United States District Court, W.D. Washington, Seattle
ORDER DENYING PETITIONER'S MOTION TO ENFORCE
S. Lasnik, United States District Judge.
matter comes before the Court on petitioner's Motion to
Enforce Order (Dkt. #17 (“Motion”)) seeking
review of an immigration judge's (“IJ”)
“no bond” determination after this Court ordered
a bond hearing. Petitioner asserts that the IJ erroneously
applied the evidentiary standard, depriving Petitioner of his
due process rights. Dkt. #17. Petitioner has appealed the no
bond determination to the Board of Immigration Appeals (BIA),
but no decision has been rendered. Dkt. #17-1 at 1-14. This
Court has jurisdiction to review the bond determination, but
will not consider the motion to enforce because Petitioner
has not fully exhausted his administrative remedies.
This Court has jurisdiction to review the bond
argue that the IJ's bond determination was discretionary
and therefore not subject to this Court's review. Dkt.
#21 at 7, citing Prieto Romero v. Clark, 534 F.3d
1053 (9th Cir. 2008) (reasonableness of immigration bond not
subject to judicial review) and 18 U.S.C. §
1226(e) (“No court may set aside any action or decision
. . . regarding the . . . denial of bond or parole.”).
However, Petitioner has not asked this Court to second-guess
the IJ's discretionary judgment, but instead to review
the no-bond determination for legal error. Dkt. #17 at 1.
Respondents acknowledge that this Court has habeas
jurisdiction to review the IJ's determination for
constitutional and legal error. Dkt. #21 at 3; Singh v.
Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (determining
that district court had habeas jurisdiction to review
IJ's bond determination); Ramos v. Sessions, 293
F.Supp.3d 1021, 1025 (N.D. Cal. 2018), appeal
docketed, No. 18-15884 (9th Cir. May 16, 2018). This
Court has habeas jurisdiction to review an IJ's bond
determination if Petitioner makes a colorable claim that the
hearing did not fully comply with his due process rights.
Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th
Cir. 2009); Torres-Aguilar v. I.N.S., 246 F.3d 1267,
1271 (9th Cir. 2001) (“To be colorable . . . the
alleged violation need not be ‘substantial,' . . .
but the claim ‘must have some possible
validity.'”) (internal citations omitted).
alleges that the IJ impermissibly relaxed the
government's evidentiary burden in his bond hearing. Dkt.
#17 at 5. Specifically, Petitioner contends that by relying
too heavily on Mr. Aden's criminal history to conclude
that he should be detained without bond, the IJ did not
require the government to show, by clear and convincing
evidence, that Mr. Aden poses a current danger to the
community. Id. at 8. Petitioner has made a colorable
claim that his bond hearing was unconstitutional or legally
erroneous. His claim that the IJ misapplied the relevant
evidentiary standard has possible validity on the existing
record. See Ramos, 293 F.3d at 1025; Singh v.
Holder, 638 F.3d at 1202; Calderon-Rodriguez v.
Wilcox, 374 F.Supp.3d 1024, 1027 (W.D. Wash. 2019).
Prudential exhaustion is required here.
this Court has jurisdiction to hear Petitioner's
colorable constitutional claim, the Court will not evaluate
the merits of his claim until he has exhausted his
administrative remedies. The Ninth Circuit distinguishes
between constitutional claims that only an Article III court
can resolve and issues with constitutional implications that
may nonetheless be corrected by the BIA on appeal. Liu v.
Waters, 55 F.3d 421, 425 (9th Cir. 1995);
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th
Cir. 2003) (“the petitioner must exhaust administrative
remedies before raising the constitutional claims in a habeas
petition when those claims are reviewable by the BIA on
appeal”). The latter category of challenges is subject
to prudential exhaustion requirements. Id.
motion falls within the latter category of claims. Mr. Aden
asserts that by relying too heavily on his criminal history
in determining whether Mr. Aden is a danger to society, the
IJ did not hold the government to the clear and convincing
evidence standard, in violation of his constitutional due
process rights. Dkt #17 at 10; Dkt. #25 at 6. But the BIA is
capable of re-assessing the evidence and determining whether
the government has carried its burden of demonstrating by
clear and convincing evidence that Mr. Aden is a current
danger and must be detained. Morgan v. Gonzales, 495
F.3d 1084, 1090 n. 2 (9th Cir. 2007) (“The exception to
the rule that constitutional claims need not be exhausted
before the agency are claims of denial of procedural due
process by the IJ, which must be raised before the BIA
because the agency does have the power to adjudicate
procedural due process claims.”).
Ninth Circuit requires prudential exhaustion in habeas
challenges to decisions by IJs, including bond
determinations. Leonardo v. Crawford, 646 F.3d 1157,
1160 (9th Cir. 2011); Sun v. Ashcroft, 370 F.3d 932,
935 (9th Cir. 2004); Ortega-Rangel v. Sessions, 313
F.Supp.3d 993, 1003 (N.D. Cal. 2018). A court may require
prudential exhaustion if: “(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). If,
however, “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, ” then this
Court may waive the prudential exhaustion requirement.
Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir.
1981); Hernandez v. Sessions, 872 F.3d 976, 988 (9th
Cir. 2017). The party moving the court to waive prudential
exhaustion requirements bears the burden of demonstrating
that at least one of these Laing factors applies.
See Ortega-Rangel v. Sessions, 313 F.Supp.3d 993,
1003 (9th Cir. 2018) (petitioner “must show that at
least one of the Laing factors applies in order to
excuse exhaustion”); Leonardo, 646 F.3d at
1161 (declining to waive exhaustion requirements because
petitioner has not “demonstrated grounds for excusing
Petitioner has not demonstrated that exhaustion should be
an immigrant in Petitioner's position who is dissatisfied
with an IJ's bond determination must administratively
appeal the determination to the BIA. Leonardo, 646
F.3d at 1160. The BIA reviews the IJ's factual
determinations for clear error and reviews questions of law,
discretion, and judgment de novo. 8 C.F.R. §
1003.1(d)(3)(i), (ii). Only if he remains unsatisfied by the
BIA's decision may he file a habeas petition in a
district court. Leonardo, 646 F.3d at 1160. If
petitioner fails to exhaust his administrative remedies and
there is no basis for waiver, the district court should
“dismiss the petition without prejudice or stay the
proceedings until the petitioner has exhausted
Puga factors weigh in favor of requiring exhaustion
in this case. First, the BIA is the subject-matter expert in
immigration bond decisions and has the authority to review
appeals from bond determinations by IJs. Executive Office for
Immigration Review, Dep't of Justice, BIA Practice Manual
(2018), at 1.4(a). Second, relaxation of the exhaustion
requirement would likely encourage other detainees to bypass
the BIA and directly appeal their no-bond determinations from
the IJ to federal district court. Petitioner argues that Mr.
Aden's case is “atypical” because of the
circumstances of his removal order, but the present posture
of his case is a common one. Finally, the BIA has the
authority to correct the mistake Mr. Aden alleges, and such a
correction could moot Petitioner's motion and preclude
the need for judicial review. See 8 C.F.R. §