Monday, May 16, 2011

U.S. v. Crawford, No. 09-17495 (5-13-11)(Fisher with Graber and Bybee).

This case sets out the procedure for challenging a bond determination. In Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008), the 9th held that aliens detained under 8 U.S.C. 1226(a), pending completion of their removal proceedings, are entitled to a bond hearing before an immigration judge to determine whether their ongoing detention is justified. This case answers what happens after the bond hearing, if the petitioner disagrees with the decision. The petitioner must file an appeal to the BIA, and if he disagrees with the BIA's decision, then he can file a habeas. Here, the petitioner was in habeas when Casas-Castrillon was decided. The district court remanded to the immigration judge for a hearing. The immigration judge detained the petitioner as a danger. Going pro se, the petitioner disagreed with the decision and filed a habeas again in the district court rather than appealing to the BIA. The petitioner alleged a failure to follow the court's order and a due process violation. The district court ordered a dismissal of the habeas because the immigration judge had held a hearing and so the order had been followed; and the district court felt it lacked jurisdiction to review due process violations under 8 U.S.C. 1226(e). On appeal, the 9th vacated the order and remanded with instructions to dismiss without prejudice. The 9th held that there was a failure to exhaust administrative remedies. The petitioner should have exhausted administrative remedies by appealing the IJ's order to the BIA. Now, if petitioner gores back and exhausts administrative remedies, he can then file a new habeas. The 9th rejected petitioner's contention that the district court should have heard the appeal to determine compliance with its remand order. By having a hearing and the IJ making a ruling, the order was followed.


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