              Case: 12-16509    Date Filed: 06/21/2013   Page: 1 of 8




                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-16509
                            Non-Argument Calendar
                          ________________________

                   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.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                                  (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 Gonzales-

Corrales, 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-of-

confinement 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 Gonzales-




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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. Gonzales-

Corrales 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 Gonzales-

Corrales’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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