                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DANIEL ALEJANDRO ZAVALA,                 No. 13-56615
        Petitioner-Appellant,
                                         D.C. No.
              v.                   2:13-cv-03603-JFW-E

RICHARD B. IVES, Warden,
        Respondent-Appellee.              OPINION


      Appeal from the United States District Court
         for the Central District of California
       John F. Walter, District Judge, Presiding

                Argued and Submitted
         August 4, 2014—Pasadena, California

                    Filed May 18, 2015

   Before: Stephen Reinhardt, Kim McLane Wardlaw,
       and Consuelo M. Callahan, Circuit Judges.

              Opinion by Judge Reinhardt;
Partial Concurrence and Partial Dissent by Judge Callahan
2                         ZAVALA V. IVES

                           SUMMARY*


                          Habeas Corpus

     The panel reversed the district court’s denial of federal
prisoner Daniel Alejandro Zavala’s 28 U.S.C. § 2241 habeas
corpus petition claiming improper denial of sentencing credit,
and remanded.

    The panel held that when immigration officials detain an
alien pending potential prosecution, the alien is entitled under
18 U.S.C. § 3585(b) to credit toward his criminal sentence;
that an alien is entitled to credit for all time spent in
Immigration and Customs Enforcement Agency detention
subsequent to his indictment or the filing of formal criminal
charges against him; and that where a factual dispute exists,
the district court must hold an evidentiary hearing as to
whether an alien’s detention by ICE prior to the date of his
indictment or the filing of criminal charges against him
constituted detention pending prosecution.

    The panel held that the district court erred when it denied
Zavala sentencing credit for the post-indictment period during
which ICE detained him pending criminal prosecution. The
panel remanded for the district court to determine in the first
instance whether and when during the pre-indictment period
Zavala’s detention status changed from detention pending
deportation to detention pending potential prosecution. The
panel held that, on remand, the government has the burden of


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       ZAVALA V. IVES                         3

proving that the pre-indictment detention was for the purpose
of deportation rather than potential prosecution.

    Concurring in part and dissenting in part, Judge Callahan
agreed with the majority that under § 3585(b) an alien is
eligible for credit for all time spent in ICE custody from the
day he or she is indicted or criminally charged. She dissented
from the majority’s broader interpretation of § 3585 – that an
alien is entitled to credit toward his criminal sentence for the
period during which ICE detained the alien pending potential
criminal prosecution.


                         COUNSEL

Ashfaq G. Chowdhury (argued), Deputy Federal Public
Defender; Sean Kennedy, Federal Public Defender, Los
Angeles, California, for Petitioner-Appellant.

Tritia L. Yuen (argued), Assistant United States Attorney;
André Birotte, Jr., United States Attorney; Joseph B.
Widman, Assistant United States Attorney, Chief, Riverside
Branch Office, Riverside, California, for Respondent-
Appellee.
4                        ZAVALA V. IVES

                             OPINION

REINHARDT, Circuit Judge:

    Daniel Zavala seeks credit toward his criminal sentence
under 18 U.S.C. § 3585(b), the sentencing credit statute, for
two periods of time during which he was detained by the U.S.
Immigration and Customs Enforcement Service (ICE) prior
to the commencement of his criminal sentence for illegal
reentry under 8 U.S.C. § 1326. We hold that where ICE
detains an alien pending potential criminal prosecution, that
detention constitutes “official detention” within the meaning
of § 3585(b) and the alien is accordingly entitled to credit
toward his criminal sentence.

                                  I.

    On September 20, 2010, Zavala was transferred from state
custody, where he had finished serving a state criminal
sentence, into the custody of ICE. That same day, an ICE
officer gave him a Form I-871, U.S. Department of Homeland
Security Notice of Intent/Decision to Reinstate Prior Order,
which Zavala signed.1 The I-871 Form provided that ICE had
determined that Zavala was subject to a prior order of
removal entered on May 2, 2006, that he had previously been
removed on May 3, 2006 pursuant to an order of removal,
and that he illegally reentered the United States on or about
July 14, 2009. Zavala signed the “Acknowledgment and


    1
     We grant Zavala’s unopposed motion to take judicial notice of the
September 20, 2010 Form I-871 and the Record of Sworn Statement in
Affidavit Form dated September 20, 2010, both of which documents were
in Zavala’s immigration file and were provided to him by the Government
in these proceedings.
                          ZAVALA V. IVES                               5

Response” section of the I-871 Form stating “I do not wish to
make a statement contesting this determination.”2 The ICE
officer accordingly reinstated the prior order of removal by
signing the “Decision, Order, and Officer’s Certification”
section of Form I-871, which stated that “[h]aving reviewed
all available evidence, the administrative file and any
statements made or submitted in rebuttal, I have determined
that the above-named alien is subject to removal through
reinstatement of the prior order, in accordance with section
241(a)(5) of the [Immigration and Nationality] Act.”
Although reinstatement of the prior order allowed ICE to
remove Zavala from the country at any time from September
20, 2010 onward, ICE nonetheless continued to detain Zavala
until October 6, 2010—sixteen days later.

    On October 6, 2010, a grand jury in the District of
Nevada returned an indictment charging Zavala with illegal
reentry under § 1326. ICE then transferred Zavala into the
custody of the United States Marshals Service (USMS), and
Zavala was in USMS custody as of October 7, 2010.
Sixty-two days later, on December 7, 2010, the United States
District Court for the District of Nevada granted the
Government leave to dismiss the unlawful reentry charge due
to improper venue.

    On December 10, 2010, following dismissal of the
indictment for improper venue, Zavala was transferred from
USMS custody back into ICE custody. Twelve days later, on


 2
  Also on September 20, 2010, Zavala completed and signed an affidavit
on a form provided by ICE admitting that he was a citizen of Mexico, that
he had previously been deported, that he reentered the United States on
foot from Mexico, and that he had not sought permission to reenter the
United States.
6                          ZAVALA V. IVES

December 22, 2010, a criminal action for illegal reentry under
§ 1326 was again brought against Zavala, this time in the
Central District of California, the proper venue, and he was
again transferred into USMS custody from ICE custody.

    Pursuant to a plea agreement, Zavala was sentenced on
March 28, 2011 to 46-months’ imprisonment and 3-years’
supervised release for illegal reentry under § 1326(a). In
calculating Zavala’s entitlement to sentencing credit under
§ 3585(b) for time he spent in detention prior to the
commencement of his criminal sentence, the Bureau of
Prisons (BOP) granted Zavala credit for the two periods of
time during which USMS detained him—October 6, 2010
through December 10, 2010, and December 22, 2010 through
March 27, 2011.3

    BOP denied Zavala sentencing credit, however, for the
two periods of time during which ICE detained him prior to
the commencement of his criminal sentence: (1) September
20, 2010 through October 5, 2010, when ICE detained him
after reinstatement of the removal order but before an
indictment was returned, hereinafter referred to as the “pre-
indictment period”; and (2) December 11, 2010 through
December 21, 2010, when ICE detained him between the
dismissal of the first indictment for improper venue and the
re-initiation of the criminal proceeding in the proper venue,
hereinafter referred to as the “post-indictment period.”


    3
     BOP, rather than the sentencing court, calculates the defendant’s
entitlement to sentencing credit under § 3585(b) in the first instance. See
United States v. Wilson, 503 U.S. 329, 335 (1992). A defendant may then
challenge BOP’s calculation—in other words, the execution of the
sentence—by filing a petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984).
                       ZAVALA V. IVES                        7

    On May 20, 2013, Zavala filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, claiming
improper denial of sentencing credit because he had “been in
official custody of the federal government since September
20, 2010.” A magistrate denied sentencing credit for both
periods of detention by ICE, and the district court adopted in
full the magistrate’s report and recommendation. Zavala
appealed.

                              II.

    Zavala contends that the district court erred in concluding
that detention by immigration authorities never constitutes
“official detention” within the meaning of § 3585(b), the
statute governing the calculation of a term of imprisonment.
We review the district court’s denial of a habeas petition de
novo, while we review any underlying factual findings for
clear error. Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th
Cir. 2010), abrogated on other grounds by Setser v. United
States, 132 S. Ct. 1463 (2012). We review questions of
statutory interpretation de novo. United States v. Thompson,
728 F.3d 1011, 1015 (9th Cir. 2013); Phoenix Mem’l Hosp.
v. Sebelius, 622 F.3d 1219, 1224 (9th Cir. 2010).

                              A.

    Title 18 U.S.C. § 3585 governs the calculation of the
length of a federal criminal sentence. Under the statute, a
term of imprisonment begins “on the date the defendant is
received in custody awaiting transportation to, or arrives
voluntarily to commence service of sentence at, the official
detention facility at which the sentence is to be served.”
§ 3585(a). The statute then provides that the defendant is
entitled to sentencing credit for time spent in “official
8                      ZAVALA V. IVES

detention” prior to the commencement of the term of
imprisonment:

       Credit for prior custody.—A defendant shall
       be given credit toward the service of a term of
       imprisonment for any time he has spent in
       official detention prior to the date the sentence
       commences—

           (1) as a result of the offense for which the
           sentence was imposed; or

           (2) as a result of any other charge for which
           the defendant was arrested after the
           commission of the offense for which the
           sentence was imposed;

       that has not been credited against another
       sentence.

§ 3585(b). The statute does not define “official detention.”

     When interpreting a statute, “[w]e start, as always, with
the language of the statute.” Williams v. Taylor, 529 U.S. 420,
431 (2000). In so doing, “[w]e give the words of a statute
their ‘ordinary, contemporary, common meaning,’ absent an
indication Congress intended them to bear some different
import.” Id. Under the plain text of the sentencing credit
statute, when ICE detains an alien for the purpose of securing
his presence at a potential criminal prosecution and the alien
is indeed criminally prosecuted and sentenced, this period of
detention by ICE is “as a result of the offense for which the
sentence was imposed.” § 3585(b)(1). The “as a result of”
formulation denotes a causal relationship. When ICE detains
                           ZAVALA V. IVES                               9

an alien pending a potential criminal prosecution, electing to
defer deportation until the conclusion of such criminal
proceedings (and often until after service of the criminal
sentence), that period of ICE detention is causally attributable
to the criminal offense rather than to ICE’s authority to detain
an alien pending deportation. Under the plain meaning of the
words, detention is the holding of aliens in custody (which
the immigration statutes expressly describe as “detention”),4
and ICE is without question an official entity. Pending
prosecution means the time during which the alien is detained
for the purpose of securing his presence at a potential
criminal prosecution, whereas pending deportation means
detention for the purpose of removing him from the country.

    The legislative history of § 3585 does not shed any
additional light on whether ICE detention pending criminal
prosecution constitutes “official detention,” but similarly it
does not contain any indication that Congress intended the
statute’s words to have a different import than their plain
meaning.5 Thus, we conclude that the relevant inquiry to


 4
     8 U.S.C. §§ 1226(a)(1); 1231(a)(2).
 5
    Early versions of the Sentencing Reform Act of 1984, which rewrote
and recodified the sentencing credit statute, creating § 3585, included a
definition of “official detention” that encompassed “detention by a public
servant . . . pending deportation”—a far more expansive definition than
the one we adopt. See, e.g., Criminal Code Reform Act of 1981, S. 1630,
97th Cong. § 111 (1981). The entirety of the definitions section, however,
was deleted prior to enactment.

     In United States v. Wilson, the Supreme Court held that the deletion
of a reference to the Attorney General during the recodification of the
sentencing credit statute effected no change in the statute’s meaning. See
503 U.S. at 336 (concluding the reference “was simply lost in the
shuffle”). The Court noted that Congress’s replacement of the term
10                         ZAVALA V. IVES

determine whether a period of ICE detention constituted
“official detention . . . as a result of the offense for which the
sentence was imposed” is whether the detainee was being
held pending a potential criminal prosecution, rather than
pending deportation in the ordinary course—that is, whether
the alien’s detention status had changed from pending
deportation, which it was at the time he was first detained, to
pending prosecution.

    A number of considerations support our interpretation of
the statute as having the meaning its plain words afford it.
First, issues of sentencing credit arise only in cases in which
the alien has in fact been criminally prosecuted and
convicted, so the scope of our holding is necessarily
circumscribed. In such cases, we always know that the
government elected to pursue criminal prosecution, rather
than to attempt to deport the alien forthwith. Otherwise, there
would be no criminal sentence to credit. The only question is
when the alien’s detention status changed from detention
pending deportation to detention pending potential
prosecution.

   Second, federal immigration officers and federal
prosecutors work together closely to facilitate criminal
prosecutions of aliens. See 8 U.S.C. § 1226(d)(1) (requiring
cooperation between the Attorney General and federal, state,
and local authorities “with respect to the arrest, conviction,
and release of any alien charged with an aggravated felony”);
United States Customs and Border Protection Inspector’s


“custody” with “official detention” might have constituted a meaningful
change, id. at 337, but it subsequently held that the change was a technical
one that did not alter the meaning of the statute. See Reno v. Koray,
515 U.S. 50, 59–60 (1995).
                       ZAVALA V. IVES                         11

Field Manual § 18.11 (2008) (providing detailed instructions
to immigration officers regarding development of a case for
criminal prosecution in cooperation with U.S. Attorneys);
United States Immigration and Customs Enforcement
Detention and Deportation Officer’s Field Manual § 14.8
(2006) (providing instructions on preserving a case for
criminal prosecution after reinstatement of removal). It is
typically ICE’s referral of a case to a U.S. Attorney that
prompts the filing of charges for an immigration-status
offense, and it is ICE’s delay of deportation and delivery of
the alien to the U.S. Attorney that enables criminal
proceedings to occur. Indeed, the record in this case is
illustrative of the fact that prosecutions for immigration-status
crimes are a collaborative effort by immigration officers and
prosecutors: the only evidence supporting the criminal
complaint against Zavala filed in the Central District of
California was an affidavit by an ICE deportation officer.

    Given that prosecutions for immigration-status crimes
result from cooperative efforts between the two sets of
officials, it would be arbitrary to afford sentencing credit
when the government elects to hold a defendant in USMS
detention while it builds its criminal case but not when the
government elects to hold a defendant in ICE detention while
it does so. Under the district court’s hardline rule that
immigration detention never constitutes “official detention,”
two identically situated defendants would serve sentences of
differing lengths based solely on the federal government’s
election of ICE rather than USMS detention pending potential
criminal prosecution. Individuals in immigration detention,
unlike those in USMS detention, could be subjected to
lengthy periods of detention with no offsetting sentencing
credit. Further underscoring the arbitrariness of a blanket rule
denying sentencing credit any time aliens are in ICE
12                         ZAVALA V. IVES

detention is the fact that BOP itself has afforded credit to
aliens held in state detention pending federal prosecution, see
§ 3585(b)(2); U.S. Dept. of Justice, Bureau of Prisons
Program Statement No. 5880.28, 1-14A, 1-21 (Feb. 14,
1997); Abpikar v. Lompoc Federal Bureau of Prisons, No.
CV 12-00827 MMM, 2012 WL 3777156, at *2 (C.D. Cal.
July 16, 2012), adopting report & recommendation, 2012 WL
3776499 (C.D. Cal. Aug. 30, 2012), and ICE detention often
occurs in a state facility. See, e.g., Galan-Paredes v. Hogsten,
No. 1:CV-06-1730, 2007 WL 30329, *1 (M.D. Pa. Jan. 3,
2007) (defendant held in county jail in ICE detention status).
In other words, two individuals could receive different
sentencing credit and thus serve different length sentences
based solely on which agency was nominally in charge of
their detention in the same facility.6

                                    B.

    The Government makes four arguments in support of its
contention that a defendant is never entitled to sentencing
credit for time spent in ICE detention: (1) that Supreme Court
precedent interpreting § 3585(b) in the context of pretrial
release under the Bail Reform Act controls the instant case;
(2) that BOP’s interpretation of § 3585(b) precludes
sentencing credit for any and all time spent in immigration
detention; (3) that sentencing credit is inappropriate because
deportation proceedings are classified as civil; and (4) that


  6
    The dissent’s approach, under which a person held in ICE detention
pending criminal prosecution would receive credit only if criminal charges
have already been filed perpetuates this arbitrary disparity. When police
officers arrest a criminal suspect, sentencing credit begins at the time of
arrest, rather than when formal charges are filed. See, e.g., BOP Program
Statement 5880.28 at 1-21.
                           ZAVALA V. IVES                             13

requiring BOP to work with ICE to calculate sentences would
be unworkable. We reject these arguments.

    The Government argues that Reno v. Koray, 515 U.S. 50
(1995), controls the instant case, but Koray’s holding was far
narrower. The question presented to the Court by the grant of
certiorari was “whether a federal prisoner is entitled to credit
against his sentence under § 3585(b) for time when he was
‘released’ on bail pursuant to the Bail Reform Act of 1984,”
and the Court held that release on bail to a private community
treatment center did not constitute “official detention.” Id. at
54, 65. Although the release on bail at issue in Koray
included restrictive conditions, it was clear that under the
terms of the Bail Reform Act the defendant was “released”
from official detention to a private facility. Id. at 59. In the
instant case, it is equally clear that under the relevant statutes,
detention by immigration officials constitutes “detention” and
not “release.” See 8 U.S.C. §§ 1226(a)(1)–(2), 1231(a)(2).7

    Despite dicta to the effect that official detention meant
detention in a facility under the control of BOP, see 515 U.S.
at 58, Koray had no occasion to address immigration
detention, and it expressly declined to reach cases in which a


  7
     The dissent asserts that we adopt different definitions of “official
detention” with respect to ICE detention and community treatment centers.
Not so. To recapitulate: Koray held that a person released to a community
treatment center is not detained. We hold that where a person is detained
by ICE, § 3585(b) may apply. Certainly where a person is released on
bond by ICE, it does not.

    Nor do we agree with the dissent’s contention that because the
Immigration Nationality Act and the Sentencing Reform Act were created
by different legislation, we should not presume that Congress intended for
them to be construed harmoniously.
14                         ZAVALA V. IVES

defendant is held in detention in an official facility not
operated or controlled by BOP. The Court expressly stated
that “BOP often grants credit under § 3585(b) for time spent
in state custody, even though the defendant was not subject
to the control of BOP. These situations obviously are not
governed by reference to a [Bail Reform Act] § 3142
‘release’ or ‘detention’ order. . . . [B]ecause the only question
before us is whether a defendant is in ‘official detention’
under § 3585(b) during the time he is ‘released’ on bail
pursuant to the Bail Reform Act of 1984, we need not and do
not rule here on the propriety of BOP’s decision to grant
credit under § 3585(b) to a defendant who is denied bail
pursuant to state law and held in the custody of state
authorities.” 515 U.S. at 63 n.5 (citation omitted).8 A fortiori,
Koray did not determine that immigration detention must be
under the control of BOP in order to constitute “official
detention”; rather, it left open the question we now answer:
whether detention by immigration officials can constitute




 8
   The dissent asserts that we make too much of the statements in Koray
pertaining to credit for state detention and that “official detention” in
§ 3585(b) is in all circumstances limited to detention under the control of
BOP, USMS, or the Attorney General of the United States because that is
the detention referred to as “official detention” in § 3585(a) and other
provisions of the Sentencing Reform Act—the enactment that included the
Bail Reform Act. We conclude, however, that we must abide by the
Supreme Court’s statement that “situations [in which “the defendant was
not subject to the control of the BOP”] obviously are not governed by
reference” to the Bail Reform Act. Koray, 515 U.S. at 63 n.5. (second
emphasis added). It is equally obvious that such situations are not
governed by reference to other provisions of the Sentencing Reform Act
pertaining to inmates in federal prisons.
                           ZAVALA V. IVES                             15

“official detention.” We conclude that it can and that in this
case it does.9

    Next, the Government argues that BOP’s Program
Statement interpreting § 3585(b) precludes sentencing credit
for all time spent in immigration custody, and that the
Program Statement is entitled to deference. Congress
delegated responsibility for the initial computation of
sentences to the Attorney General, see United States v.
Wilson, 503 U.S. 329, 333 (1992), who has in turn delegated
that authority to BOP. See 28 C.F.R. § 0.96. We need not,
however, reach the question of administrative deference.10

  9
    Even if Koray required a defendant to be under the control of BOP,
USMS, or the Attorney General in all circumstances to be eligible for
sentencing credit as the dissent contends, our colleague overlooks the
dispositive fact that when Koray was decided in 1995 (and when BOP
adopted its Program Statement), all immigration detainees—whether
charged with a crime or not—were indeed within the control of the
Attorney General. The Immigration and Nationality Service (INS) was in
the Department of Justice and the Department had jurisdiction over
immigration matters until 2002, when the Attorney General’s authority
over immigration, including over the INS, was transferred to the Secretary
of the newly formed Department of Homeland Security. See Establishment
of Department; replacement of Immigration and Naturalization Service;
transfer of functions, 3A Am. Jur. 2d Aliens and Citizens § 35 (George
Blum et al. eds., 2015). Surely the transfer of INS to a new,
comprehensive agency designed to cover national security matters did not
change the nature of its control over immigration detention. Nor does it
matter that INS was reorganized to be part of a newly created federal
department reporting to the Secretary of Homeland Security, who
exercises the authority over immigration matters that the Attorney General
formerly did.
  10
     Under Tablada v. Thomas, the BOP Program Statement would be
entitled to Skidmore, rather than Chevron, deference if it addressed the
question presented. See 533 F.3d 800, 806 (9th Cir. 2008) (applying
Skidmore deference to the interpretation of the good-time credit statute
16                          ZAVALA V. IVES

BOP’s Program Statement does not speak to situations in
which ICE detains an alien pending criminal
prosecution—potential or otherwise. The Government’s
claim that the Program Statement establishes a blanket no-
credit rule is thus incorrect.

     BOP Program Statement 5880.28 provides:

         Official detention does not include time spent
         in the custody of the U.S. Immigration and
         Naturalization Service (INS) under the
         provisions of 8 U.S.C. § 1252 pending a final


contained in the same BOP Program Statement). Even if the BOP Program
Statement precluded sentencing credit for any and all time spent in
immigration detention, as the Government asserts, we would find this
interpretation of the statute unpersuasive under Skidmore. When applying
Skidmore deference, “[a]mong the factors we consider are the
interpretation’s thoroughness, rational validity, consistency with prior and
subsequent pronouncements, the logic and expertness of an agency
decision, the care used in reaching the decision, as well as the formality
of the process used.” Id. (internal quotation marks and brackets omitted).
The BOP Program Statement “does not purport to carry the force of law
and was not adopted after notice and comment,” id., and the closest it
comes to giving any explanation for its interpretation of the statute is the
inclusion of three case citations. See BOP Program Statement 5880.28 at
1-15A. All three cases cited involved claims of constitutional error
committed in the course of deportation proceedings and none of them
involved sentencing credit. Rather, the cited cases simply denominate
deportation proceedings as “civil” proceedings. See Ramirez-Osorio v.
INS, 745 F.2d 937 (5th Cir. 1984); Shoaee v. INS, 704 F.2d 1079 (9th Cir.
1983); Cabral-Avila v. INS, 589 F.2d 957 (9th Cir. 1978). As discussed
infra, that deportation proceedings are classified as civil has no bearing on
whether a criminal defendant is entitled to credit toward his criminal
sentence. Thus, even if the Government’s reading of the Program
Statement were correct, it would lack the logic, expertise, and
thoroughness needed to trigger deference to an agency’s interpretation of
a statute.
                          ZAVALA V. IVES                              17

         determination of deportability. An inmate
         being held by INS pending a civil deportation
         determination is not being held in “official
         detention” pending criminal charges.

BOP Program Statement 5880.28 at 1-15A (emphasis added).
By its text, the BOP Program Statement does not deny
sentencing credit for any and all time an alien is held in
immigration custody, as the Government contends. At best,
it follows the same interpretation that we adopt: a line
between detention pending deportation, for which a defendant
is not entitled to sentencing credit, and detention pending
criminal prosecution, including the filing of criminal charges,
for which a defendant is entitled to sentencing credit.11 At
worst, the Program Statement is silent as to whether a
defendant is entitled to sentencing credit where ICE detains
him pending potential criminal prosecution.12

  11
      The dissent proclaims that the phrase “pending criminal charges”
refers solely to criminal cases in which charges have already been filed,
as opposed to cases awaiting the filing of charges. This argument is
without merit. In addition to the two definitions mentioned by the
dissent—one of which is wholly consistent with our opinion—“pending”
is also defined as “While awaiting; until” when used as a preposition.
Black’s Law Dictionary (10th ed. 2014). See also Webster’s New World
Dictionary 998 (3d Coll. ed. 1988) (including the following definitions:
“not decided, determined, or established”; “about to happen; impending”;
“throughout the course or process of”; and “while awaiting; until”). We
decline to read into the Program Statement a distinction between cases in
which charges have already been filed and those in which they are being
explored, for the reasons previously discussed in Section II.A, supra.
 12
   On at least four occasions reported in federal court decisions BOP has
voluntarily granted sentencing credit for time the defendant spent in ICE
detention where BOP determined that the detention was pending criminal
prosecution and not pending deportation—including one case in which the
detention preceded formal criminal charges. See Sanchez v. Kruger, No.
18                          ZAVALA V. IVES

    Although a number of district courts have relied on the
BOP Program Statement to deny sentencing credit for time
during which a defendant was held in ICE detention pending
deportation proceedings, we do not read these cases as
inconsistent with our holding in any respect. First, they
engage in only cursory analysis, stating merely that the BOP
Program Statement is entitled to deference and that
deportation proceedings are classified as civil. Second, these
cases all refer to persons being held in custody pending
deportation proceedings.13 Thus, these cases do not provide


3:CV-13-2025, 2014 WL 6886240, at *2 (M.D. Pa. Dec. 4, 2014)
(dismissing habeas petition as moot because BOP granted the defendant
credit for the nineteen days prior to his indictment during which he was
held in ICE detention pending criminal prosecution); De Leon v.
Copenhauer, No. 1:12-CV-00976-BAM (HC), 2012 WL 5906551, at *2
(E.D. Cal. Nov. 26, 2012) (noting that BOP granted the defendant credit
for the time he was held pending prosecution, including thirty-eight days
in ICE detention); United States v. Tames, CR No. 07-108-S, 2010 WL
93695, at *1-2 (D.R.I. Jan. 8, 2010) (noting that BOP granted the
defendant credit for five days during which he was held in ICE detention
after criminal charges were filed but before the defendant was transferred
to USMS custody); Reyes-Ortiz v. Schultz, CIV. 08-6386 (JEI), 2009 WL
4510131, at *1 (D.N.J. Dec. 1, 2009) (noting that BOP granted the
defendant sentencing credit for the time after the defendant “was ordered
deported, but then continued to be held for prosecution,” including credit
for one day in ICE detention prior to his transfer into USMS custody). We
have no reason to think that BOP did not grant similar credits for ICE
detention in other instances that did not find their way into litigated federal
cases.
     13
     See Solorzano-Cisneros v. Zych, No. 7:12-cv-00537, 2013 WL
1821614, at *3 (W.D. Va. April 13, 2013) (“The period . . . when
Solorzano-Cisneros was held in ICE custody pending civil deportation
review, does not constitute ‘official detention’ under pending criminal
charges”); Castro-Frias v. Laughlin, No. 5:11cv174-DCB-RHW, 2012
WL 4339102, at *2 (S.D. Miss. July 13, 2012), adopting report &
recommendation, 2012 WL 4339216 (S.D. Miss. Sept. 20, 2012) (finding
                            ZAVALA V. IVES                                19

support for the Government’s argument that sentencing credit
must be denied when ICE detains an alien pending potential
criminal prosecution, as opposed to pending deportation.

    The Government also argues that detention by ICE never
constitutes “official detention” within the meaning of
§ 3585(b) because deportation is a civil proceeding. There is
no dispute, however, that an alien being held for deportation,
a civil proceeding, is not entitled to sentencing credit. The
question here is whether an alien held by ICE for the purpose


claim moot but noting that “time spent in ICE custody awaiting
deportation determination is not ‘official detention’”); Plummer v.
Longley, No. CIV.A. 10-171 ERIE, 2011 WL 1204008, at *3 (W.D. Pa.
Mar. 28, 2011) (declining to disturb BOP’s determination that “‘official
detention’ under § 3585(b) does not include time spent in ICE ‘civil
custody’ pending a final determination of deportability”); U.S. v.
Acosta-Leal, No. 10-30036-DRH, 2010 WL 4608477, at *2 (S.D. Ill. Nov.
5, 2010) (“[A] person detained by INS while awaiting a deportation
determination is not ‘in official detention’”); Similien v. United States, No.
4:04-CV-162, 2007 WL 496637, at *1 (N.D. Ohio Feb. 8, 2007) (“During
this time, Petitioner was detained by [ICE] while awaiting exclusion
proceedings.”); Ghadiri v. Sniezek, No. 4:06CV1765, 2006 WL 3023034,
at *3 (N.D. Ohio Oct. 23, 2006) (“[D]uring the period of time Mr. Ghadiri
was confined by the I.N.S. . . . he was in I.N.S. custody solely for the
purpose of deportation proceedings.”); Alba-Tovar v. U.S., No.
05-1899-JO, 2006 WL 2792677, at *2 (D. Or. Sept. 22, 2006)
(“Petitioner’s custody . . . was due to pending administrative deportation
proceedings and does not constitute ‘official detention’”); Fletcher v.
Pugh, No. CV 303-082, 2004 U.S. Dist. LEXIS 29450, at *5-6 (S.D. Ga.
Apr. 16, 2004) (“[P]rior to the time of his indictment, Petitioner was only
being held for disposition of civil proceedings that were not related to his
eventual sentencing on the criminal charge of illegal re-entry.”); Decraene
v. Winn, No. 03-40212-GAO, 2004 WL 594976, at *2 (D. Mass. Mar. 23,
2004) (“[T]hat period of time during which petitioner was confined by the
Immigration and Naturalization Service was not the result of the offense
for which he was convicted . . . . To the contrary, he was in INS custody
solely for the purpose of deportation proceedings.” (emphasis omitted)).
20                      ZAVALA V. IVES

of securing his attendance at a criminal proceeding is entitled
to such credit. Thus, the Government’s argument simply
misses the point.

    The Government’s final argument is that requiring BOP
to grant credit for time spent in ICE detention would be an
unworkable regime because it would be “extremely difficult
if not impossible to administer.” Zavala v. Ives, No. CV
13-3603-JFW(E), 2013 WL 4763839, at *4 (C.D. Cal. Sept.
3, 2013). We reject this argument, for two reasons.

     First, a number of district courts have already adopted the
interpretation of § 3585(b) that we adopt today and granted
credit for time spent in immigration detention pending
potential prosecution, including pre-indictment periods as
long as nearly two months.14 These courts engaged in a fact-
based inquiry to determine when the defendant’s detention
status changed from detention pending deportation to
detention pending criminal prosecution. Courts are wholly
competent to adjudicate when that status change occurred, as
it is a factual inquiry that can often be resolved by examining
ICE’s administrative records and the ICE officers responsible
for an alien’s case. Indeed, BOP has at least on occasion
voluntarily undertaken this inquiry itself. See supra note 12.

    Second, BOP already grants sentencing credit for time
spent in state or foreign custody where that time was not
credited to another sentence. See § 3585(b)(2); Koray,


 14
    See Paz-Salvador v. Holt, No. 3:10-CV-2668, 2011 WL 3876268, at
*5 (M.D. Pa. Aug. 31, 2011) (31 days); Reyes-Ortiz, 2009 WL 4510131,
at *1, 4 & n.2 (34 days); Galan-Paredes, 2007 WL 216699, at *1 (49
days); Guante v. Pugh, No. CV 305-92, 2005 WL 3867597, at *1 (S.D.
Ga. Dec. 2, 2005) (47 days).
                           ZAVALA V. IVES                              21

515 U.S. at 63 n.5; BOP Program Statement 5880.28 at
1-14A, 1-21. In order to facilitate the calculation of sentences
in such circumstances, BOP has in place a policy for
intergovernmental communications to investigate and verify
claims of entitlement to sentencing credit. See BOP Program
Statement 5880.28 at 1-26 (“Proper documentation will
consist of written documentation . . . from any law
enforcement agency (including probation officers). This
includes verified phone, fax, or teletype messages, PSI, Rap
Sheet, Booking Sheets, SENTRY, USM Form 129, etc.”). If
anything, it should be easier, not harder, to coordinate an
information exchange between two federal government
actors—BOP and ICE—than it is to coordinate between state
and federal or foreign and federal actors.15

    The fears that BOP and courts will be unable to
administer a system that requires determining whether an
alien’s detention constituted detention pending potential
criminal prosecution, as opposed to detention pending
deportation, are thus without merit. We are confident in
BOP’s ability to comply with its statutory mandate with
respect to detention by ICE—just as it does with respect to
detention by state and foreign governments—and in the
courts’ ability to adjudicate disputes over sentencing credit
should they arise.




   15
       In fact, it may be markedly easier to determine eligibility for
sentencing credit for ICE detention time than for state detention time, as
the former situation does not present the double-counting problem present
in the latter situation. See § 3585(b) (providing that a defendant may not
receive credit against a federal sentence for detention time that has “been
credited against another sentence”).
22                     ZAVALA V. IVES

                             III.

    For the forgoing reasons, we hold that an alien is entitled
to credit toward his criminal sentence under § 3585(b) for the
period during which ICE detained the alien pending potential
criminal prosecution. We turn now to application of this
principle to the facts of the instant case.

               A. Post-Indictment Detention

    ICE detained Zavala during the period of time after
dismissal of the first indictment for improper venue and
before the filing of identical criminal charges in the proper
venue. This detention occurred from December 11, 2010
through December 21, 2010. Zavala is clearly entitled to
sentencing credit for this post-indictment period of ICE
detention because it constituted detention pending criminal
prosecution.

    Most important, this time period occurred after the
Government instituted criminal charges. Where ICE retains
an alien in custody subsequent to an indictment or the filing
of criminal charges and the alien is then convicted of those
charges, we hold that the intervening period of detention is
presumed to be for the purpose of criminal prosecution and
the alien is entitled to sentencing credit.

    The Government does not contend that during the post-
indictment period ICE held Zavala pending deportation. The
record makes clear that all governmental actors involved
always intended that the criminal charges against Zavala be
reinstated in the proper venue. The language of the
Government’s proposed order of dismissal indicated its
intention to refile criminal charges in the proper venue,
                       ZAVALA V. IVES                         23

expressly identifying that venue, and the refiled charges were
supported exclusively by an ICE officer’s affidavit. We thus
hold that the district court erred when it denied Zavala
sentencing credit for the post-indictment period during which
ICE detained him pending criminal prosecution.

                B. Pre-Indictment Detention

    As for the pre-indictment period, Zavala was subject to a
reinstated order of removal on his first day in ICE custody,
September 20, 2010, and he did not contest this order,
meaning ICE could have deported him at any time thereafter.
8 U.S.C. § 1231(a)(5) (stating that “the alien shall be
removed under the prior order at any time after the reentry”).
ICE nonetheless continued to detain Zavala until October 6,
2010, when he was indicted for illegal reentry.

    As we stated earlier, the BOP Program Statement does not
bar Zavala from receiving sentencing credit during any period
in which he was being detained pending potential
prosecution. The record before us, however, does not show
whether he was held pending potential criminal prosecution,
and if so, for what part of the pre-indictment period. On the
one hand, execution of a removal order is not required to be
instantaneous, see § 1231(a)(1), and it is therefore possible
that Zavala’s continuing detention was related to the process
of implementing the deportation order.16 On the other hand,
the process of indicting a criminal defendant is ordinarily not
a one-day affair. Usually it requires some investigation and
deliberation before a decision to indict (or to file a criminal
complaint) is made by the criminal authorities, normally the

  16
     We note that when Zavala was previously removed in 2006, ICE
deported him just one day after it obtained the order of removal.
24                         ZAVALA V. IVES

U.S. Attorney’s Office. During that process, federal
prosecutors and immigration officials often cooperate in
determining whether criminal charges are warranted and
particularly in ensuring the alien’s presence at the criminal
proceedings. Zavala is entitled to credit for the latter type of
detention—detention for the purpose of ensuring his presence
at his prosecution—but not for the former type—detention for
the purpose of executing the removal order.17 Because the
district court erred in holding that as a matter of law Zavala
could not receive any credit toward his sentence for time
spent in ICE detention, it failed to consider whether that
detention was pending deportation or pending potential
prosecution. We therefore remand for the district court to
determine in the first instance whether and when, during the
pre-indictment period, Zavala’s detention status changed
from detention pending deportation to detention pending
potential prosecution.

   We hold that, on remand, the government has the burden
of proving that the pre-indictment detention was for the


  17
      To be clear, we disagree with the statement in Abpikar v. Lompoc
Federal Bureau of Prisons relied upon by the magistrate judge in this
case. The magistrate judge held, quoting Abpikar, that the filing of “a
charge [by a U.S. Attorney] or [a] determination of probable cause” by a
grand jury is required before detention can constitute “official detention”
within the meaning of § 3585(b). Abpikar, 2012 WL 3777156, at *3. First,
in cases concerning detention by law enforcement officials, sentencing
credit is awarded from the time of arrest, not from the time that charges
are formally filed or an indictment returned. See BOP Program Statement
5880.28 at 1-21. Second, as explained supra, the approach we adopt has
already been successfully applied to detention by immigration officials,
and BOP already regularly calculates sentencing credit in the analogous
state detention context. Moreover, the Abpikar approach (also propounded
by the dissent) has no basis in the text of the statute and would fail to
address arbitrary sentencing disparities.
                        ZAVALA V. IVES                         25

purpose of deportation rather than potential prosecution. This
burden is justified for two reasons. First, it furthers judicial
efficiency in light of the “judicial estimate of the probabilities
of the situation.” 2 McCormick on Evidence § 337 (7th ed.
2013). After all, we know how this story ends: Zavala was
not deported, but prosecuted. This is so in all sentencing
credit cases arising under § 3585(b). In such cases, it is
always clear that at some point in time the government
elected to pursue the possibility of prosecution, rather than to
deport the alien in the normal course. Had it chosen
otherwise, the question of credit toward a criminal sentence
would not arise. In other words, the most likely outcome is
that the alien is entitled to some sentencing credit beyond that
credited from the date on which the indictment or formal
charges were filed.

    Second, evidence as to the reason for an alien’s detention
“is peculiarly accessible to one of the parties,” Edmund M.
Morgan, Instructing the Jury Upon Presumptions and Burden
of Proof, 47 Harv. L. Rev. 59, 79 (1933). The government
unquestionably has superior access to the critical
information—i.e. reports of investigation by ICE officers,
records of the criminal investigation component of ICE,
sworn statements by investigating officers, the time and
contents of communications between ICE officers and
prosecutorial agencies, and so forth—the information that is
determinative of when an alien’s detention status changed
from detention pending deportation to detention pending
potential prosecution. The fact-finding required on remand is
not some amorphous “inquiry into the elusive intent of
individual [ICE] officers,” as the dissent contends. Dissent at
12. Rather, it is primarily a matter of reviewing records that
ICE already maintains in the ordinary course of its operations.
26                         ZAVALA V. IVES

For example, the government could meet its burden of
proving that pre-indictment detention was for the purpose of
deportation rather than potential prosecution by producing
evidence that proceedings to determine deportability were
actively being pursued, or, where a final removal order has
already been obtained (as in this case), that it was in the
process of making logistical arrangements for the detainee’s
departure from the country, and that it was not merely
awaiting action by the U.S. Attorney’s Office or helping build
a criminal case.18

    We accordingly remand for the district court to conduct
an evidentiary hearing. The relevant question on remand is
whether the Government can establish that Zavala’s detention
from September 20, 2010 to October 5, 2010 was not for the
purpose of potential prosecution.

                                   IV.

    We hold that when immigration officials detain an alien
pending potential prosecution, the alien is entitled under
§ 3585(b) to credit toward his criminal sentence. We also
hold that an alien is entitled to credit for all time spent in ICE
detention subsequent to his indictment or the filing of formal
criminal charges against him. Finally, we hold that where a
factual dispute exists, the district court must hold an
evidentiary hearing as to whether an alien’s detention by ICE


     18
        To be clear: the foregoing are merely examples of how the
government could meet its burden of proving that detention was not for
the purpose of securing the detainee’s presence at a criminal prosecution.
We, of course, do not imply in any way that “official detention” can occur
only subsequent to a final removal order. Quite the contrary. To the extent
that the dissent suggests otherwise, it simply misunderstands our opinion.
                       ZAVALA V. IVES                         27

prior to the date of his indictment or the filing of criminal
charges against him constituted detention pending
prosecution.

    REVERSED AND REMANDED.



CALLAHAN, Circuit Judge, concurring in part and
dissenting in part:

    At issue is how much of the time that an alien spends in
the custody of the U.S. Immigration and Customs
Enforcement Agency (ICE) prior to the commencement of a
criminal sentence must be credited against that alien’s
sentence for illegal reentry. I agree with the majority that,
under 18 U.S.C. § 3585(b), an alien is eligible for credit for
all time spent in ICE custody from the day he or she is
indicted or criminally charged. On that day, the alien
becomes subject to the U.S. Attorney General’s control and
thus is in “official detention” within the meaning of § 3585(b)
as the Supreme Court and the U.S. Bureau of Prisons (BOP)
have interpreted that term. Reno v. Koray, 515 U.S. 50,
55–56 (1995); U.S. Dep’t of Justice, BOP Program
Statement No. 5880.28(c).

    The majority, however, also adopts a broader
interpretation of § 3585(b), that “an alien is entitled to credit
toward his criminal sentence . . . for the period during which
ICE detained the alien pending potential criminal
prosecution.” Maj. Op. 22 (emphasis added). I dissent from
this broader ruling and its application to this case because it
(1) contravenes Supreme Court precedent, (2) violates the
rules of statutory construction, (3) fails to defer to the BOP’s
28                       ZAVALA V. IVES

reasonable interpretation of § 3585(b), and (4) is
prospectively problematic. Left in place, the rule will
generate a slew of habeas petitions that will require district
courts to conduct time-consuming evidentiary hearings to
determine the elusive moment when pre-indictment
immigration detention changed from “pending deportation”
to “pending potential prosecution.”

                                  I.

     The majority’s broad rule, that time spent in ICE custody
pending potential criminal prosecution is “official detention,”
is inconsistent with Reno v. Koray. In that case, the Supreme
Court held that time spent by a prisoner at a community
treatment center after he pleaded guilty, but before he was
sentenced, was not “official detention” within the meaning of
§ 3585(b). In so holding, the Court ruled that “credit for time
spent in ‘official detention’ under § 3585(b) is available only
to those defendants who were detained in a ‘penal or
correctional facility,’ § 3621(b), and who were subject to
BOP’s control.” Koray, 515 U.S. at 58.1

    The majority’s interpretation of § 3585(b) cannot be
reconciled with Koray. More than the “potential” for
criminal prosecution is required before an alien in ICE


   1
     While the Court used the words “subject to BOP’s control,” the
opinion as a whole makes clear that the Court also meant, more broadly,
“subject to the discretion of the U.S. Attorney General, the Bureau of
Prisons, or the U.S. Marshals Service.” Koray, 515 U.S. at 60 n.4
(quoting BOP Program Statement No. 5880.28(c) (July 29, 1994)). I use
the shorthand “subject to the Attorney General’s control,” because the
Attorney General’s control is inclusive of that of the BOP and the U.S.
Marshals Service (USMS), which operate under the Department of
Justice.
                           ZAVALA V. IVES                              29

custody becomes subject to the Attorney General’s control.
The potential for prosecution of an alien in civil immigration
custody exists from the moment an alien is apprehended by
ICE. Rather, for an alien in ICE custody to be in “official
detention” within the meaning of § 3585(b), as the Supreme
Court has interpreted that term, the alien must be indicted or
criminally charged.2 Only then is an alien in ICE’s custody
“subject to [the Attorney General’s] control” as a result of his
or her immigration offense, and thus entitled to credit against
his or her sentence. Koray, 515 U.S. at 58. An ICE officer
may play a part in building a criminal case, but the emergent
intention of an ICE officer to refer a case for criminal
prosecution has no bearing on whether an alien in ICE
custody is subject to the Attorney General’s control and thus
in “official detention.”

    A review of the Supreme Court’s extensive analysis of the
term “official detention” in Koray exposes the majority’s
error. The Court looked to § 3585(b)’s larger statutory
scheme, including other sentencing provisions showing that
“official detention” means “in a penal or correctional facility”
that is “subject to BOP control.” Id. at 58–59 (internal
quotation marks omitted). Specifically, the Supreme Court
looked to “§ 3585(a) and related sentencing provisions,” and
observed:




 2
   The government has not developed an argument that time spent in ICE
custody is not “official detention” because ICE facilities are not penal or
correctional facilities. Accordingly, I assume that ICE facilities qualify
as penal or correctional facilities even though immigration detention is
civil in nature. See 18 U.S.C. § 3142(a), (d) (indicating that “detention”
within the meaning of the Bail Reform Act may include an immigration
official’s custody of “a person charged with [a criminal] offense”).
30                     ZAVALA V. IVES

       Section 3585(a) provides that a federal
       sentence “commences” when the defendant is
       received for transportation to or arrives at “the
       official detention facility at which the
       sentence is to be served.” Title 18 U.S.C.
       § 3621, in turn, provides that the sentenced
       defendant “shall be committed to the custody
       of the Bureau of Prisons,” § 3621(a), which
       “may designate any available penal or
       correctional facility . . . , whether maintained
       by the Federal Government or otherwise . . . ,
       that the Bureau determines to be appropriate
       and suitable,” § 3621(b) (emphasis added).
       The phrase “official detention facility” in
       § 3585(a) therefore must refer to a
       correctional facility designated by the Bureau
       for the service of federal sentences, where the
       Bureau retains the discretion to “direct the
       transfer of a prisoner from one penal or
       correctional facility to another.” § 3621(b).

Id. at 58 (alterations and emphasis in original).

     The Court explained that its “reading of § 3585(a) is
reinforced by other provisions governing the administration
of federal sentences,” including language in § 3622 showing
that “official detention” means “subject to BOP control.” Id.
Reasoning that “the words ‘official detention’ should bear the
same meaning in subsections (a) and (b) of § 3585 as they do
in the above related sentencing statutes,” the Court found that
§ 3585(b) turned on whether the detention was subject to the
control of the BOP (or the U.S. Attorney General or USMS).
Id. It ruled that “credit for time spent in ‘official detention’
under § 3585(b) is available only to those defendants who
                       ZAVALA V. IVES                       31

were detained in a ‘penal or correctional facility,’ § 3621(b),
and who were subject to BOP’s control.” Id. The Court
explained that “[t]he context and history of § 3585(b) also
support this view,” as does the BOP’s Program Statement No.
5880.28(c), which is due deference. Id. at 59–61.

    Recognizing that its rule is inconsistent with the rule
announced in Koray, the majority attempts to relegate the
Supreme Court’s rule to the status of dicta. The majority
relies on a footnote in Koray where the Court declined to
address the propriety of the BOP’s policy of granting “credit
under § 3585(b) to a defendant who is denied bail pursuant to
state law and held in the custody of state authorities.” Id. at
63 n.5. But what the Supreme Court did rule was not undone
by a footnote stating what applications of that rule the Court
declined to address. Thus, the broad rule announced by the
majority in this case, which does not require an alien’s
custody by ICE to be subject to the Attorney General’s
control to qualify as “official detention” under § 3585(b),
contravenes Reno v. Koray.

                              II.

    The majority’s broad rule also runs contrary to the rules
of statutory construction. As explained above, Koray’s
interpretation of § 3585(b) followed the “normal rule of
statutory construction that identical words used in different
parts of the same act are [presumed] to have the same
meaning.” Sullivan v. Stroop, 496 U.S. 478, 484 (1990)
(internal quotation marks omitted).          The majority’s
interpretation of § 3585(b) violates this rule by interpreting
“official detention” in § 3585(b) not to mean “subject to [the
Attorney General’s] control,” even though that is part of the
32                        ZAVALA V. IVES

term’s meaning as it is used in subsection § 3585(a). Koray,
515 U.S. at 58.

    In doing so, the majority violates an even more
fundamental rule of statutory construction, the rule that
prohibits “[a]scribing various meanings to a single iteration”
of a statutory term in different applications. Ratzlaf v. United
States, 510 U.S. 135, 143 (1994) (internal quotation marks
omitted); see also Clark v. Martinez, 543 U.S. 371, 386
(2005) (rejecting “the dangerous principle that judges can
give the same statutory text different meanings in different
cases”). The majority holds that “official detention” in
§ 3585(b) means one thing (what the majority says it does) in
the context of custody by ICE but another thing (what the
Supreme Court said it does in Koray) in the context of
custody by a community treatment center. Such an approach
to understanding a statute is in tension with the rule of law
and should be rejected. Clark, 543 U.S. at 382 (to accept that
the same statutory provision could have multiple meanings
“would render every statute a chameleon, its meaning subject
to change . . . in each individual case”).

    It is true that, in Koray, the Supreme Court also construed
§ 3585(b) in conjunction with the Bail Reform Act of 1984,
which is not directly at issue here.3 Koray, 515 U.S. at
56–57. Doing so made sense “because the Bail Reform Act
of 1984 was enacted in the same statute as the Sentencing
Reform Act of 1984, of which § 3585 is a part.” Id.


  3
    It does not follow that the Supreme Court’s extensive analysis of the
Sentencing Reform Act, which is at issue here, and resultant ruling
regarding § 3585(b)’s meaning, which is controlling here, may be ignored
or distinguished as only applicable to custody in a community treatment
center. See Koray, 515 U.S. at 55–65.
                           ZAVALA V. IVES                              33

Accordingly, Congress could be presumed to have “legislated
with reference to” the terms of § 3585 in drafting the Bail
Reform Act. Id. at 57 (quoting Gozlon–Peretz v. United
States, 498 U.S. 395, 408 (1991)). The same cannot be said
of the Immigration and Nationality Act (INA). To the extent
that immigration law is relevant to construing § 3585, it only
confirms that immigration detention is civil rather than
criminal in nature. See Cabral-Avila v. INS, 589 F.2d 957,
959 (9th Cir. 1978).

    The majority contradicts itself in attempting to align the
terms “detention” and “release” in the INA with the same
terms in the Bail Reform Act. Maj. Op. 13 (citing 8 U.S.C.
§§ 1226(a)(1)–(2), 1231(a)(2)). First, as the majority later
states, these terms of the Bail Reform Act “obviously” do not
apply to civil immigration custody. Id. at 14 n.8. Second, if
Congress intended immigration “detention” within the
meaning of the INA to be “official detention” within the
meaning of the Sentencing Reform Act, then all time spent in
ICE custody would be entitled credit. The majority rejects
this proposition.4


  4
    Indeed, the Bail Reform Act supports the view that an alien in ICE
custody is not in “official detention” before criminal charges are filed.
The Act requires that “a person charged with [a criminal] offense” and
awaiting trial, disposition of appeals, or commencement of his sentence
be either “released” or “detained.” 18 U.S.C. § 3142 (a); see also id.
§ 3143. Thus, a person, including an alien in immigration custody, id.
§ 3142(d), becomes subject to official detention once “charged with [a
criminal] offense.” Id. §§ 1342, 1343. The INA, by contrast, only
addresses the “detention” or “release” of a person who has been “arrested
and detained pending a decision on whether the alien is to be removed
from the United States.” 8 U.S.C. § 1226(a). Such civil immigration
“detention” is not, as the majority agrees, “official detention” within the
meaning of § 3585(b).
34                     ZAVALA V. IVES

    By giving the term “official detention” a different
meaning in a different category of cases to which it applies,
the majority “invent[s] a statute rather than interpret[s] one.”
Clark, 543 U.S. at 378. The majority’s invention might be
sensible, but the job of judges is to interpret statutes, not to
rewrite them.

                              III.

    The majority also oversteps the judicial role by failing to
provide any deference to the interpretation of “official
detention” set forth in the BOP’s Program Statement.
According to the BOP:

       Official detention does not include time spent
       in the custody of the U.S. Immigration and
       Naturalization Service (INS) under the
       provisions of 8 U.S.C. § 1252 pending a final
       determination of deportability. An inmate
       being held by INS pending a civil deportation
       determination is not being held in “official
       detention” pending criminal charges.

BOP Program Statement 5880.28, at 1-15A.

    The government appears to contend that this part of the
program statement means that an alien is never in “official
detention” while in ICE custody. I join the majority in
declining to defer to this unreasonable interpretation of the
program statement’s interpretation of a statutory term.

    But the program statement itself is “entitled to some
deference.” Koray, 515 U.S. at 61. By its text, the program
statement does not deny sentencing credit for all time an alien
                          ZAVALA V. IVES                             35

is held by ICE. Rather, a reasonable inference from the
program statement is that an alien in ICE custody is in
“official detention” once “criminal charges” are “pending.”
BOP Program Statement 5880.28, at 1-15A. As used,
“pending” logically means filed but not yet resolved. See
Black’s Law Dictionary (10th ed. 2014) (used as a
preposition, as it is here, “pending” primarily means “1.
Throughout the continuance of; during <in escrow pending
arbitration>”; used as an adjective, it primarily means “1.
Remaining undecided; awaiting decision <a pending case>”).
While the program statement is ambiguous when read in
isolation, a reading of the statement as allowing credit for
time spent in civil immigration custody once criminal charges
are filed is confirmed by other parts of the same statement,
which emphasize that “‘official detention’ [means] subject to
the discretion of the Attorney General and the U.S. Marshals
Service with respect to the place of detention.” BOP Program
Statement 5880.28, at 1-14F. An alien in ICE custody is
subject to the Attorney General’s control when criminal
charges have been filed and remain pending.5 At this point,
the Attorney General has “discretion to ‘direct the transfer of
a prisoner from one penal or correctional facility to another.’”
Koray, 515 U.S. at 58 (quoting § 3621(b)).

    The majority errs by failing to defer to this interpretation
of “official detention” set forth in the Program Statement, as

  5
    The program statement does not say “pending criminal charging” or
“awaiting the filing of charges” as the majority would prefer to read it.
See Maj. Op. 17 n.11. As explained above, other parts of the program
statement make this clear. The BOP’s inclusion of the word
“determination” in the phrase “pending a civil deportation determination”
but omission of such a verbal noun from the subsequent phrase “pending
criminal charges,” also undermines the majority’s view that the latter
phrase anticipates some action, as in “awaiting the filing of charges.”
36                     ZAVALA V. IVES

it is a reasonable interpretation of an ambiguous statutory
term that was provided by the agency Congress charged with
administering that term. Indeed, it is an interpretation that the
Supreme Court has accorded deference. Koray, 515 U.S. at
61; see also Tablada v. Thomas, 533 F.3d 800, 806–07 (9th
Cir. 2008).

                              IV.

    The majority’s interpretation of “official detention” has
the additional flaw of being difficult for district courts to
administer. The majority remands “for the district court to
determine in the first instance whether and when, during the
pre-indictment period, Zavala’s detention status changed
from detention pending deportation to detention pending
potential prosecution.” Maj. Op. 24. The majority directs
“the district court to conduct an evidentiary hearing,” but
provides little guidance for determining when detention by
ICE shifts from “pending deportation to . . . pending potential
prosecution.” Id. at 25, 26. Presumably the government
would be required to put on evidence showing when an ICE
official of sufficient rank or involvement in a petitioner’s
detention developed a sufficiently concrete intention to
recommend criminal prosecution.

    As the district court observed, this “interpretation of
section 3585(b) would be extremely difficult . . . to
administer.” Zavala v. Ives, No. CV 13-3603-JFW E, 2013
WL 4763839, at *4 (C.D. Cal. Sept. 3, 2013). The majority
dismisses this concern on the basis of four unpublished
district court decisions granting credit for time spent in
                            ZAVALA V. IVES                                37

immigration detention.6 These four decisions, which until
today were contrary to the overwhelming weight of
authority,7 are hardly representative of the stream of habeas
petitions we can expect under the majority’s rule. These
decisions do not demonstrate that administering the rule will
not burden district courts and the government by requiring
fact-intensive inquiries into the purpose of an alien’s
detention. The fact that the BOP sometimes grants
sentencing credit for time spent in state or foreign criminal
custody does not negate the district court’s practical concern


 6
   See Maj Op. 20 n.14 (citing Paz-Salvador v. Holt, No. 3:10-CV-2668,
2011 WL 3876268 (M.D. Pa. Aug. 31, 2011); Reyes-Ortiz v. Schultz, CIV.
08-6386 (JEI), 2009 WL 4510131 (D.N.J. Dec. 1, 2009); Galan-Paredes
v. Hogsten, No. 1:CV-06-1730, 2007 WL 30329 (M.D. Pa. Jan. 3, 2007);
Guante v. Pugh, No. CV 305-92, 2005 WL 3867597 (S.D. Ga. Dec. 2,
2005)).
 7
   See Maj. Op. at 15–16 n.10 (collecting some such cases); see also, e.g.,
Madrigal v. United States, No. CV 14-2033-CJC-E, 2014 WL 3101444
(C.D. Cal. July 2, 2014), adopted, 2014 WL 3055908 (C.D. Cal. July 2,
2014); Abpikar v. Lompoc Fed. BOP, No. CV 12–00827 MMM (RZ),
2012 WL 3777156 (C.D. Cal. July 16, 2012), adopted, 2012 WL 3776499
(C.D. Cal. Aug. 30, 2012); United States v. Taymes, No. CR 07-108-S,
2010 WL 93695 (D.R.I. Jan. 8, 2010); see also United States v. Lopez,
650 F.3d 952, 966 (3d Cir. 2011) (upholding as “not clearly erroneous”
the district court’s denial of sentencing credit for ICE custody from
February 24 through June 16, 2009, even though on February 24 the ICE
agent who then interviewed the detainee described the matter as “a
criminal illegal reentry prosecution”); Baselet v. Lappin, No. CV 311-097,
2012 WL 1167142, at *4 (S.D. Ga. Mar. 7, 2012), adopted sub nom.
Baselet v. Wells, 2012 WL 1166960 (S.D. Ga. Apr. 9, 2012) (limiting one
of the four district court decisions that the majority cites). Cf. Al-Marri v.
Davis, 714 F.3d 1183, 1187 (10th Cir. 2013), cert. denied sub nom.
Al-Marri v. Berkebile, 134 S. Ct. 295 (2013) (lengthy pre-indictment
detention was not “as a result of the offense for which the sentence was
imposed” because it was based on independent authority to detain
defendant as a witness or enemy combatant).
38                         ZAVALA V. IVES

either. The BOP practice does not require an inquiry into the
elusive intent of individual officers, and it does not allow
civil detention to be deemed criminal in nature based on the
intent of an official who lacks authority to criminally
prosecute.

    The disproportionate cost to benefit of the majority’s rule
is apparent in this case. Here, the difference between my
perspective and the majority’s concerns some fraction of the
sixteen days that Zavala was held by ICE before the
indictment was filed. Under the majority’s approach, the
district court will have to hold an evidentiary hearing probing
the thought processes of ICE officials to determine when
during these sixteen days Zavala’s custody became due to
“potential criminal prosecution.”8 I do not mean to discount
the value of Zavala’s time, but only to highlight the practical
problems inherent to administering the majority’s
interpretation.9


  8
    In applying its rule, the majority appears to limit its reach such that
“official detention” may not occur until, at the earliest, “a final removal
order” has issued. Maj. Op. 26. This hedge may have the effect of
reducing the prospective burden on the district courts and the government
of administering the rule. But see id. 26 n.18 (retreating from this hedge).
Regardless, a fact-intensive inquiry into when, after a final deportability
determination, ICE developed a sufficiently concrete intention to
recommend criminal prosecution would still be required, at least when the
government does not capitulate. I note that the majority’s limitation of its
rule further unravels whatever logic underlies its rule. The limitation
looks to whether deportation proceedings are actively ongoing rather than
to whether the government has decided potentially to pursue criminal
prosecution.
   9
     I acknowledge that, in some cases, aliens may spend inequitably
lengthy periods of time in ICE custody before unlawful reentry charges
are initiated. This case does not present an occasion to determine if a
                           ZAVALA V. IVES                              39

    The bright-line rule adopted by most courts, that ICE
custody becomes “official detention” within the meaning of
§ 3585(b) when an alien is indicted or criminally charged,
makes much more sense as a matter of efficient
administration.      Given competing, equally reasonable
interpretations, it is safe to say that Congress intended the
interpretation that would be less problematic prospectively.
Koray, 515 U.S. at 64 (rejecting an interpretation of
§ 3585(b) that “would require a fact-intensive inquiry into the
circumstances of confinement”). Moreover, a bright-line rule
furthers Congress’s stated interest in providing prisoners and
the public with prompt, precise information about how much
time a prisoner must spend in prison. S. Rep. No. 98–225, at
46 (1983) (recognizing the value of a “system of sentencing
whereby the offender, the victim, and society all know the
prison release date at the time of the initial sentencing by the
court, subject to minor adjustments based on prison behavior
called ‘good time’”); see also Koray, 515 U.S. at 64
(preferring an interpretation of § 3585(b) that “provides both
[the government] and the defendant with clear notice”).10


defendant would be entitled to credit for “civil detentions which are mere
ruses to detain a defendant for later criminal prosecution.” United States
v. Cepeda-Luna, 989 F.2d 353, 357 (9th Cir. 1993) (recognizing a possible
exception to the general rule that the Speedy Trial Act does not apply to
immigration detention).
  10
     My consideration of prospective effects is not my principal reason for
construing § 3585(b) to require custody to be subject to the Attorney
General’s control in order to qualify as “official detention.” It is clear,
though, that the majority’s principal argument is one of policy, that
similarly situated defendants should not be treated disparately. While this
is a compelling policy concern, it is one that the Supreme Court has
expressly dismissed in interpreting § 3585(b). Koray, 515 U.S. at 64.
Indeed, the same kind of disparity in treatment for similarly situated
defendants would arise under the majority’s rule. Some defendants held
40                         ZAVALA V. IVES

                                    V.

     Despite my dissent from the majority’s broad rule, I agree
with the majority’s narrower rule: “Where ICE retains an
alien in custody subsequent to an indictment or the filing of
criminal charges and the alien is then convicted of those
charges, . . . the alien is entitled to sentencing credit” for the
intervening period of detention. Maj. Op. 22. Applying this
rule to this case, I would affirm the district court’s denial of
sentencing credit for Zavala’s first stint in ICE custody—the
sixteen days from his detainment by ICE until his indictment
in the U.S. District Court for the District of Nevada for illegal
reentry.11

    When Zavala was indicted, however, he became subject
to the Attorney General’s control and, in fact, was promptly
transferred to USMS custody. I would vacate and remand the


in ICE custody will receive sentencing credit because their custody is
“pending potential criminal prosecution,” while others—even some in the
same facility, in the same cell—will not because they have not yet crossed
that inscrutable line.
  11
     I disagree with the majority’s argument that, under Koray, all ICE
custody is “official detention” under § 3585(b) because the now-abolished
Immigration and Naturalization Service used to fall under the Attorney
General’s purview. Through the Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135 (Nov. 25, 2002), Congress removed
immigration custody from the Attorney General’s control. Congress
legislated against the clear backdrop of the interpretation of § 3585(b) set
forth in Koray, the government’s construction § 3585(b) in the BOP
Program Statement, and the government’s longstanding practice of
denying sentencing credit for time spent in immigration custody. We must
presume that Congress was aware of these “settled judicial and
administrative interpretation[s]” when it enacted the Homeland Security
Act. Comm’r of Internal Revenue v. Keystone Consol. Indus., Inc.,
506 U.S. 152, 159 (1993).
                       ZAVALA V. IVES                        41

district court’s denial of sentencing credit for Zavala’s second
stint in ICE custody—the twelve days from his transfer back
into ICE custody following dismissal of the criminal case
against him due to improper venue until he was again charged
for illegal reentry in the U.S. District Court for the Central
District of California. This time period occurred after Zavala
was indicted and initially became subject to the Attorney
General’s control. While no criminal case was actually
pending against Zavala during this period, Zavala has made
a prima facie showing that he remained subject to the
Attorney General’s control. See Boniface v. Carlson,
856 F.2d 1434, 1436 (9th Cir. 1988) (per curiam) (prisoner
bears the burden to establish his entitlement to credit against
his federal sentence for time served on his state sentence). As
the majority notes, the language of the government’s
proposed order of dismissal indicated its intention to refile
criminal charges in the proper venue and expressly identified
that venue. The dismissal may be fairly characterized as the
equivalent of a transfer of a filed criminal case from one
district to another for purposes of applying § 3585(b).
Accordingly, on the record presented, it appears that Zavala
remained subject to the Attorney General’s control and thus
in “official detention” within the meaning of § 3585(b) during
this time. On remand, unless the government rebuts this
showing, Zavala would be due twelve days of credit toward
his sentence for illegal reentry.

                              VI.

    “Official detention” in § 3585(b) does not take on
different meanings in different contexts, as the majority
would have it. Instead, in all contexts, a defendant is in
“official detention” within the meaning of § 3585(b) when he
or she is (1) detained in a correctional facility or similar
42                    ZAVALA V. IVES

setting and (2) subject to the Attorney General’s control.
This interpretation of § 3585(b) is compelled by Koray,
correct as a matter of statutory construction and
administrative deference, and prudent in terms of prospective
effects. Applying this rule, I would affirm in part, vacate in
part, and remand to the district court.
