Michel Sylvain v. Atty Gen USA

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-3357
_____________
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
_______________________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 3-11-cv-03006)
District Judge: The Honorable Joel A. Pisano
________________________
Argued March 19, 2013
Before: SMITH, GREENAWAY, JR., and
VAN ANTWERPEN, Circuit Judges
(Filed: April 22, 2013)
Andrew F. Erba, II [ARGUED]
Williams, Cuker & Berezofsky
1515 Market Street
Suite 1300
Philadelphia, PA 19102
Counsel for Appellee
Neelam Ihsanullah [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20001
2
Alex Kriegsman
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Flor M. Suarez
United States Department of Justice
Office of Immigration Litigation
Suite 6102
450 5th Street, N.W.
Washington, DC 20001
Counsel for Appellants
Andres C. Benach
Benach Ragland LLP
1333 H Street, N.W.
Suite 900 West
Washington, DC 20005
Alina Das [ARGUED]
Washington Square Legal Services, Inc.
Immigrant Rights Clinic
245 Sullivan Street
5th Floor
New York, NY 10012
3
Counsel for Amici-Appellees
________________
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 offi-
cials ―shall take into custody any‖ deportable alien who
has committed various crimes ―when the alien is re-
leased‖ 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 re-
leased‖? The answer turns on the interplay between sev-
eral provisions of the Act. We conclude that dilatory of-
ficials do not lose authority, and so we will reverse the
District Court‘s decision to the contrary.
4
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 sen-
tence 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, Syl-
vain 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 condi-
tional discharge. Under New York law, a conditional dis-
charge 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 dis-
charge must meet ―such conditions as the court may de-
termine‖). 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
5
him on April 12, 2011. They concluded that he was de-
portable under the Immigration and Nationality Act be-
cause he had committed various deportable offenses—in
particular, he was an aggravated felon with a history of
drug crimes. See 8 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 removabil-
ity. 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
1
As we explain in Part IV.B, a person who is ar-
rested is in custody for purposes of the ―when . . . re-
leased‖ clause of § 1226(c)(1). This means that Sylvain
was in custody when he was arrested in 2007.
6
agreed and granted his petition on June 28, 2011. Sylvain
received a hearing, paid bond, and is no longer in cus-
tody. The parties tell us that his next removal hearing is
on July 24, 2014.
The government appealed. It argues that manda-
tory detention does not require immediate detention. As a
result, the officials retained authority to impose manda-
tory detention despite their four-year delay. For his part,
Sylvain continues to argue that officials must act imme-
diately. 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 Immi-
gration 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 (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 Respon-
7
sibility Act of 1996 § 303, 8 U.S.C. § 1226.2 The Act es-
tablishes 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 Gen-
eral, 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 secu-
rity approved by, and containing con-
2
Section 303 of the Illegal Immigration Reform
and Immigrant Responsibility Act amended § 236 of the
original Immigration and Nationality Act and is codified
at 8 U.S.C. § 1226.
8
ditions 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 hav-
ing 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
9
(D) is inadmissible under section
1182(a)(3)(B) of this title or deporta-
ble 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 ap-
plies], 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
10
the Attorney General, an alien may be arrested and de-
tained . . . .‖). Such aliens are eligible for a bond hearing.
Id. And they are free to leave detention if an officer de-
cides that they do not pose a danger to society and likely
will attend a future removal proceeding. See 8 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. See 8 U.S.C. § 1226(a) (―Except as pro-
vided in subsection (c) . . . .‖).
Subsection (c) imposes mandatory detention on a
narrow class of criminal aliens. The first paragraph re-
quires 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
3
An alien may challenge the application of manda-
tory detention. In that event, an immigration judge holds
a Joseph hearing to determine whether the person is an
alien who committed a relevant crime. See Diop v.
ICE/Homeland Sec., 656 F.3d 221, 230–31 (3d Cir.
2011) (citing In re Joseph, 22 I. & N. Dec. 799, 800
(B.I.A. 1999)). And even then, ―the statute implicitly
authorizes detention [only] for a reasonable amount of
11
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 concen-
trated its resources on criminal aliens—especially those
subject to mandatory detention. The director of Immigra-
tion and Customs Enforcement stated in a 2011 memo-
randum 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 Ap-
prehension, Detention, and Removal of Aliens 1 (Mar. 2,
2011), http://www.ice.gov/doclib/news/releases/2011/
110302washingtondc.pdf. This includes ―aliens con-
victed of crimes, with a particular emphasis on violent
criminals, felons, and repeat offenders.‖ Id. at 2. The
time,‖ after which immigration officials ―must make an
individualized inquiry into whether detention is still nec-
essary to fulfill the statute‘s purposes of ensuring that an
alien attends removal proceedings and that his release
will not pose a danger to the community.‖ Id. at 231; see
also Leslie v. Att’y Gen., 678 F.3d 265, 271 (3d Cir.
2012). In addition, the Supreme Court has upheld man-
datory detention against a due-process challenge. Kim,
538 U.S. at 531.
12
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 Syl-
vain and imposed mandatory detention. Against this
backdrop, we turn to the issues.
III
As always, we must review the basis for jurisdic-
tion. Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986) (―[E]very federal appellate court has a
special obligation to satisfy itself not only of its own ju-
risdiction, but also that of the lower courts in a cause un-
der review.‖ (citation and quotation marks omitted)). The
District Court had jurisdiction to grant Sylvain‘s habeas
petition under 28 U.S.C. § 2241(a). In turn, we have ju-
risdiction to consider the government‘s appeal under 28
U.S.C. § 1291.
Nothing in 8 U.S.C. § 1226(e) prevents us from
deciding whether the immigration officials had statutory
authority to impose mandatory detention.4 For one thing,
4
According to 8 U.S.C. § 1226(e),
The Attorney General‘s discretionary judg-
ment regarding the application of this sec-
13
whether the officials had authority is not a ―discretionary
judgment.‖ 8 U.S.C. § 1226(e). And if the officials
lacked authority, they could not act ―under [§ 1226].‖ Id.;
see Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011)
(―[Section 1226(e)] does not limit habeas jurisdiction
over constitutional claims or questions of law.‖); Al-
Siddiqi v. Achim, 531 F.3d 490, 494 (7th Cir. 2008)
(―[T]his section . . . does not deprive us of our authority
to review statutory and constitutional challenges.‖); cf.
Kim, 538 U.S. at 517 (concluding that it had jurisdiction
to consider a constitutional challenge to the ―statutory
framework‖).
IV
We turn next to the question presented: Do immi-
gration officials lose their authority to impose mandatory
detention if they fail to act ―when the alien is released‖
from state or federal custody? For reasons that we will
explain, the answer is no.
tion shall not be subject to review. No court
may set aside any action or decision by the
Attorney General under this section regard-
ing the detention or release of any alien or
the grant, revocation, or denial of bond or
parole.
14
A
Chevron deference lurks in the background of this
case. Chevron, U.S.A. v. Natural Res. Def. Council, 467
U.S. 837, 842–44 (1984). That doctrine requires us to de-
fer to an agency‘s reasonable interpretations of ambigu-
ous statutes. The Supreme Court has explained that the
Board of Immigration Appeals must receive ―deference
as it gives ambiguous statutory terms ‗concrete meaning
through a process of case-by-case adjudication.‘‖ INS v.
Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting INS
v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)); see also
Negusie v. Holder, 555 U.S. 511, 516 (2009) (noting that
the Board‘s interpretation of the Immigration and Na-
tionality Act generally must receive deference); Chen v.
Ashcroft, 381 F.3d 221, 224 (3d Cir. 2004).
Over a decade ago, the Board of Immigration Ap-
peals concluded that mandatory detention does not re-
quire immediate detention. In re Rojas, 23 I. & N. Dec.
117, 125 (B.I.A. 2001). To reach that conclusion, the
Board examined the phrase ―an alien described in para-
graph (1)‖ from paragraph (2) of the mandatory-detention
statute. Id. at 120 (discussing 8 U.S.C. § 1226(c)(2)). The
title of the paragraph is ―[r]elease,‖ but that title is
something of a misnomer—after all, paragraph (2) is the
portion of the statute that authorizes mandatory deten-
tion. The Board stated that ―the literal language‖ of the
15
paragraph ―does not unambiguously tell us whether it en-
compasses the ‗when the alien is released‘ clause in [par-
agraph (1)] or merely references the four categories of
aliens described in subparagraphs (A) through (D).‖ Id.
After a lengthy discussion, it held that the phrase does
not encompass the ―when . . . released‖ clause. Id. at
121–25. This would mean that officials retain authority to
impose mandatory detention even if they fail to act
―when the alien is released.‖
The government agrees that the statute is ambigu-
ous. In its view, we must defer to the Board‘s interpreta-
tion. The government has pressed this argument in dis-
trict courts across the country—sometimes with success,5
often without.6 Only one other circuit has considered the
5
See, e.g., Khetani v. Petty, 859 F. Supp. 2d 1036,
1038 (W.D. Mo. 2012); Hernandez v. Sabol, 823 F.
Supp. 2d 266, 270–71 (M.D. Pa. 2011); Diaz v. Muller,
No. 11-4029 (SRC), 2011 WL 3422856, at *2–3 (D.N.J.
Aug. 4, 2011); see also Saucedo-Tellez v. Perryman, 55
F. Supp. 2d 882, 884–85 (N.D. Ill. 1999) (deferring to a
Board decision that preceded Rojas).
6
See, e.g., Valdez v. Terry, 874 F. Supp. 2d 1262,
1264–66 (D.N.M. 2012); Parfait v. Holder, No. 11-4877
(DMC), 2011 WL 4829391, at *4–9 (D.N.J. Oct. 11,
2011); Beckford v. Aviles, No. 10-2035 (JLL), 2011 WL
16issue. Hosh v. Lucero, 680 F.3d 375, 378–80 (4th Cir.
2012).7 In that case, the Fourth Circuit agreed that the
statute is ambiguous. The court focused on the word
―when,‖ noting that it might mean immediately, or it
might mean sometime thereafter. Id. at 379–80
(―‗[W]hen‘ in § 1226(c) can be read, on one hand, to re-
3515933, at *7–9 (D.N.J. Aug. 9, 2011); Gonzalez v.
DHS, No. 1:CV-10-0901, 2010 WL 2991396, at *1
(M.D. Pa. July 27, 2010); Dang v. Lowe, No. 1:CV-10-
0446, 2010 WL 2044634, at *1–2 (M.D. Pa. May 20,
2010); Khodr v. Adduci, 697 F. Supp. 2d 774, 775, 777–
80 (E.D. Mich. 2010); Louisaire v. Muller, 758 F. Supp.
2d 229, 236 (S.D.N.Y. 2010); see also Alikhani v.
Fasano, 70 F. Supp. 2d 1124, 1130 (S.D. Cal. 1999)
(concluding pre-Rojas that the statute requires immedi-
acy).
7
The District Court cited a First Circuit case in de-
ciding not to defer. See Saysana v. Gillen, 590 F.3d 7 (1st
Cir. 2009). That case, however, does not address the
question at hand. The First Circuit instead faced a sepa-
rate question: whether mandatory detention applies to an
alien who committed a crime listed in § 1226(c)(1)(A)–
(D) before the statute went into effect and then was re-
leased from a crime not listed in the statute after it went
into effect. See id. at 16–18 & n.6.
17
fer to action or activity occurring ‗at the time that‘ or ‗as
soon as‘ other action has ceased or begun. On the other
hand, ‗when‘ can also be read to mean the temporally
broader ‗at or during the time that,‘ ‗while,‘ or ‗at any or
every time that.‘‖ (citations and internal quotation marks
omitted)).8 Under the former reading, the alien was not
detained ―when . . . released‖ from state custody. Under
8
Over two centuries ago, Chief Justice John Mar-
shall discussed the same problem in a different statute:
[M]uch depends on the true legislative
meaning of the word ―when.‖ The plaintiffs
in error contend that it designates the precise
time when a particular act must be per-
formed . . . ; the defendants insist that it de-
scribes the occurrence which shall render
that particular act necessary. That the term
may be used, and, either in law or in com-
mon parlance, is frequently used in the one
or the other of these senses, cannot be con-
troverted; and, of course, the context must
decide in which sense it is used in the law
under consideration.
United States v. Willings, 8 U.S. (4 Cranch) 48, 55
(1807).
18
the latter reading, he might have been. In light of this
ambiguity, the Fourth Circuit deferred to the Board.9
We need not take a stand on this issue. Even if the
statute calls for detention ―when the alien is released,‖
and even if ―when‖ implies something less than four
years, nothing in the statute suggests that immigration of-
ficials lose authority if they delay. The alleged ambiguity
9
The Fourth Circuit emphasized that the word
―when‖ is ambiguous. We believe that emphasis is a flaw
in its Chevron analysis. Chevron requires deference to an
agency‘s reasonable interpretation of specific ―ambigu-
ous terms.‖ Smiley v. Citibank (S.D.), 517 U.S. 735, 739–
41 (1996). The specific term interpreted in Rojas is the
phrase ―an alien described in paragraph (1).‖ Rojas, 23 I.
& N. Dec. at 120 (discussing 8 U.S.C. § 1226(c)(2)). The
Board did not explicitly interpret the word ―when.‖ If
anything, it suggested that ―when‖ denotes immediacy.
See id. at 122 (―The statute does direct the Attorney Gen-
eral to take custody of aliens immediately upon their re-
lease from criminal confinement.‖). Despite that, it
concluded that officials can impose mandatory detention
even if they delay because ―an alien described in para-
graph (1)‖—and thus subject to detention—need not be
one who was taken into custody ―when . . . released.‖ Id.
at 125.
19
does not determine the outcome of this case, so we need
not decide whether Chevron emerges from the back-
ground.
B
We reach this conclusion for a number of reasons.
First and foremost is the text: the government‘s authority
to impose mandatory detention does not depend on its
compliance with the ―when . . . released‖ deadline. The
text states that immigration officials ―shall take into cus-
tody any alien who [has committed various crimes] when
the alien is released.‖ 8 U.S.C. § 1226(c)(1). The text
does not explicitly remove that authority if an alien has
already left custody. We are loath to interpret a deadline
as a bar on authority after the time has passed—even
when the word ―shall‖ appears in the text. See
Cyberworld Enter. Tech. v. Napolitano, 602 F.3d 189,
197 (3d Cir. 2010).
This principle of statutory interpretation descends
from a long line of Supreme Court precedents. See, e.g.,
Barnhart v. Peabody Coal Co., 537 U.S. 149, 161
(2003); United States v. Nashville, C. & St. L. Ry., 118
U.S. 120, 125 (1886). In these cases, the Court has ex-
plained that ―a statute directing official action needs
more than a mandatory ‗shall‘ before the grant of power
can sensibly be read to expire when the job is supposed
20
to be done.‖ Barnhart, 537 U.S. at 161. In other words,
―a provision that the Government ‗shall‘ act within a
specified time, without more, [is not] a jurisdictional
limit precluding action later.‖ Id. at 158, 161–63 (con-
cluding that a provision stating that the government
―shall‖ make certain assignments by ―October 1, 1993,‖
did not eliminate the government‘s authority to make as-
signments after that date).
Bureaucratic inaction—whether the result of iner-
tia, oversight, or design—should not rob the public of
statutory benefits. The Tenth Circuit has called this ―the
better-late-than-never principle.‖ United States v. Dolan,
571 F.3d 1022, 1027 (10th Cir. 2009), aff’d sub nom.
Dolan v. United States, 130 S. Ct. 2533 (2010). ―Con-
gress imposes deadlines on other branches of government
to prod them into ensuring the timely completion of their
statutory obligations to the public, not to allow those
branches the chance to avoid their obligations just by
dragging their feet.‖ Id. The court noted that ―[i]t would
be a strange thing indeed if a bureaucracy or court could
avoid a congressional mandate by unlawful delay.‖ Id.
We recently applied this principle in the immigra-
tion context. See Cyberworld, 602 F.3d at 196–200. In
that case, we concluded that the government did not lose
authority to fine a company for alleged violations of the
Immigration and Nationality Act simply because the
21
government had failed to act within a thirty-day deadline.
Id. at 196; cf. Brock v. Pierce Cnty., 476 U.S. 253, 266
(1986) (holding that the Secretary of Labor did not lose
authority to recover funds despite his failure to comply
with the requirement that he ―shall‖ act ―within 120
days‖); Dolan, 130 S. Ct. at 2539 (―The fact that a sen-
tencing court misses the [Mandatory Victims Restitution
Act‘s] 90-day deadline . . . does not deprive the court of
the power to order restitution.‖).
The closest analog to the present dispute is a case
from two decades ago. United States v. Montalvo-
Murillo, 495 U.S. 711 (1990). There, the Supreme Court
interpreted the Bail Reform Act of 1984, 18 U.S.C.
§ 3142. This Act allows the government to detain de-
fendants leading up to their trial if they pose a risk of
fleeing or a danger to others. Id. § 3142(e)–(f). Im-
portantly, before the government can detain anyone un-
der the Act, a judicial officer ―shall‖ hold a bond hearing
―immediately upon the person‘s first appearance before
the [ ] officer‖ to assess the person‘s flight risk and dan-
ger. Id. § 3142(f)(2). Guadelupe Montalvo-Murillo did
not receive a hearing upon his first appearance; he in-
stead received one a few days later. He argued that the
delay stripped the government of authority to detain him
under the Act. The Supreme Court rejected this argu-
ment:
22
We hold that a failure to comply with the
first appearance requirement does not defeat
the Government‘s authority to seek deten-
tion of the person charged. . . . There is no
presumption or general rule that for every
duty imposed upon the court or the Gov-
ernment and its prosecutors there must exist
some corollary punitive sanction for depar-
tures or omissions, even if negligent. In our
view, construction of the Act must conform
to the great principle of public policy, appli-
cable to all governments alike, which for-
bids that the public interests should be prej-
udiced by the negligence of the officers or
agents to whose care they are confided.
Montalvo-Murillo, 495 U.S. at 717–18 (citations and
quotation marks omitted).
The same is true of mandatory detention. Like the
Bail Reform Act, the mandatory-detention statute allows
the government to detain a person in the days leading up
to a legal proceeding. Both statutes have two prerequi-
sites—one that focuses on timing, the other on the person
in custody. Under the Bail Reform Act, the government
must conduct a hearing ―immediately upon the person‘s
first appearance,‖ and the defendant must pose either a
flight risk or danger to the public. 18 U.S.C. § 3142(f)(2).
23
Under the mandatory-detention statute, the government
must detain the alien ―when . . . released,‖ and the alien
must have committed one of the listed crimes. 8 U.S.C.
§ 1226(c)(1). Importantly, neither statute explicitly ties
the government‘s authority to the time requirement. As a
result, the government retains authority under both stat-
utes despite any delay.
This is particularly so because an important public
interest is stake. See Brock, 476 U.S. at 260 (―[P]ublic
interests should [not] be prejudiced by the negligence of
the officers or agents to whose care they are confided.‖
(quoting Nashville, C. & St. L. Ry., 118 U.S. at 125)).
Congress adopted the mandatory-detention statute against
a backdrop of rising crime by deportable aliens. Kim, 538
U.S. at 518. According to one study, ―after criminal
aliens were identified as deportable, 77% were arrested at
least once more and 45%—nearly half—were arrested
multiple times before their deportation proceedings even
began.‖ Id. at 518–19. To make matters worse, many
aliens failed to show up at their deportation proceedings.
Prior to mandatory detention, the Attorney General could
release aliens on bond if they did not ―present an exces-
sive flight risk or threat to society.‖ Id. at 519. Even so,
―more than 20% of deportable criminal aliens failed to
appear for their removal hearings.‖ Id. In light of these
problems, Congress eliminated all discretion. The re-
sulting statute promotes the public interest by keeping the
24
most dangerous aliens off the streets.
To be sure, immigration officials should act with-
out delay. The sooner they detain dangerous aliens, the
safer the public will be. But government officials are
neither omniscient nor omnipotent. ―Assessing the situa-
tion in realistic and practical terms, it is inevitable that,
despite the most diligent efforts of the Government and
the courts, some errors in the application of the time re-
quirements . . . will occur.‖ Montalvo-Murillo, 495 U.S.
at 720. And so we see ―no reason to bestow upon [aliens]
a windfall and to visit upon the Government and the citi-
zens a severe penalty‖ by mandating a bond hearing
―every time some deviation from the strictures of [the
statute] occurs.‖ Id.
In fact, the public-interest rationale is even
stronger in this context. After all, the Bail Reform Act
protects both the public and the defendant—the former
by allowing detention, the latter by allowing release if the
defendant does not pose a flight risk or danger to the
public. In contrast, the mandatory-detention statute is in-
tended to protect only the public—detention is manda-
tory, no matter the perceived flight risk or danger. For
that reason, ―[t]he Montalvo-Murillo holding‖ is ―doubly
persuasive in the instant setting.‖ Hosh, 680 F.3d at 382–
83.
25
Nevertheless, Sylvain tries to escape the reaches of
Montalvo-Murillo. He argues that his claim is distin-
guishable for two reasons. First, he points out that the de-
fendant in Montalvo-Murillo asked for a release from jail,
whereas Sylvain merely asked for a bond hearing. We
recognize that is a distinction between these cases. But in
the ways that matter, the cases are alike. Indeed, the ulti-
mate question in both cases is whether a person might be
eligible for a release despite some lapsed deadline. Under
the Bail Reform Act, defendants are ineligible for a re-
lease as long as they pose a flight risk or a danger to the
public. See Montalvo-Murillo, 495 U.S. at 721. And the
same is true under the mandatory-detention statute. De-
portable aliens are ineligible for a release as long as they
have committed a crime listed in § 1226(c)(1), which
serves as a proxy for flight risk and danger. The re-
quested relief is a distinction without a difference.
Next, Sylvain argues that the statute ―specif[ies] a
consequence for noncompliance with [the] statutory
timing provision[].‖ United States v. James Daniel Good
Real Prop., 510 U.S. 43, 63 (1993). In particular, the
consequence is a bond hearing. Sylvain cites § 1226(a),
which states that deportable aliens are eligible for a
hearing ―[e]xcept as provided in subsection (c).‖ He
contends that if immigration officials fail to detain an
alien ―when . . . released,‖ the alien‘s detention is no
longer ―provided in subsection (c),‖ but instead falls
26
within subsection (a).
The first problem with this argument is that the
language in subsection (a) does not explicitly invoke sub-
section (c)‘s time requirement. In past cases, the Supreme
Court has insisted on clear language. For example, the
Speedy Trial Act requires a trial within seventy days of a
defendant‘s plea. 18 U.S.C. § 3161(c)(1). It further states
that an ―indictment shall be dismissed on motion‖ if ―a
defendant is not brought to trial within the time limit.‖ Id.
§ 3162(a)(2). That language explicitly ties the dismissal
to the seventy-day deadline. See Zedner v. United States,
547 U.S. 489, 507–08 (2006). In contrast, the Bail Re-
form Act suggests that the consequence of not conduct-
ing ―a hearing pursuant to . . . subsection (f)‖ is that the
government loses authority to detain a defendant. 18
U.S.C. § 3142(e)(1). Although the statute‘s time re-
quirement appears in subsection (f), the Court concluded
that the government‘s authority did not turn on its punc-
tuality—in part because the ―pursuant to‖ language
merely was an oblique reference to the time requirement.
See Montalvo-Murillo, 495 U.S. at 717–19.10
10
The absence of explicit language in the manda-
tory-detention statute is particularly telling. After all,
Congress created mandatory detention in the wake of
Brock, which clearly embraced the better-late-than-never
27
In addition to this textual problem, Sylvain‘s ar-
gument runs afoul of plain logic. Congress designed the
statute to keep dangerous aliens off the streets. See Kim,
538 U.S. at 518–22. The statute does so by eliminating
discretion, thereby preventing the release of those aliens
who are most likely to skip town and to continue break-
ing the law. Id.; Diop v. ICE/Homeland Sec., 656 F.3d
221, 231–32 (3d Cir. 2011). Sylvain‘s interpretation
would lead to an outcome contrary to the statute‘s design:
a dangerous alien would be eligible for a hearing—which
could lead to his release—merely because an official
missed the deadline.11 This reintroduces discretion into
principle. Brock, 476 U.S. at 260; see Barnhart, 537 U.S.
at 160 (concluding that a time requirement in the Coal
Act was not jurisdictional because it ―was adopted six
years after Brock came down, when Congress was pre-
sumably aware that we do not readily infer congressional
intent to limit an agency‘s power to get a mandatory job
done merely from a specification to act by a certain
time‖).
11
Of course, an alien would not be eligible for a
release if the immigration officer determined that he
posed a flight risk or danger to the public. But as the Su-
preme Court explained in Kim, immigration officers
28
the process and bestows a windfall upon dangerous
criminals. Cf. Montalvo-Murillo, 495 U.S. at 719–20
(―Our conclusion is consistent with the design and func-
tion of . . . the Bail Reform Act . . . [which is] an appro-
priate regulatory device to assure the safety of persons in
the community and to protect against the risk of flight.‖).
For these reasons, the officials‘ four-year delay—how-
ever regrettable—did not eliminate their authority to im-
pose mandatory detention on Sylvain.
In a final effort to avoid mandatory detention, Syl-
vain raises a novel argument in his brief—one that we
dispatch in short order. He claims that the conditional
discharge following his 2007 conviction was not a ―re-
lease[]‖ within the meaning of the ―when . . . released‖
clause. But Sylvain never raised this argument in the
District Court. See Freeman v. Pittsburgh Glass Works,
LLC, 709 F.3d 240, 249 (3d Cir. 2013) (―We generally
refuse to consider issues that the parties have not raised
below.‖). In any event, his release from the 2007 arrest
that led to his conviction and conditional discharge cer-
tainly fulfilled the release requirement, see In re Kotliar,
24 I. & N. Dec. 124, 125 (B.I.A. 2007); In re West, 22 I.
& N. Dec. 1405, 1410 (B.I.A. 2000)—to say nothing of
often underestimate those risks, which is why Congress
eliminated their discretion. See 538 U.S. at 518–19.
29
whether the conditional discharge did the same.
***
We conclude that Sylvain is subject to mandatory
detention. Our holding rests on a simple observation:
even if the statute calls for detention ―when the alien is
released,‖ and even if ―when‖ implies some period of
less than four years, nothing in the statute suggests that
officials lose authority if they delay. With this holding,
we neither condone government indolence nor express
approval for the delay in this case. But as the Supreme
Court has explained in a related context, ―[t]he end of ex-
acting compliance with the letter of [the statute] cannot
justify the means of exposing the public to an increased
likelihood of violent crime by persons on bail, an evil the
statute aims to prevent.‖ Montalvo-Murillo, 495 U.S. at
720. Accordingly, we will reverse the District Court‘s
judgment.12
12
Our decision effectively denies Sylvain‘s origi-
nal habeas petition and thus makes him ineligible for a
bond hearing under § 1226(a). Although Sylvain has al-
ready received such a hearing and was released on bond,
our holding sets aside that proceeding.
30