Breyer, J., dissenting
whether the alien is to be removed from the United States.” §1226(a). See ante, at 3, n. 2. It adds that the Secretary “may release the alien” on “bond” or “conditional parole.” §1226(a)(2). Federal regulations provide that a person detained under this subsection must receive a bail hearing. 8 CFR §§236.1(d)(1), 1236.1(d)(1) (2018). With respect to release, however, subsection (a) adds the words “[e]xcept as provided in subsection (c).” 8 U. S. C. §1226(a).
The subsection containing the exception to which (a) refers–namely, subsection (c)–is entitled “Detention of criminal aliens.” It consists of two paragraphs.
Paragraph (1), entitled “Custody,” says that the Secretary “shall take into custody any alien who” is “inadmissible” or “deportable” (by reason of having committed certain offenses or having ties to terrorism) “when the alien is released,” presumably from local, state, or federal criminal custody. §1226(c)(1) (emphasis added). Because the relevant offenses are listed in four subparagraphs headed by the letters “A,” “B,” “C,” and “D,” I shall refer to the relevant aliens as “ABCD” aliens. Thus, for present purposes, paragraph (1) says that the Secretary “shall take into custody any” ABCD alien “when the alien is released” from criminal custody.
Paragraph (2), entitled “Release,” says that the Secretary “may release an alien described in paragraph (1) only if ” the alien falls within a special category–not relevant here–related to witness protection. §1226(c)(2) (emphasis added). We held last Term in Jennings that paragraph (2) forbids a bail hearing for “an alien described in paragraph (1)” unless the witness protection exception applies. 583 U. S., at ___–___ (majority opinion) (slip op., at 20–22).
Here we focus on the meaning of a key phrase in paragraph (2): “an alien described in paragraph (1).” This is the phrase that identifies the aliens to whom paragraph (2) (and its “no-bail-hearing” requirement) applies. Does
