[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-16509

Non-Argument Calendar

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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.

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Appeal from the United States District Court

for the Southern District of Georgia

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(June 21, 2013)

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Before CARNES, 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 methamphetamine 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. The Department of 

Homeland Security (“DHS”) issued an immigration detainer for GonzalesCorrales, 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-Bustamante 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 situations when 

gaining immediate physical custody is either impracticable or impossible.” 8 C.F.R. § 287.7(a).

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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 alleged that because ICE lodged 

an immigration 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. citizens. Gonzales-Corrales’s pro se pleading asked 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 § 2241 petition (the warden); (2) could not bring his conditions-ofconfinement claims under § 2241; and, in any event, (3) had not exhausted his 

administrative remedies with the prison before filing his action. The government 

submitted evidence of the grievance procedures at the prison and that GonzalesCase: 12-16509 Date Filed: 06/21/2013 Page: 3 of 8 
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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 relief under 42 U.S.C. § 1983, and 

that ICE was properly named as the defendant. Specifically, Gonzales-Corrales 

contended that, as a Cuban citizen, he cannot be removed back to Cuba. Because 

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. GonzalesCorrales maintained that this “I.C.E. rule,” as he referred to it, treats Cuban 

prisoners 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 exhausted his administrative remedies.

C. District Court’s Dismissal Without Prejudice

In a report (“R&R”), a magistrate judge recommended that GonzalesCorrales’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 asserted 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, regardless of 

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how the action was characterized, however, Gonzales-Corrales still was required to 

exhaust his administrative remedies before filing his claims in federal court, and 

Gonzales-Corrales had not done so.

Neither party filed 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 that 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 the 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 

administrative remedies, the district court properly dismissed Gonzales-Corrales’s 

pro se claims without prejudice. See United States v. Al-Arian, 514 F.3d 1184, 

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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 could be 

construed as a § 2241 petition challenging the execution of his sentence, his § 2241 

petition did 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 named ICE as the § 2241 

respondent and asked 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] not 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. 

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Although 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 individual’s constitutional rights, a 

plaintiff 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 

individual 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 Gonzales-Corrales’s Bivens claims against ICE. 3

 

3

Gonzales-Corrales’s pro se pleading arguably could 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.

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AFFIRMED.

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