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Chiluvane v. Ice Field Office Director

United States District Court, W.D. Washington, Seattle

January 30, 2014



MARY ALICE THEILER, Chief Magistrate Judge.


Petitioner Salito Chiluvane has filed a pro se habeas corpus petition under 28 U.S.C. § 2241, contending that his detention without bond by U.S. Immigration and Customs Enforcement ("ICE") violates the Due Process Clause of the Fifth Amendment. Dkt. 1. He seeks either supervised released from the Northwest Detention Center, where he is being detained pending resolution of his removal proceedings, or a new bond hearing before an Immigration Judge ("IJ"). Id. at 2. Respondent has moved the Court to dismiss petitioner's habeas petition, asserting that he has failed to exhaust his administrative remedies and that, in any event, his detention is lawful. Dkt. 5. Petitioner did not respond to the motion to dismiss. Having considered the parties' submissions and the governing law, the Court recommends that petitioner's habeas petition be DENIED, respondent's motion to dismiss be GRANTED, and this case be DISMISSED without prejudice.


Petitioner is a native and citizen of Mozambique. Dkt. 5-1 at 4. He became an IR6 lawful permanent resident (spouse of a United States citizen) and was admitted to the United States in January 2010. Id. at 2.

On June 1, 2012, petitioner was convicted in the King County Superior Court for Assault in the Second and Third Degree and Felony Harassment, all for domestic violence. Id. He was sentenced to 35 months in prison. Id. On June 6, 2012, after coming to the attention of ICE while housed in the King County Jail, petitioner was taken into ICE custody and served with a Notice to Appear, charging him as subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."). Id. at 4-5. The same day, ICE made an initial decision that petitioner would be detained during his removal proceedings, and petitioner requested a bond hearing before an IJ. Id. at 6.

Nearly a year later, petitioner had not received a bond hearing, and on May 14, 2013, the U.S. Department of Homeland Security ("DHS") filed a motion with the Immigration Court asking the court to schedule a bond hearing as soon as practicable. Id. at 7-8. After that, an IJ determined that a competency hearing was necessary, held such a hearing, determined that petitioner is incompetent, and had counsel appointed. See id. at 11-13.

On October 29, 2013, after several continuances, an IJ conducted an individualized bond hearing where petitioner was represented by counsel. Id. at 14-15. Petitioner submitted evidence, which included, among other things, a copy of petitioner's mental health review, a letter from petitioner's sister stating that she is unable to take her brother, and a letter from the parents of petitioner's brother-in-law stating that they are unable to provide financial assistance but think he is a fine young man. Id. at 17-30. Petitioner's ex-wife, the victim of the domestic violence charges petitioner was convicted of, submitted evidence through counsel opposing bond, including a statement that she would fear for her safety and the safety of their young son if petitioner was released. Id. at 31-48. The IJ denied bond, finding that petitioner presents a danger to the community and is a flight risk. Id. at 15. Petitioner reserved the right to appeal the IJ's decision to the Board of Immigration Appeals ("BIA"), but never filed an appeal. See id.

On November 21, 2013, petitioner initiated the instant action.[1] See Dkt. 1. A merits hearing in petitioner's removal proceedings is scheduled for March 11, 2014. Dkt. 5-1 at 16.


Petitioner brings this action pursuant to 28 U.S.C. § 2241, which authorizes the district court to grant a writ a habeas corpus whenever a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). "On habeas review under § 2241, exhaustion is a prudential rather than jurisdictional requirement." Singh v. Holder, 638 F.3d 1196, 1203 n.3 (9th Cir. 2011). The necessity of exhaustion, therefore, is governed by sound judicial discretion. McCarthy v. Madigan, 503 U.S. 140, 144 (1992), superseded by statutory amendment as noted in Booth v. Churner, 532 U.S. 731, 738 (2001). Nevertheless, "[p]rudential limits, like jurisdictional limits and limits on venue, are ordinarily not optional." Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35-36, n.5 (2006).

When determining whether to require prudential exhaustion, courts consider whether "(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review." Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (quoting Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). Even if these factors weigh in favor of prudential exhaustion, waiver of exhaustion may be appropriate "where administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void." Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (quoting S.E.C. v. G.C. George Sec., Inc., 637 F.2d 685, 688 (9th Cir. 1981)). When a petitioner fails to exhaust prudentially required administrative remedies and exhaustion is not waived, "a district court should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies...." Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011).

Here, the second and third Puga factors weigh in favor of prudential exhaustion, and none of the reasons to waive exhaustion are present. The Court thus deems it prudent to require petitioner to exhaust his administrative remedies on the bond issue before seeking habeas relief in the federal district court. Because petitioner did not appeal the IJ's bond determination to the BIA, he has not exhausted his administrative remedies. See 8 C.F.R. § 236.1. As such, the Court recommends dismissing his habeas petition without prejudice. See Leonardo, 646 F.3d at 1160.

Moreover, even if petitioner had exhausted his administrative remedies, he has failed to establish that his detention violates constitutional or federal law. There is no dispute that the statutory authority for petitioner's detention is 8 U.S.C. § 1226(a). Section 1226(a) provides the framework for the arrest, detention, and release of aliens in removal proceedings. That provision provides the Attorney General with discretionary authority to release an alien on ...

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