Bui v. Holder

Filing 12

FINDINGS and RECOMMENDATIONS to Deny 1 Petition for Writ of Habeas Corpus ORDER Directing that Objections be Filed Within Twenty-Days; ORDER Directing Clerk of Court to Assign District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 6/24/15. Referred to Judge O'Neill. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DUC QUOC BUI,
Petitioner,

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v.
ERIC HOLDER,
Respondent.

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Case No.: 1:15-cv-0-636-JLT
FINDINGS AND RECOMMENDATIONS TO
DENY PETITION FOR WRIT OF HABEAS
CORPUS
ORDER DIRECTING THAT OBJECTIONS BE
FILED WITHIN TWENTY-ONE DAYS
ORDER DIRECTING CLERK OF THE COURT TO
ASSIGN DISTRICT JUDGE TO CASE

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Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.
The instant petition was filed on April 20, 2015, alleging unlawful detainer of Petitioner, a

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Vietnamese citizen subject to a October 1, 2014 final order of removal, by the U.S. Immigration and

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Customs Enforcement (“ICE”). (Doc. 1, pp. 19-24). On April 30, 2015, the Court issued an Order to

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Show Cause why the petition should not be granted. (Doc. 7). On June 3, 2015, Respondent filed a

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response to the Order to Show Cause, alleging that Petitioner had received all required federal due

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process and that denial of the petition was therefore appropriate. (Doc. 9). Petitioner has not

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responded either to the Court’s Order to Show Cause or to Respondent’s response.

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DISCUSSION
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The government may not detain a legal permanent resident for a prolonged period without

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providing him a neutral forum in which to contest the necessity of his continued detention.” Casas–

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Castrillon v. DHS, 535 F.3d 942, 949 (9th Cir. 2008). During these hearings, the government must

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prove by clear and convincing evidence that a noncitizen poses a flight risk or a danger to the

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community justifying ongoing detention. Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011). The

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Ninth Circuit has clarified that a noncitizens' detention becomes prolonged after six months. Diouf v.

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Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011). “When detention crosses the six-month threshold

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and release or removal is not imminent, the private interests at stake are profound. Furthermore, the

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risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decision maker

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is substantial.” Id. at 1091–92. The immigration judge may still find the detention justifiable, but a

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hearing provides the detainee with a necessary constitutional safeguard. Id. at 1084, 1092. The

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holding in Diouf applied to detentions pursuant to 8 U.S.C. Section 1231(a)(6), but the Ninth Circuit

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later extended the holding to detainees subject to prolonged detention pursuant to Section 1226.

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Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013). Respondent has presented evidence establishing

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that Petitioner received a bond hearing pursuant to Rodriguez on May 5, 2015.

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The government contends that Petitioner is being held pursuant to Section 1226(a) and that he

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has already received a bond hearing at which the government met its burden in justifying his

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detention. The record establishes that Petitioner is charged with removability based on his conviction

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as an aggravated felon, i.e., his 1998 state conviction for attempted premeditated murder and

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subsequent twenty-year prison sentence. (Doc. 1, p. 18).

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Under Section 1226(c)(1)(B), the Attorney General “shall take into custody any alien ... who is

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deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii),

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(B), (C), or (D).” 18 U.S.C. § 1226 (emphasis added). However, under Rodriguez, once a

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noncitizen's detainment under Section 1226(c) becomes prolonged—meaning that the detention has

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lasted for six months—the individual is entitled to a bond hearing. 715 F.3d at 1138. In other words,

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the mandatory detention of Section 1226(c) is subject to a six-month limitation, after which the

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Attorney General's detention authority shifts to Section 1226(a)–which entitles detainees to an

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individualized bond hearing. Id. at 1138. Thus, while Petitioner may have initially been held under
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Section 1226(c), having been detained now for over six months, the authority to detain him now

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depends upon Section 1226(a).

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B. Indefinite Detention

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1. Reasonably Foreseeable Removability
In Prieto–Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), the Ninth Circuit concluded that

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even after a petitioner receives a bond hearing, Section 1226(a) does not authorize indefinite

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detention; rather, “the Attorney General's detention authority under § 1226(a) [is] limited to the period

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reasonably necessary to bring about an alien's removal from the United States.” Id. at 1063. The court

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nonetheless held that although the petitioner's three-year long detention qualified as prolonged, it did

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not qualify as indefinite. Id. at 1062. The court distinguished Zadvydas v. Davis, 533 U.S. 679 (2001),

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in which the Supreme Court concluded that a noncitizen detainee was entitled to release if he

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demonstrated “no significant likelihood of removal in the reasonably foreseeable future.” Prieto–

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Romero, 534 F.3d at 1062 (internal citations and quotation marks omitted). The court emphasized that

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the Zadvydas petitioners could not be removed because, although they had exhausted all judicial and

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administrative appeals processes and had been ordered removable, their designated countries either

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refused to accept them or lacked a repatriation treaty with the United States, effectively placing them

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in a “removable-but-unremovable limbo.” Id. at 1062 (internal citations and quotation marks omitted).

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In Prieto–Romero, by contrast, the government could successfully deport the petitioner to

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Mexico in the event of unsuccessful judicial review; thus, the petitioner faced a “significant likelihood

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of removal in the reasonably foreseeable future.” Id at 1062. The court concluded that, despite the

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judicial review process causing delays in removal, and notwithstanding the absence of a definite end

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date in his detention, these factors alone did not make his detention indefinite. Id. at 1063.

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Here, as in Prieto-Romero, following Petitioner’s bond hearing, he has been detained for only a

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matter of weeks, not months or years, which does not qualify as “indefinite.” Moreover, unlike the

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Zadvydas petitioners, there is no evidence that Petitioner is unremovable because his home country of

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Vietnam will not accept him or that no repatriation treaty exists between the two countries; rather, the

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U.S. government is ultimately capable of deporting him to Vietnam at such time as the proper

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documents have been received.1 The U.S. government has demonstrated its interest in doing so by

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maintaining custody of Petitioner, by providing a bond hearing, and by seeking to comply with the

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diplomatic norms required to secure his removal to his home country. In sum, there is no reason to

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believe that Petitioner will not ultimately be removed as soon as the necessary documents and

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clearances are obtained. Thus, while his continued detention is ongoing, it is not indefinite; instead, his

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removal is reasonably foreseeable.
Petitioner’s detention is therefore consistent with Zadvydas, Prieto–Romero, and Section

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1226(a). See also Almousa v. Gonzalez, 2008 WL 4657809 (E.D.Cal. Oct. 21, 2008) (finding

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petitioner's three-year long detention prolonged but nonetheless authorized under Section 1226(a)

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because his removal was reasonably foreseeable); Carmona v. Aitken, 2015 WL 1737839 (N.D. Cal.

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April 20, 2015)(detention for a year following initial bond hearing authorized because removal to

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Mexico was reasonably foreseeable).

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2. Exhaustion

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Respondent also argues that Petitioner has failed to exhaust his administrative remedies by

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appealing the denial of bond at the May 5, 2015 hearing. Respondent notes that Petitioner, while

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reserving his right to appeal the bond denial, has not filed an appeal or exhausted his administrative

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remedies. (Doc. 8, p. 3). Petitioner’s failure to appeal the immigration judge's bond determination to

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the BIA before requesting habeas review poses a further obstacle to his request for relief, as does his

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apparent failure to request a bond redetermination pursuant to 8 C.F.R. § 1003.19.
The INA contains an administrative exhaustion requirement which applies to petitioners on

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direct review and to habeas petitioners. Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007); see also 8

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U.S.C. § 1252(d)(1). In addition to statutorily mandated exhaustion requirements, courts may also

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prudentially require habeas petitioners to exhaust administrative remedies. Id.
Courts may require prudential exhaustion if (1) agency expertise makes agency consideration

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necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement

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would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is

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Indeed, the petition contains a letter, dated February 4, 2015, from the Vietnamese Consulate, clearly indicating that
Petitioner’s removal would be handled pursuant to a 2008 agreement between the two countries. (Doc. 1, p. 13).

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likely to allow the agency to correct its own mistakes and to preclude the need for judicial review. Id.

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(internal citations and quotation marks omitted). Courts also have discretion to waive exhaustion

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requirements when administrative remedies are inadequate or ineffective, the administrative process

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would be void, or the pursuit of administrative remedies would be futile or result in irreparable injury.

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Laing v. Ashcroft, 370 F.3d 994, 999 (9th Cir. 2004) (internal citations and quotation marks omitted).

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However, in Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011), the Ninth Circuit found it

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inappropriate for a petitioner to pursue habeas review of an immigration judge's adverse bond

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determination before appealing to the BIA. The court labeled this an “improper shortcut,” and held

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that the petitioner “should have exhausted administrative remedies by appealing to the BIA before

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asking the federal district court to review the IJ's decision.” Id.
The Puga factors suggest that the Court should require exhaustion here. First, DHS regulations

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clarify that, after an initial bond hearing, a detainee's request for a subsequent bond hearing “shall be

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made in writing and shall be considered only upon a showing that the alien's circumstances have

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changed materially since the prior bond redetermination.” See 8 C.F.R. § 1003.19(e) (emphasis

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added). This regulation demonstrates a clearly-established administrative scheme designed to address

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custodial determinations, a practice that includes an appeals process. Resendiz v. Holder, 2012 WL

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5451162, * at 4 (N.D.Cal. Nov. 7, 2012); see also Puga, 488 F.3d at 815. Second, instead of filing a

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timely appeal from the denial of bond, Petitioner has, instead, pursued this habeas petition. “To allow

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petitioners to circumvent the appeals procedure and petition the district court for the same relief that

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could have been sought before the BIA would encourage the deliberate bypass of the administrative

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scheme.” Resendiz, 2012 WL 5451162, at *4. Petitioner had the opportunity to first appeal the

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immigration judge's decision before asking this Court to order the government to provide him with

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another hearing. Lastly, even assuming the immigration judge erred in denying bond at the May 5

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hearing, an issue that is not before this Court, the BIA should have the first opportunity to correct any

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mistakes, a conclusion which promotes administrative autonomy and judicial efficiency. Id.; see also

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Puga, 488 F.3d at 815.

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Additionally, Petitioner fails to establish any valid exception to the exhaustion requirement.
Petitioner has not requested that he be excepted from the exhaustion requirement nor has he provided
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any legal basis for applying such an exception. Thus, the Court concludes that Petitioner’s request for

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relief is substantively and procedurally barred. Petitioner has neither been detained indefinitely within

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the meaning of Prieto–Romero and Section 1226(a), nor has he properly exhausted the administrative

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remedies available to him.
ORDER

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The Clerk of the Court is DIRECTED to assign a United States District Judge to this case.
FINDINGS AND RECOMMENDATIONS

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For the foregoing reasons, the Court RECOMMENDS that the petition for writ of habeas
corpus (Doc. 1), be DENIED.

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This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within 21

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days after being served with a copy, any party may file written objections with the court and serve a

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copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendation.” Replies to the objections shall be served and filed within 10 days (plus three

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days if served by mail) after service of the objections. The Court will then review the Magistrate

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Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order. Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

June 24, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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