                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 12-1053
                                 _____________

                            ROBERT DESROSIERS,
                                           Appellant
                                    v.

      ROY L. HENDRICKS, Warden, Essex County Correctional Facility;
       SECRETARY US DEPARTMENT OF HOMELAND SECURITY;
           ATTORNEY GENERAL OF THE UNITED STATES;
      BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
  DEPARTMENT OF HOMELAND SECURITY FIELD OFFICE DIRECTOR FOR
           DETENTION AND REMOVAL FOR NEW JERSEY
                          ____________

                  On Appeal from the United States District Court
                           for the District of New Jersey,
                                (No. 2:11-CV-04643)
                   District Judge: Honorable Faith S. Hochberg
                                   ____________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  May 6, 2013

            Before: SLOVITER, FUENTES, and ROTH, Circuit Judges.

                               (Filed: July 24, 2013)
                                   ____________

                           OPINION OF THE COURT
                                ____________

FUENTES, Circuit Judge:

     Robert Desrosiers petitions for a writ of habeas corpus under 28 U.S.C. § 2241,

contesting his detention by United States Immigration and Customs Enforcement
(“ICE”). The District Court denied Desrosiers‟ petition, holding that he was subject to

mandatory detention under 8 U.S.C. § 1226(c). Desrosiers appeals, arguing that

mandatory detention under § 1226(c) is not applicable because he received a noncustodial

sentence, was not detained when released, and received a stay of removal. We will affirm

the District Court‟s denial of Desrosiers‟ petition.

                                               I.

       Because we write primarily for the parties, we discuss the facts only to the extent

necessary for our resolution of the issues raised on appeal.

       Appellant Robert Desrosiers is a native and citizen of Haiti who became a

permanent resident of the United States in 1992. In October 2006, Desrosiers was

arrested on charges of assisting in the preparation of false tax returns and was released on

bond. He subsequently pled guilty and was sentenced to three years probation on June 11,

2009. Just over two years later, Desrosiers was arrested and taken into custody by ICE,

and charged with removability for having been convicted of an aggravated felony. On

August 8, 2011, an Immigration Judge held that Desrosiers was subject to detention

under the immigration law‟s mandatory detention provision. Desrosiers was later found

to be removable, and in June 2012, we granted Desrosiers‟ request for a stay of removal

pending review of the removal proceedings.

       Meanwhile, on August 11, 2011, Desrosiers filed this petition for a writ of habeas

corpus, arguing that the mandatory detention provision of the immigration law did not

apply to him. He contends that the immigration statute‟s provision addressing mandatory

detention requires that ICE detain an alien at the precise moment of his or her release.


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Because Desrosiers was released on bond after his arrest and later sentenced to probation,

Desrosiers contends that he was not eligible for mandatory detention. The District Court

denied the petition, finding the statute was ambiguous and deferring to the Board of

Immigration Appeal‟s (“BIA”) interpretation that mandatory detention does not require

immediacy. App. 4-6 (citing In re Rojas, 23 I. & N. Dec. 117 (B.I.A. 2001)). Desrosiers

timely appealed.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 2241. We have jurisdiction

over this appeal from the District Court‟s denial of the petition under 28 U.S.C. § 1291.

We exercise plenary review over the denial of habeas corpus relief. Vega v. United

States, 493 F.3d 310, 314 (3d Cir. 2007).

       Section 1226(a) provides the Attorney General with the discretionary authority to

detain an alien “pending a decision on whether the alien is to be removed from the United

States.” Such individuals are eligible for a bond hearing. Under § 1226(c), however, other

individuals are subject to mandatory detention pending removal proceedings, without the

opportunity for a bond hearing. 8 U.S.C. § 1226(c) (“The Attorney General shall take

into custody any alien who [has committed enumerated offenses, including an aggravated

felony] when the alien is released, without regard to whether the alien is released on

parole, supervised release, or probation . . . .”) (emphasis added).

       Desrosiers argues that he is not subject to mandatory detention under § 1226(c)

because ICE did not immediately detain him until over two years after he was released on

probation in 2009. For that reason, he contends, § 1226(a) governs his custody and he is


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eligible for a bond hearing to evaluate whether detention is necessary.

       We have recently addressed this precise issue in Sylvain v. Att’y Gen., 714 F.3d

150 (3d Cir. 2013). There, the petitioner was detained by ICE, without a bond hearing,

four years after he pled guilty and was conditionally discharged without any term of

imprisonment or probation. We held that immigration officials do not lose their authority

to impose mandatory detention under § 1226(c) if the government fails to immediately

detain the alien upon his or her release from state or federal custody. Sylvain, 714 F.3d at

152. In Sylvain, contrary to the District Court in this action, we indicated that we did not

need to determine whether the law was ambiguous or whether to defer to the BIA‟s

interpretation in Rojas. Id. at 156-57. In so concluding, we stated:

       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. . . . [A]s 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.”

Id. at 160 (quoting United States v. Montalvo-Murillo, 495 U.S. 711, 720 (1990)). Our

holding in Sylvain effectively disposes of Desrosiers‟ claim for habeas corpus relief based

on the timing of his apprehension by ICE.

       In an attempt to pull this case from the grasp of Sylvain, Desrosiers claims that

under Leslie v. Att’y Gen., 678 F.3d 265 (3d Cir. 2012), the authority to detain him

reverts from § 1226(c) to § 1226(a) following a grant of a stay of removal. However,

Desrosiers‟ reliance on Leslie is unavailing. In Leslie, we held that the petitioner



                                             4
remained subject to detention under § 12261 during a stay of removal. 678 F.3d at 270.

After being continuously detained for nearly four years, we found his detention to be

“unreasonably long” and granted a bond hearing to provide Leslie with an

“individualized inquiry into whether detention [was] still necessary to fulfill the statute‟s

purposes.” Id. at 270-71 (quoting Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir.

2011)). We never stated in Leslie that our grant of a bond hearing turned on our earlier

grant of a stay of removal. If we meant to suggest, as Desrosiers claims, that detention

reverts to § 1226(a) after a stay of removal has been granted, our analysis under Diop‟s

reasonableness of detention standard would have been unnecessary. Desrosiers‟ attempt

to read such an outcome into Leslie is without merit.

       Finally, Desrosiers claims he is not subject to mandatory detention because he was

sentenced to probation and not to a term of imprisonment and thus was never “released”

from custody. Section 1226(c) directs that an individual be taken into custody “when . . .

released, without regard to whether the alien is released on parole, supervised release, or

probation . . . .” This language clearly contemplates convictions resulting in probationary

sentences. In Sylvain, we recognized the BIA‟s interpretation in earlier cases that release

following arrest can satisfy the release requirement, noting that Sylvain‟s release from

arrest and conviction “certainly fulfilled the release requirement.” 714 F.3d at 160; see

also In re West, 22 I. & N. Dec. 1405, 1410 (B.I.A. 2000) (reasoning that “„[r]eleased‟ in

this context can also refer to release from physical custody following arrest” when the

1While we did not specify which subsection Leslie was originally detained under,
presumably he was subject to mandatory detention under § 1226(c) due to his previous
conviction for an aggravated felony. See Leslie, 678 F.3d at 267.

                                             5
respondent was arrested and released on bond). Furthermore, the imposition of

Desrosiers‟ probationary sentence and termination of bond also constituted a “release”

from custody. See Hensley v. Mun. Ct., 411 U.S. 345, 351 (1973) (noting that the

petitioner, who was released on his own recognizance, was “in custody” for the purpose

of habeas review because he was obligated to appear whenever ordered by the court and

could not “come and go as he please[d]”). Because Desrosiers‟ freedom of movement

was restricted and he was obligated to appear, he remained “in custody” until sentenced

and released on probation. Because release from his pre-conviction arrest and release

from bond into probation both fulfill the §1226(c) release requirement, we hold that

Desrosiers is subject to the mandatory detention provision.

                                           III.

       For the reasons stated above, we conclude that Desrosiers is subject to mandatory

detention. Accordingly, we will affirm the judgment of the District Court denying

Desrosiers‟ petition.




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