Vidal v. Immigration Customs Enforcement

• Court: District Court, D. Nevada
• Decided: February 10, 2021
• Docket: 2:21-cv-00012
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Christian Kyle Vidal, Case No.: 2:21-cv-00012-JAD-DJA

4 Petitioner Order to Show Cause Why Case Should 5 v. Not Be Dismissed for Failure to Exhaust Administrative Remedies 6 Immigration Customs Enforcement, [ECF No. 1-1] 7 Defendant

8 Christian Kyle Vidal has submitted a pro se 28 U.S.C. § 2241 petition for a writ of habeas 9 corpus, challenging his continued detention by U.S. Immigration and Customs Enforcement 10 (ICE) pending enforcement of his final removal order.1 I grant his application to proceed in 11 forma pauperis and conduct an initial review of his petition.2 Because it appears that Vidal did 12 not exhaust the established administrative process before filing this action, I order him to show 13 cause in writing by March 12, 2021, why this petition should not be dismissed without prejudice 14 for failure to exhaust his administrative remedies. 15 Discussion 16 Vidal includes with his petition the ICE Decision to Continue Detention, dated October 17 30, 2020.3 That decision reflects that he is a citizen of the Philippines who last entered the 18 United States on November 22, 2008, as a lawful permanent resident. Vidal was convicted of 19 battery, burglary, larceny, and obstructing police, and on March 12, 2020, an Immigration Judge 20 (IJ) issued an order of removal, which became final on that date.4 21 1 ECF No. 1-1. 22 2 ECF No. 1. 23 3 ECF No. 1-1 at 13. 4 Id. 1 Generally, the Attorney General is required to remove a noncitizen within 90 days, 2 known as the “removal period.”5 Vidal alleges that respondents have detained him beyond the 3 90-day removal period and for more than 180 days after the entry of the final order of removal.6 4 He is, therefore, currently detained under 8 U.S.C. §1231(a)(6), which provides that certain 5 categories of aliens who have been ordered removed (including criminal aliens and any alien

6 who has been determined by the Attorney General to be a risk to the community or unlikely to 7 comply with the order of removal) “may be detained beyond the removal period and, if released, 8 shall be subject to the terms of supervision in paragraph (3).” The recent ICE decision in Vidal’s 9 case states that there is a significant likelihood that his removal will occur “in the reasonably 10 foreseeable future,” so he must remain in ICE custody.7 11 The Immigration and Nationality Act (INA),8 provides a “complex statutory framework 12 of detention authority” codified at 8 U.S.C. §§ 1226 and 1231.9 Where a non-citizen falls within 13 the statutory scheme “can affect whether his detention is mandatory or discretionary, as well as 14 the kind of review process available to him if he wishes to contest the necessity of his

15 detention.”10 In general, § 1226(a) governs detention during the pendency of a non-citizen’s 16 removal proceedings, and § 1231(a)(6) governs detention following a final removal order. Based 17 on Vidal’s allegations, it appears that he is detained under § 1231(a)(6). 18 19

20 5 8 U.S.C. §1231(a)(1)(A). 21 6 ECF No. 1-1. 7 Id. at 13. 22 8 8 U.S.C. § 1101 et seq. 23 9 Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 10 Id. 1 The Ninth Circuit held in Casas-Castrillon v. DHS that that the government may not 2 detain a non-citizen “for a prolonged period without providing him a neutral forum in which to 3 contest the necessity of his continued detention.”11 In such a proceeding, the government bears 4 the burden of establishing that continued detention is warranted by clear and convincing 5 evidence.12 The Ninth Circuit extended Casas-Castrillon to detainees with final removal orders

6 in Diouf v. Napolitano (Diouf II),13 holding that prolonged detention under § 1231(a)(6) is 7 prohibited without an individualized hearing to determine whether the person is a flight risk or a 8 danger to the community. Because prolonged detention without a hearing presents serious due- 9 process concerns, and the statute did not plainly authorize such detention, the court construed § 10 1231(a)(6) to require a custody hearing before an immigration judge if detention has lasted six 11 months.14 The Ninth Circuit recently reaffirmed that, under § 1231(a)(6), the government must 12 show by clear and convincing evidence that detention is necessary to prevent flight and danger.15 13 11 Casas-Castrillon v. DHS, 535 F.3d 942, 949 (9th Cir. 2008). 14 12 See Singh v. Holder, 638 F.3d 1196, 1205 (9th Cir. 2011). 15 13 Diouf v. Napolitano (Diouf II), 634 F.3d 1081 (9th Cir. 2011). 14Diouf II, 634 F.3d at 1086. Immigration regulations indicate that an IJ loses jurisdiction to 16 redetermine bond when 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 17 jurisdiction to conduct bond 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 18 safeguards because they do 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 19 as an immigration 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 20 serious 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 21 not dangerous”). 22 15 Flores Tejada v. Godfrey, 954 F.3d 1245, 1249 (9th Cir. 2020). In Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the U.S. Supreme Court did not abrogate the Ninth Circuit’s ruling in Diouf II. 23 See Aleman Gonzalez v. Barr, 955 F.3d 762, 766 (9th Cir. 2020) (holding that Diouf II was not clearly irreconcilable” with Jennings, thus, Diouf II remains binding precedent); Ramos v. Sessions (“Ramos II”), 293 F. Supp. 3d 1021, 1026–27 (N.D. Cal. 2018) (“Jennings . . . left 1 If noncitizens who are held in custody under 8 U.S.C. §§ 1226(a) or 1231(a)(6)—the 2 provision at issue in this case—are dissatisfied with an IJ’s bond determination, they may file an 3 administrative appeal so that “the necessity of detention can be reviewed by . . . the [Board of 4 Immigration Appeals] (BIA).”16 If they remain dissatisfied, they may file a petition for habeas 5 corpus in the district court. These are mandatory administrative remedies that must be exhausted

6 before a court like this one can review the IJ’s decision.17 7 In his petition, Vidal simply states, with no details, that he exhausted administrative 8 remedies. But it does not appear that he has sought relief before an IJ, and then, if necessary, the 9 BIA. So this action likely must be dismissed because Vidal skipped those required steps. But 10 out of an abundance of caution, instead of dismissing this action outright, I will instead allow 11 12

13 untouched the Ninth Circuit’s requirement of such hearings for immigrants detained under section 1231(a)(6)”). The question of whether § 1231(a)(6) can be construed to require a 14 custody hearing over prolonged detention was not before the Court in Jennings. And, citing its prior decision in Zadvydas v. Davis, 533 U.S. 678 (2001), the Jennings court underscored that, in 15 contrast to the other general immigration-detention statutes, § 1231(a)(6) may be construed to limit prolonged detention, just as the Ninth Circuit did in Diouf II. Jennings, 138 S. Ct. at 843– 16 44. Thus, individuals subject to prolonged detention under § 1231(a)(6) in the Ninth Circuit should continue to receive custody hearings. 17 16 Prieto–Romero, 534 F.3d at 1059. 18 17 See, e.g., Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (petitioner “pursued habeas review of the IJ’s adverse bond determination before appealing to the BIA. This short cut 19 was improper. Leonardo should have exhausted administrative remedies by appealing to the BIA before asking the federal district court to review the IJ’s decision”); Alvarado v. Holder, 20 759 F.3d 1121, 1127 n.5 (9th Cir. 2014) (issue exhaustion is a jurisdictional requirement); Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (no jurisdiction to review legal claims not 21 presented in the petitioner’s administrative proceedings before the BIA). Moreover, “a petitioner cannot obtain review of procedural errors in the administrative process that were not raised 22 before the agency merely by alleging that every such error violates due process.” Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987); see also Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir. 23 2013) (declining to address a due-process argument that was not raised below because it could have been addressed by the agency). Vidal an opportunity to show cause and demonstrate any proof he may have that the petition is not subject to dismissal without prejudice for failure to exhaust administrative remedies. 3 Conclusion 4 IT IS THEREFORE ORDERED that: 5 1. Petitioner’s application to proceed in forma pauperis [ECF No. 1] is GRANTED. 6 2. Petitioner must file a written ““Response to Order to Show Cause” by March 12, 7 2021, showing cause why this habeas action should not be dismissed without 8 prejudice based on a failure to exhaust administrative remedies. Any assertions of 9 fact that Vidal makes in response to this show-cause order must be detailed, specific 10 as to time and place, and supported by competent evidence. The court will not 11 consider any assertions of fact that are not specific as to time and place, based upon 12 personal knowledge, or supported by competent evidence filed in the federal record. 13 Vidal must therefore attach copies of all materials upon which he relies, such as any 14 decisions issued by the immigration court or Board of Immigration Appeals. 15 Unsupported factual assertions will be disregarded. 16 3. The Clerk is directed to retain the petition but not file it at this time. 17 4. Petitioner is advised that failure to respond to this order may result in the 18 dismissal of the petition without prejudice and without further prior notice.

20 US. District Judge Jennifer A. Dorsey Dated: February 10, 2021 21 22 23