[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 16509 Non

- Argument Calendar

________________________ D.C. Docket No. 5:12

- cv - 00089

- LGW

- JEG
RAFAEL ENRIQUE GONZALES

- CORRALES,

Petitioner

- Appellant,
versus I.C.E., c/o United States of America,
Respondent

- Appellee.

________________________ Appeal from the United States District Court for the Southern District of Georgia

________________________ (June 21, 2013) Case: 12-16509 Date Filed: 06/21/2013 Page: 1 of 82 Before CA R NES, BARKETT and HULL, Circuit Judges. PER CURIAM: Appellant Rafael Enrique Gonzales

- Corrales, a federal prisoner proceeding pro se , appeals the district court’s denial without prejudice of his pleading titled “Challenge of Present and Future Incarceration,” construed as a 28 U.S.C. § 2241 habeas petition. After review, we affirm. 1 I. BACKGROUND FACTS A. Gonzales - Corrales’s Federal Conviction and Sentence In January 2009, Gonzales

- Corrales , a Cuban national , was convicted of a conspiracy to possess with intent to distribute m ethamphetamine in the Southern District of Florida. Gonzalez

- Corrales currently is serving his federal 121

- month sentence at D. Ray James Correctional Institution (“D. Ray James”) in Folkston, Georgia , with a projected release date of June 11, 2017. T he Department of Homeland Security (“DHS”) issued an immigration detainer for Gonzales

Corrales, which was filed with the Bureau of Prisons (“BOP”) on October 7, 2009. 2

1 We review de novo the dismissal of a § 2241 petition for lack of subject

- matter jurisdiction. Alanis

- Bustam a nte v. Reno , 201 F.3d 1303, 1306 (11th Cir. 2000). 2 An immigration detainer “serves to advise another law enforcement agency that the [DHS] seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien” and “is a request that such agency advise the [DHS], prior to release of the alien, in order for the [DHS] to arrange to assume custody, in si t u ations when gaining immediate physical custody is either impracticable or impossible.” 8 C.F.R. § 287.7(a).

Case: 12-16509 Date Filed: 06/21/2013 Page: 2 of 83 B. District Court Proceedings Gonzales

- Corrales filed a pro se pleading titled “Challenge of Present and Future Incarceration.” The pro se pleading named the Immigration and Customs Enforcement (“ICE”) , a division of DHS, “c/o United States of America” as the respondent
. Gonzales

- Corrales’s pro se pleading allege d that because ICE lodged
an i mmigration detainer, he is ineligible to participate in the BOP’s Residential Drug Abuse Program (“RDAP”) or to be released to a halfway house and is required to serve a sentence “under circumstances more severe than those facing” inmates who are U.S. citi zens . G onzales

- Corrales’s pro se pleading ask ed the district court “to move I.C.E. ” to lift the detainer so Gonzales

- Corrales will be eligible to participate in RDAP , but did not identify any statutory basis for the requested relief. The district court construed Gonzales

- Corrales’s pro se pleading as a § 2241 habeas petition and issued a show cause order. The government ’s response argued that Gonzales

- Corrales : (1) had sued only ICE and failed to name the appropriate party for a § 224 1 petition (the warden); (2) could not bring his conditions

- of

confinement claims under § 2241; and, in any event, (3) had not exhausted his administrative remedies with the prison befo re filing his action. The government submitted evidence of the grievan ce procedures at the prison and that Gonzales

Case: 12-16509 Date Filed: 06/21/2013 Page: 3 of 84 Corrales had not filed any grievances regarding the allegations in his pro se pleading. Gonzales

- Corrales replied, stating that he was not seeking relief under § 2241 , but rather declaratory and injunctive reli ef under 42 U.S.C. § 1983 , and that ICE was properly named as the defendant
. Specifically, Gonzales

- Corrales contend ed that, as a Cuban citizen, he cannot be removed back to Cuba . B ecause D. Ray James prison houses inmates who will be deported when they complete their sentences , however, D. Ray James prison has no programs for inmates who need to integrate back into U.S. society upon their release from prison. Gonzales

Corrales maintained that this “I
. C
. E
. rule,” as he referred to it, treats Cuban prison ers differently than other U.S. inmates in violation of his equal protection rights under the Fourteenth Amendment
. Gonzales

- Corrales did not address the government’s argument that he had not exhaust ed his administrative remedies. C. District Court’s Dismissal Without Prejudice In a report (“R&R”), a magistrate judge recommended that Gonzales

Corrales’s action be dismissed without prejudice for failure to exhaust administrative remedies. The magistrate judge concluded that Gonzales

- Corrales had filed “a ‘mixed ’ petition , ” in that it assert ed claims under both § 2241 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S 388, 91 S. Ct. 1999 (1971). The magistrate judge determined that, r egardless of

Case: 12-16509 Date Filed: 06/21/2013 Page: 4 of 85 how the action was characterized, however, Gonzales

- Corrales still was required to exhaust his administrative remedies before filing his claim s in federal court , and Gonzales

- Corrales had not done so. Neither party file d objections to the R&R. The district court adopted the R&R in its entirety and dismissed Gonzales

- Corrales’s action without prejudice. Gonzales

- Corrales filed this pro se appeal. II. DISCUSSION On appeal, Gonzales

- Corrales argues for the first time tha t he was denied the forms necessary to exhaust his administrative remedies. Gonzales

- Corrales further contends that case managers at D. Ray James prison denied all Cubans the forms to file administrative remedies and that the warden threatened to transfer inmates who ask for the forms. Gonzales

- Corrales never raised th e issue of the availability of administrative remedies in the district court , even though he had opportunities to do so in response to the government’s exhaustion argument . Generally, we do not consider for the first time on appeal arguments not presented in the district court. Sterling Fin. Inv. Grp., Inc. v. Hammer , 393 F.3d 1223, 1226 (11th Cir. 2004). Furthermore, regardless of whether Gonzales

- Corrales exhausted available administrat ive remedies, the district court properly dismissed Gonzales

- Corrales’s pro se claims without prejudice
. See United States v. Al

- Arian , 514 F.3d 1184,

Case: 12-16509 Date Filed: 06/21/2013 Page: 5 of 86 1189 (11th Cir. 2008) (explaining that we may affirm the district court “for any reason supported by the record, even if not relied upon by the district court”). Assuming arguendo that Gonzales

- Corrales’s pro se pleading c ould be construed as a § 2241 petition challenging the execution of his sentence, his § 2241 petition d id not name the proper respondent
. The proper respondent to a § 2241 petition is “the person having custody of the person detained.” 28 U.S.C. § 2243; see also Rumsfeld v. Padilla , 542 U.S. 426, 434, 124 S. Ct. 2711, 2717 (2004). In Gonzales

- Corrales’s case, that person is the warden at D. Ray James, the prison where he is currently incarcerated. See id. Instead of naming the warden , Gonzales

- Corrales name d ICE as the § 2241
re spondent and ask ed the district court to order ICE to lift its detainer so he would be eligible for these prison programs
. On appeal, Gonzales

- Corrales continues to insist that he has properly sued ICE and maintains that he is not challenging the prison’s policies, procedures or practices. The problem for Gonzales

- Corrales is that he is not in ICE custody. Although “challenges to detainers may . . . be brought under § 2241” in certain circumstances, “[t]he filing of [a] detainer, standing alone, [does] no t cause [the petitioner] to come within the custody of [immigration officials]. ” Orozco v. INS , 911 F.2d 539, 541 (11th Cir. 1990). “[A]bsent custody by the authority against whom relief is sought, jurisdiction will not lie to grant the writ.” Id.

Case: 12-16509 Date Filed: 06/21/2013 Page: 6 of 87 Alth ough Gonzales

- Corrales alleged that ICE lodged a detainer against him, he did not allege that removal proceedings had commenced or that he had been taken into ICE custody. Because Gonzales

- Corrales is not in ICE custody, the district court lacked subject

- matter jurisdiction to consider the construed § 2241 petition against ICE
. Accordingly, the district court properly dismissed without prejudice the construed § 2241 petition. To the extent Gonzales

- Corrales’s pro se pleading asserted a Bivens claim against ICE, the district court also properly dismissed it without prejudice
. Although the Supreme Court in Bivens held that federal officials may be sued in their individual capacities for violations of an ind i vidual’s constitutional rights, a pla intiff may not bring a Bivens action against a federal agency or a federal officer acting in his official capacity. FDIC v. Meyer , 510 U.S. 471, 484

- 86, 114 S. Ct. 996, 1005

- 06 (1994). Gonzales

- Corrales did not sue any federal officials in their individu al capacity. Instead, his pro se pleading named only ICE, a federal agency that cannot be sued under Bivens . Accordingly, we affirm the district court’s dismissal without prejudice of Gonza les

- Corrales’s Bivens claims against ICE. 3

3 Gonzales

- Corrales’s pro se pleading arguably cou ld also be construed as a petition for a writ of mandamus against ICE. A mandamus, however, will lie only when, inter alia , the defendant owes the plaintiff a clear, non

- discretionary duty. See Heckler v. Ringer , 466 U.S. 602, 616, 104 S. Ct. 2013, 2022 (1984). Gonzales

- Corrales has not alleged that ICE has such a duty, and, in fact, whether or not to detain an alien after he finishes serving his criminal sentence pending a decision on whether to remove him is generally a matter within the discretion of the Attorney General. See INA § 287(d), 8 U.S.C. § 1357(d); INA § 236(a)

- (e), 8 U.S.C. § 1226(a)

- (e); see also 8 C.F.R. §§ 236.1, 287.7.

Case: 12-16509 Date Filed: 06/21/2013 Page: 7 of 88 AFFIRMED. Case: 12-16509 Date Filed: 06/21/2013 Page: 8 of 8