Paz Nativi v. Shanahan et al

Filing 15

OPINION AND ORDER: Petitioner Marlon Paz Nativi is an asylum seeker who claims he is being detained due to his inability to pay the bond amount set to secure his release pending his immigration proceedings, in violation of statutory and constitutional protections. (Dkt. No. 1 at 1.) (As further set forth in this Order.) For the foregoing reasons, the petition is DENIED. The Clerk of Court is directed to close this action. (Signed by Judge J. Paul Oetken on 1/23/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARLON PAZ NATIVI,

Petitioner,

-vCHRISOPHER SHANAHAN, et al.,

16-CV-8496 (JPO)
OPINION AND ORDER

Respondents.

J. PAUL OETKEN, District Judge:
Petitioner Marlon Paz Nativi is an asylum seeker who claims he is being detained due to
his inability to pay the bond amount set to secure his release pending his immigration
proceedings, in violation of statutory and constitutional protections. (Dkt. No. 1 at 1.) Because
Paz Nativi has failed to exhaust administrative remedies, his petition for a writ of habeas corpus
is denied.
I.

Background
Paz Nativi, a native and citizen of Guatemala, has been detained by the Department of

Homeland Security (“DHS”) since he entered the United States on or about July 1, 2016. (Dkt.
No. 1 ¶ 1.) On July 28, 2016, an asylum officer interviewed Paz Nativi and determined that he
demonstrated a “credible fear of persecution,” entitling him to a full hearing before an
immigration judge. (Id. ¶ 20.) On November 1, 2016, Paz Nativi had a bond hearing before an
immigration judge, who set bond at $20,000. (Id. ¶ 21.) In setting bond, the immigration judge
relied on the bond determination factors outlined in Matter of Guerra, 24 I. & N. Dec. 37 (B.I.A.
2006); she did not take into account Paz Nativi’s ability to pay. (Id.) Paz Nativi appealed the
immigration judge’s decision to the Board of Immigration Appeals (“BIA”). (See Dkt. No. 12
Ex. 4.)

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Paz Nativi filed his petition for a writ of habeas corpus on November 1, 2016. (Dkt. No.
1 ¶ 27.) The petition focuses on the immigration judge’s failure to consider Paz Nativi’s ability
to pay in determining the appropriate bond amount. Paz Nativi argues that his continued
detention resulting from the bond determination violates 8 U.S.C. § 1226, as well as the Due
Process and Equal Protection guarantees of the Fifth Amendment and the Excessive Bail Clause
of the Eighth Amendment to the United State Constitution.
II.

Discussion
Under the scheme governing immigration bond proceedings, non-citizens have the right

to appeal decisions by immigration judges to the BIA. See 8 C.F.R. § 1236.1(d)(3) (“An appeal
relating to bond and custody determinations may be filed to the Board of Immigration Appeals
. . . .”); see also id. § 1003.19(f); id. § 1003.38(a); id. § 1003.1(b). There is no statutory
requirement of administrative exhaustion before immigration detention may be challenged in
federal court by a writ of habeas corpus; however, such exhaustion is generally required as a
prudential matter. See Araujo-Cortes v. Shanahan, 35 F. Supp. 3d 533, 538 (S.D.N.Y. 2014)
(“Since Congress is silent on the issue, courts have applied a judicially created requirement that,
generally, a petitioner must exhaust his administrative remedies before seeking federal court
intervention.”); see generally Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. 1995) (“Under the
doctrine of exhaustion of administrative remedies, ‘a party may not seek federal judicial review
of an adverse administrative determination until the party has first sought all possible relief
within the agency itself.’” (quoting Guitard v. U.S. Sec’y of Navy, 967 F.2d 737, 740 (2d Cir.
1992))).
Numerous cases in this District have applied this prudential exhaustion requirement to
defer decision on habeas petitions where a BIA appeal of a bond determination is pending. See,
e.g., Palaniandi v. Jones, No. 15 Civ. 4021, 2016 WL 1459607, at *2 (S.D.N.Y. Mar. 10, 2016)
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(“In these circumstances, Petitioner’s remedy lies with the BIA, to which he has already filed an
appeal. Should the BIA affirm [the immigration judge’s] decision, Petitioner may seek the
appropriate judicial review at that time.”); Herrera v. Mechkowski, No. 15 Civ. 07058, 2016 WL
595999, at *1 (S.D.N.Y. Feb. 11, 2016) (“Herrera has already filed with the BIA an appeal to
contest the bond denial on the same grounds he contends warrant permission to amend his
habeas petition. If the BIA reverses the immigration judge’s decision and grants Herrera a new
hearing, then his request to amend his petition would be moot. If the BIA affirms the
immigration judge’s decision, Herrera may file another habeas petition . . . .”); Molina Posadas
v. Shanahan, No. 15 Civ. 5691, 2016 WL 146556, at *1 (S.D.N.Y. Jan. 12, 2016) (“To the extent
that Petitioner wishes to argue that the [Bond] Hearing did not satisfy the requirements of
§ 1226(a) and the Due Process Clause, once any administrative exhaustion requirements have
been satisfied, he may file another habeas petition raising these new arguments.”).
Here, Paz Nativi has appealed his bond determination to the BIA, raising the same
grounds as those raised in his petition to this Court. That appeal is currently pending. In
resolving the appeal, the BIA could modify Paz Nativi’s bond amount, and could even evaluate
the process followed by the immigration judge in setting Paz Nativi’s bond. The pendency of a
BIA appeal that could potentially moot Paz Nativi’s habeas petition counsels for the Court to
stay its hand until the exhaustion of administrative review in the name of preserving scarce
judicial resources and avoiding the possibility of duplicative or conflicting rulings. If the BIA
affirms the immigration judge’s bond determination, Paz Nativi may then file a new habeas
petition.
None of Paz Nativi’s three arguments to the contrary justifies excusing the prudential
exhaustion requirement.

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Exhaustion may be excused where: “(1) available remedies provide no genuine
opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial
relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised
a substantial constitutional question.” Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003)
(quoting Able v. United States, 88 F.3d 1280, 1288 (2d Cir. 1996)).
First, Paz Nativi argues that he will suffer irreparable harm if he is required to exhaust
administrative remedies. However, the harm Paz Nativi identifies—continued detention—is
insufficient to qualify as irreparable injury justifying non-exhaustion. See Giwah v. McElroy,
No. 97 Civ. 2524, 1997 WL 782078, *4 (S.D.N.Y. Dec. 19, 1997) (“If incarceration alone were
the irreparable injury complained of, then the exception would swallow the rule that the INS
administrative remedies must be exhausted before resorting to the federal courts.”).
Second, Paz Nativi argues that administrative appeal would be futile, as the agency has
“predetermined the issue before it.” Montestime v. Reilly, 704 F. Supp. 2d 453, 456 (S.D.N.Y.
2010) (quoting Garcia v. Shanahan, 615 F. Supp. 2d 175, 180 (S.D.N.Y. 2009)). In support of
this argument, he cites several BIA decisions rejecting the relevance of ability-to-pay
considerations in bond determinations. (Dkt. No. 14 at 6.) However, these decisions do not
show that administrative appeal would be futile as to Paz Nativi himself (as the BIA could
modify his bond determination) or as to Paz Nativi’s underlying claim more generally (as the
BIA could consider the ability-to-pay issue more broadly). The government cites multiple cases
in which the BIA has reduced bond amounts on appeal. (Dkt. No. 13 at 14.) Moreover, the
factors to be considered in bond determinations set out in Guerra are nonexclusive, meaning that
the BIA, even relying on Guerra, could consider ability to pay as a factor in bond
determinations. Guerra, 24 I. & N. Dec. at 39-40.

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Finally, Paz Nativi argues that exhaustion should be excused because his petition raises
substantial constitutional questions. (Dkt. No. 14.) However, because Paz Nativi’s
constitutional claims could be mooted by a BIA decision setting a reduced bond or remanding
for further bond-determination proceedings, and because his procedural due process claim could
also be addressed head-on by the BIA, there is insufficient justification to excuse Paz Nativi
from the exhaustion requirement here. See United States v. Gonzalez-Roque, 301 F.3d 39, 47-48
(2d Cir. 2002) (“While constitutional claims lie outside the BIA’s jurisdiction, it clearly can
address procedural defects . . . .”).
Given the pendency of the BIA appeal, and the absence of any justification for excusing
the prudential exhaustion requirement, Paz Nativi is required to exhaust available administrative
review before filing a petition for habeas corpus in this Court.
III.

Conclusion
For the foregoing reasons, the petition is DENIED.
The Clerk of Court is directed to close this action.

SO ORDERED.
Dated: January 23, 2017
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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