2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-22-2013

Michel Sylvain v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 11-3357

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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
2

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
3

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
4

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 officials ―shall take into custody any‖ deportable alien who 

has committed various crimes ―when the alien is released‖ 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 released‖? The answer turns on the interplay between several provisions of the Act. We conclude that dilatory officials do not lose authority, and so we will reverse the 

District Court‘s decision to the contrary.
5

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 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. Suffice it to say, Sylvain 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 conditional discharge. Under New York law, a conditional discharge 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 discharge must meet ―such conditions as the court may determine‖). 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 
6

him 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. 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 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 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 arrested is in custody for purposes of the ―when . . . released‖ clause of § 1226(c)(1). This means that Sylvain 

was in custody when he was arrested in 2007.
7

agreed and granted his petition on June 28, 2011. Sylvain 

received a hearing, paid bond, and is no longer in custody. The parties tell us that his next removal hearing is 

on July 24, 2014. 

The government appealed. It argues that mandatory detention does not require immediate detention. As a 

result, the officials retained authority to impose mandatory detention despite their four-year delay. For his part, 

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. 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 Immigration 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-
8

sibility Act of 1996 § 303, 8 U.S.C. § 1226.2The Act establishes 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 General, 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 security 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.
9

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 having 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
10

(D) is inadmissible under section 

1182(a)(3)(B) of this title or deportable 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 applies], 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 
11

the Attorney General, an alien may be arrested and detained . . . .‖). Such aliens are eligible for a bond hearing. 

Id. And they are free to leave detention if an officer decides 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 provided in subsection (c) . . . .‖).

Subsection (c) imposes mandatory detention on a 

narrow class of criminal aliens. The first paragraph requires 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).3The second paragraph then mandates 

 

3 An alien may challenge the application of mandatory 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 
12

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 concentrated its resources on criminal aliens—especially those

subject to mandatory detention. The director of Immigration and Customs Enforcement stated in a 2011 memorandum 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 Apprehension, Detention, and Removal of Aliens 1 (Mar. 2, 

2011), http://www.ice.gov/doclib/news/releases/2011/

110302washingtondc.pdf. This includes ―aliens convicted 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 necessary 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 mandatory detention against a due-process challenge. Kim, 

538 U.S. at 531.
13

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 Sylvain and imposed mandatory detention. Against this 

backdrop, we turn to the issues.

III

As always, we must review the basis for jurisdiction. 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 jurisdiction, but also that of the lower courts in a cause under 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 jurisdiction 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.4For one thing, 

 

4 According to 8 U.S.C. § 1226(e),

The Attorney General‘s discretionary judgment regarding the application of this sec-
14

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.‖); AlSiddiqi 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 immigration 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 regarding the detention or release of any alien or 

the grant, revocation, or denial of bond or 

parole.
15

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 defer to an agency‘s reasonable interpretations of ambiguous 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 Nationality Act generally must receive deference); Chen v. 

Ashcroft, 381 F.3d 221, 224 (3d Cir. 2004).

Over a decade ago, the Board of Immigration Appeals concluded that mandatory detention does not require 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 paragraph (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 detention. The Board stated that ―the literal language‖ of the 
16

paragraph ―does not unambiguously tell us whether it encompasses the  ̳when the alien is released‘ clause in [paragraph (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 ambiguous. In its view, we must defer to the Board‘s interpretation. The government has pressed this argument in district 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 
17

issue. 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 immediacy).

7

The District Court cited a First Circuit case in deciding 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 separate 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 released from a crime not listed in the statute after it went 

into effect. See id. at 16–18 & n.6.
18

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 Marshall 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 performed . . . ; the defendants insist that it describes the occurrence which shall render 

that particular act necessary. That the term 

may be used, and, either in law or in common parlance, is frequently used in the one 

or the other of these senses, cannot be controverted; 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).
19

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 officials 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 ―ambiguous 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 General to take custody of aliens immediately upon their release from criminal confinement.‖). Despite that, it 

concluded that officials can impose mandatory detention 

even if they delay because ―an alien described in paragraph (1)‖—and thus subject to detention—need not be 

one who was taken into custody ―when . . . released.‖ Id.

at 125.
20

does not determine the outcome of this case, so we need 

not decide whether Chevron emerges from the background.

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 custody 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 explained 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 
21

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 (concluding that a provision stating that the government

―shall‖ make certain assignments by ―October 1, 1993,‖

did not eliminate the government‘s authority to make assignments after that date).

Bureaucratic inaction—whether the result of inertia, 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). ―Congress 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 immigration 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 
22

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 sentencing 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. MontalvoMurillo, 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 defendants leading up to their trial if they pose a risk of 

fleeing or a danger to others. Id. § 3142(e)–(f). Importantly, before the government can detain anyone under 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 danger. Id. § 3142(f)(2). Guadelupe Montalvo-Murillo did 

not receive a hearing upon his first appearance; he instead 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 argument:
23

We hold that a failure to comply with the 

first appearance requirement does not defeat 

the Government‘s authority to seek detention of the person charged. . . . There is no 

presumption or general rule that for every 

duty imposed upon the court or the Government and its prosecutors there must exist 

some corollary punitive sanction for departures or omissions, even if negligent. In our 

view, construction of the Act must conform 

to the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced 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 prerequisites—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). 
24

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 statutes 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 excessive 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 resulting statute promotes the public interest by keeping the 
25

most dangerous aliens off the streets. 

To be sure, immigration officials should act without delay. The sooner they detain dangerous aliens, the 

safer the public will be. But government officials are 

neither omniscient nor omnipotent. ―Assessing the situation 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 requirements . . . 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 citizens 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 intended to protect only the public—detention is mandatory, 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.
26

Nevertheless, Sylvain tries to escape the reaches of

Montalvo-Murillo. He argues that his claim is distinguishable for two reasons. First, he points out that the defendant 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 ultimate 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 release 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. Deportable 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 requested 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 
27

within subsection (a). 

The first problem with this argument is that the 

language in subsection (a) does not explicitly invoke subsection (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 Reform Act suggests that the consequence of not conducting ―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 requirement appears in subsection (f), the Court concluded 

that the government‘s authority did not turn on its punctuality—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 mandatory-detention statute is particularly telling. After all, 

Congress created mandatory detention in the wake of 

Brock, which clearly embraced the better-late-than-never 
28

In addition to this textual problem, Sylvain‘s argument 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 breaking 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 presumably 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 Supreme Court explained in Kim, immigration officers 
29

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 function of . . . the Bail Reform Act . . . [which is] an appropriate 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—however regrettable—did not eliminate their authority to impose mandatory detention on Sylvain. 

In a final effort to avoid mandatory detention, Sylvain 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 ―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, 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.
30

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 exacting 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 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.