On Appeal from the United States District Court for the District of New Jersey (District Court No. 3-11-cv-03006) District Judge: The Honorable Joel A. Pisano
The opinion of the court was delivered by: Smith, Circuit Judge.
Before: SMITH, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges
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.
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, Syl-vain 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 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.*fn1
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 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)).
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- sibility Act of 1996 § 303, 8 U.S.C. § 1226.*fn2 The 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 ...