                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 19-1244
                       ___________________________

                                     Farass Ali

                      lllllllllllllllllllllPetitioner - Appellee

                                         v.

                    Joel L. Brott, Sheriff, Sherburne County

                     lllllllllllllllllllllRespondent - Appellant

  William P. Barr, Attorney General; Kirstjen Nielsen, Secretary, Department of
 Homeland Security; Ronald Vitiello, Acting Director, Immigration and Customs
  Enforcement; Peter B. Berg, Director, St. Paul Field Office Immigration and
                             Customs Enforcement

                           lllllllllllllllllllllRespondents
                                    ____________

                   Appeal from United States District Court
                        for the District of Minnesota
                               ____________

                           Submitted: March 12, 2019
                             Filed: April 16, 2019
                                ____________

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
                         ____________
GRASZ, Circuit Judge.

       Farass Ali, who immigrated to the United States in 2014, has been held in
custody under 8 U.S.C. § 1226(a) since May 2017 while he litigates the issue of
whether he is a removable alien. The district court granted relief on Ali’s petition for
a writ of habeas corpus after interpreting § 1226(a) to permit detention of an alien
only for a “period reasonably necessary to receive a removal decision” and
concluding Ali’s time in detention was not reasonable. Sherburne County Sheriff
Joel Brott appeals,1 arguing the district court wrongly applied a “reasonableness”
standard not included in the text of the statute. We agree with Sheriff Brott and
therefore reverse the order granting Ali’s petition and remand for the district court to
consider Ali’s constitutional arguments.

                                    I. Background

       Ali is a native and citizen of Iraq. In January 2014, Ali entered the United
States as a refugee. His immigration status was adjusted to lawful permanent resident
in 2015.

      In November 2016, Ali was arrested in Minnesota for violation of Minnesota
laws. The arrest caused federal investigators to review Ali’s immigration status. The
Department of Homeland Security claims to have found significant inconsistencies
among Ali’s application for refugee status, his statements to officers who interviewed
him on that application, and his application for adjustment of status to lawful



      1
        The district court dismissed certain federal officials as respondents after noting
only Sheriff Brott was a proper respondent to Ali’s petition. See Rumsfeld v. Padilla,
542 U.S. 426, 434–35 (2003) (recognizing the proper respondent to a habeas petition
is “the person who has custody over [the petitioner] . . . . not the Attorney General or
some other remote supervisory official”) (alteration in original).
                                           -2-
permanent resident. Federal investigators also examined Ali’s social media platform
and found posts related to and purportedly in support of a terrorist organization.

       In May 2017, FBI Special Agents interviewed Ali and questioned him
regarding his use of social media and his familial lineage. Agents asked for his
consent to search the electronic devices he used to access social media. Ali consented
only to a search of his laptop. The day after the interview, federal immigration agents
took Ali into custody pursuant to an administrative warrant. Ali was served with a
Notice to Appear and charged with being a removable alien who, at the time of entry
or adjustment, procured admission into the United States by fraud or willful
misrepresentation, and as an alien who, at the time of entry or adjustment, was
inadmissible because he was not in possession of valid travel documents.

       In June 2017, Ali was transferred to state custody for purposes of his pending
state charges. Shortly after, the FBI notified immigration officials Ali would be
considered a threat to national security if he was released from immigration custody.
In July 2017, Ali’s state criminal charges were dismissed and he was transferred back
to federal immigration custody.

       Between July 2017 and August 2018, an Immigration Judge (“IJ”) presided
over a series of hearings on the merits of the removal charges and other matters. The
IJ granted multiple continuances, almost all of which were at Ali’s request. During
this time, on September 19, 2017, the IJ presided over a bond hearing. Ali called two
witnesses and both parties submitted evidence. The IJ denied Ali’s request to be
released on bond, concluding Ali had failed to show he was not a danger to the
community. Ali did not appeal the IJ’s bond determination and has not sought a new
bond hearing.

      On September 7, 2018, Ali filed a petition for habeas corpus under 28 U.S.C.
§ 2241, seeking release from federal immigration custody pending resolution of his

                                         -3-
immigration proceedings. Ali argued his continued detention was not authorized by
§ 1226(a), violated his Fifth Amendment right to due process, and was an
unauthorized seizure under the Fourth Amendment. The government argued Ali’s
continued detention was constitutional and that Ali was permitted to seek relief
through administrative procedures. The government also suggested Ali was the cause
of any undue delay in his removal proceedings.

       The district court entered an order on January 7, 2019, granting Ali’s petition
and ordering Brott to release Ali from custody within thirty days. The district court
explained that Ali was subject to pre-removal detention under § 1226(a) and observed
the statute did not explicitly limit the length of an alien’s pre-removal detention
period. The district court compared the situation to Zadvydas v. Davis, 533 U.S. 678
(2001). In Zadvydas, the Supreme Court analyzed 8 U.S.C. § 1231(a)(6), which
governs post-removal order detention, and employed the doctrine of constitutional
avoidance to read a “reasonableness limitation” into the length of time an alien could
be detained after he was ordered removed. 533 U.S. at 689–90. Applying the
rationale of Zadvydas to the facts of Ali’s case, the district court concluded that pre-
removal order detention under § 1226(a) is limited to “the period reasonably
necessary to receive a removal decision.” The district court then determined Ali’s
time in detention had exceeded this limitation and therefore ordered him released
within thirty days.

      After the district court denied his motion for reconsideration,2 Sheriff Brott
appealed and sought an emergency motion to stay the district court order pending

      2
        The basis for Sheriff Brott’s motion for reconsideration was the fact that
during the time period between when Ali filed his petition for habeas corpus and
when the district court issued its order granting Ali’s petition, the IJ had issued an
order of removal ordering Ali’s deportation to Iraq. The district court denied Sheriff
Brott’s motion because the IJ’s order was provisional and not final until affirmed by
the Board of Immigration Appeals. The district court ordered Ali released within
thirty days from the date of the district court’s original grant of Ali’s petition.
                                          -4-
appeal. We granted a temporary stay until further order of the court, directed the
parties to file simultaneous briefs on the merits, and set the case for oral argument.

                                    II. Discussion

       Whether we can affirm the district court’s grant of Ali’s habeas petition turns
on the language of 8 U.S.C. § 1226(a) and application of the Due Process Clause of
the Fifth Amendment in the context of the statute. For the reasons set forth below,
we vacate the order of the district court directing release of Ali and remand for further
proceedings.

       We begin by reference to the applicable federal statute, which first provides,
“an alien may be arrested and detained pending a decision on whether the alien is to
be removed from the United States.” 8 U.S.C. § 1226(a). The statute goes on to
“generally give[] the Secretary [of Homeland Security] the discretion either to detain
the alien or to release him on bond or parole.” Nielsen v. Preap, 139 S. Ct. 954, 959
(2019). “If the alien is detained, he may seek review of his detention by an officer at
the Department of Homeland Security and then by an immigration judge (both
exercising power delegated by the Secretary).” Id. at 959–60 (citing 8 C.F.R.
§§ 236.1(c)(8) and (d)(1), 1003.19, 1236.1(d)(1)).

      At issue here is whether, in order to avoid due process concerns, this court must
construe the statute as containing an implied “reasonableness” limit on pre-order
detention similar to that found by the Supreme Court in Zadvydas, 533 U.S. at 691,
699, with respect to the post-detention statute, 8 U.S.C. § 1231(a)(6).

       Application of the canon of constitutional avoidance to imply terms in a statute
that do not exist in its text is necessarily a serious matter implicating the proper role
of the judiciary. Although a matter of first impression in this circuit, we do not
approach this question with a blank slate. The Supreme Court recently re-


                                          -5-
emphasized, in a case discussing the same statutory framework, that a court may not
resort to constitutional avoidance unless certain criteria are met. First, the canon
should only be used “[w]hen ‘a serious doubt’ is raised about the constitutionality of
an act of Congress.” Preap, 139 S. Ct. at 971 (alteration in original) (quoting
Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018)). Even then, a court may not resort
to constitutional avoidance unless it first concludes the statute is “susceptible of more
than one construction.” Id. at 972 (quoting same). “The canon ‘has no application’
absent ‘ambiguity.’” Id. (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014)).

       To begin with, we are skeptical of Ali’s argument that his detention pending
a decision on whether he is to be removed under § 1226(a) is unconstitutional
considering he was given a bond hearing and still has available procedural avenues
to seek relief. See 8 C.F.R. §§ 236.1(c)(8) and (d), 1003.19, 1236.1(d). The Supreme
Court has never indicated the bond hearing process set forth in the statute and
accompanying regulations is constitutionally deficient. To the contrary, Supreme
Court precedent indicates such a framework is constitutionally permissible. See
Demore v. Kim, 538 U.S. 510, 523 (2003) (explaining “this Court has recognized
detention during deportation proceedings as a constitutionally valid aspect of the
deportation process”); United States v. Salerno, 481 U.S. 739, 748, 755 (1987)
(holding the Bail Reform Act of 1984 did not facially violate the Due Process Clause
of the Fifth Amendment and, noting in support of its conclusion, it had previously
“found no absolute constitutional barrier to detention of potentially dangerous
resident aliens pending deportation proceedings”). Indeed, we find it noteworthy that
aliens challenging the constitutionality of their detentions in Jennings and Demore
sought, as a remedy, a bond hearing similar to what Ali was given. See Jennings, 138
S. Ct. at 839; Demore, 538 U.S. at 517, 528.

       Regardless, even if we assume that despite the safeguard of a bond hearing
there is a serious doubt as to the constitutionality of detention under § 1226(a), the
canon of constitutional avoidance is not proper here because the statute is not


                                          -6-
susceptible to more than one construction as to the length of detention. In contrast
to the statute analyzed in Zadvydas, § 1226(a) limits the period of detention to the
period “pending a decision on whether the alien is to be removed from the United
States.” While this is not subject to precise calculation, it is, nonetheless, a defined
period that does have an end. Cf. Jennings, 138 S. Ct. at 846 (reasoning § 1226(c)
is not ambiguous or even silent regarding the length of detention because it mandates
detention pending a decision on whether the alien is to be removed from the country);
Demore, 538 U.S. at 528–29 (noting that unlike the detention at issue in Zadvydas,
which was indefinite and potentially permanent, detention under § 1226(c) has a
“definite termination point” and is of a “shorter duration”).

       It is significant the Supreme Court has found unambiguous the language of
§ 1226(c), which requires mandatory detention until a decision regarding removal is
reached, and therefore has refused to use constitutional avoidance to read an extra-
textual “reasonableness” limitation into the statute. We see no principled basis for
viewing § 1226(a)’s text regarding the length of detention any differently. The
primary difference between the two subsections of the statute is the availability of a
bond hearing for aliens held under subsection (a). And this difference, which gives
aliens like Ali more protection against prolonged detention than aliens detained under
§ 1226(c), militates against reading a reasonableness limitation into § 1226(a)
because it makes the statute less likely to violate their due process rights.

      In light of this precedent, we hold § 1226(a) is not susceptible of more than one
construction. As a result, the constitutional avoidance doctrine has no application
here. The district court therefore erred when it concluded pre-removal order
detention under § 1226(a) is limited to “the period reasonably necessary to receive
a removal decision.” We reverse the district court’s order on this basis.

       The analysis does not end here, however. In his petition, Ali argued his
continued detention violated not only § 1226(a), but his constitutional rights under


                                          -7-
the Fourth and Fifth Amendments. As in Jennings, 138 S. Ct. at 851, we conclude
this matter should be remanded to the district court to further consider Ali’s
constitutional arguments consistent with this decision and relevant Supreme Court
precedent.3
                      ______________________________




      3
       Sheriff Brott filed a Motion to Strike Ali’s Rule 28(j) filing on the ground it
improperly provides argument and analysis rather than merely setting forth pertinent
and significant authorities which came to his attention after his brief was filed. Fed.
R. App. P. 28(j). Because our analysis made it unnecessary to consider the arguments
advanced in Ali’s filing, we deny the motion as moot.
                                         -8-
