NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3813

_____________

FRANKLYN RAFAEL GONZALEZ-RAMIREZ

v.

SECRETARY OF THE U.S. DEPARTMENT OF HOMELAND SECURITY; 

DIRECTOR OF THE U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE); 

GARY MEAD, as Executive Associate Director for Enforcement and Removal 

Operations, ICE; JOHN TSOUKARIS, as Field Office Director for ICE at the Elizabeth 

Detention Center; FEDIRICO MADERA, as Assistant Field Office Director for ICE at 

the Elizabeth Detention Center; MARCOS CASTRO, as Detention Officer and Group 

Supervisor, ICE; ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA; 

JUAN P. OSUNA, as Director of the Executive Office for Immigration Review; BRIAN 

M. O’LEARY, as Chief Immigration Judge within the U.S. Department of Justice (DOJ); 

MIRLANDE TADAL, as Immigration Judge within DOJ, located at the Elizabeth 

Detention Center; ORLANDO RODRIGUEZ, as Warden of the Elizabeth Detention 

Center, Corrections Corporation of America under contract with ICE

ORLANDO RODRIGUEZ,

 Appellant

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-12-cv-02978)

District Judge: Hon. Jose L. Linares

__________

Submitted under Third Circuit LAR 34.1(a)

June 14, 2013

Before: SCIRICA, HARDIMAN and ALDISERT, Circuit Judges.

(Opinion Filed: June 17, 2013)
2

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OPINION OF THE COURT

__________ 

ALDISERT, Circuit Judge.

Appellant Orlando Rodriguez, Warden of the Elizabeth Detention Center in New 

Jersey, appeals from the judgment of the U.S. District Court for the District of New 

Jersey granting a writ of habeas corpus to Franklyn Rafael Gonzalez-Ramirez, a citizen 

and native of the Dominican Republic and legal permanent resident of the United States.1

 1 The District Court dismissed without prejudice the petition for writ of habeas corpus as 

to all named Respondents except Rodriguez, Warden of the Elizabeth Detention Center 

where Gonzalez-Ramirez was being held. Rodriguez is represented on appeal by counsel 

from the Department of Justice; for ease of reference we will refer to the Government as 

the party appealing from the District Court’s judgment.

The Immigration and Nationality Act provides that “[t]he Attorney General shall take 

into custody any” deportable alien who has committed a crime specified by statute “when 

the alien is released” from custody for that crime. 8 U.S.C. § 1226(c)(1). Under the Act, 

these aliens must be held without possibility of release on bond during the pendency of 

their removal proceedings; this is referred to as “mandatory detention.” See 8 U.S.C. 

§ 1226(c)(2). The District Court held that for the Government to exercise “mandatory 

detention” authority under § 1226(c), it must detain aliens immediately upon their release 

from custody. Because the Government failed to immediately detain Gonzalez-Ramirez 

upon his release from state custody, but rather waited nearly four years, the District Court 

concluded that he could not be held in “mandatory detention” and that he was eligible for 

an individualized bond hearing. 
3

Subsequent to the District Court’s decision here, this Court held in Sylvain v. 

Attorney General of the United States, 714 F.3d 150 (3d Cir. 2013) that the Government 

does not lose its § 1226(c) “mandatory detention” authority if it fails to detain an alien 

immediately upon release from state custody. Applying this teaching of our Court, which 

was not yet available to the District Court in these proceedings, we will reverse the 

District Court’s judgment.

I.

Because we write primarily for the parties, who are familiar with the facts and 

proceedings in this case, we will revisit them only briefly.

Gonzalez-Ramirez is a citizen and native of the Dominican Republic and a legal 

permanent resident of the United States. On November 26, 2008, Gonzalez-Ramirez 

pleaded guilty in New York state court to attempted criminal sale of cocaine. He was 

never incarcerated subsequent to the conviction, but was sentenced to five years’ 

probation. In 2012, the Department of Homeland Security issued a Notice to Appear 

charging Gonzalez-Ramirez with removability as a result of his 2008 New York 

conviction, and U.S. Immigration and Customs Enforcement (“ICE”) officers arrested 

him pursuant to an administrative warrant on March 14, 2012 and detained him at the 

Elizabeth Detention Center in New Jersey. After numerous custody hearings, an 

Immigration Judge determined that he was both removable and subject to “mandatory 

detention” based on his 2008 conviction. 

Gonzalez-Ramirez filed a petition for writ of habeas corpus on May 17, 2012, 

arguing that he could not be subject to “mandatory detention” because: (1) his 2008 

conviction resulted in probation rather than incarceration or detention, meaning that there 

was no “release” from custody for the Government to act upon pursuant to § 1226(c)(1), 
4

and (2) even assuming that there was a “release” from custody, the Government failed to 

detain him immediately upon release as required by § 1226(c)(1). The District Court 

determined that it was unnecessary to decide whether there was a “release,” because the 

Government’s failure to immediately detain Gonzalez-Ramirez precluded its use of

“mandatory detention” under § 1226(c)(1). Accordingly, the District Court granted 

Gonzalez-Ramirez’s petition for a writ of habeas corpus and issued an order requiring an 

Immigration Judge to provide Gonzalez-Ramirez with an individualized bond hearing. 

Gonzalez-Ramirez was released on bond. The Government appeals.2

II.

Applying the teachings of Sylvain, we conclude that Gonzalez-Ramirez was 

subject to “mandatory detention” under § 1226(c), notwithstanding the delay preceding 

his detention by the Government, and that therefore he was not eligible for a bond 

hearing.

Section 1226(c) mandates detention of specified criminal aliens without any 

possibility of release on bond or conditional parole during removal proceedings. It 

provides that “[t]he Attorney General shall take into custody” any deportable alien who 

has committed certain crimes “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.” 8 U.S.C. 

§ 1226(c)(1).

A.

 2 The District Court had jurisdiction under 28 U.S.C. § 2241(a), and we have jurisdiction 

under 28 U.S.C. § 1291.
5

In Sylvain, an alien challenged the Government’s authority to subject him to 

“mandatory detention” without bond pursuant to § 1226(c), arguing that the 

Government’s failure to detain him immediately upon his release from prior custody 

eliminated its authority to impose “mandatory detention,” and the district court agreed. 

See 714 F.3d at 153. This Court reversed the judgment of the district court and held that 

the alien was subject to “mandatory detention” because “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.” 

Id. at 161. Accordingly, the Government here did not lose its authority to subject 

Gonzalez-Ramirez to “mandatory detention” by virtue of the delay between his release 

and detention.

B.

The second issue—whether there was a “release” as required for detention under § 

1226(c)—need not unduly detain us. Before the District Court, Gonzalez-Ramirez

contended that he could not be subject to “mandatory detention” under § 1226(c) because 

he was never incarcerated nor detained in state custody after his 2008 conviction, but 

rather he was sentenced to five years’ probation. He contends, therefore, that there was 

no “release” as required by § 1226(c). The Government responded by arguing that 

Gonzalez-Ramirez was at one point in pre-conviction custody following his 2007 arrest 

in New York, and that release from pre-conviction custody was sufficient to trigger 

“mandatory detention.” The District Court decided not to address this threshold issue 

because it concluded that the Government lost its “mandatory detention” authority when 

it failed to act immediately.
6

In Sylvain we addressed a similar argument. Sylvain received a “conditional 

discharge” after a conviction for a drug possession offense. Although he did not raise the

argument before the district court, he argued before this Court that the “conditional 

discharge” did not qualify as a release. In rejecting this contention we said:

[Sylvain] claims that the conditional discharge following his 2007 

conviction was not a “release []” 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 certainly fulfilled the release 

requirement, see In re Kotliar, 24 I. & N. Dec. 124, 125 (B.I.A. 2007); In re 

West

Sylvain, 714 F.3d at 161. The parties dispute the relevance of this portion of the Sylvain

opinion. The Government contends that Sylvain “held that release from a pre-conviction 

arrest fulfilled the release requirement of 8 U.S.C. § 1226(c).” Government’s Apr. 24, 

2013 Rule 28(j) Letter at 2. Gonzalez-Ramirez contends that this language should be 

treated as non-binding dicta, because the “Court actually held that Sylvain had failed to 

raise the issue of pre-conviction release before the District Court, and it therefore refused 

to consider the issue.” Gonzalez-Ramirez’s May 14, 2013 Rule 28(j) Letter at 1. We 

disagree with Gonzalez-Ramirez’s contention that the Sylvain Court refused to consider 

whether a pre-conviction arrest and release satisfied the release requirement. Although 

the Court noted that Sylvain’s argument was first raised on appeal, it considered the 

argument and rejected it, citing two decisions of the Board of Immigration Appeals in 

support of its conclusion. Accordingly, we conclude that because Gonzalez-Ramirez was 

released from pre-conviction custody following his arrest, he was subject to “mandatory 

detention.”

, 22 I. & N. Dec. 1405, 1410 (B.I.A. 2000)—to say nothing of whether 

the conditional discharge did the same. 
7

III.

In Sylvain, we noted that reversing the district court’s judgment “effectively 

denies Sylvain’s original habeas petition and thus makes him ineligible for a bond 

hearing under § 1226(a). Although Sylvain has already received such a hearing and was 

released on bond, our holding sets aside that proceeding.” 714 F.3d at 161 n.12. We

follow that approach here, and our reversal of the District Court’s judgment both denies 

Gonzalez-Ramirez’s habeas petition and sets aside his bond proceeding.

* * * * * 

We have considered all of the arguments advanced by the parties and conclude 

that no further discussion is necessary. The judgment of the District Court will be 

REVERSED.