                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2520

U NITED S TATES OF A MERICA,
                                             Petitioner-Appellant,
                                v.

P ABLO S. H ERNANDEZ-A RENADO,
                                             Respondent-Appellee.


            Appeal from the United States District Court
                 for the Southern District of Illinois.
       Nos. 3:08-cv-278 and 08-cv-291—J. Phil Gilbert, Judge.



     A RGUED S EPTEMBER 12, 2008—D ECIDED JULY 6, 2009




 Before R IPPLE, R OVNER, and E VANS, Circuit Judges.
  R OVNER , Circuit Judge. This case presents us with
the question of whether a person held by the United
States Immigration and Customs Enforcement (“ICE”—
formerly the Immigration and Naturalization Service
(INS)) who is placed in a facility run by the Bureau of
Prisons (“BOP”), is in the custody of the BOP for pur-
poses of the Adam Walsh Child Protection and Safety
Act of 2006 (the “Act”), 18 U.S.C. § 4248 et seq., or
whether he is in the custody of the ICE and therefore
2                                               No. 08-2520

does not fall within that Act. Under the Act, if he is in
the custody of the BOP and is certified to be a sexually
dangerous person, his release from custody is stayed
and he is subject to civil commitment.
  Pablo Santiago Hernandez-Arenado (“Hernandez”)
arrived in the United States in 1980 as part of the Mariel
Boatlift. As part of that exodus, the Attorney General
granted him immigration parole pursuant to 8 U.S.C.
§ 1182(d)(5). Approximately four years later, Hernandez-
Arenado pled guilty to the sexual assault of a child less
than 13 years of age. That conviction involved the
sexual assault of a seven-year-old boy, and Hernandez-
Arenado admitted to involvement in “several hundred”
pedophilic contacts in the United States and Cuba.
Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1243 (10th Cir.
2008). He was sentenced by the New Jersey state court to
5 years’ imprisonment. The INS thereafter revoked his
parole, and upon his release from state prison, detained
him pending deportation pursuant to 8 U.S.C. § 1231(a)(6).
Section 1231(a)(6) provides for the detention of an alien
who is “inadmissible under section 1182 of this title,
removable under section 1227(a)(1)(C), 1227(a)(2), or
1227(a)(4) of this title or who has been determined by
the Attorney General to be a risk to the community or
unlikely to comply with the order of removal.” For that
detention, the INS placed Hernandez-Arenado in a
facility run by the Bureau of Prisons.
  The deportation was impeded, however, by the unwill-
ingness of Cuba or any other nation to accept him. Thus,
the INS was presented with the quandary of holding
No. 08-2520                                               3

Mariel detainees who could not be admitted into the
United States, but could not be deported. What ensued
was a detention of indefinite duration. Hernandez-
Arenado remained in the Bureau of Prisons facility for
more than 20 years.
  Eventually, the circumstance of such Mariel detainees
reached the Supreme Court in Clark v. Martinez, 543
U.S. 371 (2005). In Martinez, the Court ruled that aliens
detained under 8 U.S.C. § 1231(a)(6) may only be
held for a reasonable time in order to effect removal. Id.
at 377-78.
  Shortly thereafter, Hernandez-Arenado filed a petition
for a writ of habeas corpus seeking his release on the
grounds that his deportation was not likely in the rea-
sonably foreseeable future. Because Hernandez-Arenado
was housed in a BOP facility in Leavenworth, Kansas at
the time, that petition was filed in the District of Kansas.
That court granted the petition and ordered his release
within 14 days. In the meantime, Hernandez-Arenado
had been moved to a prison in Marion, Illinois which
was also run by the BOP. After the district court granted
the habeas petition, but before the release date, the acting
chairperson of the BOP’s Certification Review Panel
certified that Hernandez-Arenado is a sexually
dangerous person under 18 U.S.C. § 4247(a)(5) and thus
subject to civil commitment under 18 U.S.C. § 4248 of
the Adam Walsh Act. The government then filed a
petition to civilly commit Hernandez-Arenado as a sexu-
ally dangerous person, which Hernandez-Arenado op-
posed. The district court in a thorough and well-reasoned
4                                              No. 08-2520

order held that Hernandez-Arenado was in the custody
of the ICE for purposes of the Adam Walsh Act and that
the ICE’s decision to house him in BOP facilities did not
render him in the custody of the BOP under that Act.
The government now appeals that decision.
  Before we address his appeal, however, we note that
during the pendency of this appeal, the Tenth Circuit
decided an appeal from the District of Kansas’ grant of
habeas relief. Hernandez-Carrera v. Carlson, 547 F.3d 1237
(10th Cir. 2008). The Tenth Circuit reversed that decision,
and denied the grant of habeas corpus, based on the
Attorney General’s revised interpretation of the deten-
tion provision at 8 U.S.C. § 1231(a)(6). Under that
revised interpretation, only a limited class of aliens may
be detained for an extended period exceeding the
ninety days, including those who pose a special danger
to the public because they have committed crimes of
violence and due to mental illness are likely to do so in
the future, and for whom no conditions of release can
be reasonably expected to ensure the safety of the public.
8 C.F.R. § 241.14. Under the new regulations, enhanced
evidentiary and procedural protections also were
imposed to protect the alien. 547 F.3d at 1253; 8 C.F.R.
§ 241.14. The Tenth Circuit concluded that the continued
detention under that provision was not impermissible
when so limited. 547 F.3d at 1256. We raise this only to
note that the Tenth Circuit’s decision does not render
this appeal moot. Hernandez-Arenado’s continued deten-
tion is pursuant to a provision that allows the con-
tinued detention of a person deemed to pose a special
danger to the public. Id. at 1243. That determination is
No. 08-2520                                               5

potentially subject to review every 6 months. Id. at 1254.
Because a court could determine at any time that release
is appropriate, the applicability of the Adam Walsh Act
to him is not moot because it provides an independent
basis for his continued detention and could prevent
that immediate release.
 The relevant language in the Adam Walsh Act provides:
   (a) Institution of proceedings.—In relation to a person
   who is in the custody of the Bureau of Prisons, or who
   has been committed to the custody of the Attorney
   General pursuant to section 4241(d), or against whom
   all criminal charges have been dismissed solely for
   reasons relating to the mental condition of the person,
   the Attorney General or any individual authorized
   by the Attorney General or the Director of the Bureau
   of Prisons may certify that the person is a sexually
   dangerous person, and transmit the certificate to
   the clerk of the court for the district in which the
   person is confined. . . . The court shall order a hearing
   to determine whether the person is a sexually danger-
   ous person. A certificate filed under this subsection
   shall stay the release of the person pending comple-
   tion of procedures contained in this section.
18 U.S.C. § 4248(a) (emphasis added). The question here
is whether Hernandez-Arenado was “in the custody” of
the BOP for purposes of the Act.
  We first must place the phrase in its context. In addi-
tion to including persons in the custody of the BOP, the
Act applies to those committed to the Attorney General’s
custody for determination of competency to stand trial
6                                               No. 08-2520

in federal court (18 U.S.C. § 4241(d)), and those against
whom all federal criminal charges have been dismissed
for reasons relating to their mental condition. It therefore
is limited to two categories of persons who are in the
federal criminal process and thus under the authority
of the Attorney General as head of the Department of
Justice. The third category, those in the custody of the
BOP, is consistent with those other categories if read as
including those remanded to the custody of the BOP after
a federal conviction. The government, however, urges
that Hernandez-Arenado should be included by virtue
of his lengthy stay in BOP facilities, even though his
detention is under the authority of the ICE, a part of the
Department of Homeland Security and therefore not
under the Department of Justice.
  Here, the BOP has physical custody of Hernandez-
Arenado, because the ICE has utilized the BOP facility to
house him during his detention. That is not an uncommon
practice. According to the ICE’s own website, in 2008
approximately 67% of the ICE population was detained
in the over 300 local and state facilities acquired through
intergovernmental service agreements, 17% were in the
seven contract detention facilities, 13% were in the
eight ICE-owned facilities, and 3% were housed in BOP
facilities. See U.S. Immigration and Customs Enforce-
ment, Detention Management, http://www.ice.gov/pi/
news/factsheets/detention_mgmt.htm. The ICE ensures,
through its self-described “aggressive inspections pro-
gram,” that the facilities used comply with ICE National
Detention Standards. Nor is the practice of alternative
housing limited to the ICE. The BOP is responsible for
No. 08-2520                                               7

the care and custody of persons convicted of federal
crimes, yet it does not host all of those convicted persons.
According to the BOP website, the BOP is currently
responsible for the custody and care of more than 204,000
federal offenders, of which approximately 82% are con-
fined in BOP facilities and the remainder reside in
privately-managed or community-based facilities or
local jails. See BOP: About the Bureau of Prisons,
http://www.bop.gov/about/index.jsp. If physical custody
is the touchstone, then the applicability of the Adam
Walsh Act will turn on the administrative choices of the
ICE or the BOP, rather than on any factors common to
the group of persons subjected to the Act. It will, in a
word, be random—if not outright manipulable.
  The Supreme Court has recognized that the term “cus-
tody” will have different meanings in different contexts.
Rumsfeld v. Padilla, 542 U.S. 426, 438 (2004); see also
Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989) (noting
that the word “custody” is a chameleon). For instance,
28 U.S.C. § 2242, a federal habeas statute, contemplates
a proceeding against the person in immediate physical
possession of the inmate, who would therefore have
the power to produce that inmate if the court deter-
mined that the detention was unlawful. Rumsfeld, 542
U.S. at 434-35. Where the challenged action involves a
confinement that would be imposed in the future, rather
than a present incarceration, custody may be defined
not in terms of physical control, but rather in terms of the
legal control over the person. Id. at 438-39. In the present
case, however, the statute involves a determination that
could lead to future civil confinement. In that context, the
8                                             No. 08-2520

term custody would more logically invoke the one
with legal authority over the detainee, rather than the
entity in physical possession.
  In fact, although the government relies on the physical
custody to argue that Hernandez-Arenado is subject to
the Act, even the government is wary of its conclusion.
Despite arguing that the BOP’s physical custody of
Hernandez-Arenado subjected him to the Act, the gov-
ernment refused to apply the same standard to others
in the physical custody of the BOP. In fact, the govern-
ment explicitly and repeatedly refuses to take the
position that physical presence at the BOP facility is the
determinative factor, and instead maintains that its posi-
tion is not that all persons housed in BOP facilities are
in custody of BOP for purposes of the Act. The reason
for this apparent inconsistency may be a pragmatic one.
As the district court pointed out, under an interpreta-
tion based on physical custody alone, the categories of
persons included is vast, including those housed in BOP
facilities as material witnesses, under civil contempt
orders, on writs of habeas corpus ad testificandum, or
under contract with other sovereigns—such as state or
local governments—to house sensitive prisoners.
  In apparent recognition that applying the Adam
Walsh Act to persons such as material witnesses or
those under civil contempt orders would be difficult to
defend, the government ultimately refuses to provide
any test for determining custody, asserting only that a
person there as long as Hernandez-Arenado is definitely
in custody. At least one other appellate court has been
No. 08-2520                                               9

troubled by the government’s inconsistent positions as
to the definition of custody under the Act. United States
v. Comstock, 551 F.3d 274, 281 (4th Cir. 2009). In Comstock,
the government argued that § 4248 of the Act constituted
a limited, necessary extension of the federal penal system
authorized under the Article I power to enact federal
statutes. Id. However, Comstock pointed out that in the
present case and in United States v. Shields, 522 F.Supp.2d
317 (D. Mass. 2007), the government advocated a view
of custody that strayed beyond that connection to
federal criminal offenders. Id. at n.7. In Shields, the gov-
ernment argued that § 4248 requires only that a person
be in the custody of the BOP, not that the custody is
lawful, and in the present case, the government argues
that even a person not in custody for a federal criminal
offense can be included if the person is physically in a
BOP facility. Id. Even that position is not consistent,
because the government would not necessarily extend
the term to include anyone in physical custody. The
Comstock court ultimately concluded that § 4248 was
unconstitutional, but that issue is not before this court.
We raise it only to note the inconsistencies in the posi-
tions taken by the government in cases addressing § 4248.
  We are entrusted with the duty to read the statute so
as to have ascertainable meaning, and the ad hoc conclusory
determination advocated by the government provides
no guidance to courts, the ICE, the BOP, or those housed
at BOP facilities, as to whether they are in the custody
of the BOP for purposes of the Act. The term must be
given a meaning that is capable of being applied beyond
the narrow facts here, and the government is unwilling to
10                                              No. 08-2520

advocate any such articulable definition. See Downey v.
Crabtree, 100 F.3d 662, 666 (9th Cir. 1996) (rejecting the
government’s argument that “nonviolent offense” should
be defined at the BOP’s discretion, and noting that the
federal courts have ultimate responsibility of statutory
interpretation). Hernandez-Arenado’s detention is under
the authority of the ICE, as part of the Department of
Homeland Security. He is housed at BOP facilities for
the convenience of the ICE, and although the BOP attends
to his daily needs and may even transfer him among
facilities to further its own interests, the ICE retains the
ultimate authority over him. His detention is different
in kind than the other two categories set forth in the
Adam Walsh Act, which involved persons in the
federal justice system under the authority of the Depart-
ment of Justice. We reject an interpretation that would
allow physical custody alone to suffice under the Adam
Walsh Act. There could be no reason to provide the
specificity in the other categories if the BOP category
was to be read so broadly as to include those categories
and more. An interpretation based on the physical locale
of the person would greatly expand the Act, to ensnare
even those who are at the BOP by chance, as where
state prisons are overcrowded, or as a result of no
criminal action on their part, as with material witnesses.
Ironically, it would also exclude federal offenders
from coverage, as 18% of those offenders do not reside
in the physical custody of the BOP. That makes no
sense. The more rational reading of the Act would read
custody more narrowly as including all federal offenders,
but not those housed in the BOP as a service to another
No. 08-2520                                          11

entity which is responsible for that individual’s incar-
ceration. Under that interpretation, Hernandez-Arenado
does not fall within the Act, and the district court
properly dismissed the proceedings. The decision of the
district court is A FFIRMED.




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