Breyer, J., dissenting
paragraph (1)” is not to describe who must be detained, but instead to describe who must be denied bail.
In short, the language demonstrates that an alien is “described in paragraph (1)”–and therefore subject to paragraph (2)’s bar on bail hearings–only if the alien is “take[n] into custody… when the alien is released.”
B
The statute’s structure and context support this reading of the phrase “an alien described in paragraph (1).”
First, “Congress often drafts statutes with hierarchical schemes–section, subsection, paragraph, and on down the line.” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 9). Congress employed that structure “to make precise cross-references” throughout the immigration code. Ibid. As relevant here, in a different detention provision enacted alongside the provision at issue here, Congress said that the Government “may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii).” Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), §303(b)(3)(B), 110 Stat. 3009–587. Yet Congress did not make such a precise cross-reference in paragraph (2): It did not refer to “an alien described in subparagraphs (A)–(D) of paragraph (1),” as it could have–and would have–done had it intended the majority’s narrow interpretation. Instead, it referred to aliens “described” in the entirety of paragraph (1).
We usually “presume differences in language like this convey differences in meaning.” Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 6). The cross-reference to all of paragraph (1) reinforces that “an alien described in paragraph (1)” is not just an ABCD alien, but an ABCD alien whom (in the words of paragraph (1)) the Secretary “take[s] into custody… when the alien is released” from criminal confinement.
