Opinion
CASE NO. C15-0222-JCC-MAT
07-16-2015
JOSE MIGUEL CHAVEZ-BARAHONA, Petitioner, v. NATALIE ASHER, et al., Respondents.
ORDER OF DISMISSAL
This matter comes before the Court on Respondents' motion to dismiss Petitioner's habeas petition as moot (Dkt. No. 20). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.
I. BACKGROUND
Petitioner is a native and citizen of El Salvador who has been detained by U.S. Immigration and Customs Enforcement ("ICE") at the Northwest Detention Center in Tacoma, Washington, since November 7, 2014, under a reinstated order of removal. (See Dkt. No.1.) In his Petition for Writ of Habeas Corpus, Mr. Chavez requested either immediate release or an individualized hearing before an immigration judge. (Dkt. No. 1 at 7.). The Report and Recommendation ("R&R") issued by United States Magistrate Judge Mary Alice Theiler filed on May 29, 2015 recommended that the Executive Office for Immigration Review ("EOIR") provide Mr. Chavez with a bond hearing within 14 days of the order on the R&R. (Dkt. No. 18 at 14.) Since the R&R was issued, the EOIR has conducted a bond hearing pursuant to Mr. Chavez's request under Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). (See Dkt. No. 20, Ex. B., Immigration Judge Bond Order, June 9, 2015.) Respondents now move to dismiss the habeas petition as moot, arguing that because Mr. Chavez received a bond hearing before an IJ, the requirements of due process have been met and there is no other relief that the Court can provide. (Dkt. No. 20.) See Prieto-Romero v. Clark, 534 F.3d 1053, 1059 (9th Cir. 2008) (holding the requirements of due process are satisfied once the alien receives a bond hearing from a neutral adjudicator). Mr. Chavez opposes the motion, arguing that his habeas petition is not moot because the Immigration Judge ("IJ") acted as a prosecutor rather than a neutral adjudicator, and unlawfully and unconstitutionally refused to set bond. (Dkt. No. 22.)
II. DISCUSSION
In order to challenge an IJ's bond determination under Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir.2008), an alien must "appeal the decision to the Board of Immigration Appeals (BIA)." Leonardo v. Crawford, 646 F.3d 1157, 1159 (9th Cir. 2011). If he is dissatisfied with the BIA's decision, he may then file a habeas petition in the district court, challenging his continued detention. Id. Where the petitioner bypasses the BIA and immediately files a habeas petition with a district court, it is appropriate for the district court to dismiss the petition without prejudice, unless exhaustion is excused. See id. at 1160 (finding that petitioner took an improper "short cut" where he petitioned for habeas review of IJ's adverse bond determination before appealing to the BIA).
Here, Mr. Chavez obtained the individualized bond hearing before the IJ that he sought, but has not yet exhausted his administrative remedies by seeking review by the BIA. (See Dkt. No. 23 at 8.) While Mr. Chavez has argued that the Court has the ability to review his legal and constitutional claims (Dkt. No. 22 at 3), he has not demonstrated that the BIA is not properly equipped to address these claims, and he has not identified any other reasons that exhaustion should be excused. Thus, there are no alleged due process violations remaining for the Court to adjudicate. The habeas petition is, therefore, moot, and dismissal is appropriate.
III. CONCLUSION
For the foregoing reasons, Respondents' motion to dismiss Petitioner's habeas petition as moot (Dkt. No. 20) is GRANTED. It is hereby ORDERED that Mr. Chavez's habeas petition (Dkt. No. 1) is dismissed without prejudice. Petitioner's objections to the R&R (Dkt. No. 21) are dismissed as moot.
DATED this 16 day of July 2015.
/s/_________
John C. Coughenour
UNITED STATES DISTRICT JUDGE