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Jaime Aldos Leonardo, Jr v. Phillip Crawford

May 13, 2011

JAIME ALDOS LEONARDO, JR., PETITIONER-APPELLANT,
v.
PHILLIP CRAWFORD, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, Senior District Judge, Presiding D.C. No. 2:07-cv-00545- SMM

The opinion of the court was delivered by: Fisher, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 4, 2010-Pasadena, California

Before: Susan P. Graber, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.*fn1

OPINION

Jaime Aldos Leonardo, Jr. appeals the district court's judgment dismissing his 28 U.S.C. § 2241 habeas petition challenging his prolonged immigration detention without bond. He contends that his bond hearing, provided under CasasCastrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008), violated due process. We write to clarify the proper procedure for challenging a Casas bond determination: Once an alien has received a Casas bond hearing before an immigration judge (IJ), he may appeal the IJ's decision to the Board of Immigration Appeals (BIA). If the alien is dissatisfied with the BIA's decision, he may then file a habeas peti- tion in the district court, challenging his continued detention. The district court's decision on the habeas petition may be appealed to this court. Because Leonardo did not follow this course here, and thus did not exhaust administrative remedies before pursuing habeas relief, we remand to the district court with instructions to dismiss his petition without prejudice.

BACKGROUND

Leonardo filed a pro se petition for writ of habeas corpus in federal district court, alleging that his prolonged detention was unlawful. While Leonardo's habeas petition was pending, we decided Casas-Castrillon and Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), which held that procedural due process entitles aliens detained under 8 U.S.C. § 1226(a), pending completion of their removal proceedings, to a bond hearing before an immigration judge to determine whether their ongoing detention is justified. In light of those decisions, the district court ordered the government to afford Leonardo a Casas hearing. The court ordered "that the Court will grant Petitioner's Petition for Writ of Habeas Corpus and order Respondent to release Petitioner, unless Respondent complies with this Court's Order and notifies the Court by August 28, 2009." Order June 29, 2009, at 5. The government afforded Leonardo a Casas hearing before an immigration judge, and the IJ denied bond, concluding that Leonardo posed a danger to the community.

Rather than appealing the IJ's adverse bond determination to the BIA, Leonardo filed a motion for review of the IJ's decision in his pending habeas case, arguing that the hearing failed to satisfy due process or conform to the district court's previous order. The district court denied the petition. First, the court concluded that the government had "complied exactly with this Court's Order" by providing Leonardo a bond hearing before an immigration judge. Order Oct. 13, 2009, at 3. Second, the court concluded that it lacked jurisdiction to consider Leonardo's claims that the hearing lacked due process, citing 8 U.S.C. § 1226(e), which provides that "[n]o court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond." 8 U.S.C. § 1226(e). The court therefore denied the petition and entered judgment dismissing the action. The court advised Leonardo that his "only recourse [wa]s to appeal the bond determination to the Board of Immigration Appeals." Order Oct. 13, 2009, at 4. Leonardo timely appealed the district court's judgment to this court.

Leonardo also ultimately appealed the IJ's adverse bond determination to the BIA. The BIA reviewed the IJ's determination de novo, affirmed the IJ's conclusion that Leonardo posed a danger to the community and dismissed the appeal. See In re Leonardo, No. A040-464-700 (B.I.A. Apr. 28, 2010). We take judicial notice of the BIA's decision. See Fed. R. Evid. 201.

DISCUSSION

I.

[1] The district court concluded that 8 U.S.C. § 1226(e) deprives a district court of jurisdiction to review a Casas bond determination for constitutional and legal error. This conclusion was incorrect. It is now clear that "a federal district court has habeas jurisdiction under 28 U.S.C. § 2241 to review Casas bond hearing determinations for constitutional claims and legal error." V. Singh v. Holder, No. 10-15715, ___ F.3d ___, 2011 WL 1226379, at *1 (9th Cir. Mar. 31, 2011). "Al-though § 1226(e) restricts jurisdiction in the federal courts in some respects, it does not limit habeas jurisdiction over ...


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