Aden v. Nielsen

• Court: District Court, W.D. Washington
• Decided: November 7, 2019
• Docket: 2:18-cv-01441
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 NAJIB ALI ADEN, 9 Petitioner, Case No. C18-1441RSL 10 v. ORDER DENYING PETITIONER’S 11 KIRSTJEN NIELSEN, et al., MOTION TO ENFORCE COURT ORDER 12 Defendant. 13 14 I. INTRODUCTION 15 This matter comes before the Court on petitioner’s Motion to Enforce Order (Dkt. 16 #17 (“Motion”)) seeking review of an immigration judge’s (“IJ”) “no bond” 17 determination after this Court ordered a bond hearing. Petitioner asserts that the IJ 18 erroneously applied the evidentiary standard, depriving Petitioner of his due process 19 rights. Dkt. #17. Petitioner has appealed the no bond determination to the Board of 20 Immigration Appeals (BIA), but no decision has been rendered. Dkt. #17-1 at 1-14. This 21 Court has jurisdiction to review the bond determination, but will not consider the motion 22 to enforce because Petitioner has not fully exhausted his administrative remedies. 23 24 // 25 ORDER DENYING PETITIONER’S 26 MOTION TO ENFORCE COURT ORDER - 1 1 III. DISCUSSION 2 A. This Court has jurisdiction to review the bond determination. 3 Respondents argue that the IJ’s bond determination was discretionary and 4 therefore not subject to this Court’s review. Dkt. #21 at 7, citing Prieto Romero v. Clark, 5 534 F.3d 1053 (9th Cir. 2008) (reasonableness of immigration bond not subject to judicial 6 review) and 18 U.S.C. § 1226(e) (“No court may set aside any action or decision . . . 7 regarding the . . . denial of bond or parole.”). However, Petitioner has not asked this Court 8 to second-guess the IJ’s discretionary judgment, but instead to review the no-bond 9 determination for legal error. Dkt. #17 at 1. Respondents acknowledge that this Court has 10 habeas jurisdiction to review the IJ’s determination for constitutional and legal error. Dkt. 11 #21 at 3; Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (determining that district 12 court had habeas jurisdiction to review IJ’s bond determination); Ramos v. Sessions, 293 13 F.Supp.3d 1021, 1025 (N.D. Cal. 2018), appeal docketed, No. 18-15884 (9th Cir. May 14 16, 2018). This Court has habeas jurisdiction to review an IJ’s bond determination if 15 Petitioner makes a colorable claim that the hearing did not fully comply with his due 16 process rights. Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009); Torres- 17 Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th Cir. 2001) (“To be colorable . . . the alleged 18 violation need not be ‘substantial,’ . . . but the claim ‘must have some possible validity.’”) 19 (internal citations omitted). 20 Petitioner alleges that the IJ impermissibly relaxed the government’s evidentiary 21 burden in his bond hearing. Dkt. #17 at 5. Specifically, Petitioner contends that by relying 22 too heavily on Mr. Aden’s criminal history to conclude that he should be detained without 23 bond, the IJ did not require the government to show, by clear and convincing evidence, 24 that Mr. Aden poses a current danger to the community. Id. at 8. Petitioner has made a 25 ORDER DENYING PETITIONER’S 26 MOTION TO ENFORCE COURT ORDER - 2 1 colorable claim that his bond hearing was unconstitutional or legally erroneous. His claim 2 that the IJ misapplied the relevant evidentiary standard has possible validity on the 3 existing record. See Ramos, 293 F.3d at 1025; Singh v. Holder, 638 F.3d at 1202; 4 Calderon-Rodriguez v. Wilcox, 374 F.Supp.3d 1024, 1027 (W.D. Wash. 2019). 5 B. Prudential exhaustion is required here. 6 Although this Court has jurisdiction to hear Petitioner’s colorable constitutional 7 claim, the Court will not evaluate the merits of his claim until he has exhausted his 8 administrative remedies. The Ninth Circuit distinguishes between constitutional claims 9 that only an Article III court can resolve and issues with constitutional implications that 10 may nonetheless be corrected by the BIA on appeal. Liu v. Waters, 55 F.3d 421, 425 (9th 11 Cir. 1995); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (“the petitioner 12 must exhaust administrative remedies before raising the constitutional claims in a habeas 13 petition when those claims are reviewable by the BIA on appeal”). The latter category of 14 challenges is subject to prudential exhaustion requirements. Id. 15 Petitioner’s motion falls within the latter category of claims. Mr. Aden asserts that 16 by relying too heavily on his criminal history in determining whether Mr. Aden is a 17 danger to society, the IJ did not hold the government to the clear and convincing evidence 18 standard, in violation of his constitutional due process rights. Dkt #17 at 10; Dkt. #25 at 6. 19 But the BIA is capable of re-assessing the evidence and determining whether the 20 government has carried its burden of demonstrating by clear and convincing evidence that 21 Mr. Aden is a current danger and must be detained. Morgan v. Gonzales, 495 F.3d 1084, 22 1090 n. 2 (9th Cir. 2007) (“The exception to the rule that constitutional claims need not 23 be exhausted before the agency are claims of denial of procedural due process by the IJ, 24 which must be raised before the BIA because the agency does have the power to 25 ORDER DENYING PETITIONER’S 26 MOTION TO ENFORCE COURT ORDER - 3 1 adjudicate procedural due process claims.”). 2 The Ninth Circuit requires prudential exhaustion in habeas challenges to decisions 3 by IJs, including bond determinations. Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th 4 Cir. 2011); Sun v. Ashcroft, 370 F.3d 932, 935 (9th Cir. 2004); Ortega-Rangel v. 5 Sessions, 313 F.Supp.3d 993, 1003 (N.D. Cal. 2018). A court may require prudential 6 exhaustion if: “(1) agency expertise makes agency consideration necessary to generate a 7 proper record and reach a proper decision; (2) relaxation of the requirement would 8 encourage the deliberate bypass of the administrative scheme; and (3) administrative 9 review is likely to allow the agency to correct its own mistakes and to preclude the need 10 for judicial review.” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). If, however, 11 “administrative remedies are inadequate or not efficacious, pursuit of administrative 12 remedies would be a futile gesture, irreparable injury will result, or the administrative 13 proceedings would be void,” then this Court may waive the prudential exhaustion 14 requirement. Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 1981); Hernandez v. 15 Sessions, 872 F.3d 976, 988 (9th Cir. 2017). The party moving the court to waive 16 prudential exhaustion requirements bears the burden of demonstrating that at least one of 17 these Laing factors applies. See Ortega-Rangel v. Sessions, 313 F.Supp.3d 993, 1003 (9th 18 Cir. 2018) (petitioner “must show that at least one of the Laing factors applies in order to 19 excuse exhaustion”); Leonardo, 646 F.3d at 1161 (declining to waive exhaustion 20 requirements because petitioner has not “demonstrated grounds for excusing [them]”). 21 C. Petitioner has not demonstrated that exhaustion should be waived. 22 Ordinarily, an immigrant in Petitioner’s position who is dissatisfied with an IJ’s 23 bond determination must administratively appeal the determination to the BIA. Leonardo, 24 646 F.3d at 1160. The BIA reviews the IJ’s factual determinations for clear error and 25 ORDER DENYING PETITIONER’S 26 MOTION TO ENFORCE COURT ORDER - 4 1 reviews questions of law, discretion, and judgment de novo. 8 C.F.R. 2 § 1003.1(d)(3)(i),(ii). Only if he remains unsatisfied by the BIA’s decision may he file a 3 habeas petition in a district court. Leonardo, 646 F.3d at 1160. If petitioner fails to 4 exhaust his administrative remedies and there is no basis for waiver, the district court 5 should “dismiss the petition without prejudice or stay the proceedings until the petitioner 6 has exhausted remedies.” Id. 7 The Puga factors weigh in favor of requiring exhaustion in this case. First, the BIA 8 is the subject-matter expert in immigration bond decisions and has the authority to review 9 appeals from bond determinations by IJs. Executive Office for Immigration Review, 10 Dep’t of Justice, BIA Practice Manual (2018), at 1.4(a). Second, relaxation of the 11 exhaustion requirement would likely encourage other detainees to bypass the BIA and 12 directly appeal their no-bond determinations from the IJ to federal district court. 13 Petitioner argues that Mr. Aden’s case is “atypical” because of the circumstances of his 14 removal order, but the present posture of his case is a common one. Finally, the BIA has 15 the authority to correct the mistake Mr. Aden alleges, and such a correction could moot 16 Petitioner’s motion and preclude the need for judicial review. See 8 C.F.R. 17 § 1003.1(d)(3)(ii); Puga, 488 F.3d at 815. Although Petitioner persuasively argues that 18 the administrative record is sufficiently developed and no facts are contested, Dkt. #25 at 19 2, this does not outweigh the second and third factors. 20 Petitioner has not carried his burden in demonstrating that at least one of the Laing 21 factors applies or otherwise shown that prudential exhaustion should be waived. 22 Petitioner asserts that “BIA precedent upholding ‘no bond’ decisions demonstrates that 23 the agency is unlikely to correct its own mistake,” which makes appeal “futile.” Dkt. # 17 24 at 6; Dkt. #25 at 2. Petitioner mischaracterizes futility in this context: exhaustion is futile 25 ORDER DENYING PETITIONER’S 26 MOTION TO ENFORCE COURT ORDER - 5 1 where the administrative agency’s procedures guarantee a particular result and the agency 2 is unlikely to change them on appeal. Compare Avtar Singh v. Murray, 2017 WL 3 6209384 (E.D. Cal. Dec. 8, 2017) (exhaustion of administrative remedies not futile where 4 injury complained of could be addressed through administrative appeal) with El Rescate 5 Legal Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 747 (9th 6 Cir. 1991) (administrative appeal not required where petitioners challenged BIA policy of 7 failure to translate deportation and exclusion proceedings). Petitioner has not 8 demonstrated that the BIA has a specific policy of affirming IJs’ bond decisions and has 9 therefore not shown that appeal would be futile. 10 Petitioner also argues that “prolonged detention in violation of his constitutional 11 rights” constitutes an irreparable injury. Id. The Court agrees that constitutionally 12 defective detention constitutes an irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 13 96 S.Ct. 2673 (1976). But Petitioner has not demonstrated that his detention pending 14 appeal would violate his constitutional rights. First, he seeks the same remedy in the 15 district court as he does in his simultaneous appeal to the BIA; a re-determination on 16 bond. Second, he cites no authority for the position that detention following a bond 17 hearing constitutes irreparable harm sufficient to waive the exhaustion requirement. 18 Finally, Petitioner does not argue that the administrative remedies available would be 19 inadequate, inefficacious, or void. Dkt. #25 at 2. Petitioner has not carried his burden in 20 demonstrating that prudential exhaustion should be waived. 21 C. It is premature to determine whether this Court has jurisdiction to enforce its 22 prior order. 23 Petitioner also argues that prudential exhaustion is inapplicable to a motion to 24 enforce. Dkt. #17 at 6; Dkt. #25 at 1. Petitioner’s motion to enforce is inextricably tied to 25 ORDER DENYING PETITIONER’S 26 MOTION TO ENFORCE COURT ORDER - 6 1 the merits of his constitutional claim. The government held a bond hearing: the only way 2 the motion to enforce succeeds is if that hearing were so defective as to be a nullity. As 3 discussed above, until the BIA reviews the IJ’s no-bond determination, this Court cannot 4 evaluate the merits of his constitutional claim and therefore cannot determine whether the 5 government has fully complied with its underlying order. 6 IV. CONCLUSION 7 Petitioner makes a colorable constitutional claim that the IJ violated his due 8 process rights by misapplying the evidentiary standard. This Court therefore has habeas 9 jurisdiction to review the IJ’s no bond determination and potential grounds to find that the 10 government failed to comply with the Court’s prior order. However, because the BIA is 11 capable of correcting the error in its de novo review of the bond determination on appeal, 12 this motion is subject to prudential exhaustion requirements. Petitioner has failed to carry 13 his burden in demonstrating that prudential exhaustion should be waived. Petitioner has 14 not yet fully exhausted his administrative remedies, and this Court therefore will not 15 reach a determination on its jurisdiction to rule on Petitioner’s motion to enforce. 16 ACCORDINGLY, it is hereby ORDERED that Petitioner’s motion to enforce 17 court order is DENIED. 18 19 Dated this 7th day of November, 2019. 20 21 A Robert S. Lasnik 22 United States District Judge 23 24 25 ORDER DENYING PETITIONER’S 26 MOTION TO ENFORCE COURT ORDER - 7