Sylvain v. Attorney Gen. of U.S.

• Decision Date: 22 April 2013
• Docket Number: No. 11–3357.,11–3357.
• Citation: 714 F.3d 150
• Parties: Michel SYLVAIN v. ATTORNEY GENERAL OF the UNITED STATES; Brian Elwood, Warden of Monmouth County Jail; Christopher Shanahan, Field Office Director; John Morton, Director, Bureau of Immigration and Customs Enforcement; and Secretary, U.S. Department of Homeland Security Attorney General of the United States; Christopher Shanahan, Field Office Director; John Morton, Director, Bureau of Immigration and Customs Enforcement; Secretary U.S. Department of Homeland Security, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

714 F.3d 150

Michel SYLVAIN

v.ATTORNEY GENERAL OF the UNITED STATES; Brian Elwood, Warden of Monmouth County Jail; Christopher Shanahan, Field Office Director; John Morton, Director, Bureau of Immigration and Customs Enforcement; and Secretary, U.S. Department of Homeland Security Attorney General of the United States; Christopher Shanahan, Field Office Director; John Morton, Director, Bureau of Immigration and Customs Enforcement; Secretary U.S. Department of Homeland Security, Appellants.

No. 11–3357.

United States Court of Appeals, Third Circuit.

Argued March 19, 2013.

Filed: April 22, 2013.

Andrew F. Erba, II [Argued], Williams, Cuker & Berezofsky, Philadelphia, PA, for Appellee.

Neelam Ihsanullah [Argued], Flor M. Suarez, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Alex Kriegsman, Office of United States Attorney, Newark, NJ, for Appellants.

Andres C. Benach, Benach Ragland LLP, Washington, DC, Alina Das [Argued], Washington Square Legal Services, Inc., New York, NY, for Amici–Appellees.

Before: SMITH, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Statutory language is important. It takes on added significance when a person's freedom is at stake. Under the Immigration and Nationality Act, immigration officials “shall take into custody any” deportable alien who has committed various crimes “when the alien is released” from detention for those crimes. 8 U.S.C. § 1226(c)(1). The Act requires officials to hold such aliens without any possibility of release while awaiting their removal proceedings. Id. § 1226(c)(2). The scheme is known as mandatory detention.

This case presents a straightforward question: Do immigration officials lose authority to impose mandatory detention if they fail to do so “when the alien is released”? The answer turns on the interplay between several provisions of the Act. We conclude that dilatory officials do not lose authority, and so we will reverse the District Court's decision to the contrary.

I

Michel Sylvain is a citizen of Haiti. He entered the United States as a legal permanent resident in 1988. Since then, Sylvain has had multiple run-ins with the law. In total, he has been convicted of over ten drug-related crimes—indeed, he once served a three-year prison sentence for making and selling cocaine, and he spent a week in jail for possessing drugs as recently as 2003. He also has been convicted for unlawfully possessing a weapon and for criminal mischief. Suffice it to say, Sylvain has not been a model noncitizen while living in the United States.

Most recently, Sylvain was arrested in 2007 for possessing drugs. He pled guilty and received a conditional discharge. Under New York law, a conditional discharge does not require “imprisonment or probation.” N.Y. Penal Law § 65.05(2). A person who receives a conditional discharge generally must perform community service—although no direct supervision is necessary. See id. (noting that defendants subject to a conditional discharge must meet “such conditions as the court may determine”). This means that Sylvain did not see the inside of a jail cell for nearly a decade.

Sylvain's luck ran out two years ago. Officials from Immigration and Customs Enforcement arrested him on April 12, 2011. They concluded that he was deportable under the Immigration and Nationality Act because he had committed various deportable offenses—in particular, he was an aggravated felon with a history of drug crimes. See8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i). The officials further concluded that he was subject to mandatory detention under 8 U.S.C. § 1226(c) and held him without a bond hearing. They reached this conclusion even though Sylvain was last in custody on drug charges in 2007, nearly four years before his arrest in 2011.¹

One month after his arrest, Sylvain petitioned for a writ of habeas corpus in the District Court for the District of New Jersey. Sylvain did not challenge his removability. Rather, he argued that mandatory detention did not apply to him. In his view, the phrase “when ... released” in § 1226(c)(1) means that immigration officials must detain aliens at the moment of their release from prior custody. If the officials delay—as they did in his case—mandatory detention does not apply. He thus argued that he was eligible for a bond hearing. The District Court agreed and granted his petition on June 28, 2011. Sylvain received a hearing, paid bond, and is no longer in custody. The parties tell us that his next removal hearing is on July 24, 2014.

The government appealed. It argues that mandatory detention does not require immediate detention. As a result, the officials retained authority to impose mandatory detention despite their four-year delay. For his part, Sylvain continues to argue that officials must act immediately. He also argues for the first time on appeal that the conditional discharge following his 2007 conviction was not a “release[ ]” within the meaning of the statute. 8 U.S.C. § 1226(c)(1) (“The Attorney General shall take into custody any alien [who has committed various crimes] when the alien is released.” (emphasis added)).

II

Congress created mandatory detention less than twenty years ago. Under the original text of the Immigration and Naturalization Act, all deportable aliens were eligible for a bond hearing. See Patel v. Zemski, 275 F.3d 299, 304 (3d Cir.2001), abrogated by Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). As time passed and crime rates soared, Congress began making it more difficult for aliens to receive a bond hearing. Id. This culminated in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 § 303, 8 U.S.C. § 1226.² The Act establishes a general rule that allows bond hearings for most aliens and an exception for some criminals—the former in subsection (a), the latter in subsection (c):

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General—

(1) may continue to detain the arrested alien; and

(2) may release the alien on—

(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or

(B) conditional parole

....

(c) Detention of criminal aliens

(1) Custody

The Attorney General 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 [sic] 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 Attorney General may release an alien described in paragraph (1) only if [a narrow witness-protection exception applies], and the alien satisfies the Attorney General 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....

8 U.S.C. § 1226(a), (c).

Subsection (a) applies to most deportable aliens. It allows immigration officials to detain an alien “pending a decision on whether the alien is to be removed from the United States.” Id. § 1226(a) (“On a warrant issued by the Attorney General, an alien may be arrested and detained....”). Such aliens are eligible for a bond hearing. Id. And they are free to leave detention if an officer decides that they do not pose a danger to society and likely will attend a future removal proceeding. See8 C.F.R. § 236.1(c)(8). But they are not eligible for a bond hearing if subsection (c) applies—in such instances, the detention is mandatory. See8 U.S.C. § 1226(a) (“Except as provided in subsection (c)....”).

Subsection (c) imposes mandatory detention on a narrow class of criminal aliens. The first paragraph requires officials to detain aliens who have committed one of the crimes listed in subparagraphs (A) through (D). These crimes include human trafficking, drug trafficking, crimes of moral turpitude, drug conspiracies, prostitution, firearm offenses, treason, espionage, and the like. Id. § 1226(c)(1)(A)-(D) (citing offenses listed in 8 U.S.C. §§ 1182, 1227).³ The second paragraph then mandates that officials hold such aliens without a bond hearing unless a narrow witness-protection exception applies. That exception does not apply to Sylvain.

In recent years, the executive branch has concentrated its resources on criminal aliens—especially those subject to mandatory detention. The director of Immigration and Customs Enforcement stated in a 2011 memorandum that the agency's first priority was “[a]liens who pose ... a risk to public safety.” Memorandum from John Morton, Dir., U.S. Immigration & Customs Enforcement, on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens 1 (Mar. 2, 2011), http:// www. ice. gov/ doclib/ news/ releases/ 2011/ 110302 washingtondc. pdf. This includes “aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders.” Id. at 2. The memorandum instructed those within the agency to use “detention resources” for “aliens subject to mandatory detention by law.” Id. at 3. One month after the director issued this document, immigration officials arrested Sylvain and imposed...