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Nielsen v. Wilcox

United States Supreme Court

March 19, 2019

KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL., PETITIONERSV. MONY PREAP, ET AL.
v.
BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., PETITIONERS V. BASSAM YUSUF KHOURY, ET AL.

          Argued October 10, 2018

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

         Federal immigration law empowers the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 8 U.S.C. §1226(a). Another provision, §1226(c)-enacted out of "concerfn] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings," Demore v. Kim, 538 U.S. 510, 513-sets out four categories of aliens who are inadmissible or deportable for bearing certain links to terrorism or for committing specified crimes. Section 1226(c)(1) directs the Secretary to arrest any such criminal alien "when the alien is released" from jail, and §1226(c)(2) forbids the Secretary to release any "alien described in paragraph (1)" pending a determination on removal (with one exception not relevant here).

         Respondents, two classes of aliens detained under §1226(c)(2), allege that because they were not immediately detained by immigration officials after their release from criminal custody, they are not aliens "described in paragraph (1)," even though all of them fall into at least one of the four categories covered by §§1226(c)(1)(A)-(D). Because the Government must rely on § 1226(a) for their detention, respondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status. The District Courts ruled for respondents, and the Ninth Circuit affirmed.

         Held: The judgments are reversed, and the cases are remanded.

         831 F.3d 1193 and 667 Fed.Appx. 966, reversed and remanded.

         JUSTICE Alito delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, concluding that the Ninth Circuit's interpretation of § 1226(c) is contrary to the plain text and structure of the statute. Pp. 10-17, 20-26.

         (a)The statute's text does not support the argument that because respondents were not arrested immediately after their release, they are not "described in" § 1226(c)(1). Since an adverb cannot modify a noun, §1226(c)(1)'s adverbial clause "when . . . released" does not modify the noun "alien," which is modified instead by the adjectival clauses appearing in subparagraphs (A)-(D). Respondents contend that an adverb can "describe" a person even though it cannot modify the noun used to denote that person, but this Court's interpretation is not dependent on a rule of grammar. The grammar merely complements what is conclusive here: the meaning of "described" as it appears in § 1226(c)(2)-namely, "to communicate verbally ... an account of salient identifying features," Webster's Third New International Dictionary 610. That is the relevant definition since the indisputable job of the "description] in paragraph (1)" is to "identif|y]" for the Secretary which aliens she must arrest immediately "when [they are] released." Yet the "when . . . released" clause could not possibly describe aliens in that sense. If it did, the directive given to the Secretary in §1226(c)(1) would be incoherent. Moreover, Congress's use of the definite article in "when the alien is released" indicates that the scope of the word "alien" "has been previously specified in context." Merriam-Webster's Collegiate Dictionary 1294. For that noun to have been previously specified, its scope must have been settled by the time the "when . . . released" clause appears at the end of paragraph (1). Thus, the class of people to whom "the alien" refers must be fixed by the predicate offenses identified in subparagraphs (A)- (D). Pp. 10-14.

         (b) Subsections (a) and (c) do not establish separate sources of arrest and release authority; subsection (c) is a limit on the authority conferred by subsection (a). Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and that fact alone will not spare them from subsection (c)(2)'s prohibition on release. The text of §1226 itself contemplates that aliens arrested under subsection (a) may face mandatory detention under subsection (c). If §1226(c)'s detention mandate applied only to those arrested pursuant to subsection (c)(1), there would have been no need for subsection (a)'s sentence on the release of aliens to include the words "[e]xcept as provided in subsection (c)." It is also telling that subsection (c)(2) does not limit mandatory detention to those arrested "pursuant to" subsection (c)(1) or "under authority created by" subsection (c)(1), but to anyone so much as "described in" subsection (c)(1). Pp. 15-17.

         (c) This reading of §1226(c) does not flout the interpretative canon against surplusage. The "when . . . released" clause still functions to clarify when the duty to arrest is triggered and to exhort the Secretary to act quickly. Nor does this reading have the incongruous result of forbidding the release of a set of aliens whom there is no duty to arrest in the first place. Finally, the canon of constitutional avoidance does not apply where there is no ambiguity. See Warger v. Shauers, 574 U.S. 40, 50. Pp. 20-26.

         Justice Alito, joined by The Chief Justice and Justice KAVANAUGH, concluded in Parts II and III-B-2:

         (a)This Court has jurisdiction to hear these cases. The limitation on review in § 1226(e) applies only to "discretionary" decisions about the "application" of §1226 to particular cases. It does not block lawsuits over "the extent of the Government's detention authority under the 'statutory framework' as a whole." Jennings v. Rodriguez, 583 U.S.__, __. For reasons stated in Jennings, "§1252(b)(9) does not present a jurisdictional bar." See id., at__ . Whether the District Court in the Preap case had jurisdiction under §1252(f)(1) to grant injunctive relief is irrelevant because the court had jurisdiction to entertain the plaintiffs' request for declaratory relief. And, the fact that by the time of class certification the named plaintiffs had obtained either cancellation of removal or bond hearings did not make these cases moot. At least one named plaintiff in both cases could have been returned to detention and then denied a subsequent bond hearing. Even if that had not been so, these cases would not be moot because the harms alleged are transitory enough to elude review. County of Riverside v. McLaughlin, 500 U.S. 44, 52. Pp. 7-10.

         (b) Even assuming that §1226(c)(1) requires immediate arrest, the result below would be wrong, because a statutory rule that officials" 'shall' act within a specified time" does not by itself "precludfe] action later," Barnhart v. Peabody Coal Co., 537 U.S. 149, 158. This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted §1226(c). Cf. Woodfordv. Garceau, 538 U.S. 202, 209. Pp. 17-20.

         Justice Thomas, joined by Justice Gorsuch, concluded that three statutory provisions-8 U.S.C. §§1252(b)(9), 1226(e), and 1252(f)(1)-limit judicial review in these cases and it is unlikely that the District Courts had Article III jurisdiction to certify the classes. Pp. 1-6.

         ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, in which Roberts, C.J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined, and an opinion with respect to Parts II and III-B-2, in which Roberts, C. J., and Kavanaugh, J., joined. Kavanaugh, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. BREYER, J., filed a dissenting opinion, in which GlNSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

          JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, and an opinion with respect to Parts II and III-B-2, in which THE CHIEF JUSTICE and Justice Kavanaugh join.

          ALITO, JUSTICE

         Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not endanger others and would not flee if released from custody.

         Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism. Under a statutory provision enacted in 1996, 110 Stat. 3009-585, 8 U.S.C. § 1226(c), these aliens must be arrested "when [they are] released" from custody on criminal charges and (with one narrow exception not involved in these cases) must be detained without a bond hearing until the question of their removal is resolved.

         In these cases, the United States Court of Appeals for the Ninth Circuit held that this mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. If the alien evades arrest for some short period of time- according to respondents, even 24 hours is too long-the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole. Four other Circuits have rejected this interpretation of the statute, and we agree that the Ninth Circuit's interpretation is wrong. We therefore reverse the judgments below and remand for further proceedings.

         I

         A

         Under federal immigration law, aliens present in this country may be removed if they fall "within one or more . . . classes of deportable aliens." 8 U.S.C. § 1227(a). In these cases, we focus on two provisions governing the arrest, detention, and release of aliens who are believed to be subject to removal.

         The first provision, § 1226(a), [1] applies to most such aliens, and it sets out the general rule regarding their arrest and detention pending a decision on removal. Section 1226(a) contains two sentences, one dealing with taking an alien into custody and one dealing with detention. The first sentence empowers the Secretary of Homeland Security[2] to arrest and hold an alien "pending a decision on whether the alien is to be removed from the United States." The second sentence generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 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), see 8 CFR §§236.1(c)(8) and (d)(1), 1003.19, 1236.1(d)(1) (2018); and the alien may secure his release if he can convince the officer or immigration judge that he poses no flight risk and no danger to the community. See §§1003.19(a), 1236.1(d); Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006). But while 8 U.S.C. § 1226(a) generally permits an alien to seek release in this way, that provision's sentence on release states that all this is subject to an exception that is set out in § 1226(c).

         Section 1226(c) was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and it sprang from a "concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers." Demore v. Kim, 538 U.S. 510, 513 (2003). To address this problem, Congress mandated that aliens who were thought to pose a heightened risk be arrested and detained without a chance to apply for release on bond or parole.

         Section 1226(c) consists of two paragraphs, one on the decision to take an alien into "[c]ustody" and another on the alien's subsequent "[r]elease."[3] The first paragraph (on custody) sets out four categories of covered aliens, namely, those who are inadmissible or deportable on specified grounds. It then provides that the Secretary must take any alien falling into one of these categories "into custody" "when the alien is released" from criminal custody.

         The second paragraph (on release from immigration custody) states that "an alien described in paragraph (1)" may be released "only if [the Secretary] decides" that release is "necessary to provide protection" for witnesses or others cooperating with a criminal investigation, or their relatives or associates. That exception is not implicated in the present cases.

         The categories of predicates for mandatory detention identified in subparagraphs (A)-(D) generally involve the commission of crimes. As will become relevant to our analysis, however, some who satisfy subparagraph (D)- e.g., close relatives of terrorists and those who are thought likely to engage in terrorist activity, see 8 U.S.C. §1182(a)(3)(B)(i)(IX)-may never have been charged with any crime in this country.[4] Still, since the vast majority of mandatory-detention cases do involve convictions, we follow the heading of subsection (c), as well as our cases and the courts below, in referring to aliens who satisfy subparagraphs (A)-(D) collectively as "criminal aliens."

         The Board of Immigration Appeals has held that subsection (c)(2), which requires the detention of aliens "described in" subsection (c)(1), applies to all aliens who fall within subparagraphs (A)-(D), whether or not they were arrested immediately "when [they were] released" from criminal custody. Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001) (en banc).

         B

         Respondents in the two cases before us are aliens who were detained under §1226(c)(2)'s mandatory-detention requirement-and thus denied a bond hearing-pending a decision on their removal. See Preap v. Johnson, 831 F.3d 1193 (CA9 2016); Khoury v. Asher, 667 Fed.Appx. 966 (CA9 2016). Though all respondents had been convicted of criminal offenses covered in §§1226(c)(1)(A)-(D), none were arrested by immigration officials immediately after their release from criminal custody. Indeed, some were not arrested until several years later.

         Respondent Mony Preap, the lead plaintiff in the case that bears his name, is a lawful permanent resident with two drug convictions that qualify him for mandatory detention under § 1226(c). Though he was released from criminal custody in 2006, immigration officials did not detain him until 2013, when he was released from jail after an arrest for another offense. His co-plaintiffs Juan Lozano Magdaleno and Eduardo Vega Padilla were taken into immigration detention, respectively, 5 and 11 years after their release from custody for a § 1226(c) predicate offense. Preap, Magdaleno, and Padilla filed habeas petitions and a class-action complaint alleging that because they were not arrested "immediately" after release from criminal custody, they are exempt from mandatory detention under § 1226(c) and are entitled to a bond hearing to determine if they should be released pending a decision on their status.

         Although the named plaintiffs in Preap were not taken into custody on immigration grounds until years after their release from criminal custody, the District Court certified a broad class comprising all aliens in California "'who are or will be subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a [s]ection 1226(c)(1) offense.'" 831 F.3d, at 1198 (emphasis added). The District Court granted a preliminary injunction against the mandatory detention of the members of this class, holding that criminal aliens are exempt from mandatory detention under § 1226(c) (and are thus entitled to a bond hearing) unless they are arrested "'when [they are] released,' and no later." Preap v. Johnson, 303 F.R.D. 566, 577 (ND Cal. 2014) (quoting 8 U.S.C. § 1226(c)(1)). The Court of Appeals for the Ninth Circuit affirmed.

         Khoury, the other case now before us, involves habeas petitions and a class-action complaint filed in the Western District of Washington. The District Court certified a class comprising all aliens in that district "who were subjected to mandatory detention under 8 U.S.C. § 1226(c) even though they were not detained immediately upon their release from criminal custody." 667 Fed. Appx., at 967. The District Court granted summary judgment for respondents, and the Ninth Circuit again affirmed, citing its decision on the same day in Preap.

         Because Preap and Khoury created a split with four other Courts of Appeals, we granted certiorari to review the Ninth Circuit's ruling that criminal aliens who are not arrested immediately upon release are thereby exempt from mandatory detention under §1226(c). 583 U.S.__ (2018). We now reverse.

         II

         Before addressing the merits of the Court of Appeals' interpretation, we resolve four questions regarding our jurisdiction to hear these cases.

         The first potential hurdle concerns § 1226(e), which states:

"The [Secretary's] discretionary judgment regarding the application of [§1226] shall not be subject to review. No court may set aside any action or decision by the [Secretary] under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." (Emphasis added.)

         As we have held, this limitation applies only to "discretionary" decisions about the "application" of §1226 to particular cases. It does not block lawsuits over "the extent of the Government's detention authority under the 'statutory framework' as a whole." Jennings v. Rodriguez, 583 U.S.__, __ -__ (2018) (slip op., at 11-12) (quoting Demore, 538 U.S., at 517). And the general extent of the Government's authority under § 1226(c) is precisely the issue here. Respondents' argument is not that the Government exercised its statutory authority in an unreasonable fashion. Instead, they dispute the extent of the statutory authority that the Government claims. Because this claim of authority does not constitute a mere "discretionary" "application" of the relevant statute, our review is not barred by § 1226(e).

         Nor are we stripped of jurisdiction by § 1252(b)(9), which provides:

"Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§1225 and 1226] shall be available only in judicial review of a final order under this section." (Emphasis added.)

         As in Jennings, respondents here "are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal [as opposed to the decision to deny them bond hearings]; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances," we held in Jennings, see 583 U.S., at __-__ (slip op., at 10-11), "§1252(b)(9) does not present a jurisdictional bar."

         The Government raised a third concern before the District Court in Preap: that under 8 U.S.C. § 1252(f)(1), that court lacked jurisdiction to enter the requested injunction. As § 1252(f)(1) cautions:

"Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§1221-1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated."

         Did the Preap court overstep this limit by granting injunctive relief for a class of aliens that includes some who have not yet faced-but merely "will face"-mandatory detention? The District Court said no, but we need not decide. Whether the Preap court had jurisdiction to enter such an injunction is irrelevant because the District Court had jurisdiction to entertain the plaintiffs' request for declaratory relief, and for independent reasons given below, we are ordering the dissolution of the injunction that the District Court ordered.

         Finally, and again before the Preap District Court, the Government raised a fourth potential snag: mootness. Class actions are "[n]ormally . . . moot if no named class representative with an unexpired claim remain[s] at the time of class certification." United States v. Sanchez-Gomez, 584 U.S.__, __(2018) (slip op., at 4). But that general norm is no hurdle here.

         The suggestion of mootness in these cases was based on the fact that by the time of class certification the named plaintiffs had obtained either cancellation of removal or bond hearings. See 831 F.3d, at 1197-1198; Khoury v. Asher, 3 F.Supp.3d 877, 879-880 (WD Wash. 2014). But those developments did not make the cases moot because at least one named plaintiff in both cases had obtained release on bond, as opposed to cancellation of removal, and that release had been granted following a preliminary injunction in a separate case. Unless that preliminary injunction was made permanent and was not disturbed on appeal, these individuals faced the threat of re-arrest and mandatory detention. And indeed, we later ordered that that injunction be dissolved. See Jennings, 583 U.S., at __(slip op., at 31). Thus, in both cases, there was at least one named plaintiff with a live claim when the class was certified.

         Even if that had not been so, these cases would not be moot because the fact that a class "was not certified until after the named plaintiffs' claims had become moot does not deprive us of jurisdiction" when, as in these cases, the harms alleged are transitory enough to elude review. County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (affirming jurisdiction over a class action challenging a county's failure to provide "prompt" determinations of probable cause for those subjected to warrantless arrest and detention). Respondents claim that they would be harmed by detention without a hearing pending a decision on their removal. Because this type of injury ends as soon as the decision on removal is made, it is transitory. So the fact that the named plaintiffs obtained some relief before class certification does not moot their claims.

         III

         Having assured ourselves of our jurisdiction, we turn to the merits. Respondents contend that they are not properly subject to §1226(c)'s mandatory-detention scheme, but instead are entitled to the bond hearings available to those held under the general arrest and release authority provided in § 1226(a). Respondents' primary textual argument turns on the interaction of paragraphs (1) and (2) of § 1226(c). Recall that those paragraphs govern, respectively, the "[c]ustody" and "[r]elease" of criminal aliens guilty of a predicate offense. Paragraph (1) directs the Secretary to arrest any such alien "when the alien is released," and paragraph (2) forbids the Secretary to release any "alien described in paragraph (1)" pending a determination on removal (with one exception not relevant here). Because the parties' arguments about the meaning of § 1226(c) require close attention to the statute's terms and structure, we reproduce the provision in full below. But only the portions of the statute that we have highlighted are directly relevant to respondents' argument. Section 1226(c) provides:

         "(c) Detention of criminal aliens

"(1) Custody
"The [Secretary] shall take into custody any alien who-
"(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
"(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
"(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or
"(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
"when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
"(2) Release
"The [Secretary] may release an alien described in paragraph (1) only if the [Secretary] decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the [Secretary] that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien." (Emphasis added.)

         Respondents argue that they are not subject to mandatory detention because they are not "described in" § 1226(c)(1), even though they (and all the other members of the classes they represent) fall into at least one of the categories of aliens covered by subparagraphs (A)-(D) of that provision. An alien covered by these subparagraphs is not "described in" § 1226(c)(1), respondents contend, unless the alien was also arrested "when [he or she was] released" from criminal custody. Indeed, respondents insist that the alien must have been arrested immediately after release. Since they and the other class members were not arrested immediately, respondents conclude, they are not "described in" § 1226(c)(1). So to detain them, the Government must rely not on § 1226(c) but on the general provisions of § 1226(a). And thus, like others detained under § 1226(a), they are owed bond hearings in which they can earn their release by proving that they pose no flight risk and no danger to others-or so they claim. But neither the statute's text nor its structure supports this argument. In fact, both cut the other way.

         A

         First, respondents' position runs aground on the plain text of § 1226(c). Respondents are right that only an alien "described in paragraph (1)" faces mandatory detention, but they are wrong about which aliens are "described in" paragraph (1).

         Paragraph (1) provides that the Secretary "shall take" into custody any "alien" having certain characteristics and that the Secretary must do this "when the alien is released" from criminal custody. The critical parts of the provision consist of a verb ("shall take"), an adverbial clause ("when . . . released"), a noun ("alien"), and a series of adjectival clauses ("who ... is inadmissible," "who ... is deportable," etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense "de-scrib[e]") the noun "alien" or that the adverbial clause "when . . . released" modifies the verb "shall take." And since an adverb cannot modify a noun, the "when released" clause cannot modify "alien." Again, what modifies (and in that sense "describe [s]") the noun "alien" are the adjectival clauses that appear in subparagraphs (A)-(D).

         Respondents and the dissent contend that this grammatical point is not the end of the matter-that an adverb can "describe" a person even though it cannot modify the noun used to denote that person. See post, at 5-6 (opinion of BREYER, J.). But our interpretation is not dependent on a rule of grammar. The preliminary point about grammar merely complements what is critical, and indeed conclusive in these cases: the particular meaning of the term "described" as it appears in § 1226(c)(2). As we noted in Luna Torres v. Lynch, 578 U.S.__, __(2016) (slip op., at 6), the term "'describe' takes on different meanings in different contexts." A leading definition of the term is "to communicate verbally ... an account of salient identifying features," Webster's Third New International Dictionary 610 (1976), and that is clearly the meaning of the term used in the phrase "an alien described in paragraph (1)." (Emphasis added.) This is clear from the fact that the indisputable job of the "description] in paragraph (1)" is to "identif[y]" for the Secretary-to list the "salient . . . features" by which she can pick out-which aliens she must arrest immediately "when [they are] released."

         And here is the crucial point: The "when . . . released" clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest. If it did, the directive in § 1226(c)(1) would be nonsense. It would be ridiculous to read paragraph (1) as saying: "The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones? Only those who are arrested upon their release from jail." Since it is the Secretary's action that determines who is arrested upon release, "being arrested upon release" cannot be one of her criteria in figuring out whom to arrest. So it cannot "describe"-it cannot give the Secretary an "identifying featur[e]" ...


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