And Demjanjuk is in tension with the Ninth Circuit's holding in Merino (articulated supra ). Nevertheless, Ameen argues that the Ninth Circuit has shown support for Demjanjuk , in two decisions โ Wang v. Reno , 81 F.3d 808, 820-21 (9th Cir. 1996) and Prasoprat v. Benov , 421 F.3d 1009, 1015 (9th Cir. 2005). ECF No. 116 at 18.
Judge Teilborg found that the parties failed to convince "the Court that Judge Carroll's finding was in error. Petitioner's claim is not obviously materially distinguishable from Wang v. Reno, 81 F.3d 808 (9th Cir. 1996)." See Order of April 4, 2001 (Doc. 14), at 6.
As it applies here, the Due Process Clause prevents the government from affirmatively placing an individual in danger, and requires the government to provide for and protect a person with whom it creates a special relationship. Wang v. Reno, 81 F.3d 808, 818 (9th Cir. 1996). The analysis of these two protections has been blended together in some cases, and they have been described as exceptions to the general rule that "members of the public have no constitutional right to sue state employees who fail to protect them from harm inflicted by third parties."
In Magana-Pizano, the transitional rule of AEDPA also precluded the court of appeals from hearing the case. Furthermore, the court noted, the BIA lacks jurisdiction to adjudicate constitutional issues, citing Wang Zong Xiao v. Reno, 81 F.3d 808, 814 (9th Cir. 1996) and Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985). Magana-Pizano at 1221.
The Ninth Circuit has stated that when a habeas petitioner's Fifth Amendment claim "does not implicate the INA, let alone involve review of an order of deportation or exclusion, we conclude that he was not statutorily required to exhaust his administrative remedies prior to seeking judicial relief of the violation of his due process rights." Wang v. Reno, 81 F.3d 808, 814 (9th Cir. 1996). As this petitioner seeks vindication of substantive due process rights, exhaustion would not serve to protect the administrative agency's authority or preserve judicial efficiency.
Rather, as the Court of Appeals found, this Court's jurisdiction arose from its power to redress the government's due process violations. Wang Zong Xiao v. Reno, 81 F.3d 808, 816 (9th Cir. 1996). Thus, the Act does not divest the Court of jurisdiction over this matter.
This case has had a long and shameful history, of which the parties are well aware and which the Court will not here repeat. The essential facts of the case are described at length in the Court's opinion in Xiao v. Reno, 837 F. Supp. 1506 (N.D.Cal. 1993), aff'd, 81 F.3d 808 (9th Cir. 1996). On October 6, 1993, the Court issued its Opinion and Order permanently enjoining the INS and any other government entity from attempting to remove Wang from the United States or to return him to the custody of the People's Republic of China.
The government may not remove a petitioner to a foreign country where the government, either by entering into a "special relationship" with the petitioner, or through affirmative government action, created the risk that the petitioner will be in danger from third parties if removed. See Wang v. Reno, 81 F.3d 808, 818 (9th Cir. 1996). Hernandez does not have a "special relationship" with the United States government that could entitle him to an injunction; Hernandez's only relevant interaction with the government consisted of his interaction with DHS investigators more than six years ago.
Finally, Biocini asks us to permanently enjoin the government from seeking to remove her from the United States under the state-created danger doctrine, which allows federal courts to enjoin the government from deporting an alien when the government's malfeasance has created conditions that would place a person who is deported in danger. See Wang v. Reno, 81 F.3d 808 (9th Cir. 1996) (per curiam). We have jurisdiction pursuant to 8 U.S.C. ยง 1252(a), and we deny the petition in part, grant the petition in part, and remand to the BIA for further proceedings.
The agency has no power to grant relief on estoppel or substantive due process claims, and accordingly, we have never required petitioners to exhaust claims of this nature before the agency. Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir.2006); Wang v. Reno, 81 F.3d 808, 814 (9th Cir.1996). Morgan thus did not fail to raise his due process and equitable estoppel claims before the BIA and is not barred from raising them here for the first time, and we have jurisdiction to consider them.