Sylvain v. Attorney General of the United States, No. 11-3357; Third Circuit; opinion by Smith, U.S.C.J.; filed April 22, 2013. Before Judges Smith, Greenaway and Van Antwerpen. On appeal from the District of New Jersey, No. 3-11-cv-03006. [Sat below: Judge Pisano.] DDS No. 51-8-xxxx [30 pp.]

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. The act requires officials to hold such aliens without any possibility of release while awaiting their removal proceedings. The scheme is known as mandatory detention.

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. He has been convicted of more than 10 drug-related crimes — 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. Most recently, Sylvain was arrested in 2007 for possessing drugs. He pleaded guilty and received a conditional discharge. Under New York law, a conditional discharge does not require "imprisonment or probation."

Officials from Immigration and Customs Enforcement arrested Sylvain 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. The officials further concluded that Sylvain was subject to mandatory detention under 8 U.S.C. § 1226(c) even though he was last in custody on drug charges in 2007, nearly four years before his arrest in 2011, and held him without a bond hearing.

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 argued that he was eligible for a bond hearing. The district court agreed and granted his petition. Sylvain received a hearing, paid bond, and is no longer in custody.

The government appealed, arguing that mandatory detention does not require immediate detention. Thus, the officials retained authority to impose mandatory detention despite their four-year delay. 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.

The question presented by this case is: Do immigration officials lose authority to impose mandatory detention if they fail to do so "when the alien is released"?

Held: Immigration officials do not lose authority to impose mandatory detention under the Immigration and Nationality Act if they fail to act "when the alien is released" from state or federal custody.

Chevron deference requires deference to an agency’s reasonable interpretations of ambiguous statutes. Over a decade ago, the Board of Immigration Appeals concluded that mandatory detention does not require immediate detention. In the government’s view, the Third Circuit must defer to the board’s interpretation. However, 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 officials lose authority if they delay.

First and foremost, the text of the act supports that conclusion. 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 custody any alien who [has committed various crimes] when the alien is released." The text does not explicitly remove that authority if an alien has already left custody. The circuit panel declines to interpret a deadline as a bar on authority after the time has passed, even when the word "shall" appears in the text.

The mandatory-detention statute allows the government to detain a person in the days leading up to a legal proceeding. There are two prerequisites — one that focuses on timing, the other on the person in custody. The government must detain the alien "when … released," and the alien must have committed one of the listed crimes. The statute does not explicitly tie the government’s authority to the time requirement. As a result, the government retains authority despite any delay. This is particularly so because an important public interest is stake.

Congress adopted the mandatory-detention statute against a backdrop of rising crime by deportable aliens. Prior to mandatory detention, the attorney general could release aliens on bond if they did not "present an excessive flight risk or threat to society." Congress eliminated all discretion. The resulting statute promotes the public interest by keeping the most dangerous aliens off the streets.

In a final effort to avoid mandatory detention, Sylvain raises a novel argument in his brief. He claims that the conditional discharge following his 2007 conviction was not a "release" within the meaning of the "when … released" clause. But Sylvain did not raise this argument in the district court. In any event, his release from the 2007 arrest that led to his conviction and conditional discharge fulfilled the release requirement — to say nothing of whether the conditional discharge did the same.

The circuit panel concludes that Sylvain is subject to mandatory detention and reverses the district court’s judgment.

For appellee — Andrew F. Erba II (Williams, Cuker & Berezofsky). For appellants — Neelam Ihsanullah (U.S. Department of Justice, Office of Immigration Litigation), Alex Kriegsman (Office of U.S. Attorney) and Flor M. Suarez (U.S. Department of Justice, Office of Immigration Litigation). For amici-appellees — Andres C. Benach (Benach Ragland) and Alina Das (Washington Square Legal Services Inc. Immigrant Rights Clinic).