Jason Nsinano v. William P. Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2020
• Docket: 18-55582
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 10 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASON SINAGWANA NSINANO, AKA No. 18-55582 Jason Nsinano, D.C. No. Petitioner-Appellant, 5:17-cv-00094-VBF-GJS

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Valerie Baker Fairbank, District Judge, Presiding

Argued and Submitted May 14, 2020 Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,** District Judge.

While detained by immigration authorities, Petitioner Jason Nsinano filed a

petition for a writ of habeas corpus under 28 U.S.C. § 2241. The primary relief

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Vince Chhabria, United States District Judge for the Northern District of California, sitting by designation. sought by the petition was a law enforcement certification under 8 U.S.C.

§ 1184(p) that would enable Nsinano to apply for a U-visa. The district court

dismissed the petition for lack of subject-matter jurisdiction. Because the parties

are familiar with the facts, we do not recite them here except as necessary. We

dismiss the appeal.

1. Nsinano argues that, under a liberal construction of his pro se habeas

petition, he alleged a due process-based challenge to his prolonged detention

without a bond hearing. Assuming that is true, Nsinano’s due process claim is

moot because he has since been released from immigration custody on bond. See

Abdala v. INS, 488 F.3d 1061, 1064 (9th Cir. 2007) (“[A] petitioner’s release from

detention under an order of supervision moot[s] his challenge to the legality of his

extended detention.” (internal quotation marks omitted)). In other words,

Nsinano’s due process claim was “fully resolved by release from custody.” Id. at

1065. His reliance on Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), and

Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010), is misplaced because those

cases dealt with habeas petitioners who were no longer in custody at the

Government’s discretion and no legal impediment to redetention existed. See

Diouf, 634 F.3d at 1084 n.3 (petitioner released pursuant to a preliminary

injunction that was subsequently vacated, and Government “elected [not] to

2 redetain him”); Rodriguez, 591 F.3d at 1117 (petitioner released under regulatory

provision providing immigration authorities near total discretion to redetain

petitioner). Thus, Nsinano’s due process claim is moot.

2. As for Nsinano’s request for a U-visa certification, we lack jurisdiction to

review this issue. We agree that the district court appears to have misinterpreted

Nsinano’s claim as a challenge to the denial of a U-visa application. Nsinano

asked only for a law enforcement certification under 8 U.S.C. § 1184(p). But this

misinterpretation is of little import here, for the district court indicated near the end

of its order that it would not issue a certification because “[t]he appropriate Court

to issue a law enforcement certification is the court that dealt with the underlying

criminal case (if one exists) or the agency that investigated the criminal

complaint.”

A district court’s decision not to issue a law enforcement certification is an

administrative action, not a judicial one. When faced with a request for a

certification, a judge has discretion whether to certify that the requestor “has been

helpful, is being helpful, or is likely to be helpful” to an investigation or

prosecution of qualifying criminal activity. 8 U.S.C. § 1184(p)(1). If the judge

chooses to make that certification, the judge must sign the certification form under

penalty of perjury. See Perez Perez v. Wolf, 943 F.3d 853, 857–58 (9th Cir. 2019).

3 Here, the district judge’s refusal to perform the administrative act of signing the

certification on the grounds she articulated does not result in an appealable

decision under 28 U.S.C. § 1291. See In re Application for Exemption from Elec.

Pub. Access Fees by Jennifer Gollan & Shane Shifflett, 728 F.3d 1033, 1039–40

(9th Cir. 2013) (holding that we lack jurisdiction under 28 U.S.C. § 1291 to review

a district court’s “administrative or ministerial order”).

APPEAL DISMISSED.