Opinion of the Court
detention even though they were arrested well after their release, then “when… released” adds nothing to paragraph (1). In fact, however, it still has work to do. For one thing, it clarifies when the duty to arrest is triggered: upon release from criminal custody, not before such release or after the completion of noncustodial portions of a criminal sentence (such as a term of “parole, supervised release, or probation,” as the paragraph goes on to emphasize). Thus, paragraph (1) does not permit the Secretary to cut short an alien’s state prison sentence in order to usher him more easily right into immigration detention–much as another provision prevents officials from actually removing an alien from the country “until the alien is released from imprisonment.” 8 U. S. C. §1231(a)(4)(A). And from the other end, as paragraph (1)’s language makes clear, the Secretary need not wait for the sentencing court’s supervision over the alien to expire.
The “when… released” clause also serves another purpose: exhorting the Secretary to act quickly. And this point answers respondents’ second surplusage claim: that the “Transition Period Custody Rules” enacted along with §1226(c) would have been superfluous if §1226(c) did not call for immediate arrests, since those rules authorized delays in §1226(c)’s implementation while the Government expanded its capacities. See Matter of Garvin-Noble, 21 I. & N. Dec. 672, 675 (BIA 1997). This argument again confuses what the Secretary is obligated to do with the consequences that follow if the Secretary fails (for whatever reason) to fulfill that obligation. The transition rules delayed the onset of the Secretary’s obligation to begin making arrests as soon as covered aliens were released from criminal custody, and in that sense they were not superfluous.[1] This is so even though, had the transition
- ↑ The dissent asks why Congress would have felt the need to provide for a delay if it thought that either way, the Secretary would get to
