Pasia v. Attorney General of the U.S.

• Court: District Court, D. Nevada
• Decided: July 1, 2021
• Docket: 2:21-cv-00550
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * *

9 MOLI PASIA, Case No. 2:21-cv-00550-GMN-VCF

10 Petitioner, ORDER v. 11 ATTORNEY GENERAL OF THE U.S., et 12 al.,

13 Respondents.

14 Moli Pasia has submitted a pro se habeas corpus petition under 28 U.S.C. § 15 2241 challenging his continued detention by U.S. Immigration and Customs pending 16 enforcement of his final order of removal. On June 16, 2021, Pasia responded to this 17 court’s order to show cause and file such proof he may have to demonstrate that his 18 petition should not be dismissed without prejudice for failure to exhaust administrative 19 remedies (ECF Nos. 5, 6). 20 As the court previously noted, the Immigration and Nationality Act (“INA”), 8 21 U.S.C. § 1101 et seq., provides a “complex statutory framework of detention authority,” 22 codified at 8 U.S.C. §§ 1226 and 1231. Prieto-Romero v. Clark, 534 F.3d 1053, 1057 23 (9th Cir. 2008). Where a non-citizen falls within the statutory scheme “can affect 24 whether his detention is mandatory or discretionary, as well as the kind of review 25 process available to him if he wishes to contest the necessity of his detention.” Id. In 26 general, § 1226(a) governs detention during the pendency of a non-citizen’s removal 27 1 proceedings, and § 1231(a)(6) governs detention following the issuance of a final 2 removal order. 3 The Ninth Circuit has held that that the government may not detain a non-citizen 4 “for a prolonged period without providing him a neutral forum in which to contest the 5 necessity of his continued detention.” Casas-Castrillon v. DHS, 535 F.3d 942, 949 (9th 6 Cir. 2008) (establishing so-called “Casas hearings”). The Ninth Circuit extended Casas- 7 Castrillon to detainees with final removal orders in Diouf v. Napolitano (Diouf II), 634 8 F.3d 1081 (9th Cir. 2011), holding that prolonged detention under § 1231(a)(6) is 9 prohibited without an individualized hearing to determine whether the person is a flight 10 risk or a danger to the community. Because prolonged detention without a hearing 11 presents serious due process concerns, and the statute did not plainly authorize such 12 detention, the court construed § 1231(a)(6) to require a custody hearing before an 13 immigration judge where detention has lasted six months.1 Diouf II, 634 F.3d at 1086. 14 The Ninth Circuit recently reaffirmed that, under § 1231(a)(6), the government is 15 required to show by clear and convincing evidence that detention is necessary to 16 prevent flight and danger. Flores Tejada v. Godfrey, 954 F.3d 1245, 1249 (9th Cir. 17 2020). 18 If noncitizens who are held in custody under 8 U.S.C. § 1231(a)(6) are 19 dissatisfied with the Immigration Judge’s (IJ) bond determination, they may file an 20 21 1 Immigration regulations indicate that an IJ loses jurisdiction to redetermine bond when 22 an order of removal becomes administratively final. See 8 C.F.R. § 1236.1(d). However, the Ninth Circuit confirmed in Diouf II that immigration judges have jurisdiction to conduct bond 23 hearings when a § 1231(a)(6) detainee has been detained for over six months. Diouf II, 634 F.3d at 1091 (“The regulations do not afford adequate procedural safeguards because they do 24 not provide for an in-person hearing, they place the burden on the alien rather than the government and they do not provide for a decision by a neutral arbiter such as an immigration 25 judge.”) (citing Casas-Castrillon, 535 F.3d at 951–52); see also Zadvydas v. Davis, 533 U.S. 678, 692 (2001) (holding that indefinite detention under § 1231(a)(6) raised serious 26 constitutional concerns, in part because “the sole procedural protections available to the alien are found in administrative proceedings, where the alien bears the burden of proving he is not 27 dangerous”). 1 administrative appeal so that “the necessity of detention can be reviewed by . . . the 2 [Board of Immigration Appeals] (BIA).” Prieto–Romero v. Clark, 534 F.3d 1053, 1059 3 (9th Cir. 2008). If they remain dissatisfied, they may file a petition for habeas corpus in 4 the district court. See, e.g., Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) 5 (petitioner “pursued habeas review of the IJ’s adverse bond determination before 6 appealing to the BIA. This short cut was improper. Leonardo should have exhausted 7 administrative remedies by appealing to the BIA before asking the federal district court 8 to review the IJ’s decision”); Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014) 9 (issue exhaustion is a jurisdictional requirement); Sola v. Holder, 720 F.3d 1134, 1135– 10 36 (9th Cir. 2013) (declining to address a due process argument that was not raised 11 below, which could have been addressed by the agency); Singh v. Holder, 638 F.3d 12 1196, 1200–03 (9th Cir. 2011); Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (no 13 jurisdiction to review legal claims not presented in the petitioner’s administrative 14 proceedings before the BIA). 15 Here, Pasia states that an IJ ordered him removed to Samoa in December 2020, 16 and he did not appeal the decision (ECF No. 1-1, p. 1). He seeks to be released on 17 supervision. He states that ICE reviewed his detention on March 4, 2021. He now 18 clarifies that he recently filed a motion for custody redetermination with the immigration 19 court in Las Vegas (ECF No. 6, p. 1). The outcome of his motion may render his petition 20 moot. Accordingly, the petition is dismissed without prejudice as unexhausted. 21 IT IS THEREFORE ORDERED that the Clerk DETACH and FILE the petition 22 (ECF No. 1-1). 23 IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice as 24 unexhausted. 25 IT IS FURTHER ORDERED that a certificate of appealability is denied. 26 27 1 IT IS FURTHER ORDERED that the Clerk send to petitioner 1 copy of the papers 2 he filed in this action. 3 IT IS FURTHER ORDERED that the Clerk enter judgment accordingly and close 4 this case. 5

6 DATED: 1 July 2021. 7

8 GLORIA M. NAVARRO 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27