, we could
have applied the expressio unius canon in Zadvydas as
well because there was also an “alternative avenue for relief,
namely, bail,” available for aliens detained under §1231(a)(6). Post, at 25 (opinion of Breyer, J.). But the dissent
overlooks the fact that the provision granting bail was precisely
the same provision that the Court purported to be interpreting, so
the canon was not applicable. See 533 U. S., at
683. 6 See Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (PATRIOT Act),115Stat.272. 7 As the dissent notes, §1158(d)(2)
regulates employment authorization for certain “applicant[s] for
asylum.” Were all asylum applicants detained, the dissent says,
that provision would make no sense, because detained aliens do not
need work authorizations. Post, at 23–24. But §1158(d)(2)
applies not only to aliens seeking asylum status “in accordance
with . . . section 1225(b)” (and thus aliens who are
detained), but also to all aliens already “physically present in
the United States.” §1158(a)(1). Many of those aliens will be in
the country lawfully, and thus they will not be detained and will
be able to work pending the outcome of their asylum application.
For example, an alien may apply for asylum after being admitted
into the country on a short-term visa. While the application is
pending, §1158 may offer a way for that alien to find employment.
In response, the dissent accuses us of “apply[ing] this provision
to some asylum applicants but not the ones before us.” Post, at 23–24. That is not remotely what we are doing. We do not doubt
that §1158(d)(2) “applies” to all “applicant[s] for asylum” as it
says, even if some of those applicants are not as likely to receive
an employment authorization (for instance, because they are
detained) as others. 8 It should not be surprising by this
point that even the aliens in Waldman understood “detention”
in contradistinction to “bail.” See Petition for Rehearing in Tod v. Waldman , O. T. 1924, No. 95,
pp. 17–18 (“[T]he Court’s mandate should authorize relators to
give bail, instead of having [them] go to Ellis Island and remain
there in custody pending an appeal . . . which may
involve very long detention pending hearing of the appeal
. . .” (capitalization omitted and emphasis
added)). 9 The dissent argues that because “the
question at issue [in Zadvydas ] was release from detention,”
“the key word was consequently ‘may.’ ” Post, at 23. We
agree but fail to see the point. If, as the dissent admits, Zadvydas was about “release from detention” and not about
what qualifies as “detention,” then it is unclear why the dissent
thinks that decision supports its unorthodox interpretation of the
word “detention.” SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–1204

															_________________

															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 Thomas, with whom Justice Gorsuch
joins except for footnote 6, concurring in Part I and Parts III–VI
and concurring in the judgment.

															In my view, no court has jurisdiction over this
case. Congress has prohibited courts from reviewing aliens’ claims
related to their removal, except in a petition for review from a
final removal order or in other circumstances not present here. See
8 U. S. C. §1252(b)(9). Respond- ents have not brought
their claims in that posture, so §1252(b)(9) removes jurisdiction
over their challenge to their detention. I would therefore vacate
the judgment below with instructions to dismiss for lack of
jurisdiction. But because a majority of the Court believes we have
jurisdiction, and I agree with the Court’s resolution of the
merits, I join Part I and Parts III–VI of the Court’s opinion.

															I

															Respondents are a class of aliens whose
removal proceedings are ongoing. Respondents allege that the
statutes that authorize their detention during removal proceedings
do not authorize “prolonged” detention unless they are given an
individualized bond hearing at which the Government “prove[s] by
clear and convincing evidence” that their detention remains
justified. Third Amended Complaint in Rodriguez v. Holder , No. CV 07–03239 (CD Cal., Oct. 22, 2010), pp. 30–31
(Third Amended Complaint). If the statutes do authorize “prolonged”
detention, respondents claim that the statutes violate the Due
Process Clause of the Fifth Amendment. Ibid. In their
complaint, respondents sought declaratory and injunctive relief
from detention during their removal proceedings. Id., at
31–32. The District Court certified a class of aliens under Federal
Rule of Civil Procedure 23(b)(2) who, among other things, “are or
were detained for longer than six months pursuant to one of the
general immigration detention statutes.” Class Certification Order
in Rodriguez v. Holder , No. CV 07–03239 (CD Cal.,
Apr. 5, 2010), p. 2; Rodriguez v. Hayes , 591
F. 3d 1105, 1122–1126 (CA9 2010). After the parties moved for
summary judgment, the District Court entered a permanent injunction
in favor of the class, which requires the named Government
officials[ 1 ] to take steps to
“timely identify all current and future class members,” to update
class member lists with the District Court every 90 days, and to
provide class members with bond hearings that comply with
particular substantive and procedural requirements. Order,
Judgment, and Permanent Injunction in Rodriguez v. Holder , No. CV 07–03239 (CD Cal., Aug. 6, 2013), pp. 5–6
(Order, Judgment, and Permanent Injunction).

															II

															A

															Although neither party raises §1252(b)(9),
this Court has an “independent obligation” to assess whether it
deprives us and the lower courts of jurisdiction. Arbaugh v. Y & H Corp. , 546 U. S. 500, 514 (2006) . This Court
has described §1252(b)(9) as a “ ‘zipper’ clause.” See Reno v. American-Arab Anti-Discrimination Comm. , 525
U. S. 471, 483 (1999) ( AADC ); INS v. St.
Cyr , 533 U. S. 289, 313 (2001) . That description is apt
because, when an alien raises a claim related to his removal,
§1252(b)(9) closes all but two avenues for judicial review:

															“ Consolidation of questions for judicial
review “Judicial review of all questions of law and
fact, including interpretation and application of constitu- tional
and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States under
[8 U. S. C. §§1151–1382] shall be available only in
judicial review of a final order under this section . Except as otherwise provided in this section , no court shall have
jurisdiction, by habeas corpus under section 2241 of title 28 or
any other habeas corpus provision, by section 1361 or 1651 of such
title, or by any other provision of law (statutory or
nonstatutory), to review such an order or such questions of law or
fact.” (Emphasis added.)

															The text of this provision is clear. Courts
generally lack jurisdiction over “all questions of law and fact,”
both “constitutional” and “statutory,” that “aris[e] from” an
“action taken or proceeding brought to remove an alien.” If an
alien raises a claim arising from such an action or proceeding,
courts cannot review it unless they are reviewing “a final order”
under §1252(a)(1) or exercising jurisdiction “otherwise provided”
in §1252.[ 2 ] Neither “habeas
corpus” nor “any other provision of law” can be used to avoid
§1252(b)(9)’s jurisdictional bar. In short, if a claim arises from
an action taken to remove an alien, §1252(b)(9) permits judicial
review in only two circumstances: in connection with review of a
final removal order and via a specific grant of jurisdiction in
§1252.

															Respondents do not argue that any specific grant
of jurisdiction applies here, and they do not seek review of a
final removal order under §1252(a)(1). Thus, a court may review
respondents’ claims only if they can show that §1252(b)(9)’s
jurisdictional bar does not apply in the first place because their
claims do not “aris[e] from any action taken or proceeding brought
to remove an alien.”

															Respondents cannot make that showing. Section
1252(b)(9) is a “general jurisdictional limitation” that applies to
“all claims arising from deportation proceedings” and the “many
. . . decisions or actions that may be part of the
deportation process.” AADC, supra , at 482–483.
Detaining an alien falls within this definition—indeed, this Court
has described detention during removal proceedings as an “aspect of
the deportation process.” Demore v. Kim , 538
U. S. 510, 523 (2003) ; see also Carlson v. Landon , 342 U. S. 524, 538 (1952) (“Detention is
necessarily a part of [the] deportation procedure”). As the Court
explains today, Congress either mandates or permits the detention
of aliens for the entire duration of their removal proceedings. See ante , at 12–23. This detention, the Court further explains,
is meant to ensure that the Government can ultimately remove them.
See ante , at 1; accord, Demore , supra , at 528
(explaining that detention during removal proceedings “necessarily
serves the purpose of preventing deportable criminal aliens from
fleeing prior to or during their removal proceedings, thus
increasing the chance that, if ordered removed, the aliens will be
successfully removed”). The phrase “any action taken . . . to
remove an alien from the United States” must at least cover
congressionally authorized portions of the deportation process that
necessarily serve the purpose of ensuring an alien’s removal.
Claims challenging detention during removal proceedings thus fall
within the heartland of §1252(b)(9).

															B

															The plurality, the dissent, and respondents
each offer reasons why §1252(b)(9) does not apply to this case. The
plurality reasons that applying §1252(b)(9) to detention claims
requires an overly expansive reading of “arising from.” See ante , at 9–10. The dissent contends that §1252(b)(9) applies
only to challenges to the removal order itself. Post , at 31.
And respondents argue that, if §1252(b)(9) applies to their claims,
they will have no meaningful way to challenge their detention
during their removal proceedings.[ 3 ] Tr. of Oral Arg. 36. None of these arguments persuades
me.

															1

															The plurality asserts that §1252(b)(9) covers
respond- ents’ claims only if the words “arising from” are given an
“expansive interpretation.” Ante, at 9. I am of a different
view. Even if “arising from” is read narrowly, §1252(b)(9) still
covers the claims at issue in this case. That is because detention is an “action taken . . . to remove” an alien. And
even the narrowest reading of “arising from” must cover claims that
directly challenge such actions. See AADC , 525 U. S.,
at 482–483.

															The main precedent that the plurality cites to
support its narrow reading of “arising from” demonstrates that
§1252(b)(9) applies here. See ante , at 10 (citing AADC , 525 U. S., at 482–483). In AADC , the Court
explained that §1252(b)(9) covers “all claims arising from
deportation proceedings” and the “many . . . decisions or
actions that may be part of the deportation process.” Ibid. The Court even listed examples of the type of claims that would be
covered, including challenges to the decision “to open an
investigation” and the decision “to surveil the suspected
[immigration-law] violator.” Id., at 482. If surveilling a
suspected violator falls under the statute, then the detention of a
known violator certainly does as well.

															The plurality dismisses my “expansive
interpretation” because it would lead to “staggering results,”
supposedly barring claims that are far afield from removal. See ante, at 9 (describing lawsuits challenging inhumane
conditions of confinement, assaults, and negligent driving). But
that is not the case. Unlike detention during removal proceedings,
those actions are neither congressionally authorized nor meant to
ensure that an alien can be removed. Thus, my conclusion that
§1252(b)(9) covers an alien’s challenge to the fact of his
detention (an action taken in pursuit of the lawful objective of
removal) says nothing about whether it also covers claims about
inhumane treatment, as- saults, or negligently inflicted injuries
suffered during detention (actions that go beyond the
Government’s lawful pursuit of its removal objective). Cf. Bell v. Wolfish , 441 U. S. 520 –539 (1979)
(drawing a similar distinction).

															2

															The dissent takes a different approach.
Relying on the prefatory clause to §1252(b), it asserts that
§1252(b)(9) “by its terms applies only ‘[w]ith respect to review of
an order of removal under [§1252(a)(1)].’ ” Post , at 31
(quoting 8 U. S. C. §1252(b)). The dissent reads the
prefatory clause to mean that §1252(b)(9) applies only to a
“challenge [to] an order of removal.” Post , at 31. That
reading is incorrect.

															Section 1252(b)(9) is not restricted to
challenges to removal orders. The text refers to review of
“ all questions of law and fact” arising from removal, not
just removal orders. (Emphasis added.) And it specifies that
§1252(a)(1) provides the only means for reviewing “such an order or such questions of law or fact.” Ibid. (emphasis
added). The term “or” is “ ‘almost always disjunctive, that
is, the words it connects are to be given separate
meanings.’ ” Loughrin v. United States , 573
U. S. ___, ___ (2014) (slip op., at 6) (quoting United
States v. Woods , 571 U. S. 31 –46 (2013)). By
interpreting §1252(b)(9) as governing only removal orders, the
dissent reads “or such questions of law or fact” out of the
statute. It also renders superfluous §1252(a)(5), which already
specifies that the review made available under §1252(a)(1) “shall
be the sole and exclusive means for judicial review of an order
of removal .” This Court typically disfavors such
interpretations. See AADC , supra , at 483.

															The prefatory clause of §1252(b) does not change
the meaning of §1252(b)(9). The prefatory clause states that the
subparagraphs of §1252(b), including §1252(b)(9), impose
requirements “[w]ith respect to review of an order of removal under
subsection (a)(1).” The phrase “with respect to” means “referring
to,” “concerning,” or “relating to.” Oxford American Dictionary and
Language Guide 853 (1999 ed.); accord, Webster’s New Universal
Unabridged Dictionary 1640 (2003 ed.); American Heritage Dictionary
1485 (4th ed. 2000). Read together, the prefatory clause and
§1252(b)(9) mean that review of all questions arising from removal
must occur in connection with review of a final removal order under
§1252(a)(1), which makes sense given that §1252(b)(9) is meant to
“[c]onsolidat[e] . . . questions for judicial review.”
Tellingly, on the two previous occasions when this Court
interpreted §1252(b)(9), it did not understand §1252(b)(9) as
limited to challenges to removal orders. See AADC , supra, at 482–483 (stating that §1252(b)(9) is a “general
jurisdictional limitation” that applies to “all claims arising from
deportation proceedings” and “the many . . . decisions or
actions that may be part of the deportation process”); St.
Cyr , 533 U. S., at 313, n. 37 (clarifying that
§1252(b)(9) requires “claims that were viewed as being outside of a
‘final order’ ” to be “consolidated in a petition for review
and considered by the courts of appeals” in their review of the
final removal order under §1252(a)(1)). Thus, despite the dissent’s
assertion to the contrary, the prefatory clause plainly does not
change the scope of §1252(b)(9), which covers “all questions of law
or fact” arising from the removal process.

															3

															At oral argument, respondents asserted that,
if §1252(b)(9) bars their lawsuit, then the only review available
would be “a petition for review of [a] final removal order” under
§1252(a)(1), which takes place “after all the detention has already
happened.”[ 4 ] Tr. of Oral Arg.
36. I interpret respondents’ argument as a claim that §1252(b)(9)
would be unconstitutional if it precluded meaningful review of
their detention. This argument is unpersuasive and foreclosed by
precedent.

															The Constitution does not guarantee litigants
the most effective means of judicial review for every type of claim
they want to raise. See AADC , 525 U. S., at 487–492
(rejecting a similar argument); Heikkila v. Barber ,
345 U. S. 229, 237 (1953) (explaining that limitations on
judicial review of deportation must be followed “despite [their]
apparent inconvenience to the alien”). This is especially true in
the context of deportation, where limits on the courts’
jurisdiction have existed for almost as long as federal immigration
laws, and where this Court has repeatedly affirmed the
constitutionality of those limits.[ 5 ]

															Indeed, this Court has already rejected
essentially the same argument that respondents raise here. In AADC , the Court held that §1252(g), a provision similar to
§1252(b)(9), barred the aliens’ claim that the Government was
violating the First Amendment by selectively enforc- ing the
immigration laws against them. 525 U. S., at 487–492. The
aliens argued that constitutional avoidance required the Court to
interpret §1252(g) as not applying to their claims because the only
remaining avenue for review—a petition for review of a final
removal order under §1252(a)(1)—would be “unavailing” and would
“come too late to prevent the ‘chilling effect’ upon their First
Amendment rights.” Id. , at 487–488. The Court rejected this
argument because “an alien unlawfully in this country has no
constitutional right to assert selective enforcement as a defense
against his deportation.” Id. , at 488. The Court further
explained that it had a duty to enforce Congress’ limitations on
judicial review, except perhaps in “a rare case in which the
alleged basis of discrimination is so outrageous that the foregoing
considerations [ justifying limited review could] be
overcome.” Id. , at 491.

															Like in AADC , respondents’
lack-of-meaningful-review argument does not allow us to ignore the
jurisdictional limitations that Congress has imposed. This Court
has never held that detention during removal proceedings is
unconstitutional. To the contrary, this Court has repeatedly
recognized the constitutionality of that practice. See Demore , 538 U. S., at 523 (explaining that detention is
“a constitutionally valid aspect of the deportation process”);
accord, Reno v. Flores , 507 U. S. 292 –306
(1993); Shaughnessy v. United States ex rel. Mezei ,
345 U. S. 206, 215 (1953) ; Carlson , 342 U. S., at
538, 542. Nor does this lawsuit qualify as the “rare case in which
the alleged [executive action] is so outrageous” that it could
thwart the jurisdictional limitations in §1252(b)(9). AADC , supra , at 491. The Government’s detention of respondents is
entirely routine and indistinguishable from the detention that we
have repeatedly upheld in the past. Thus, regardless of the
inconvenience that §1252(b)(9) might pose for respondents, this
Court must enforce it as written. Respondents must raise their
claims in petitions for review of their final removal
orders.[ 6 ]

															III

															Because I conclude that §1252(b)(9) bars
jurisdiction to hear respondents’ claims, I will also address
whether its application to this case violates the Suspension
Clause, see Art. I, §9, cl. 2 (“The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it”). It does
not. Even assuming the Suspension Clause bars Congress from
stripping habeas jurisdiction over respondents’ claims, but see St. Cyr , 533 U. S., at 337–346 (Sca- lia, J.,
dissenting), this case does not involve a habeas petition.

															Respondents do not seek habeas relief, as
understood by our precedents. Although their complaint references
the general habeas statute, see Third Amended Complaint, at 1, it
is not a habeas petition. The complaint does not request that the
District Court issue any writ. See id. , at 31–32. Rather, it
seeks a declaration and an injunction that would provide relief for
both present and future class members, including future class
members not yet detained. Ibid. Indeed, respondents obtained
class certification under Federal Rule of Civil Procedure 23(b)(2),
which applies only when the class seeks “final injunctive relief or
corresponding declaratory relief.”[ 7 ]

															Nor did respondents obtain habeas relief. When
their case concluded, respondents obtained a classwide permanent
injunction. See Order, Judgment, and Permanent Injunction, at 5–6.
That classwide injunction looks nothing like a typical writ. It is
not styled in the form of a conditional or unconditional release
order. Cf. United States v. Jung Ah Lung , 124
U. S. 621, 622 (1888) (describing habeas relief as “order[ing]
the discharge from custody of the person in whose behalf the writ
was sued out”); Chin Yow v. United States , 208
U. S. 8, 13 (1908) (awarding habeas relief by ordering the
release of the alien if certain conditions were not satisfied). It
applies to future class members, including individuals who were not
in custody when the injunction was issued. Cf. 28
U. S. C. §2241(c) (generally precluding issuance of the
writ unless the petitioner is “in custody”). And it is directed to
at least one individual, the Director for the Executive Office for
Immigration Review, who is not a custodian. Cf. Rumsfeld v. Padilla , 542 U. S. 426, 434 (2004) (explaining that
“the proper respondent to a habeas petition is ‘the person who has
custody over [the petitioner]’ ” (quoting 28
U. S. C. §2242)).

															Immigration law has long drawn a distinction
between the declaratory and injunctive relief that respondents
sought here and habeas relief. In Heikkila , for instance,
this Court distinguished habeas relief from “injunctions,
declaratory judgments and other types of relief” that “courts ha[d]
consistently rejected” in immigration cases. 345 U. S., at
230. The Court rejected the alien’s request for “injunctive and
declaratory relief” because Congress had authorized courts to grant
relief only in habeas proceedings. Id., at 230, 237. We
reaffirmed this distinction in St. Cyr , where we noted that
the 1961 Immigration and Nationality Act, 75Stat. 650, withdrew the
district courts’ “authority to grant declaratory and injunctive
relief,” but not habeas relief. 533 U. S., at 309–310; see
also Shaughnessy v. Pedreiro , 349 U. S. 48 –53
(1955) (holding that the Administrative Procedure Act, which
authorizes courts to grant declaratory and injunctive relief,
authorized “judicial review of deportation orders other than by
habeas corpus ” (emphasis added)). And Congress has confirmed
this distinction in its immigration statutes by allowing one form
of relief, but not the other, in particular circumstances. Compare, e.g., §1252(e)(1) (prohibiting courts from granting
“declaratory, injunctive, or other equitable relief in any action
pertaining to an order to exclude an alien in accordance with
section 1225(b)(1)”) with §1252(e)(2) (allowing “judicial review
. . . in habeas corpus proceedings” of particular
“determination[s] made under section 1225(b)(1)”).

															Respondents’ suit for declaratory and injunctive
relief, in sum, is not a habeas petition. The Suspension Clause
protects “[t]he Privilege of the Writ of Habeas Corpus,” not
requests for injunctive relief. Because respondents have not sought
a writ of habeas corpus, applying §1252(b)(9) to bar their suit
does not implicate the Suspension Clause.

															*  *  *

															Because §1252(b)(9) deprives courts of
jurisdiction over respondents’ claims, we should have vacated the
judgment below and remanded with instructions to dismiss this case
for lack of jurisdiction. But a majority of the Court has decided
to exercise jurisdiction. Because I agree with the Court’s
disposition of the merits, I concur in Part I and Parts III–VI of
its opinion. Notes 1 The named Government
officials are the Attorney General of the United States, the
Secretary of the Department of Homeland Security, the Director of
the Executive Office for Immigration Review, the Director and
Assistant Director of the Los Angeles District of Immigration and
Customs Enforcement, and several directors of jails and detention
facilities. 2 Section 1252 provides a
few specific grants of jurisdiction beyond §1252(a)(1)'s general
grant of jurisdiction over final removal orders and all other
related questions of law and fact. Section 1252(b)(7), for example,
allows an alien to challenge the validity of his removal order
during criminal proceedings if he is charged with willfully failing
to depart the United States. And §1252(e)(2) allows an alien who is
denied admission to the United States and ordered removed to raise
certain claims in habeas corpus proceedings. 3 Respondents also asserted
at oral argument that the Government “has said repeatedly” that
§1252(b)(9) does not apply to detention claims. Tr. of Oral Arg.
36. But our “independent obligation” to evaluate jurisdiction, Arbaugh v. Y & H Corp. , 546 U. S. 500, 514
(2006) , means that we cannot accept the Government’s concessions
on this point. See King Bridge Co. v. Otoe County ,
120 U. S. 225, 226 (1887) . 4 Contrary to respondents’
argument, some of the respondents will get review before “all the
detention has already happened.” Respondents who successfully
petition for review to the Court of Appeals from a final removal
order and obtain a remand to the immigration court, like class
representative Alejandro Rodriguez did here, will have an
opportunity to obtain review of their detention before it is
complete. See Third Amended Complaint, at 9–12. 5 See, e.g., Act of
Aug. 18, 1884, 28Stat. 390 (“In every case where an alien is
excluded from admission into the United States under any law or
treaty now existing or hereinafter made, the decision of the
appropriate immigration or customs officers, if adverse to the
admission of such alien, shall be final, unless reversed on appeal
to the Secretary of Treasury”), upheld in Lem Moon Sing v. United States , 158 U. S. 538 –550 (1895); Immigration
Act of 1891, §8, 26Stat. 1085 (“All decisions made by the
inspection officers or their assistants touching the right of any
alien to land, when adverse to such right, shall be final unless
appeal be taken to the superintendent of immigration, whose action
shall be subject to review by the Secretary of Treasury”), upheld
in Ekiu v. United States , 142 U. S. 651, 660
(1892) ; 1917 Immigration Act, §19, 39Stat. 890 (“In every case
where any person is ordered deported from the United States under
the provisions of this Act, or of any law or treaty, the decision
of the Secretary of Labor shall be final”), upheld in Heikkila , 345 U. S., at 233–235, 237. 6 I take no position on
whether some of the respondents will face other jurisdictional
hurdles, even on review of their final removal orders. See, e.g., §§1252(a)(2)(A), (B). I also continue to agree with
Justice O’Connor’s concurring opinion in Demore v. Kim , 538 U. S. 510 (2003) , which explained that
§1226(e) “unequivocally deprives federal courts of jurisdiction to
set aside ‘any action or decision’ by the Attorney General”
regarding detention. Id. , at 533 (opinion concurring in part
and concurring in judgment). 7 This Court has never
addressed whether habeas relief can be pursued in a class action.
See Schall v. Martin , 467 U. S. 253 , n. 10
(1984) (reserving this question). I take no position on that issue
here, since I conclude that respondents are not seeking habeas
relief in the first place. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–1204

															_________________

															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 Breyer, with whom Justice Ginsburg and
Justice Sotomayor join, dissenting.

															This case focuses upon three groups of
noncitizens held in confinement. Each of these individuals believes
he or she has the right to enter or to remain within the United
States. The question is whether several statutory provisions of the
Immigration and Nationality Act, 8 U. S. C. §1101 et seq., forbid granting them bail.

															The noncitizens at issue are asylum seekers,
persons who have finished serving a sentence of confinement (for a
crime), or individuals who, while lacking a clear entitlement to
enter the United States, claim to meet the criteria for admission,
see infra , at 20, 25–26, 29–30. The Government has held all
the members of the groups before us in confinement for many months,
sometimes for years, while it looks into or contests their claims.
But ultimately many members of these groups win their claims and
the Government allows them to enter or to remain in the United
States. Does the statute require members of these groups to receive
a bail hearing, after, say, six months of confinement, with the
possibility of release on bail into the community provided that they do not pose a risk of flight or a threat to the
community’s safety?

															The Court reads the statute as forbidding bail,
hence forbidding a bail hearing, for these individuals. In my view,
the majority’s interpretation of the statute would likely render
the statute unconstitutional. Thus, I would follow this Court’s
longstanding practice of construing a statute “so as to avoid not
only the conclusion that it is unconstitutional but also grave
doubts upon that score.” United States v. Jin Fuey
Moy , 241 U. S. 394, 401 (1916) . And I would interpret the
statute as requiring bail hearings, presumptively after six months
of confinement. Cf. Zadvydas v. Davis , 533 U. S.
678, 701 (2001) . I The Respondents Because of their importance to my conclusion,
I shall repeat, with references to record support, the key
characteristics of the groups of noncitizens who appear before
us. First , as I have said, the respondents in
this case are members of three special classes of noncitizens, the
most important of whom (1) arrive at our borders seeking asylum or
(2) have committed crimes but have finished serving their sentences
of imprisonment. We also consider those who (3) arrive at our
borders believing they are entitled to enter the United States for
reasons other than asylum seeking, but lack a clear entitlement to
enter. Second , all members of the first
group, the asylum seekers, have been found (by an immigration
official) to have a “credible fear of persecution” in their home
coun-try should the United States deny them admittance. 8
U. S. C. §1225(b)(1)(B)(ii). All members of the
second group have, as I have said, finished serving their criminal
sentences of confinement. §1226(c)(1). All members of the
third group may have (or may simply believe they have) a strong
claim for admittance, but they are neither “clearly and beyond a
doubt entitled to be admitted” nor conclusively determined to be
inadmissible by an immigration officer on grounds of fraud or lack
of required documentation. §1225(b)(2)(A); see §§1225(b)(1)(A)(i),
1182(a)(6)(C), (a)(7). Third , members of the first two classes
number in the thousands. See Brief for 46 Social Science
Researchers and Professors as Amici Curiae 6, 8
(identifying, in 2015, 7,500 asylum seekers and 12,220 noncitizens
who have finished serving sentences of criminal confinement, a
portion of whom are class members detained for more than six
months). Fourth , detention is often lengthy. The
classes before us consist of people who were detained for at least
six months and on average one year. App. 92, 97. The record shows
that the Government detained some asylum seekers for 831 days
(nearly 2½ years), 512 days, 456 days, 421 days, 354 days, 319
days, 318 days, and 274 days—before they won their cases and
received asylum. Id. , at 97, 228–236. It also shows that the
Government detained one noncitizen for nearly four years after he had finished serving a criminal sentence, and the
Government detained other members of this class for 608 days, 561
days, 446 days, 438 days, 387 days, and 305 days—all before they
won their cases and received relief from removal. Id. , at
92, 213–220. Fifth , many of those whom the Government
detains eventually obtain the relief they seek. Two-thirds of the
asylum seekers eventually receive asylum. Id. , at 98 (Table
28); id. , at 135 (Table 38); App. to Pet. for Cert. 40a.
Nearly 40% of those who have served criminal sentences receive
relief from removal, because, for example, their earlier conviction
involved only a short sentence. See App. 95 (Table 23); id. ,
at 135 (Table 38). See also App. to Pet. for Cert. 34a; App. 210,
216–217, 312–313 (between one-half and two-thirds of the class
served sentences less than six months, e.g., a 2-month
sentence for being under the influence of a controlled substance,
or an 8-day jail term for a minor firearms offense). Sixth , these very asylum seekers would
have received bail hearings had they first been taken into custody
within the United States rather than at the border. See In re X-K- , 23 I. & N. Dec. 731, 734–735
(BIA 2005); 8 U. S. C. §1226(a). Seventh , as for those who have finished
serving their sentences (for crimes), some of those who are less
dangerous would (on the majority’s view) be held without bail the
longest, because their claims will take longer to adjudicate.
Moreover, those noncitizens would have no opportunity to obtain
bail while they pursue their claims , but if they lose their claims, the Government must release them, typically within
six months, if the Government can find no other country willing to
take them. See Zadvydas , supra, at 701. Eighth, all the respondents are held in
detention within the geographical boundaries of the United States,
either in facilities controlled by United States Immigration and
Customs Enforcement (ICE) or in state or local jails that hold them
on ICE’s behalf. App. 302–304; see ICE, Detention Facility Locator,
online at http://www.ice.gov/ detention-facilities (all Internet
materials as last visited Feb. 21, 2018). Ninth , the circumstances of their
detention are similar, so far as we can tell, to those in many
prisons and jails. And in some cases the conditions of their
confinement are inappropriately poor. See Dept. of Homeland
Security (DHS), Office of Inspector General (OIG), DHS OIG
Inspection Cites Concerns With Detainee Treatment and Care at ICE
Detention Facilities (2017) (reporting instances of invasive
procedures, substandard care, and mistreatment, e.g. ,
indiscriminate strip searches, long waits for medical care and
hygiene products, and, in the case of one detainee, a multiday lock
down for sharing a cup of coffee with another detainee).

															These record-based facts make evident what I
said at the outset: The case concerns persons whom immigration
authorities believe are not citizens and may not have a right to
enter into, or remain within, the United States. Nonetheless they
likely have a reasonable claim that they do have such a right. The
Government detains them, often for many months while it determines
the merits of, or contests, their claims. To repeat the question
before us: Does the statute entitle an individual member of one of
these classes to obtain, say, after six months of detention, a bail
hearing to decide whether he or she poses a risk of flight or
danger to the community and, if not, to receive bail?

															II The Constitutional Question The majority reads the relevant statute as
prohibiting bail and hence prohibiting a bail hearing. In my view,
the relevant constitutional language, purposes, history, tradition,
and case law all make clear that the majority’s interpretation at
the very least would raise “grave doubts” about the statute’s
constitutionality. See Jin Fuey Moy , 241 U. S., at
401.

															A

															Consider the relevant constitutional language
and the values that language protects. The Fifth Amendment says
that “[n]o person shall be . . . deprived of life,
liberty, or property without due process of law.” An alien is a
“person.” See Wong Wing v. United States , 163
U. S. 228 –238 (1896). To hold him without bail is to deprive
him of bodily “liberty.” See United States v. Salerno , 481 U. S. 739 –751 (1987). And, where there is
no bail proceeding, there has been no bail-related “process” at
all. The Due Process Clause—itself reflecting the language of the
Magna Carta—prevents arbitrary detention. Indeed, “[f]reedom from
bodily restraint has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental
action.” Foucha v. Louisiana , 504 U. S. 71, 80
(1992) ; see also Demore v. Kim , 538 U. S. 510,
532 (2003) (Kennedy, J., concurring); Zadvydas , 533
U. S., at 718 (Kennedy, J., dissenting).

															The Due Process Clause foresees eligibility for
bail as part of “due process.” See Salerno , supra, at
748–751; Schilb v. Kuebel , 404 U. S. 357, 365
(1971) ; Stack v. Boyle , 342 U. S. 1, 4 (1951) .
Bail is “basic to our system of law.” Schilb , supra, at 365. It not only “permits the unhampered preparation of a
defense,” but also “prevent[s] the infliction of punishment prior
to conviction.” Stack , supra , at 4. It consequently
limits the Government’s ability to deprive a person of his physical
liberty where doing so is not needed to protect the public, see Salerno , supra, at 750–751, or to assure his
appearance at, say, a trial or the equivalent, see Stack , supra, at 4–5. Why would this constitutional language and
its bail-related purposes not apply to members of the classes of
detained persons at issue here?

															The Eighth Amendment reinforces the view that
the Fifth Amendment’s Due Process Clause does apply. The Eighth
Amendment forbids “[e]xcessive bail.” It does so in order to
prevent bail being set so high that the level itself (rather than
the reasons that might properly forbid release on bail) prevents
provisional release. See Carlson v. Landon , 342
U. S. 524, 545 (1952) (explaining that the English clause from
which the Eighth Amendment was copied was understood “to provide
that bail shall not be excessive in those cases where it is proper
to grant bail”). That rationale applies a fortiori to a
refusal to hold any bail hearing at all. Thus, it is not surprising
that this Court has held that both the Fifth Amendment’s Due
Process Clause and the Eighth Amendment’s Excessive Bail Clause
apply in cases challenging bail procedures. See, e.g., Salerno , supra, at 746–755; Carlson , supra, at 537–546.

															It is clear that the Fifth Amendment’s
protections extend to “all persons within the territory of the
United States.” Wong Wing , supra , at 238. But the
Government suggests that those protections do not apply to asylum
seekers or other arriving aliens because the law treats arriving
aliens as if they had never entered the United States; hence they
are not held within its territory.

															This last-mentioned statement is, of course,
false. All of these noncitizens are held within the territory of
the United States at an immigration detention facility. Those who
enter at JFK airport are held in immigration detention facilities
in, e.g., New York; those who arrive in El Paso are held in, e.g., Texas. At most one might say that they are
“constructively” held outside the United States: the word
“constructive” signaling that we indulge in a “legal fiction,”
shutting our eyes to the truth. But once we admit to uttering a
legal fiction, we highlight, we do not answer, the relevant
question: Why should we engage in this legal fiction
here?

															The legal answer to this question is clear. We
cannot here engage in this legal fiction. No one can claim, nor
since the time of slavery has anyone to my knowledge successfully
claimed, that persons held within the United States are totally
without constitutional protection. Whatever the fiction, would the
Constitution leave the Government free to starve, beat, or lash
those held within our boundaries? If not, then, whatever the
fiction, how can the Constitution authorize the Government to
imprison arbitrarily those who, whatever we might pretend, are in
reality right here in the United States? The answer is that the
Constitution does not authorize arbitrary detention. And the reason
that is so is simple: Freedom from arbitrary detention is as
ancient and important a right as any found within the
Constitution’s boundaries. See Zadvydas , supra, at
720–721 (Kennedy, J., dissenting) (“inadmissible aliens” who are
“stopped at the border” are “entitled to be free from detention
that is arbitrary or capricious”).

															B

															The Due Process Clause, among other things,
protects “those settled usages and modes of proceeding existing in
the common and statute law of England, before the emigration of our
ancestors,” and which were brought by them to this country. Murray’s Lessee v. Hoboken Land & Improvement
Co. , 18 How. 272, 277 (1856). A brief look at Blackstone makes
clear that at the time of the American Revolution the right to bail
was “settled”—in both civil and criminal cases.

															Blackstone tells us that every prisoner (except
for a convict serving his sentence) was entitled to seek release on
bail. 4 Commentaries on the Laws of England 296–297 (1769). This
right applied in every criminal case. Ibid. A noncapital
defendant could seek bail from a local magistrate; a capital
defendant could seek bail at a hearing before the Court of King’s
Bench. See ibid. Although a capital defendant had no right
to obtain bail, he could always seek it, because “the
court of king’s bench . . . may bail for any crime
whatsoever, be it treason, murder, or any other offense, according
to the circumstances of the case.” Id., at 296. And although
King Charles I initially claimed the right to hold a prisoner
without bail on secret national security grounds, see Darnel’s
Case , 3 How. St. Tr. 1 (K. B. 1627), Parliament responded by
extracting from the King (via the 1628 Petition of Right) a promise
to cease such detention. See 2 W. Hawkins, A Treatise of the Pleas
of the Crown 107–110 (4th ed. 1771). From then on, bail was
available even when a prisoner was held on the personal command of
the King. Ibid. That is why Blackstone says that the King’s
Bench or its judges “may bail in any Case whatsoever,” 4 Analysis
of the Laws of England 148 (6th ed. 1771), indeed, in civil cases
too, for in Blackstone’s time some private civil cases might have
begun with an arrest. See 3 Blackstone, Commentaries 290 (1768).
And bail was likewise an alternative to detention where a judgment
debtor was unable to pay a civil judgment in the era of debtor’s
prison. See, e.g., Beers v. Haughton , 9 Pet. 329, 356
(1835) (explaining that under Ohio law, “if a defendant, upon a
[writ of] capias, does not give sufficient appearance bail, he
shall be committed to prison”); Hamilton v. Dunklee ,
1 N. H. 172 (1818).

															American history makes clear that the settlers
brought this practice with them to America. The Judiciary Act of
1789 conferred rights to bail proceedings in all federal criminal
cases. §33, 1Stat. 91. It said that for a noncapital defendant
“bail shall be admitted” and for a capital defendant bail may be
admitted in the discretion of a district judge, a circuit judge, or
a Justice of the Supreme Court, taking account of “the offence, and
of the evidence, and the usages of law.” Ibid. Congress
enacted this law during its debate over the Bill of Rights, which
it subsequently sent to the States for ratification. See 1 Annals
of Cong. 90 (1789); see also Martin v. Hunter’s Lessee , 1 Wheat. 304, 351 (1816) (Members of the First
Congress were “men of great learning and ability, . . .
who had acted a principal part in framing, supporting, or opposing”
the Constitution itself). Colonial law had been similarly, or in
some instances even more, protective. See Foote, The Coming
Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959,
974–977 (1965).

															Similar laws have consistently remained part of
our legal tradition. In all federal criminal cases federal Acts
have provided for bail proceedings. Bail Reform Act of 1984, 18
U. S. C. §3141 et seq. ; Bail Reform Act of
1966, 18 U. S. C. §3146 et seq. (1964 ed.,
Supp. II). Every State has similar or more generous laws. See
Appendix B, infra .

															Standards for granting bail have changed
somewhat over time. Initially the sole factor determining the
outcome of a bail proceeding was risk of flight. See Stack ,
342 U. S., at 4–5 (interpreting the 1789 bail law, applied to
a noncapital defendant and in light of the Eighth Amendment, to
require bail no higher than required to provide “adequate
assurance” that the defendant “will stand trial and submit to
sentence if found guilty,” “based upon standards relevant to the
purpose of assuring the presence of that defendant”).

															Congress gradually added community safety as a
bail factor. In 1966, Congress provided that for capital defendants
and convicted defendants pursuing appeals, bail would be granted
unless the appeal was frivolous or a court had “reason to believe
that no one or more conditions of release will reasonably assure
that the person will not flee or pose a danger to any other person
or to the community.” Bail Reform Act of 1966 §3148. In 1984,
Congress modified the bail standard for noncapital defendants by
adding concern for community safety. §3142(e)(1). This Court,
applying the Due Process Clause and the Excessive Bail Clause to
these changes, found that the 1984 Act passed constitutional
muster. See Salerno , 481 U. S., at 746–755. Again, the
States typically apply roughly similar or more generous standards.
See Appendix B, infra .

															The cases before us, however, are not criminal
cases. Does that fact make a difference? The problem is that there
are not many instances of civil confinement (aside from immigration
detention, which I address below). Mental illness does sometimes
provide an example. Individuals dangerous to themselves or to
others may be confined involuntarily to a mental hospital. See, e.g. , United States v. Comstock , 560
U. S. 126 (2010) ; Kansas v. Hendricks , 521
U. S. 346 (1997) . Those persons normally do not have what we
would call “a right to a bail hearing.” But they do possess
equivalent rights: They have the right to a hearing prior to
confinement and the right to review of the circumstances at least
annually. See Comstock , supra, at 130–131 (initial
hearing followed by review every six months); Hendricks , supra , at 353 (initial hearing followed by yearly review).
And the mentally ill persons detained under these schemes are being
detained because they are dangerous. That being so, there
would be no point in providing a bail hearing as well. See Salerno , supra , at 748–749 (analogizing denial of
bail to dangerous individuals to the civil commitment of the
mentally ill). But there is every reason for providing a bail
proceeding to the noncitizens at issue here, because they have
received no individualized determination that they pose a risk of
flight or present a danger to others, nor is there any evidence
that most or all of them do.

															This Court has also protected the right to a
bail hearing during extradition proceedings. Wright v. Henkel , 190 U. S. 40 (1903) , concerned the arrest and
confinement of Whitaker Wright, an American citizen, pending
extradition for a crime that Wright was accused of having committed
in Great Britain. Wright sought bail. Id. , at 43. Since the
federal bail laws applied only to those charged with committing
crimes against the United States, they did not cover Wright’s
confinement. Id., at 61–62. The relevant extradition statute
said nothing about bail. Id., at 62. Its language (stronger
than the language at issue here) said that the individual was “to
remain” in “the proper jail” until the “surrender shall be made” to
the nation seeking extradition; and it added that he was “to
remain” in custody “until delivered up”—though after two months he
could seek release. Rev. Stat. §§5270, 5273.

															In an opinion by Chief Justice Fuller, this
Court unanimously wrote that, despite the lack of express statutory
authorization and the risk of “embarrassment” to the United States
if Wright fled, Wright could seek release on bail prior to the
expiration of the 2-month period. Wright , 190 U. S., at
62–63. Given the universal entitlement to bail under English law,
the Court was “unwilling to hold that . . . courts may
not in any case, and whatever the special circumstances, extend
that relief” to prisoners awaiting extradition. Id., at 63.
It consequently read a silent statute as authorizing bail
proceedings (though the Court went on to hold that, under
applicable standards, Wright’s request for bail should be denied). Ibid. The strongest basis for reading the
Constitution’s bail requirements as extending to these civil, as
well as criminal, cases, however, lies in the simple fact that the
law treats like cases alike. And reason tells us that the civil
confinement at issue here and the pretrial criminal confinement
that calls for bail are in every relevant sense identical. There is
no difference in respect to the fact of confinement itself. And I
can find no relevant difference in respect to bail-related
purposes.

															Which class of persons—criminal defendants or
asylum seekers—seems more likely to have acted in a manner that
typically warrants confinement? A person charged with a crime
cannot be confined at all without a finding of probable cause that
he or she committed the crime. And the majority of criminal
defendants lose their cases. See Dept. of Justice, Bureau of
Justice Statistics, B. Reaves, Felony Defendants in Large Urban
Counties, 2009–Statistical Tables, p. 24 (Dec. 2013) (reporting
that 66% of felony defendants were convicted). A high percentage of
the noncitizens before us, however, ultimately win the right they
seek, the right to be in the United States.

															Nor am I aware of any evidence indicating that
the noncitizens seeking to enter, or to remain within, the United
States are more likely than criminal defendants to threaten the
safety of the community if released. In any event, this is a matter
to be determined, case by case, at bail hearings.

															Which group is more likely to present a risk of
flight? Again, I can find no evidence suggesting that asylum
seekers or other noncitizens generally present a greater risk of
flight than persons imprisoned for trial where there is probable
cause to believe that the confined person has committed a crime. In
any event, this matter too is to be determined, case by case, at
bail hearings.

															If there is no reasonable basis for treating
these confined noncitizens worse than ordinary defendants charged
with crimes, 18 U. S. C. §3142; worse than convicted
criminals appealing their convictions, §3143(b); worse than civilly
committed citizens, supra, at 10–11; worse than identical
noncitizens found elsewhere within the United States, supra ,
at 4; and worse than noncitizens who have committed crimes, served
their sentences, and been definitively ordered removed (but lack a
country willing to take them), supra, at 4, their detention
without bail is arbitrary. Thus, the constitutional language,
purposes, and tradition that require bail in instances of criminal
confinement also very likely require bail in these instances of
civil confinement. That perhaps is why Blackstone wrote that the
law provides for the possibility of “bail in any case whatsoever.”
4 Analysis of the Laws of England, at 148.

															C

															My examination of the cases from this Court
that considered detention of noncitizens and bail suggests that
this Court, while sometimes denying bail to individuals, generally
has not held that bail proceedings are unnecessary. Indeed, it
almost always has suggested the contrary.

															1. In 1882 Congress enacted two laws that
restricted immigration: The first prohibited the entry of “Chinese
laborers.” The Chinese Exclusion Act, ch. 126, 22Stat. 58. The
second prohibited the entry of “any convict, lunatic, idiot, or any
person unable to take care of himself or herself without becoming a
public charge.” Act of Aug. 3, 1882, 22Stat. 214. Neither said a
word about bail. But in one instance, an excluded Chinese woman was
detained in jail in San Francisco pending her return to China. She
sought bail. In re Ah Moy , 21 F. 808 (CC Cal. 1884). Justice
Field, sitting as a Circuit Judge, wrote that the court lacked the
authority to order bail because doing so would allow her to enter
the United States—just what the statute forbade. Id., at
809. The other sitting Circuit Judge (Judge Sawyer) disagreed. Id., at 810 (dissenting opinion). He pointed out that the
alien would remain “in the custody and control of the law while
lawfully on bail.” Ibid. He added that it “would be a great
hardship, not to say a gross violation of her personal rights,” to
refuse bail for 15 days before her ship arrived as long as she
could provide “security satisfactory to the court” that she would
indeed depart when it did. Id., at 809–810. Two other
Circuit Judges noted their agreement with Judge Sawyer. Id., at 809, n. 1. But they did not participate in the case, ibid. , the two participating judges split 1 to 1, and so the
views of presiding Justice Field prevailed. The alien appealed to
this Court, Cheong Ah Moy v. United States , 113
U. S. 216 (1885) , but before this Court could decide, the
ship departed with Cheong Ah Moy aboard.

															2. In Wong Wing v. United States ,
163 U. S. 228 (1896) , the Court struck down as
unconstitutional a statute that said alien Chinese laborers should
be “imprisoned at hard labor” for up to a year before being
deported. Id., at 235. In doing so, the Court wrote that
although a sentence to hard labor was unlawful, “detention, or
temporary confinement,” was constitutional, because “[d]etention is
a usual feature of every case of arrest on a criminal charge, even
when an innocent person is wrongfully accused.” Ibid. But an
analogy to criminal detention is an analogy to instances in which
bail hearings are required.

															3. In Tod v. Waldman , 266
U. S. 113 (1924) , the Waldman family, like many of the
respondents here, challenged their exclusion. They had arrived at
Ellis Island fleeing religious persecution in Ukraine. They were
detained because the immigration inspector believed the mother
illiterate, one of the daughters disabled, and the whole family
likely to become public charges. They appealed to the Labor
Department, which ordered Mrs. Waldman retested for literacy,
requiring her to read both Yiddish and Hebrew. She could not. She
then petitioned for a writ of habeas corpus on the grounds that (1)
as a religious refugee she was exempt from the literacy
requirement; (2) in any event, she need read only one language, not
two; (3) her daughter was not disabled; and (4) the Department of
Labor should have allowed her to appeal administratively. Id., at 114–115.

															The relevant statutory provisions, just like the
present statute, see infra , at 20, 29, said that an arriving
person, unless “clearly and beyond a doubt entitled” to land,
“ shall be detained for examination . . . by a
board of special inquiry.” Act of Feb. 5, 1917, §16, 39Stat. 886
(emphasis added). By the time the case reached this Court, however,
the family had been allowed bail. See Waldman, 266
U. S., at 117. This Court ordered the Department of Labor to
provide the family with an administrative appeal. Then, after
initially “remand[ing] the petitioners to the custody of
immigration authorities” pending the outcome of the appeal, id., at 120, the Court clarified in a rehearing order that
“[n]othing in the order of this Court shall prejudice an
application for release on bail of the respondents pending
compliance with the mandate of this Court.” Tod v. Waldman , 266 U. S. 547 (1925). This statement is
inconsistent with the earlier opinion of Justice Field, sitting as
a Circuit Judge, because it shows that even an alien challenging
her exclusion could be released on bail. Supra, at 14.

															4. In Carlson v. Landon , 342
U. S. 524 (1952) , this Court upheld the denial of bail to
noncitizen Communists being held pending deportation, despite a
statute that permitted bail proceedings. Id., at 541–546. It
did so because it considered the individuals to be a risk to
security. It said nothing to suggest that bail proceedings were
unnecessary.

															5. In Shaughnessy v. United States ex
rel. Mezei , 345 U. S. 206 (1953) , the Attorney General
had ordered a noncitizen permanently excluded from the United
States on the ground that his “entry would be prejudicial to the
public interest for security reasons.” Id. , at 208; see
Subversive Activities Control Act of 1950, §§22–23, 64Stat.
1006–1012. He “sat on Ellis Island because this country shut him
out and others were unwilling to take him in.” 345 U. S., at
209. After 21 months in confinement he filed a petition for a writ
of habeas corpus seeking judicial review of the exclusion decision
or release on bail until he could be removed to another country. Id., at 207, 209. This Court refused to review the exclusion
decision on the ground that the security matter fell totally within
the President’s authority, pursuant to an express congressional
delegation of power. Id., at 210. The Court also denied
Mezei a bail proceeding because in an “exclusion proceeding
grounded on danger to the national security . . . neither
the rationale nor the statutory authority for” release on bail
exists. Id., at 216. It denied bail, however, after the Attorney General had already found, on an individualized basis,
not only that Mezei was a security risk and consequently not
entitled to either admission or bail, but also that he could be
denied a hearing on the matter because the basis for that decision
could not be disclosed without harm to national security. Id., at 208–209. The respondents in this case have been the
subject of no such individualized findings. And unlike Mezei, who
was requesting bail after his exclusion proceedings had ended
(while the Attorney General searched for a country that would take
him—a matter that we again confronted in Zadvydas ), the
respondents here continue to litigate the lawfulness of their
exclusion itself. Thus, Mezei, but not the respondents here, was in
a sense in the position of a convicted criminal who had lost his
appeal, not a criminal awaiting trial (or the results of an
appeal).

															6. Zadvydas v. Davis , 533
U. S. 678 (2001) , concerned a noncitizen who had lawfully
resided in this country, committed a serious crime, completed his
prison sentence, and was then ordered deported. Id., at 684.
Zadvydas sought release on bail during the time the Government
searched for a country that would take him. Id. , at 684–685.
The governing statute said an alien such as Zadvydas “may be
detained” pending his removal to another country. 8
U. S. C. §1231(a)(6). We interpreted those words as
requiring release from detention once it became clear that there
was “no significant likelihood of removal in the reasonably
foreseeable future”—presumptively after a period of confinement of
six months. 533 U. S., at 701. We read the statute as
requiring this release because a “statute permitting indefinite
detention of an alien would raise a serious constitutional
problem.” Id., at 690.

															From a constitutional perspective, this case
follows a fortiori from Zadvydas . Here only a bail
hearing is at issue, not release on bail, much less permanent
release. And here there has been no final determination that any of
the respondents lacks a legal right to stay in the United
States—the bail hearing at issue concerns conditional release
pending that final determination. It is immaterial that detention
here is not literally indefinite, because while the respondents’
removal proceedings must end eventually, they last an indeterminate
period of at least six months and a year on average, thereby
implicating the same constitutional right against prolonged
arbitrary detention that we recognized in Zadvydas .

															7. In Demore v. Kim , 538
U. S. 510 (2003) , we held that the Government could
constitutionally hold without bail noncitizens who had committed
certain crimes, had completed their sentences, and were in removal
proceedings. See §1226(c). But we based our holding on the
short-term nature of the confinement necessary to complete
proceedings. See id. , at 529–530. The Court wrote that the
“detention at stake . . . lasts roughly a month and a
half in the vast majority of cases in which it is invoked, and
about five months in the minority of cases in which the alien
chooses to appeal.” Id., at 530. We added:

															“[I]n 85% of the cases in which aliens are
detained [ pursuant to the relevant statute], removal
proceedings are completed in an average time of 47 days and a
median of 30 days. In the remaining 15% of cases, in which the
alien appeals the decision of the immigration judge to the Board of
Immigration Appeals, appeal takes an average of four months, with a
median time that is slightly shorter.” Id., at 529 (citation
omitted).

															Demore himself, an outlier, was detained for six
months. Id., at 530–531.

															The Court then found detention constitutional
“during the limited period” necessary to arrange for removal, and
we contrasted that period of detention with the detention at issue
in Zadvydas , referring to the detention in Demore as
being “of a much shorter duration.” 538 U. S., at 526, 528.
Justice Kennedy stated in a concurrence that the Due Process Clause
might require bail hearings “if the continued detention became
unreasonable or unjustified.” Id., at 532. Dissenting, I
wrote that, had I believed that Demore “had conceded that he [was]
deportable,” then, despite Zadvydas , “I would conclude that
the Government could detain him without bail for the few weeks
ordinarily necessary for formal entry of a removal order.” 538
U. S., at 576 (opinion concurring in part and dissenting in
part).

															The Government now tells us that the statistics
it gave to the Court in Demore were wrong. Detention
normally lasts twice as long as the Government then said it did.
And, as I have pointed out, thousands of people here are held for
considerably longer than six months without an opportunity to seek
bail. See supra, at 3. We deal here with prolonged
detention, not the short-term detention at issue in Demore .
Hence Demore , itself a deviation from the history and
tradition of bail and alien detention, cannot help the
Government.

															The upshot is the following: The Constitution’s
language, its basic purposes, the relevant history, our tradition,
and many of the relevant cases point in the same interpretive
direction. They tell us that an interpretation of the statute
before us that would deny bail proceedings where detention is
prolonged would likely mean that the statute violates the
Constitution. The interpretive principle that flows from this
conclusion is clear and longstanding: “ ‘[A]s between two
possible interpretations of a statute, by one of which it would be
unconstitutional and by the other valid, our plain duty is to adopt
that which will save the Act.’ ” Rust v. Sullivan , 500 U. S. 173, 190 (1991) (quoting Blodgett v. Holden , 275 U. S. 142, 148 (1927)
(opinion of Holmes, J.)). Moreover, a “statute must be construed,
if fairly possible, so as to avoid not only the conclusion that it
is unconstitutional, but also grave doubts upon that score.” Jin
Fuey Moy , 241 U. S., at 401. These legal principles
reflect a realistic assumption, namely, that Congress—particularly
a Congress that did not consider a constitutional matter—would
normally have preferred a constitutional interpretation to an
interpretation that may render a statute an unconstitutional
nullity. And that is so even where the constitutional
interpretation departs from the most natural reading of the
statute’s language. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council ,
485 U. S. 568, 575 (1988) ; see also National Federation of
Independent Business v. Sebelius , 567 U. S. 519
–576 (2012) (majority opinion and opinion of Roberts,
C. J.).

															III The Statutory Provisions The question remains whether it is possible to
read the statute as authorizing bail. As desirable as a
constitutional interpretation of a statute may be, we cannot read
it to say the opposite of what its language states. The word
“animal” does not include minerals, no matter how strongly one
might wish that it did. Indeed, where “ ‘Congress has made its
intent in the statute clear, we must give effect to that
intent,’ ” even if doing so requires us to consider the
constitutional question, and even if doing so means that we hold
the statute unconstitutional. Zadvydas , 533 U. S., at
696 (quoting Miller v. French , 530 U. S. 327,
336 (2000) ). In my view, however, we can, and should, read the
relevant statutory provisions to require bail proceedings in
instances of prolonged detention without doing violence to the
statutory language or to the provisions’ basic purposes.

															A Asylum Seekers The relevant provision governing the first
class of noncitizens, the asylum seekers, is §1225(b)(1)(B)(ii). It
says that, if an immigration “officer determines at the time” of an
initial interview with an alien seeking to enter the United States
“that [the] alien has a credible fear of persecution
. . . , the alien shall be detained for
further consideration of the application for asylum.” See Appendix
A–1, infra . I have emphasized the three key words, namely,
“shall be detained.” Do those words mean that the asylum seeker must be detained without bail ?

															They do not. First , in ordinary English
and in light of the history of bail, the word “detain” is ambiguous
in respect to the relevant point. The Oxford English Dictionary
(OED), surveying the history of the word, notes that Edward Hall, a
famous 16th-century legal scholar and author of Hall’s Chronicle,
wrote: “A traytor . . . is apprehended and deteigned in
prisone for his offence,” a use of the word, as we know from
Blackstone, that is consistent with bail. See supra, at 8–9;
OED (3d ed., Dec. 2012), http://www.oed.com/view/Entry/51176
(annot. to def. 1). David Hume, the famous 18th-century historian
and philosopher, writes of being “detained in strict confinement,”
thereby implying the existence of detention without strict
confinement. Ibid. A 19th-century novelist writes,
“ ‘Beg your pardon, sir,’ said the constable, . . .
‘I shall be obliged to detain you till this business is
settled’ ”—again a use of “detain” that we know (from
Blackstone) is consistent with bail. Ibid. And the OED
concludes that the primary meaning of “detain” is “[t]o keep in
confinement or under restraint ; to keep prisoner.” Ibid. (emphasis added). To grant bail, we know, is not to
grant unrestrained freedom. Rather, where the Act elsewhere
expressly permits bail, it requires “bond of at least $1,500 with
security approved by, and containing conditions prescribed by, the
Attorney General.” 8 U. S. C. §1226(a)(2)(A). Similarly
in the criminal context, bail imposes numerous restraints, ranging
from the provision of a bond, to restrictions on residences and
travel, to the imposition of a curfew, to a requirement to obtain
medical treatment, to report at regular intervals, or even to
return to custody at specified hours. See 18 U. S. C.
§3142(c)(1)(B) (listing possible conditions for the pretrial
release of federal criminal defendants).

															At the very least, because the word “detain” in
this context refers to a comparatively long period of time, it can
readily coexist with a word such as “bail” that refers to a shorter
period of conditional release. For instance, there is nothing
inconsistent in saying: During his exile, he was permitted to pay
short visits to his home country; during the period of active
hostilities, the soldiers would lay down their arms and fraternize
on Christmas Day; during his overseas detention, he was allowed
home to see his sick mother; or during his detention pending
proceedings, he was permitted bail. Second , our precedent treats the
statutory word “detain” as consistent with bail. In Waldman ,
266 U. S. 547 , we considered an immigration statute that
stated (in respect to arriving aliens) that “[e]very alien
who may not appear to the examining inspector at the port of
arrival to be clearly and beyond a doubt entitled to land shall
be detained for examination in relation thereto by a board of
special inquiry.” Act of Feb. 5, 1917, §16, 39Stat. 886 (emphasis
added). The Court indicated that bail was available, stating that
“[n]othing in the order of this court shall prejudice an
application for release on bail.” 266 U. S., at 548. In so
stating, the Court was simply following precedent, such as Wright v. Henkel , where the Court wrote that bail is
available even where not “specifically vested by statute.” 190
U. S., at 63; see supra, at 11–12. When Congress passed
the relevant provisions of the Act in 1996, it legislated against
this historical backdrop, at a time when the precise language that
it adopted had been interpreted by this Court to permit bail. See Monessen Southwestern R. Co. v. Morgan , 486
U. S. 330, 338 (1988) (“Congress’ failure to disturb a
consistent judicial interpretation of a statute may provide some
indication that ‘Congress at least acquiesces in, and apparently
affirms, that [interpretation]’ ” (quoting Cannon v. University of Chicago , 441 U. S. 677, 703 (1979)
)). Third , the Board of Immigration Appeals
reads the word “detain” as consistent with bail, for it has held
that its regulations, implementing the same statutory provision as
is before us, allow bail for asylum seekers who are apprehended
inside the United States within 100 miles of the border, rather
than at a border crossing. See In re X-K- , 23
I. & N. Dec., at 732, 734–735 (discussing 8 CFR
§1003.19(h)(2)(i) (2004)). The same statute, same language applies
to the detention of those asylum seekers and the ones before us, so
the statute must be consistent with bail in the Board of
Immigration Appeals’ view. Fourth , in Zadvydas we found (to
avoid similar constitutional questions) that the words “ ‘may
be detained’ ” were consistent with requiring release from
long-term detention. 533 U. S. , at 682 (quoting 8
U. S. C. §1231(a)(6)). The majority correctly notes that
here the language substitutes the word “shall” for the word “may.” Ante, at 14–16. But the majority is wrong to distinguish Zadvydas on this basis. There the Court did not emphasize
the word “detain,” for the question at issue was release from
detention. And the key word was consequently “may,” suggesting
discretion. Here the question concerns the right to a bail hearing
during detention. And the key linguistic ambiguity concerns the
word “detention.” Is that word consistent with bail proceedings?
The answer, for the reasons I have stated, is “yes.” Fifth , the statute does not even mention
long-term detention without bail. Whether the statute speaks in
terms of discretion (“may,” as in Zadvydas ) or mandatory
action (“shall,” as in this case), the Government’s argument is
wrong for the same reason: Congress does not unambiguously
authorize long-term detention without bail by failing to say when
detention must end. As we recognized in Zadvydas , Congress
anticipated long-term detention elsewhere in the Act, providing for
review every six months of terrorist aliens detained under 8
U. S. C. §1537(b)(2)(C), but it did not do so here. See
533 U. S., at 697. Sixth , the Act provides that an asylum
applicant whose proceedings last longer than six months may be
given work authorization. §1158(d)(2). The majority would apply
this provision to some asylum applicants but not the ones before
us. Ante, at 26, n. 6. Of course, the statute does not
contain that limitation. Read most naturally, the provision offers
some indication that Congress, in the same statute, did not require
asylum seekers to remain confined without bail at the 6-month
mark. Seventh , there is a separate statutory
provision that purports to do precisely what the majority says this
one does, providing that certain aliens “shall be detained
. . . until removed .” §1225(b)(1)(B)(iii)(IV)
(emphasis added); ante , at 16 (detention must continue until
proceedings “have finished”). The problem for the majority is that
this other provision applies only to those who, unlike the
respondents, have no credible fear of persecution. The provision
that applies here lacks similar language.

															Linguistic ambiguity, while necessary, is not
sufficient. I would also ask whether the statute’s purposes suggest
a congressional refusal to permit bail where confinement is
prolonged. The answer is “no.” There is nothing in the statute or
in the legislative history that reveals any such congressional
intent. The most likely reason for its absence is that Congress,
like the Government when it appeared before us in Demore ,
believed there were no such instances, or at least that there were
very few. Indeed, the Act suggests that asylum proceedings
ordinarily finish quickly. See §1158(d)(5)(A) (providing that
absent “exceptional circumstances,” final administrative
adjudication (not including appeal) must be completed “within 180
days,” and any appeal must be filed “within 30 days” of the
decision). And for those proceedings that last longer than six
months, we know that two-thirds of asylum seekers win their cases.
Thus, legislative silence suggests not disapproval of bail, but a
lack of consideration of the matter. For present purposes that is
sufficient. It means that Congress did not intend to forbid bail.
An interpretation that permits bail—based upon history, tradition,
statutory context, and precedent—is consistent, not inconsistent,
with what Congress intended the statutory provision to do.

															The majority apparently finds a contrary purpose
in the fact that other provisions of the statute permit the
Attorney General to release an alien on parole “ ‘for urgent
humanitarian reasons or significant public benefit’ ” and
impose bail-like conditions. Ante, at 16–17 (discussing 8
U. S. C. §1182(d)(5)(A)). Yet under the majority’s
interpretation of “detain,” the same argument could have been made
in Zadvydas . We held that noncitizens presumptively are
entitled to release after six months of detention, notwithstanding
an available alternative avenue for relief, namely, bail. 533
U. S., at 683. There is no reason to reach a different result
here. While the Government historically used this provision to take
account of traditional bail factors (flight risk, safety risk), the
President since issued an Executive Order directing parole to be
granted “in all circumstances only when an individual demonstrates
urgent humanitarian reasons or a significant public benefit.” Exec.
Order. No. 13767, 82 Fed. Reg. 8793 (2017). And besides, Congress’
provision of parole to permit, for example, release for the purpose
of medical care or to testify in a court proceeding—which adds
to the circumstances under which a noncitizen can be released
from confinement—says nothing about whether Congress intended to cut back on those circumstances in respect to the meaning of
“detain” and the historical understanding that detention permits
bail.

															B Criminals Who Have Served Their
Sentences The relevant statutory provision, §1226(c),
says in paragraph (1) that the “Attorney General shall take into
cus- tody any alien who . . . is deportable [or
inadmissible] by reason of having committed [certain crimes] when
the alien is released,” presumably (or ordinarily) after having
served his sentence. It then goes on to say, in paragraph (2), that
the “Attorney General may release [that] alien
. . . only if the Attorney General decides pursuant
to section 3521 of title 18 that release of the alien from custody
is necessary to provide protection to a witness [or to certain
related others].” See Appendix A–2, infra .

															I have emphasized the relevant phrases: “take
into custody” in the first paragraph, and “may release [that] alien
. . . only if” in the second paragraph. We have long
interpreted “in custody” as “not requir[ing] that a prisoner be
physically confined.” Maleng v. Cook , 490 U. S.
488, 491 (1989) ( per curiam ). In the habeas context, we have
held that “a person released on bail or on his own recognizance” is
“ ‘in custody’ within the meaning of the statute.” Hensley v. Municipal Court, San Jose-Milpitas Judicial
Dist. , Santa Clara Cty ., 411 U. S. 345, 349 (1973)
; Justices of Boston Municipal Court v. Lydon , 466
U. S. 294 –301 (1984) (same). The reason is simple, as I
already have explained, supra, at 21: A person who is
released on bail “is subject to restraints ‘not shared by the
public gener- ally.’ ” Hensley , supra , at 351
(quoting Jones v. Cunningham , 371 U. S. 236, 240
(1963) ); see also Maleng , supra, at 491 (“[A]
prisoner who had been placed on parole was still ‘in
custody’ ” because his “release from physical confinement
. . . was not unconditional; instead, it was explicitly
conditioned on his reporting regularly to his parole officer,
remaining in a particular community, residence, and job, and
refraining from certain activities” (citing Jones , supra , at 242)).

															Moreover, there is no reason to interpret
“custody” differently than “detain.” The OED defines “custody” as
“[t]he state of being detained,” http://www.oed.com/view/
Entry/46305 (def. 5). “Detained,” as I have previously pointed out,
can be read consistently with bail. See supra, at 20–23. The
OED also defines the statutory phrase, “take (a person) into
custody,” as “to arrest and imprison (a person),”
http://www.oed.com/view/Entry/46305 (def. 5). And we know from the
history, tradition, case law, and other sources earlier discussed,
including Blackstone, that arresting and imprisoning a person is
consistent with a bail hearing and a subsequent grant of bail, even
where a statute contains words such as “commitment” or “detain.”
See supra, at 5–19 (citing, e.g., Wright, 190
U. S., at 62 (reading as consistent with a bail proceeding the
statutory language “ ‘shall issue [a] warrant for the
commitment . . . to the proper jail, there to
remain’ ” until “ ‘surrender’ ” for
extradition)).

															But what about the second phrase, stating that
the Attorney General “may release [that] alien . . . only if the Attorney General decides pursuant to section
3521 of title 18 that release of the alien from custody is
necessary to provide protection to a witness”? Does the presence of
the words “only if” show that the statute automatically denies bail
for any other reason?

															It does not. That is because the phrase has
nothing to do with bail. It has to do with a special program, the
Witness Protection Program, set forth in 18 U. S. C.
§3521. That program allows the Attorney General to relocate the
witness, to give him an entirely new identity, to help his family
similarly, and to pay him a stipend, among other things.
§§3521(a)(1), (b)(1). The Attorney General may “take such action as
[he] determines to be necessary to protect the person,” presumably
even free the witness from whatever obligations might require him
to report to an immigration or judicial authority. §3521(b)(1).
Accordingly, when the Attorney General “release[s]” an alien under
8 U. S. C. §1226(c)(2), he does not grant bail; he may
well do far more, freeing the witness from a host of obligations
and restraints, including those many obligations and restraints
that accompany bail. See supra, at 21.

															This understanding of “release” in §1226(c) is
consistent with the OED’s definition of “release” as “to free from
restraint” or even “to liberate from . . . an obligation”
(not simply “to free from . . . captivity”),
http://www.oed.com/ view/Entry/161859 (def. 6(a)). And it is
consistent with our earlier reading of the word “detain.” Supra, at 20–24. Following the OED’s definition of “detain”
as “ under restraint ,” we have understood the word
“detention” to include the state of being “under” those
“restraints” that typically accompany bail. Supra, at 20–24.
That is to say, both the individual on bail and the individual not
on bail are “detained”; and the Attorney General, through his
Witness Protection Program powers can free the individual from
both. To repeat: The provision at issue means that the Attorney
General “may release” the detained person from the restraints that
accompany detainment—whether that individual has been detained
with, or without, bail.

															So understood the phrase has nothing to do with
the issue before us: whether a confined individual is, or is not,
entitled to bail or a bail hearing. It simply means that the
Attorney General cannot free that person from all, or most,
restraining conditions (including those that accompany bail) unless
the alien is placed in the Witness Protection Program. So read, the
words “only if” neither favor nor disfavor a reading of the statute
consistent with the right to a bail proceeding.

															The purpose-related reasons that argue for a
bail-favorable reading are also applicable here. Congress did not
consider the problem of long-term detention. It wrote the statute
with brief detention in mind. See H. R. Rep. No. 104–469, pt.
1, p. 123, and n. 25 (1996) (stating that the “average stay [was]
28 days”). Congress did not know (for apparently the Government did
not know in Demore ) that the average length of detention for
this class would turn out to be about a year. Nor did Congress
necessarily know that about 40% of class members eventually obtain
the right to remain in the United States.

															I should add that reading the statute as denying
bail to those whose detention is prolonged is anomalous. Those
whose removal is legally or factually questionable could be
imprisoned indefinitely while the matter is being decided. Those
whose removal is not questionable (for they are under a final
removal order) could be further imprisoned for no more than six
months. See supra , at 4, 17. In fact, even before our
decision in Zadvydas , the Government gave bail hearings to
noncitizens under a final order of removal after six months of
detention. See 533 U. S., at 683.

															C Other Applicants for Admission The statutory provision that governs the third
category of noncitizens seeking admission at the border is
§1225(b)(2)(A). It says that “if the examining immigration officer
determines that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted, the alien shall be detained
for a proceeding under section 1229a of this title.” See Appendix
A–3, infra .

															The Government tells us that this miscellaneous
cate- gory consists of persons who are neither (1) clearly eligible
for admission, nor (2) clearly ineligible. Pet. for Cert. 3–4. A
clearly eligible person is, of course, immediately admitted. A
clearly ineligible person—someone who lacks the required documents,
or provides fraudulent ones—is “removed . . . without
further hearing or review.” §1225(b)(1)(A)(i); see §§1182(a)(6)(C),
(a)(7). But where the matter is not clear, i.e. , where the
immigration officer determines that an alien “is not clearly and
beyond a doubt entitled to be admitted,” he is detained for a re-
moval proceeding. §1225(b)(2)(A). Like all respondents, this class
has been detained for at least six months. It may include persons
returning to the United States who have work permits or other
documents seemingly entitling them to entry, but whom an
immigration officer suspects are inadmissible for some other
reason, such as because they may have incomplete vaccinations or
have committed student visa abuse or a crime of “moral turpitude.”
See §1182(a) (delineating classes of aliens ineligible for
admission). For instance, the Federal Register is replete with
examples of offenses that immigration authorities have thought are
crimes of moral turpitude but that the courts of appeals later
determine are not. See, e.g., Goldeshtein v. INS , 8
F. 3d 645, 648 (CA9 1993) (structuring financial transactions
to avoid currency reports); Nunez v. Holder , 594
F. 3d 1124, 1138 (CA9 2010) (indecent exposure). It also may
include individuals who claim citizenship by virtue of birth or
parentage but who lack documents clearly proving their claim.

															The critical statutory words are the same as
those I have just discussed in the context of the asylum
seekers—“shall be detained.” There is no more plausible reason here
than there was there to believe those words foreclose bail. See supra , at 20–24. The constitutional considerations, the
statutory language, and the purposes underlying the statute are
virtually the same. Thus, the result should be the same: Given the
constitutional considerations, we should interpret the statute as
permitting bail.

															IV

															The majority concludes in Part V, ante, at 29–31, by saying that, before considering bail-related
constitutional arguments, the lower courts “should reexamine
whether respondents can continue litigating their claims as a
class.” Ante, at 29. Relying on dicta in Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471
(1999) ( AADC ), it then suggests that the respondents may not
be able to continue litigating because the Act says that

															“no court (other than the Supreme Court)
shall have jurisdiction or authority to enjoin or restrain the
operation [of the statutory provisions here at issue] other than
with respect to the application of such provi- sions to an
individual alien against whom proceedings under such part have been
initiated.” 8 U. S. C. §1252(f )(1).

															Were the majority’s suggestion correct as to
this jurisdictional question, it would have shown, at most, that we
should decide the constitutional question here and now. We have
already asked for and received briefs on that question. But I do
not believe the majority is correct. Every member of the classes
before us falls within the provision’s exception. Every one of them
is an “individual alien against whom proceedings under such part
have been initiated.” Ibid. The Court in AADC did not
con- sider, and had no reason to consider, the application of
§1252(f)(1) to such a class. Regardless, a court could order
declaratory relief. Federal Rule of Civil Procedure 23(b)(2)
permits a class action where “final injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole.” (Emphasis added.) And the Advisory Committee
says that declaratory relief can fall within the Rule’s term
“corresponding” if it “serves as a basis for later injunctive
relief.” Notes on Rule 23(b)(2)–1966 Amendment, 28
U. S. C. App., p. 812.

															Jurisdiction also is unaffected by 8
U. S. C. §1252(b)(9), which by its terms applies only
“[w]ith respect to review of an order of removal under
[§1252(a)(1)].” §1252(b). Respondents challenge their detention
without bail, not an order of removal.

															Neither does Wal-Mart Stores, Inc. v. Dukes , 564 U. S. 338 (2011) , bar these class actions.
Every member of each class seeks the same relief (a bail hearing),
every member has been denied that relief, and the differences in
situation among members of the class are not relevant to their
entitlement to a bail hearing.

															At a minimum I can find nothing in the statute
or in the cases to which the majority refers that would prevent the
respondents from pursuing their action, obtaining a declaratory
judgment, and then using that judgment to obtain relief, namely, a
bail hearing, in an individual case. Thus, I believe the lower
courts are free to consider the constitutionality of the relevant
statutory provisions as the majority now interprets them.

															V Conclusion The relevant constitutional language,
purposes, history, traditions, context, and case law, taken
together, make it likely that, where confinement of the noncitizens
before us is prolonged (presumptively longer than six months), bail
proceedings are constitutionally required. Given this serious
constitutional problem, I would interpret the statutory provisions
before us as authorizing bail. Their language permits that reading,
it furthers their basic purposes, and it is consistent with the
history, tradition, and constitutional values associated with bail
proceedings. I believe that those bail proceedings should take
place in accordance with customary rules of procedure and burdens
of proof rather than the special rules that the Ninth Circuit
imposed.

															The bail questions before us are technical but
at heart they are simple. We need only recall the words of the
Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and
that among them is the right to “Liberty.” We need merely remember
that the Constitution’s Due Process Clause protects each person’s
liberty from arbitrary deprivation. And we need just keep in mind
the fact that, since Blackstone’s time and long before, liberty has
included the right of a confined person to seek release on bail. It
is neither technical nor unusually difficult to read the words of
these statutes as consistent with this basic right. I would find it
far more difficult, indeed, I would find it alarming, to believe
that Congress wrote these statutory words in order to put thousands
of individuals at risk of lengthy confinement all within the United
States but all without hope of bail. I would read the statutory
words as consistent with, indeed as requiring protection of, the
basic right to seek bail.

															Because the majority does not do so, with
respect, I dissent.

															APPENDIXES

															A

															1 Statute Applicable to Asylum Seekers 8 U. S. C. §1225. “Inspection by
immigration officers; expedited removal of inadmissible arriving
aliens; referral for hearing

															.      .      .      .      .

															“(b) Inspection of applicants for
admission

															“(1) Inspection of aliens arriving in the United
States and certain other aliens who have not been admitted or
paroled

															“(A) Screening

															“(i) In general

															“If an immigration officer determines that an
alien (other than an alien described in subparagraph (F)) who is
arriving in the United States or is described in clause (iii) is
inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this
title, the officer shall order the alien removed from the United
States without further hearing or review unless the alien indicates
either an intention to apply for asylum under section 1158 of this
title or a fear of persecution.

															“(ii) Claims for asylum

															“If an immigration officer determines that an
alien (other than an alien described in subparagraph (F)) who is
arriving in the United States or is described in clause (iii) is
inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this
title and the alien indicates either an intention to apply for
asylum under section 1158 of this title or a fear of persecution,
the officer shall refer the alien for an interview by an asylum
officer under subparagraph (B).

															.      .      .      .      .

															“(B) Asylum interviews

															“(i) Conduct by asylum officers

															“An asylum officer shall conduct interviews of
aliens referred under subparagraph (A)(ii), either at a port of
entry or at such other place designated by the Attorney
General.

															“(ii) Referral of certain aliens

															“If the officer determines at the time of the
interview that an alien has a credible fear of persecution (within
the meaning of clause (v)), the alien shall be detained for
further consideration of the application for asylum. ” (Emphasis
added.)

															2 Statute Applicable to Criminal Aliens 8 U. S. C. §1226. “Apprehension and
detention of aliens

															“(a) Arrest, detention, and release

															“On a warrant issued by the Attorney General, an
alien may be arrested and detained pending a decision on whether
the alien is to be removed from the United States. Except as
provided in subsection (c) of this section and pending such
decision, the Attorney General—

															“(1) may continue to detain the arrested alien;
and

															“(2) may release the alien on—

															“(A) bond of at least $1,500 with
security approved by, and containing conditions prescribed by, the
Attorney General; or

															“(B) conditional parole;

															.      .      .      .      .

															“(c) Detention of criminal aliens

															“(1) Custody

															“The Attorney General shall take into
custody any alien who—

															“(A) is inadmissible by reason of having
committed any offense covered in section 1182(a)(2) of this
title,

															“(B) is deportable by reason of having committed
any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B),
(C), or (D) of this title,

															“(C) is deportable under section
1227(a)(2)(A)(i) of this title on the basis of an offense for which
the alien has been sentence[d] to a term of imprisonment of at
least 1 year, or

															“(D) is inadmissible under section 1182(a)(3)(B)
of this title or deportable under section 1227(a)(4)(B) of this
title,

															“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.

															“(2) Release

															“The Attorney General may release an
alien described in paragraph (1) only if the Attorney
General decides pursuant to section 3521 of title 18 that
release of the alien from custody is necessary to provide
protection to a witness, a potential witness, a person cooperating
with an investigation into major criminal activity, or an immediate
family member or close associate of a witness, potential witness,
or person cooperating with such an investigation, 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. A decision relating to such
release shall take place in accordance with a procedure that
considers the severity of the offense committed by the alien.”
(Emphasis added.)

															3 Statute Applicable to Miscellaneous Applicants
for Admission 8 U. S. C. §1225. “Inspection by
immigration officers; expedited removal of inadmissible arriving
aliens; referral for hearing

															.      .      .      .      .

															“(b) Inspection of applicants for
admission

															.      .      .      .      .

															“(2) Inspection of other aliens

															“(A) In general

															“Subject to subparagraphs (B) and (C), in the
case of an alien who is an applicant for admission, if the
examining immigration officer determines that an alien seeking
admission is not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for a proceeding under
section 1229a of this title.

															“(B) Exception

															“Subparagraph (A) shall not apply to an
alien—

															“(i) who is a crewman,

															“(ii) to whom paragraph (1) applies, or

															“(iii) who is a stowaway.

															“(C) Treatment of aliens arriving from
contiguous territory

															“In the case of an alien described in
subparagraph (A) who is arriving on land (whether or not at a
designated port of arrival) from a foreign territory contiguous to
the United States, the Attorney General may return the alien to
that territory pending a proceeding under section 1229a of this
title.” (Emphasis added.)

															B State Bail Law

Summary: The Supreme Court case, Jennings v. Rodriguez, deals with the detention of aliens during immigration proceedings and their right to periodic bond hearings. The Court interpreted three provisions of U.S. immigration law that authorize the government to detain aliens. While all parties agreed that the text of these provisions does not grant detained aliens the right to periodic bond hearings, the Ninth Circuit Court of Appeals relied on the constitutional-avoidance canon to hold that they have this right. The Supreme Court disagreed with the Ninth Circuit's interpretation, stating that a court must interpret, not rewrite, the statute. The Court reversed the Ninth Circuit's judgment and remanded the case for further proceedings.