CLD-429                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 12-3578
                                 ___________

                        PEDRO JOSUE MIRA MUNOZ

                                       v.

   MARK LOSPINUSO, Acting Warden of Keogh Dwyer Correctional Facility;
  WAYNE MULLER, Office of Detention and Removal for U.S. Immigration and
    Customs Enforcement; WILLIAM JOYCE, Assistant Field Office Director,
       Office of Detention and Removal for U.S. Immigration and Customs
      Enforcement; CHRISTOPHER SHANAHAN, New York Field Office
    Director for the Office of Detention and Removal for U.S. Immigration and
   Customs Enforcement; SECRETARY OF DEPARTMENT OF HOMELAND
 SECURITY; ATTORNEY GENERAL UNITED STATES OF AMERICA;UNITED
            STATES DEPARTMENT OF HOMELAND SECURITY,
                                                               Appellants
                    ____________________________________

                 On Appeal from the United States District Court
                          for the District of New Jersey
                         (D.C. Civ. No. 2-12-cv-02664)
                     District Judge: Honorable Esther Salas
                  ____________________________________

              Submitted on Appellants’ Motion for Summary Action
               Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                              September 19, 2013

          Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                       (Opinion filed: October 15, 2013)
                                   _________

                                   OPINION
                                   _________
PER CURIAM

      Appellants (who we refer to collectively as “the Government”) appeal from the

District Court’s order granting Pedro Josue Mira Munoz’s petition for a writ of habeas

corpus and directing the Immigration Judge (“IJ”) presiding over his immigration

proceeding to provide him with a bond hearing. We will vacate and remand for further

proceedings.

      Munoz is a citizen of El Salvador who has been charged as removable for

overstaying his visa and having been convicted of crimes involving moral turpitude (i.e.,

four counts of grand larceny in New York state court). The moral turpitude charge

subjects him to mandatory detention under 8 U.S.C. § 1226(c)(1)(A) during his

immigration proceeding, and the Government took him into such detention in June 2011,

some four years after he was released from state prison. Munoz’s immigration

proceeding remains ongoing.

      Munoz filed a counseled habeas petition seeking a bond hearing before his IJ. He

conceded that his crimes involved moral turpitude and normally would subject him to

mandatory detention. He argued, however, that the Government lost the authority to take

him into mandatory detention under § 1226(c) because it did not do so immediately upon

his release from state custody. The District Court agreed, granted Munoz’s petition, and

ordered the IJ to conduct a bond hearing. The IJ has since done so, and Munoz was

released on bond on July 20, 2012. The Government appealed the District Court’s ruling

and later filed a motion for summary action on the basis of our subsequent decision in



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Sylvain v. Attorney General, 714 F.3d 150 (3d Cir. 2013).1

       That motion is granted in part. We agree with the Government that Sylvain, of

which the District Court did not have the benefit when it rendered its decision, has

invalidated the basis for the District Court’s ruling. In that case, we held that the

Government retains the authority to take aliens into mandatory detention under § 1226(c)

even if it does not do so immediately upon their release from state custody. See Sylvain,

714 F.3d at 161. Because the District Court’s contrary conclusion was the sole basis for

its grant of habeas relief, its ruling cannot stand.

       Rather than reverse the District Court’s judgment, however, we will vacate it and

remand for further proceedings. In addition to the argument discussed above, Munoz

argued in his habeas petition and accompanying memorandum of law that an

individualized bond hearing is required because the only other way to challenge

mandatory detention is at a so-called Joseph hearing pursuant to In re Joseph, 22 I. & N.

Dec. 799 (BIA 1999), and that Joseph hearings do not comport with due process because

the burden of proof at such hearings is on the alien rather than the Government.2 The

District Court’s ruling left it unnecessary to reach that issue. Munoz has not claimed that

he actually sought a Joseph hearing and was denied release on bond thereafter, and he
1
 The District Court had jurisdiction under 28 U.S.C. § 2241, and we have jurisdiction under 28
U.S.C. § 1291. See Diop v. ICE/Homeland Sec., 656 F.3d 221, 226 (3d Cir. 2011).
2
  A Joseph hearing “is immediately provided to a detainee who claims that he is not covered by §
1226(c).” Demore v. Kim, 538 U.S. 510, 514 n.3 (2003). “At the hearing, the detainee may
avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the
predicate crime, or that [the Government] is otherwise substantially unlikely to establish that he
is in fact subject to mandatory detention.” Id. The “question [of] the constitutional adequacy of
a Joseph hearing” is an “open one” on which we express no opinion herein. Diop, 656 F.3d at
231 n.8.
                                                3
also concedes that he is an alien and has been convicted of multiple crimes involving

moral turpitude, so we express no opinion on whether his challenge to the Joseph

procedure is ripe or otherwise justifiable at this time. See Demore, 538 U.S. at 514 n.3.

Instead, we will remand for the District Court to address this issue in the first instance

and conduct such further proceedings as may be necessary in that regard. In the

meantime, the effect of our ruling is to set aside Munoz’s bond hearing and thus his

release on bond. See Sylvain, 714 F.3d at 161 n.12.

       For the foregoing reasons, we will vacate the District Court’s order granting

Munoz’s habeas petition and remand for further proceedings.




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