Faour Fraihat v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 15, 2020
• Docket: 18-56075
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FAOUR ABDALLAH FRAIHAT, No. 18-56075

Petitioner-Appellant, D.C. No. 5:17-cv-01370-VAP-KS v.

WILLIAM P. BARR, Attorney General; et MEMORANDUM* al.,

Respondents-Appellees.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding

Argued and Submitted November 13, 2019 Pasadena, California

Before: FERNANDEZ, M. SMITH, and MILLER, Circuit Judges.

Faour Abdallah Fraihat, a native and citizen of Jordan, challenges his

detention during the course of his removal proceedings. He seeks review of the

district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2241. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm.

1. We first hold that the district court lacked jurisdiction to review the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. agency’s denial of Fraihat’s release on bond based on its determination that Fraihat

is a danger to the community. See 8 U.S.C. § 1226(e); Nielsen v. Preap, 139 S. Ct.

954, 962 (2019).

In 2017, Fraihat received two bond hearings: a custody redetermination

hearing, and, pertinent to this habeas petition, a hearing under Rodriguez v.

Robbins, 804 F.3d 1060, 1074 (9th Cir. 2015), rev’d sub nom. Jennings v.

Rodriguez, 138 S. Ct. 830 (2018), just after his detention reached six months. The

immigration judge determined that Fraihat was a danger to the community and

denied bond under Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). The

Board of Immigration Appeals affirmed.

Section 1226(e) provides that “[t]he Attorney General’s discretionary

judgment regarding” detention of aliens pending removal proceedings “shall not be

subject to review,” and that “[n]o court may set aside” such a decision by the

Attorney General “regarding the detention or release of any alien or the grant,

revocation, or denial of bond or parole.” Fraihat argues that the agency’s decision

rested on a legally erroneous interpretation of his 2013 conviction and his criminal

history, not on a discretionary judgment, and that it is therefore reviewable. See

Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011). But even if we were to agree

that the agency somehow committed legal error in its evaluation of some of

Fraihat’s convictions, we would be unable to consider the seriousness of any error

2 without reweighing the evidence underlying the determination that Fraihat’s

conduct presents a danger to the community—a task we have no jurisdiction to

perform. Nor does Fraihat raise a “mixed” question of law and fact that would

permit us to consider the application of the law to “undisputed historical facts.”

Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir. 2007) (per curiam). To the

contrary, he challenges the agency’s interpretation of his conviction record and

asks that we find him not dangerous. That challenge is barred by Section 1226(e).

2. Section 1226(e) does not foreclose review of Fraihat’s constitutional

claims, see Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018), but those claims are

unavailing. Fraihat argues that due process required the agency to consider the

prolonged length of his detention, as well as the aggregate length of his detention,

in making a bond determination. We disagree.

The district court correctly held that Fraihat received sufficient process in

the form of “timely and regular bond hearings with appeal rights” before an

immigration judge. Fraihat received two bond hearings, the second of which

provided robust procedural protections given his status as a member of the

Rodriguez class action. Fraihat had a meaningful opportunity to be heard on the

issue relevant to his continued detention: danger to the community. See Guerra, 24

I. & N. Dec. at 40.

Fraihat has not demonstrated that the Constitution requires consideration of

3 the length of his detention in this context, or that the length of his detention is

relevant to the agency’s evaluation of his dangerousness. For example, he has not

argued that due to his age, he is less dangerous than he was when he trafficked

drugs in 2001. Similarly, he has not shown that due to his detention, he has

recovered from his drug addiction—an addiction the immigration judge cited in

denying bond. And although Fraihat’s immigration detention has been prolonged,

it has not been arbitrary or indefinite. To the contrary, it has been tied to his

removal proceedings. See Fraihat v. Barr, 785 F. App’x 471, 472 (9th Cir. 2019)

(dismissing in part and denying in part Fraihat’s petition for review of his final

order of removal).

3. We recognize that the agency has not provided Fraihat with a bond

hearing in more than two years, and that in June 2019, the immigration judge

denied Fraihat’s motion for custody redetermination under Casas-Castrillon v.

DHS, 535 F.3d 942 (9th Cir. 2008). See 8 C.F.R. § 1003.19(e). But those

circumstances were not before the district court when it ruled on Fraihat’s habeas

petition. To the extent the agency’s June 2019 decision provides Fraihat a basis for

any further claim—an issue we do not address—that claim would need to be raised

in a new habeas petition.

We grant the government’s motion for judicial notice, Dkt. No. 23, as well

as Fraihat’s motion for judicial notice, Dkt. No. 26. We also grant the motion for

4 leave to file a brief of amici curiae ACLU Foundation and ACLU Foundation of

Southern California. Dkt. No 15.

AFFIRMED.