1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 JOHN DOE, Case No. 23-cv-05327-RMI

9 Petitioner, ORDER RE: MOTION TO ENFORCE 10 v. Re: Dkt. No. 20 11 MOISES BECERRA, et al., 12 Respondents.

13 14 Now pending before court is Petitioner’s Motion to Enforce the Judgment (dkt. 20). 15 Respondents have filed an Opposition (dkt. 26), and Petitioner has filed a Reply (dkt. 27). 16 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the court finds the 17 matter suitable for disposition without oral argument. For the reasons stated below, Petitioner’s 18 motion is denied. 19 Petitioner is a person detained in the custody of U.S. Immigration and Customs 20 Enforcement (“ICE”) pending the outcome of his removal proceedings. See Pet. (dkt. 1) at 2. He 21 instituted this litigation because “[s]ince his detention by ICE began in March 2020, no neutral 22 adjudicator has ever conducted a hearing to determine whether his lengthy detention is warranted 23 based on danger or flight risk.” Id. at ¶ 4. Petitioner argued that “prolonged detention without a 24 hearing on his present danger or flight risk violates the Due Process Clause of the Fifth 25 Amendment of the Constitution.” Id. at ¶ 5. Thereafter, on March 7, 2024, the court ordered 26 Respondents to either release Petitioner from custody or to provide him with a bond hearing 27 before an immigration judge by March 28, 2024. See Order (dkt. 18) at 13. The court further 1 convincing evidence that he presents a current risk of flight or dangerousness and that no 2 condition or combination of conditions short of detention could reasonably assure his appearance 3 at removal proceedings or the safety of the community. Id. 4 On March 26, 2024, the government timely provided Petitioner with a bond hearing before 5 an Immigration Judge (“IJ”), the proceedings of which were transcribed. See Tr. (dkt. 23-2 6 *SEALED*) at 2-21. Petitioner now moves to enforce this court’s prior order by asserting his 7 disagreement with the IJ’s evaluation of the evidence and the IJ’s findings that the government 8 showed by clear and convincing evidence that Petitioner does present a current risk of flight and 9 dangerousness. See generally Pet.’s Br. (dkt. 21) at 16-30. Petitioner points to various evidence to 10 which he suggests the IJ failed to give appropriate weight – including the fact that he has 11 completed a number of rehabilitation programming courses while in Respondents’ custody as well 12 as those he completed while serving prison sentences for his prior convictions, and his work as a 13 wildland firefighter while servicing his prison sentences. See id. at 19-20. Petitioner states that 14 despite the seriousness of his prior convictions – for which he is deeply sorry – he submits that his 15 participation in rehabilitation programming (which has taken place more recently than the 16 sometimes-violent conduct underlying his prior convictions) should have yielded the conclusion 17 that he is not a current risk of flight or a current danger to the community. Id. at 20-24, 25-26. 18 Petitioner also contends that the IJ violated this court’s order by not considering or expressly 19 discussing alternatives to detention and by failing to prove a reasoned decision. See id. at 26-29. 20 After hearing the Parties’ arguments and reviewing the evidence submitted, the IJ found 21 that the government had met it burden as to flight risk and dangerousness. See Tr. (dkt. 23-2 22 *SEALED*) at 20. The IJ noted Petitioner’s extensive criminal history, which includes recent 23 convictions within the last six years. Id. The IJ was particularly troubled by the fact that most of 24 Petitioner’s convictions involve violence – such as convictions for domestic violence, spousal 25 battery, and assault with a deadly weapon. Id. at 20-21. As to the evidence of Petitioner’s 26 participation in rehabilitation programming, the IJ found it did not diminish the concerns with 27 Petitioner’s risk of flight and dangerousness. Id. at 21. More specifically, as to the risk of flight, 1 from asylum and potentially also from withholding of removal . . . [not to mention] at least two 2 probation violations,” on the cumulative basis of which the IJ found that the government had met 3 its burden as to risk of flight. Id. at 21. Petitioner’s arguments in this court do not address the IJ’s 4 holding in this regard. See generally Pet.’s Br. (dkt. 21); see also Pet.’s Reply (dkt. 27). It should 5 also be noted that Petitioner has appealed the IJ’s decision See Tr. (dkt. 23-2 *SEALED*) at 21. 6 As an initial matter, the court disagrees with Petitioner’s assertion that the IJ – failed to 7 follow the court’s order. Petitioner’s disagreement with the IJ’s bond determination is not the 8 same as saying the IJ failed to follow the court’s directives. In essence, Petitioner disagrees with 9 how the IJ weighed the evidence and with the ultimate conclusion of detention. The court does not 10 see anything in the record that would lead to the conclusion that the court’s order was ignored or 11 contravened in any way. 12 To the extent that Petitioner wishes to assert that the discretionary process of bail 13 determination before the IJ was itself constitutionally flawed, those types of claims would be 14 cognizable in federal court on habeas, “despite the jurisdictional restrictions in [8 U.S.C.] §§ 15 1226(e) and 1252(a)(2)(B).” See Hernandez v. Sessions,

(9th Cir. 2017). 16 However, Petitioner is currently administratively appealing his adverse bond determination; and, 17 while “[t]he exhaustion requirement is prudential, rather than jurisdictional, for habeas claims,” 18 courts may decline to waive prudential exhaustion “when: (1) agency expertise makes agency 19 consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of 20 the requirement would encourage the deliberate bypass of the administrative scheme; and (3) 21 administrative review is likely to allow the agency to correct its own mistakes and to preclude the 22 need for judicial review.”

(citing Puga v. Chertoff,

, 815 (9th Cir. 2007)). 23 To the extent that Petitioner asks this court to simply reweigh the evidence considered by 24 the IJ, thereby substituting its own discretion for that of the IJ, the court declines to do so because 25 that sort of broad-based judicial review of the executive branch discretionary decisions in this 26 domain are precluded by

(e) and 1252(a)(2)(B)(ii). On the other hand, to the 27 extent that Petitioner wishes to contend that the bail process and determination before the IJ was 1 exhaustion of Petitioner’s administrative appeal because the court finds that in this matter: agency 2 || expertise and full administrative consideration would generate a proper record that would aid the 3 court in reaching a proper decision on such a claim; that relaxation of the administrative 4 || exhaustion requirement would encourage the deliberate bypass of the administrative framework; 5 and, that further administrative review would allow the agency to correct any mistakes, which 6 || would obviate the need for judicial review. Accordingly, for the reasons stated herein, Petitioner’s 7 Motion to Enforce Judgment (dkt. 20) is DENIED. 8 IT IS SO ORDERED. 9 || Dated: May 21, 2024 10 11 R@BERT M. ILLMAN 12 United States Magistrate Judge

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