BRAVO v. GREEN et al

Filing 12

OPINION. Signed by Judge Jose L. Linares on 05/24/2017. (ek)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 16-4937 (JLL)

DANIEL LUCERO BRAVO,
Petitioner,

OPINION

V.

WARDEN CHARLES L. GREEN, et al.,
Respondents.

LINARES, District Judge:

Currently before the Court is the petition for a writ of habeas corpus of Petitioner, Daniel
Lucero Bravo, filed pursuant to 28 U.S.C.

§ 2241. (ECF No. 1).’ Following an order to answer

(ECF No. 5), the Government filed several responses to the Petition.

(ECF Nos. 7, 10-1 1).

Petitioner did not file a reply. For the following reasons, this Court will dismiss the petition
without prejudice for failure to exhaust.
I. BACKGROUND

Petitioner is a native and citizen of Mexico who entered this country without parole or
inspection at some point in 1998. (ECF No. 1 at 1-2). He thereafler settled in Edison, New Jersey,
with his family. (Id.). In February 2016, Petitioner was taken into immigration custody and
entered into removal proceedings.

(Document 1 attached to ECF No. 7).

Following a

determination that Petitioner should remain in custody (see Documents 2-3 attached to ECF No.
7), Petitioner requested a bond hearing before an immigration judge in March 2016. (Document

In his habeas petition, Petitioner refers to himself as both Daniel Luccro Bravo and Daniel Lucero
Bravo. (See ECF No. 1). The Government, both in its responses and in Petitioner’s removal
proceedings, however, refers to Petitioner as Daniel Lucero Bravo. (See, e.g., ECF No. 7 at 1;
Documents 1-4 attached to ECF No. 7). This Court thus assumes that Daniel Lucero Bravo is
correct, and refers to Petitioner as such.

4 attached to ECF No. 7). On March 9, 2016, Petitioner appeared before an immigration judge for
a bond hearing. (Id. at 2). following the hearing, the immigration judge denied Petitioner release
on bond, finding that Petitioner posed a danger to society because Petitioner was and continued to
be “a member of the 18th Street Gang.” (Id.). The immigration judge, in reaching that conclusion
explained that
[Petitioner] admitted that he was previously a member of [the gang]. [The
Government] also submitted photographs of [Petitioner] displaying gang hand
signs, as well as drawings by [Petitioner] with the 18th Street Gang logo. In
addition, [the Government] submitted an affidavit of Deportation Officer Nicolas
Jirnenez. Officer Jimenez, who was assigned to [Petitioner’s] case, stated that he
interviewed Petitioner following his arrest and that [Petitioner] stated that he used
to be a member of the. gang. Officer Jimenez stated that, although [Petitioner]
claimed to have left the gang, “law enforcement sensitive information the
specifics of which cannot be revealed strongly indicates that [Petitioner] has not
left the gang and remains an active member.” Although the court considered the
evidence submitted by [Petitioner] including his length of residence, school
records, United States citizen children, employment history, tax payment history,
letters from his step-son, employer and pastor, DACA inforniation, expert report,
drawings, articles and family photos, it finds that the negative factors of his prior
and current gang affiliation, which are serious indicators of his future dangerous
propensities, outweigh any positive factors present. Thus, [Petitioner] has not
met his burden of establishing eligibility for bond[.]
.

.

—

—

(Id. at 2-3). Petitioner appealed the denial of his request for bond, but the Board of Immigration
Appeals denied his appeal on June 16, 2016, finding no error in the immigration judge’s decision.
(Document 6 attached to ECf No. 7).
following the denial of Petitioner’s appeal to the Board, Petitioner requested a second bond
hearing, which he received on July 25, 2016. (See Document 1 attached to ECF No. 10). In his
habeas petition, Petitioner contends that, at this second hearing, he argued to a second immigration
judge that he had not received the affidavit of Officer Jimenez before his first hearing, and that he
had been unable to oppose or counter the information contained in that statement before his bond
request was denied. (See ECF No. 1 at 3). Although Petitioner’s motion for a renewed bond

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hearing does not contain any argument based on Petitioner’s alleged inability to challenge this
affidavit, the Government informs the Court that Petitioner did raise this argument orally before
the second immigration judge during his July 25 bond hearing. (ECF No. 10 at 3). The second
immigration judge, however, rejected this argument and again denied Petitioner bond, finding that
Petitioner had not sufficiently shown a change in circumstances sufficient to warrant his release
on bond. (Document 1 attached to ECF No. 10). Although Petitioner apparently reserved his right
to appeal that order, Petitioner failed to file an appeal of this second bond decision. (ECF No. 10
at 3).
II. DISCUSSION
A. Legal Standard

Under 2$ U.S.C.

§ 2241(c), habeas relief may be extended to a prisoner only when he “is

in custody in violation of the Constitution or laws or treaties of the United States.” 2$ U.S.C.

§

2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C.

§ 2241(c)(3); iVialeng v. Cook, 490 U.S. 488, 490 (1989). As Petitioner is

currently detained within this Court’s jurisdiction, by a custodian within the Court’s jurisdiction,
and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden

V.

30t12 Jttdicial Circttit Court,

410 U.S.

484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).

B. Analysis
In his petition, Petitioner essentially argues that he was denied procedural Due Process
during his bond hearings because he was not permitted to offer testimony or evidence challenging
the information contained within Officer Jirnenez’s affidavit regarding Petitioner’s alleged

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continued membership in the 18th Street Gang.2 In making that claim, Petitioner seeks not only
an order directing a new bond hearing, but also his “immediate release” from immigration custody.
(ECF No. 1 at 12). The Government, in mm, contends that Petitioner has failed to exhaust his
current procedural Due Process claim because he did not appeal the denial of bond during his
second bond hearing, and has not presented his procedural argument to the Board of Immigration
Appeals, and that his habeas petition must therefore be dismissed.
Initially, the Court must note that, to the extent Petitioner contends that he should be
granted an immediate release from custody, this Court lacks jurisdiction to review or reconsider
an immigration judge’s discretionary decisions regarding the granting, revocation, or denial of
bond or parole. See 8 U.S.C.

§ 1226(e). Thus, this Court lacks the authority to consider either

Petitioner’s entitlement to release or whether the immigration judges were mistaken in concluding
that Petitioner posed a danger sufficient to require his continued detention without bond, and the
Court cannot order Petitioner’s release. See, e.g., Fena v. Davies, No. 15-729 1, 2016 WL 74410,
at *2 (D.N.J. Jan. 5, 2016). Thus, to the extent Petitioner requests that he be ordered released or
merely disagrees with the decisions of an immigration judge or Board of Immigration Appeals, his
request must be denied.
This Court does have the authority, however, to consider whether Petitioner was denied
Due Process during his bond hearing, and, if the Court so determines, order that a new hearing be
conducted. Id.; see also Harris v. Herrey, No. 13-4365, 2013 WL 3884191, at *1 & n. 3 (D.N.J.
July 26, 2013). Before the Court can reach the merits of Petitioner’s contention that he was denied

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Although Petitioner couches his arguments in both the procedural and substantive aspects of the
Due Process Clause, Petitioner’s challenge arises solely out of his alleged inability to present
evidence on his own behalf and challenge the evidence against him presented by the Government,
a challenge that is procedural in nature. Thus, to the extent Petitioner has a substantive Due
Process claim, it appears that that claim depends entirely upon his contention that he was denied
procedural Due Process.
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the procedural protections of the Due Process Clause during his bond hearings, however, the Court
must first address the question of whether Petitioner has properly exhausted that claim before the
immigration judges and Board. Immigration detainees seeking review of their detention by a
district court via a petition for a writ of habeas corpus are required to exhaust all available
administrative remedies before pursuing a habeas petition. See, e.g., Yi v. Maugans, 24 F.3d 500,
503-04 (3d Cir. 1994); see also Okonkwo v. I.N.$., 69 F. App’x 57, 59-60 (3d Cir. 2003); Sheba v.

Green, No. 16-230, 2016 WL 3648000, at *3 (D.N.J. July 7, 2016). A district court may not review
the merits of an immigration detainee’s habeas claims unless and until he has properly exhausted
his administrative remedies. Yi, 24 F.3d at 503-04; Okonkwo, 69 F. App’x at 59-60; Bernard v.
Green, No. 15-6462, 2016 WL 2889165, at *3 (D.N.J. May 17, 2016). Thus, if Petitioner could
have, but did not, present his procedural claim to the Board of Immigration appeals, his claim is
unexhausted and he may not raise that claim here via a petition for a writ of habeas corpus until
such time as he does exhaust his administrative remedies. Yl, 24 F.3d at 503-04; Okonk-wo, 69 F.
App’x at 59-60; Bernard, 2016 WL 2889165, at *3 As the Board of Immigration Appeals does
possess the authority and ability to correct procedural errors made by immigration judges such as
the ones Petitioner asserts occurred during his second bond hearing, Petitioner was required to
present his current Due Process claim to the Board in order to properly exhaust it. See Garza

V.

Att’y Gen., 641 F. App’x 142, 145 (3d Cir. 2016) (the Board of Immigration Appeals possesses

the authority to address correctable procedural errors, and thus an immigration detainee properly
exhausts a claim that he was denied procedural Due Process by clearly presenting that claim to the
Board of Immigration Appeals). Because Petitioner has failed to exhaust his procedural Due
Process claim before the Board of Immigration Appeals in so much as he failed to appeal the denial
of bond at his second bond hearing, his petition must be dismissed without prejudice for failure to
exhaust administrative remedies.

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III. CONCLUSION
For the reasons expressed above, this Court will dismiss Petitioner’s petition for a writ of
habeas corpus (ECF No. 1) without prejudice because Petitioner has failed to exhaust his Due
Process claim. An appropriate order follows.

Dated: May 24, 2017

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