Alam v. Keeton

• Court: District Court, D. Arizona
• Decided: September 9, 2020
• Docket: 2:19-cv-05538
• Status: Unknown

Opinion

1 WO MW 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

9 Morshed Alam, No. CV-19-05538-PHX-MTL (CDB)

10 Petitioner, ORDER 11 v.

12 Chuck Keeton, et al.,

13 Respondents. 14 15 Petitioner Morshed Alam (A# 215-826-397), who is detained in the CoreCivic La 16 Palma Correctional Center, in Eloy, Arizona, has filed, through counsel, a Petition for Writ 17 of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), a Motion for Preliminary 18 Injunction (Doc. 2), a Motion to Expedite (Doc. 19), and a Motion for Leave (Doc. 21). 19 As follows, the Petition and this action will be dismissed, and the motions will be denied. 20 I. Background 21 A. Custody and Immigration Proceedings 22 Petitioner is a native and citizen of Bangladesh. On September 16, 2018, he entered 23 the United States without inspection near Otay Mesa, California, and was encountered by 24 the United States Department of Homeland Security (“DHS”), Customs and Border 25 Protection (“CBP”). (Doc. 14-2 at 8-13.) Petitioner stated that he was 17 years old and 26 was designated as an unaccompanied minor child. (Id. at 2 ¶ 4.) He was then transferred 27 into the custody of the United States Department of Health and Human Services (“HHS”), 28 Administration for Children and Families, Office of Refugee Resettlement (“ORR”). 1 ORR placed Petitioner in a Southwest Key juvenile facility in Phoenix, Arizona, on 2 September 18, 2018. (Docs. 1-4 at 2; 14-2 at 6.) On September 29, 2018, an ORR case 3 manager met with Petitioner and advised him that she had received his birth certificate and 4 school identification. (Id.) The documents reflected that Petitioner was born on February 5 21, 2001, making him 17 years old at the time. (Docs. 1-2 at 1; 1-3 at 2, 4; 14-2 at 6, 43.) 6 ORR later verified Petitioner’s birth certificate on the Bangladesh government’s 7 verification website. (Doc. 1-4 at 2.) 8 On October 25, 2018, ORR Federal Field Specialist Wilfred Calero issued an age 9 redetermination memorandum requesting that Petitioner be transferred into the custody of 10 United States Immigration and Customs Enforcement (“ICE”) “based on evidence that he 11 is not a minor and therefore [could] be housed in SWK Kokopelli shelter.” (Doc. 14-2 at 12 6.) The memorandum stated: 13 This individual entered the facility on 9/18/2018 as a minor named Morshed Alam, with a reported date of birth [redacted] 2001, age 14 17. Individual’s family provided Program Case Manager with a copy of birth certificate from country of origin on 9/20/2018. Birth 15 certificate verification was completed using a website provided by the Bengali Consulate and the results coincide with the 16 information that individual provided. Due to concerns with individual’s physical appearance, dental forensics exam was 17 requested. Dental forensic results received on 10/19/2018, concluded that individual has an age range between 16.29 and 18 24.41 with a mean of 20.35. The statistical probability of the client being over the age of 18 was 87.7%. After speaking to individual 19 and family, both were adamant that the individual is 17 and turning 18 on [redacted] 2019. Individual’s family provided a copy of 20 Individual’s school identification and letter reporting school attendance/grades. 21 22 (Id.) 23 On October 31, 2018, ORR notified ICE “that they had an adult in their custody” 24 and sent the age redetermination memorandum, “a screen shot of [Petitioner’s] birth 25 information,” and a dental forensics report that “revealed an 87.7 percent chance that 26 [Petitioner] was an adult.” (Docs. 1-5; 14-2 at 9.) An ICE deportation officer reported the 27 same day that “[p]rior to [his] entry into the United States, [Petitioner] was fingerprinted 28 by a foreign entity,” and “[d]uring that encounter, [he] stated that his date of birth [was] 1 May 5, 1995.” (Id.)1 Petitioner was then transferred into ICE custody and detained for 2 removal proceedings in the CoreCivic La Palma Correctional Center (“LPCC”). (Doc. 14- 3 2 at 9, 17 ¶¶ 3-5.) 4 Petitioner retained counsel, and on November 8, 2018, counsel sent DHS “Officer 5 Steve” a copy of Petitioner’s birth certificate and “a [t]estimonial from his high school in 6 Noakhali, Bangladesh,” which listed his year of birth as 2001. (Docs. 1-8 at 2; 14-2 at 15.) 7 On November 13, 2018, ICE placed Petitioner in a segregation unit in the CoreCivic Eloy 8 Detention Center “while ICE investigated [Petitioner’s] counsel’s assertion that [he] was 9 seventeen years-old.” (Doc. 14-2 at 17 ¶ 7.) 10 CBP conducted a search of flight records for Petitioner, which revealed that when 11 he was travelling to the United States, Petitioner had “transited from Sao Paulo, Brazil to 12 Santa Cruz de la Sierra, Bolivia while using a Bangladeshi passport.” (Doc. 14-2 at 2 ¶ 7.) 13 After obtaining “the passport number that Petitioner used to travel to the United States 14 along with a photograph of Petitioner” from the CBP National Targeting Center, ICE 15 emailed the Bangladesh Embassy asking for verification of Petitioner’s birth certificate and 16 for a copy of his Bangladesh passport. (Doc. 14-2 at 17 ¶ 8; 43-44.) On November 15, 17 2018, the Embassy responded that “[th]ere the DOB of the subject [was] [redacted] 1995,” 18 and attached a copy of Petitioner’s passport information, which reflected that Petitioner 19 had been issued a Bangladesh passport in 2017 that listed a birthdate of May 5, 1995. 20 (Docs. 14-2 at 43-44; 16-1 at 4-5.) The same day, ICE “determined there was sufficient 21 evidence that [Petitioner] was over the age [of] eighteen” and informed counsel of its 22 decision. (Doc. 14-2 at 17 ¶ 9.) Petitioner was then returned to LPCC. (Id.) 23 Petitioner requested a redetermination of his custody status, and following a hearing 24 on December 6, 2018, an immigration judge denied Petitioner release on bond, citing 25 “Danger as to Identity, Flight.” (Docs. 1-7; 14-2 at 20.)

26 1 Respondents state that “DHS systems reflect that [Petitioner’s] fingerprints were 27 captured by various foreign governments under the Biometric Identification Transnational Migration Alert Program (BITMAP)” and indicate that “when fingerprinted in Panama, 28 Costa Rica, and Guatemala, [Petitioner] claimed a date of birth of [redacted] 1995.” (Doc. 14-2 at 2 ¶ 6.) 1 On January 21, 2019, Petitioner’s mother obtained a new corrected Bangladesh 2 passport for Petitioner which listed a birthdate of February 21, 2001. (Docs. 1-10 at 2; 14- 3 2 at 25; 16-2 at 9, 23.) Petitioner provided the passport to ICE on an unknown date, and 4 the passport along with several other documents were sent for forensic analysis. (Docs. 5 14-2 at 22; 16-1 at 11-12.) The ICE forensic laboratory report, issued on February 28, 6 2019, concluded that the 2019 passport was “genuine.” (Doc. 14-2 at 22.) Petitioner then 7 filed a motion for a second bond hearing, which was denied on March 25, 2019, due to 8 “[n]o material change in circumstances.” (Doc. 14-2 at 27.) 9 An immigration judge (“IJ”) ordered Petitioner removed from the United States on 10 May 8, 2019, and denied his application for asylum, withholding of removal, and protection 11 under Article III of the United Nations Convention Against Torture. (Docs. 14-2 at 29-30; 12 16-2 at 5.)2 Petitioner appealed the decision to the Board of Immigration Appeals (“BIA”), 13 and then to the Ninth Circuit Court of Appeals, which entered a stay of removal. (Docs. 14 14-2 at 32-39; 18.) The appeal remains pending. See Alam v. Barr, No. 19-72744 (9th 15 Cir.). 16 Petitioner’s counsel emailed ICE Assistant Field Office Directors Jason Ciliberti 17 and Cesar Topete on October 29, 2019, advising that an incorrect age determination had 18 been made and requested that Petitioner be released into the care of a sponsor. (Doc. 1-8 19 at 3.) Counsel provided copies of Petitioner’s birth certificate, consulate verification of the 20 birth certificate, school records, and corrected passport, all which listed Petitioner’s year 21 of birth as 2001. (Id.) 22 On November 14, 2019, ORR “rescind[ed] the October 25, 2018 age 23 redetermination letter accompanying the transfer of [Petitioner] pursuant to 8 U.S.C. 24 § 1232(c)(2)(B) and dated October 25, 2018.” (Doc. 14-2 at 41.) 25 On April 16, 2020, Petitioner received a custody redetermination hearing pursuant 26 to Casas-Castrillon v. DHS, 535 F.3d 942 (9th. Cir. 2008). (Doc. 20.) At the conclusion 27

2 See also Executive Office for Immigration Review (“EOIR”) Automated Case 28 Information System, https://portal.eoir.justice.gov/InfoSystem/CourtInfo. 1 of the hearing, the IJ denied Petitioner’s request for release on bond “citing three principal 2 reasons for finding that Petitioner is a flight risk”: “Petitioner’s sponsor does not earn a 3 sufficiently high salary to pay the high bond that the judge would have set for Petitioner in 4 order to guarantee his future appearance in court”; “Petitioner is in quarantine at [LPCC], 5 where 13 detainees have tested positive for COVID-19”; and, the BIA had upheld the 6 judge’s “negative credibility determination.” (Id.) 7 B. Habeas Corpus Proceedings 8 Petitioner filed the instant § 2241 Petition naming former LPCC Warden Chuck 9 Keeton, ICE Phoenix Field Office Director Albert Carter, ICE Assistant Phoenix Field 10 Office Directors Cesar Topete and Jason Ciliberti, Acting DHS Secretary Chad Wolf, HHS 11 Secretary Alex M. Azar, II, and United States Attorney General William Barr as 12 Respondents. 13 Petitioner brings five claims for relief. In Ground One, Petitioner claims his 14 continued detention in ICE custody pursuant to his age redeterminations violates the 15 Trafficking Victims Protection and Reauthorization Act (“TVPRA”) and its implementing 16 procedures. In Grounds Two and Three, Petitioner claims that ICE’s failure to consider 17 placing him in the least restrictive setting and to make alternative to detention programs 18 available to him when he reached the age of 18 violates the TVPRA and the Administrative 19 Procedure Act (“APA”), 5 U.S.C. § 706. In Grounds Four and Five, Petitioner claims his 20 continued detention violates his substantive and procedural due process rights under the 21 Fifth Amendment.3

22 3 Following completion of briefing in this case, Petitioner filed a motion for leave (Doc. 21) and a proposed amended habeas petition (Doc. 21-1) containing four additional 23 claims for relief: in proposed Grounds Six through Eight, Petitioner challenges his continued detention under the present conditions due to the risks posed by COVID-19, and 24 in proposed Ground Nine, Petitioner challenges his prolonged detention. He additionally asks the Court to: (a) “[i]ssue a declaration that Petitioner’s continued detention in civil 25 immigration custody while COVID-19 continues to spread throughout the detention center violates the Due Process Clause,” and (b) “[i]ssue a declaration that [Petitioner’s] 26 continued detention has become prolonged and order Respondents to release Morshed after employing appropriate alternatives to detention to mitigate their concern of flight risk.” As 27 a matter of judicial efficiency and discretion, the Court will consolidate Petitioner’s prolonged detention claim with Grounds Four and Five of the Petition, but will otherwise 28 deny the motion for leave without prejudice to Petitioner presenting his proposed COVID-19 condition claims in a new petition filed in a new action. 1 Petitioner asks the Court to: (1) order his immediate release from custody; (2) 2 “[d]eclare that Respondent and ORR’s age determination was based solely on a bone or 3 dental scan (radiograph) analysis and is therefore in violation of [the TVPRA]”; (3) order 4 ORR to “immediately rescind the age redetermination memo”; (4) enjoin ICE and EOIR 5 “from applying the unlawful age redetermination”; (5) declare that ICE’s failure to place 6 Petitioner in the “least restrictive setting available” and make “alternative to detention 7 programs” available to him violates the TVPRA; (6) order ICE to consider Petitioner for, 8 and place him in, the least restrictive setting available after taking into account whether he 9 is a danger to himself or the community or is a flight risk, in accordance with the TVPRA; 10 (7) order ICE to allow Petitioner to participate in “alternative to detention programs” 11 utilizing a continuum of alternatives based on his need for supervision, including placement 12 with an individual or organizational sponsor, or in a supervised group home, in accordance 13 with the TVPRA; (8) award Petitioner reasonable attorney’s fees and costs under the Equal 14 Access to Justice Act; and (10) grant any other and further relief that the Court deems just 15 and proper. (Doc. 1 at 19-20.) 16 In response, Respondents argue that Petitioner has no right to relief against ORR; 17 the Court lacks jurisdiction to review ICE’s determinations; ICE was not required to 18 consider Petitioner for least restrictive placement or alternatives to detention programs; 19 Petitioner’s custody challenges are premature; and the Court lacks jurisdiction because 20 Petitioner has failed to administratively exhaust his claims. (Doc. 14.) 21 II. Scope of Review 22 A federal district court is authorized to grant a writ of habeas corpus under 23 28 U.S.C. § 2241 where a petitioner is “in custody under or by color of the authority of the 24 United States . . . in violation of the Constitution or laws or treaties of the United States.” 25 28 U.S.C. §§ 2241(c)(1), (3). The writ of habeas corpus historically “provide[s] a means 26 of contesting the lawfulness of restraint and securing release.” Department of Homeland 27 Security v. Thuraissigiam, 591 U.S. ___, 140 S. Ct. 1959, 1969 (2020); see also Munaf v. 28 Geren, 553 U.S. 674, 693 (2008); Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th 1 Cir. 2012) (habeas corpus “provides a remedy to non-citizens challenging executive 2 detention.”). 3 Habeas corpus review in federal district court is not available for claims “arising 4 from the decision or action by the Attorney General to commence proceedings, adjudicate 5 cases, or execute removal orders,” 8 U.S.C. § 1252(g), “arising from any action taken or 6 proceeding brought to remove an alien,” 8 U.S.C. § 1252(b)(9), or “challeng[ing] a 7 ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General 8 has made regarding [an alien’s] detention or release,” Demore v. Kim, 538 U.S. 510, 516 9 (2003) (discussing 8 U.S.C. § 1226(e)); see also 8 U.S.C. § 1252(a)(2)(B)(ii) (precluding 10 review of other specified discretionary decisions and actions).4 However, “the extent of 11 the Government’s detention authority is not a matter of ‘discretionary judgment,’ ‘action,’ 12 or ‘decision.’” Jennings v. Rodriguez, 583 U.S. ___, 138 S. Ct. 830, 841 (2018). Thus, 13 “challenges to the statutory framework” authorizing detention, Jennings, 138 S. Ct. at 841, 14 “questions of law” raised in the application or interpretation of statutes, Leonardo v. 15 Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011), and “constitutional claims,” such as 16 “claims that the discretionary process itself was constitutionally flawed[,] are ‘cognizable 17 in federal court on habeas because they fit comfortably within the scope of § 2241,’” Singh 18 v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (quoting Gutierrez-Chavez v. I.N.S., 298 19 F.3d 824, 829 (9th Cir. 2002)). 20 III. Discussion 21 An “unaccompanied alien child” (“UAC”) is defined as an alien who: “(A) has no 22 lawful immigration status in the United States; (B) has not attained 18 years of age; and 23 (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or 24 (ii) no parent or legal guardian in the United States is available to provide care and physical 25 custody.” 6 U.S.C. § 279(g)(2); 8 U.S.C. § 1232(g). 26 4 See also Patchak v. Zinke, 583 U.S. ___, 138 S. Ct. 897, 905 (2018) (finding that 27 jurisdiction-stripping provision that “applie[d] ‘[n]otwithstanding any other provision of law,’” included “the general grant of federal-question jurisdiction, 28 U.S.C. § 1331.”); 5 28 U.S.C. § 701(a)(1) (the APA does not apply “to the extent that ... statutes preclude judicial review.”). 1 Congress enacted the Homeland Security Act (“HSA”) in 2002, which transferred 2 responsibility to HHS for “‘coordinating and implementing the care and placement of 3 unaccompanied alien children,’ ‘ensuring that the best interests of the child are considered 4 in decisions and actions relating to the care and custody of an unaccompanied alien child,’ 5 ‘implementing policies with respect to the care and placement of unaccompanied alien 6 children,’ and identifying ‘a sufficient number of qualified individuals, entities, and 7 facilities to house’ such children.” Flores v. Sessions, 862 F.3d 863, 870 (9th Cir. 2017) 8 (quoting 6 U.S.C. § 279(b)(1)). In 2008, the TVPRA, codified in relevant part at 8 U.S.C. 9 § 1232, was enacted to address the framework for the care and custody of unaccompanied 10 alien children in accordance with the HSA. 11 A. Ground One 12 The TVPRA requires that “[HHS], in consultation with [DHS], shall develop 13 procedures to make a prompt determination of the age of an alien, which shall be used by 14 [DHS] and [HHS] for children in their respective custody. At a minimum, these procedures 15 shall take into account multiple forms of evidence, including the non-exclusive use of 16 radiographs, to determine the age of the unaccompanied alien.” 8 U.S.C. § 1232(b)(4). 17 Pursuant to this provision, HHS and DHS “jointly [] develop[ed] age determination policies 18 and procedures” which are set forth in the ORR Guide: Children Entering the United States 19 Unaccompanied § 1.6, Determining the Age of an Individual without Lawful Immigration 20 Status (“ORR Guide”). (Doc. 1-8.)5 The ORR Guide provides: 21 Typically, DHS is the agency that apprehends individuals without lawful immigration status, including unaccompanied alien children (UAC), while 22 HHS is the agency responsible for the care and custody of UAC transferred to its care. HHS authority to provide care and custody applies only to 23 individuals who have not attained 18 years of age. 24 Each agency acknowledges the challenges in determining the age of individuals in custody. These challenges include, but are not limited to: 25 • Unavailable documentation; 26 • Contradictory or fraudulent identity documentation and/or statements; 27

28 5 ORR Guide: Children Entering the United States Unaccompanied, https://www. acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied. 1 • Physical appearance of the individual; and • Diminished capacity of the individual. 2 The TVPRA requires the age determination procedures, at a minimum, to 3 take into account multiple forms of evidence. Accordingly, under these procedures, each case must be evaluated carefully based on the totality of all 4 available evidence, including the statement of the individual in question. 5 ORR Guide § 1.6 (Aug. 31, 2015). 6 Unaccompanied Alien Children in HHS Custody HHS may make age determinations of UAC when they are in HHS custody 7 on a reasonable suspicion that a child in HHS custody is 18 years or older. 8 In the event there is conflicting evidence regarding the age of an unaccompanied alien child in HHS custody, the HHS funded care provider 9 case worker shall immediately notify the HHS Federal Field Specialist (FFS). The FFS will make the age determination based on his/her review of the 10 multiple forms of evidence collected by the care provider. Until the age determination is made, the unaccompanied alien child is entitled to all 11 services provided to UAC in HHS care and custody. 12 ORR Guide § 1.6.1 (Aug. 31, 2015). 13 Instructions 14 Case managers should seek the following as evidence when conducting age determinations. Information from each category is not required. 15 Documentation: 16 • Official government-issued documents, including birth certificates. If the unaccompanied alien child in question is not in possession of 17 original documentation, or if the authenticity of the original documentation is in question, government officials of the 18 unaccompanied alien child’s home country must be consulted in order to verify the validity of the documentation. 19 • Other reliable records (e.g., baptismal certificates, school records, 20 medical records) that indicate the unaccompanied alien child’s date of birth. 21 • Statements by individuals (including the unaccompanied alien child) determined to have personal knowledge of the unaccompanied alien 22 child’s age, and who HHS concludes can credibly attest to the age of the unaccompanied alien child: 23 • Statements provided by the unaccompanied alien child regarding his or 24 her age or birth date. (An unaccompanied alien child’s uncorroborated declaration regarding age is not used as the sole basis for an age 25 determination.) • Statements from the unaccompanied alien child’s parent(s) or legal 26 guardian(s), if such persons can be identified and contacted. 27 • Statements from other persons. • Information from another government agency (Federal, State, local or 28 foreign) 1 • State/local arrest records. • Child welfare agency records. 2 Medical Age Assessments: 3 Medical Age Assessments include both the use of imaging technology, such 4 as radiography, and physical examinations. Regarding these assessments: 5 • A medical professional experienced in age assessment method(s) must perform the examination, taking into account the individual’s ethnic and 6 genetic background. 7 • Dental and skeletal (bone) maturity assessments using radiographs may be used to determine age, but only in conjunction with other evidence. 8 • As no current medical assessment method can determine an exact age, 9 best practice relies on the estimated probability that an individual is 18 or older. The examining doctor must submit a written report indicating 10 the probability percentage that the individual is a minor or an adult. 11 ORR Response to Medical Age Assessments: 12 • The FFS supervisor must review the determination regarding the age submitted by the examining doctor. 13 • If an individual’s estimated probability of being 18 or older is 75 14 percent or greater according to a medical age assessment, and this evidence has been considered in conjunction with the totality of the 15 evidence, ORR may refer the individual to DHS. The 75 percent probability threshold applies to all medical methods and approaches 16 identified by the medical community as appropriate methods for assessing age. 17 • The FFS compiles all pertinent information (e.g., how reasonable 18 suspicion was raised that the subject is over 18, the information referenced, the individuals or agencies consulted, statements and 19 conclusions) and documents it in a memorandum for review and approval by the FFS Supervisor. 20 • The FFS then will forward the memo to the care provider facility case manager to be included in the unaccompanied alien child’s case file and 21 to the ICE Detention and Removal Office (DRO) Field Office Juvenile Coordinator (FOJC) for inclusion in the unaccompanied alien child’s 22 A-file. 23 At any time, an unaccompanied alien child in ORR care or his/her designated legal representative may present new information or evidence that he/she is 24 18 or older for re-evaluation of an age determination. New information will be reviewed and evaluated by the FFS and, if necessary, the FFS Supervisor, 25 in a timely manner and shared with the DRO FOJC to determine if the current placement is appropriate. If the new information or evidence indicates that 26 an individual who is presumed to be an unaccompanied alien child is actually an adult, then HHS will coordinate with the assigned FOJC to immediately 27 transfer the individual to an adult DRO facility. 28 ORR Guide § 1.6.2 (July 5, 2016). 1 Petitioner alleges that ICE failed to adhere to the TVPRA when it made its age 2 determination and detained him in its custody as an adult.6 The Court has habeas corpus 3 jurisdiction to review this claim because it challenges ICE’s detention authority, not its 4 discretionary decision to detain, rather than release, Petitioner. While it precludes this 5 Court from reviewing ICE’s discretionary weighing of evidence and decision, 8 U.S.C. 6 § 1226(e) does not bar review of whether ICE complied with the requirements established 7 by § 1232(b)(4) in order to exercise its detention authority. See Jennings, 138 S. Ct. at 8 841.7 9 Here, the records show that in making its initial determination to transfer and detain 10 Petitioner on October 31, 2018, ICE considered the information contained in the age 11 redetermination memorandum (which incorporated his birth certificate and website 12 verification, school records, and statements about age), the “screen shot of [Petitioner’s] 13 birth information,” the dental forensics report, and the identity information obtained from 14 foreign entities. (See Docs. 1-5; 14-2 at 9.) And in making its determinations on November 15 15, 2018, the evidence shows that ICE considered Petitioner’s claim that he was 17 years 16 old, the birth certificate and high school record provided by Petitioner’s counsel, and the 17 travel and passport information provided by CBP and the Bangladesh Embassy. (See Doc. 18 14-2 at 17 ¶¶ 7-9; 43-44.) 19 Petitioner fails to demonstrate that ICE’s determinations violated the TVPRA. 20 Petitioner argues that Respondents failed to satisfy their obligation to “take into account 21 multiple forms of evidence, including the non-exclusive use of radiographs,” 8 U.S.C. 22 § 1232(b)(4), and make an age determination “based on the totality of all available

23 6 Respondents argue, and Petitioner does not dispute, that his challenge to ORR’s age determination is now moot because it has been expressly rescinded. The Court agrees. 24 Petitioner’s ORR challenge in Ground One is therefore dismissed as moot. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–78 (1990). 25 7 In his Reply, Petitioner argues that “this Court has the ability to permanently 26 declare that [he] was a UAC at the time he turned 18 and that ICE’s attempts to justify their age redetermination are invalid, as requested in the instant petition.” (Doc. 16 at 14.) 27 Contrary to this assertion, a favorable decision is this case would not conclusively resolve Petitioner’s age or UAC status. The Petition does not ask the Court to determine his correct 28 date of birth or whether he “was a UAC at the time he turned 18” – it asks the Court to find that ICE violated the TVPRA. 1 evidence,” ORR Guide § 1.6. Yet, Petitioner does not identify other available evidence 2 that ICE failed to consider in making its determinations. Petitioner points to his “verified, 3 corrected passport” and his “proffer about his age,” including his testimony in immigration 4 court “that the smugglers gave him a packet of documents and told him that he had to use 5 them to exit the country and travel to the U.S.” (Doc. 16 at 7-8 (emphasis added).) That 6 evidence, however, was not provided or available to ICE at the time it made its 7 determinations. Further, although the guidance identifies “contradictory or fraudulent 8 documents and statements [] and unavailable documentation on date of birth” as a 9 challenge to making an age determination, it does not preclude ICE from evaluating 10 conflicting evidence and making a decision based on its assessment of the information 11 before it. Age Determination Practices for Unaccompanied Alien Children in ICE 12 Custody, DHS OIG-10-12 (Nov. 10, 2009) (Doc. 1-9)8; see also supra, ORR Guide § 1.6. 13 Indeed, while Petitioner argues that the evidence favored a different conclusion, he has not 14 shown that the available evidence considered could not support ICE’s determinations. 15 Petitioner therefore fails to demonstrate that ICE’s determinations were contrary to or in 16 violation of the TVPRA and that his current detention in ICE custody pursuant to those 17 determinations is in violation of the law.9 Accordingly, Ground One is dismissed. 18 B. Grounds Two and Three 19 The TVPRA provides that if a UAC in HHS custody reaches the age of 18 and is 20 transferred into DHS custody, DHS “shall consider placement in the least restrictive setting 21 available after taking into account the alien’s danger to self, danger to the community, and 22 risk of flight,” and that “[s]uch alien shall be eligible to participate in alternative to 23 detention programs, utilizing a continuum of alternatives based on the alien’s need for 24 8 Age Determination Practices for Unaccompanied Alien Children in ICE Custody, 25 https://www.oig.dhs.gov/assets/Mgmt/OIG_10-12_Nov09.pdf. 9 To the extent Petitioner additionally argues in his Reply that following his 26 hearing(s) in immigration court, “DHS failed to comply with 8 [U.S.C. §] 1232(b)(2) by not notifying HHS of a known or suspected unaccompanied child in their custody” (Doc. 27 16 at 14 n.2), such claim is also without merit. DHS satisfied its obligations under § 1232(b)(2)(B) when, at the time of his apprehension, it notified HHS and transferred 28 Petitioner into HHS custody. 1 supervision, which may include placement of the alien with an individual or an 2 organizational sponsor, or in a supervised group home.” 8 U.S.C. § 1232(c)(2)(B). 3 Petitioner argues that because his age redetermination was invalid, ICE violated the 4 TVPRA by failing to consider his placement and release under these provisions. 5 Following his transfer into ICE custody in 2018, ICE determined that Petitioner was 6 not under the age of 18 and was therefore not a UAC at the time of, or prior to, his transfer. 7 As previously discussed, Petitioner has not demonstrated that ICE’s determination was in 8 violation of the TVPRA. Accordingly, it follows that because ICE had made a valid 9 independent determination that Petitioner was not a UAC in HHS custody who had reached 10 the age of 18 and transferred into DHS custody, it was not required to consider him for 11 placement in the least restrictive setting or to treat him as eligible for an alternative to 12 detention program. Accordingly, Grounds Two and Three are without merit and are 13 dismissed. 14 C. Grounds Four and Five 15 Petitioner first claims that his continued detention violates his substantive due 16 process rights because “Respondents’ interest in detaining [him] in order to effectuate 17 removal is severely undermined by the violations of controlling statutes, regulations and 18 guidelines, all aimed at protecting unaccompanied youth from suffering harm through 19 unwarranted detention.” (Doc. 1 ¶ 51.) This claim is without merit. As set forth above, 20 Petitioner has not shown that there has been a violation of the statutes, regulations, or 21 guidelines concerning “unaccompanied youth.” 22 Next, Petitioner claims that his continued and prolonged detention without “a fair 23 hearing before a neutral decisionmaker” violates his procedural due process rights. (Doc. 24 21-1 ¶ 136; see also Doc. 1 ¶ 53.) He alleges that “because of the illegal age determination, 25 [he] has not been provided with a custody hearing that comports with due process” (Doc. 26 21-1 at ¶ 91); “[e]ven after he provided the immigration judge with a copy of the 27 government’s own expert analysis of his corrected passport that found the document to be 28 genuine, the judge relied on extraneous speculation about [Petitioner’s] sponsor’s ability 1 to pay a bond and the quarantine at La Palma when denying the bond” (id. ¶ 94). This 2 claim also fails. 3 Here, Petitioner has received two bond hearings. Petitioner’s second bond hearing 4 was conducted pursuant to Casas-Castrillon, supra, which holds that individuals who are 5 subject to prolonged detention pending judicial review of their removal orders are entitled 6 to a bond hearing at which the government must bear the burden to demonstrate that they 7 pose a danger or flight risk to justify their continued detention. See also Singh, 638 F.3d 8 at 1205 (holding “clear and convincing evidence standard of proof applies in Casas bond 9 hearings”). Petitioner does not claim that the IJ failed to place the burden on the 10 government, denied him an opportunity to submit rebuttal evidence, or failed to provide 11 him with specific reasons for his decision. Nor does Petitioner claim that he has been 12 denied an opportunity to have the custody determination reviewed; he states that he intends 13 to file an appeal with the BIA upon receipt of the IJ’s memorandum decision. Therefore, 14 absent more, Petitioner fails to demonstrate that he has been deprived of procedural due 15 process. See Prieto-Romero v. Clark, 534 F.3d 1053, 1068 (9th Cir. 2008) (concluding 16 that “Prieto-Romero ha[d] not been denied procedural due process while in custody. He 17 [had] received a bond hearing that afforded him an individualized determination of the 18 government’s interest in his continued detention by a neutral decisionmaker.”). 19 Petitioner argues that the IJ’s bond “determinations cannot be separated from the 20 wrongful age determination,” and “[g]iven the totality of the circumstances in [his] case, 21 an order of release with appropriate alternatives detention is the only way to protect [his] 22 due process rights.” (Doc. 21-1 ¶ 84.) But, as above, Petitioner has not shown that ICE’s 23 determinations were “wrongful” or “illegal,” and therefore necessarily fails to establish 24 that he is entitled to additional process or release on that basis. Further, insofar as Petitioner 25 challenges the IJ’s consideration of inconsistent identity documents or the likelihood of 26 Petitioner’s success on appeal of his negative credibility finding, his claim attacks the IJ’s 27 discretionary weighing—not admission—of that evidence, which is not subject to review 28 by this Court. See 8 U.S.C. § 1226(e); Singh, 638 F.3d at 1202; Prieto-Romero, 534 F.3d 1| at 1058. Nor is it clear that exhaustion of Petitioner’s administrative remedies of such 2| claim would be futile and obviate the need for habeas corpus intervention in the first 3 instance. See Leonardo, 646 F.3d at 1160; Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 4 2007); Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004). 5 Accordingly, having failed to demonstrate entitlement to relief, the Petition and this 6 | action will be dismissed. 7| ITIS ORDERED: 8 (1) Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 9} (Doc. 1) and this action are dismissed. 10 (2) Petitioner’s Motion for Preliminary Injunction (Doc. 2) and Motion to 11 | Expedite (Doc. 19) are denied as moot. 12 (3) Petitioner’s Motion for Leave (Doc. 21) is denied without prejudice to 13 | Petitioner filing proposed Grounds 6-8 in a new petition filed in a new case. 14 (4) The Clerk of Court shall enter judgement accordingly and terminate this case. 15 Dated this 9th day of September, 2020. 16 Wichadl T. gibund Michael T. Liburdi 19 United States District Judge 20 21 22 23 24 25 26 27 28