The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge
ORDER GRANTING HABEAS CORPUS PETITIONER'S FIRST AMENDED PETITION FOR WRIT OF
Pending before the Court is Petitioner's First Amended Petition ("FAP") for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. For the following reasons, Petitioner's writ of habeas corpus is granted and a conditional writ of habeas corpus is issued.
Petitioner was born in El Salvador in 1978 and came to the United States in 1981. (FAP at 2.) He adjusted his status to that of Legal Permanent Resident in 1991. (Id.; Return Ex. 1 at 17, Ex. 2 at 22.) After sustaining criminal convictions, Petitioner was taken into immigration custody on October 9, 2007. (FAP at 2) On April 16, 2008, Petitioner was ordered removed to El Salvador by an immigration judge ("IJ"). (Id. at 3; Return Ex. 8.) He appealed the order of removal and the Board of Immigration Appeals ("BIA") affirmed the IJ's decision on July 28, 2008. (FAP at 3; Return Ex. 9.) The Ninth Circuit also dismissed his petition for review. (Return Ex. 10.)
On October 9, 2008, while the Ninth Circuit was considering his petition for review, Petitioner was given a bond hearing in immigration court. The attorney for the Department of Homeland Security moved for Petitioner to be released on bond in the amount of $25,000, to which the IJ and Petitioner agreed. (Return Ex. 13.) Petitioner argues the IJ never made any factual findings, nor stated it was placing any sort of burden on the Government. On November 14, 2008, Petitioner filed a motion for redetermination of bond, the hearing on which was repeatedly continued until March 26, 2009. By that time, Petitioner's initial petition for direct review of his removal order had been dismissed by the Ninth Circuit and the IJ ruled he did not have the authority to hold a new bond hearing. (FAP Ex. A.) Petitioner filed a subsequent motion for a bond redetermination hearing on April 9, 2009, which the IJ denied, finding it did not have jurisdiction. (Id. at Ex. B.) Petitioner again requested a bond redetermination hearing on November 17, 2009, which the IJ denied on December 10, 2009. (Id. at Ex. C.) Petitioner appealed this decision to the BIA, which affirmed the IJ's ruling on April 26, 2010. (Id. at Ex. D.)
On December 15, 2008, Petitioner moved to reopen the removal proceedings with the BIA on the bases that the circumstances in El Salvador had changed and his immigration attorney was ineffective in advising him not to proceed with a prior asylum application. (Return Ex. 14.) Petitioner's motion to reopen was denied, as was his petition for review with the Ninth Circuit. (Id. at Exs. 14, 15.) On July 16, 2010, Petitioner filed a second motion to reopen with the BIA, which was also denied. (Id. at Ex. 16.) Petitioner also filed an additional petition for review with the Ninth Circuit, arguing he was not deportable as charged because, based upon intervening case law, he did not have an aggravated felony. (Id. Ex. 17.) Petitioner was granted a stay in this case. (Id.) On November 12, 2010, Petitioner filed a third motion to reopen with the BIA, which was also denied. (Id. at Ex. 18.) Petitioner filed a petition for review with the Ninth Circuit, which issued a temporary stay of removal. (Id. at Ex. 19.) On February 14, 2011, Petitioner filed a fourth motion to reopen with the BIA, which was also denied. (Id. at Ex. 20.) Petitioner again filed a petition for review with the Ninth Circuit. (Id. at Ex. 21.)
Petitioner is currently in the custody of the Secretary of the Department of Homeland Security and the Attorney General of the United States and is being detained at Respondents' detention facility in Otay Mesa, California. (FAP at 1.) He filed a Petition for Writ of Habeas Corpus, a motion for leave to proceed in forma pauperis ("IFP"), and a motion for appointment of counsel on February 8, 2011. (Docs. 1-3.) The Court issued an Order granting Petitioner's motion for leave to proceed IFP and subsequently issued an Order granting Petitioner's motion for appointment of counsel and appointing Federal Defenders, Inc. to represent Petitioner. (Docs. 4, 7.) On April 25, 2011, the Court granted Petitioner's unopposed motion for leave to file the FAP. (Docs. 11-12.) Respondents filed a return to the FAP and Petitioner filed a traverse. (Docs. 14-15.)
Petitioner argues he is entitled to a writ of habeas corpus because he has been unreasonably detained pending the outcome of his collateral challenges to his removal order and because he received a procedurally deficient bond hearing and is therefore being held in violation of his due process rights. As an initial matter, Petitioner argues he is entitled to a bond hearing at this stage of his proceedings and the IJ's denials of his motions for bond redetermination hearings for lack of jurisdiction were in error. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), the Ninth Circuit extended its holding in Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008) -- that individuals in discretionary immigration custody are entitled to a bond hearing before an IJ to determine the necessity of ongoing detention -- to individuals with an administratively final order of removal, pending collateral challenges to the removal order, and a stay of removal in place. Diouf, 634 F.3d at 1085-88.*fn1 Petitioner's removal order became administratively final on July 28, 2008. He has a pending petition for review before the Ninth Circuit, which has issued a temporary stay of removal. Under these circumstances, the Court finds Petitioner is entitled to a bond hearing.
Petitioner argues the bond hearing he previously received was constitutionally deficient for five reasons: (1) the IJ failed to articulate and apply the correct standard of proof; (2) the bond hearing was not contemporaneously recorded; (3) the IJ erroneously failed to apply the factors set forth in In re Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006); (4) the IJ granted bond in an amount that was unreasonably high given Petitioner's individual circumstances; and (5) the IJ failed to provide appointed counsel. Respondents argue Petitioner has failed to administratively exhaust his claims; Petitioner cannot demonstrate prejudice as a result of his claims alleging the IJ failed to apply the appropriate burden of proof, the IJ set an inappropriately high bond amount, and the proceeding was not contemporaneously recorded; the Court lacks jurisdiction to review Petitioner's claim that the IJ failed to consider the Guerra factors; and Petitioner's claim regarding lack of appointed counsel fails.
Respondents argue this Court should dismiss the FAP without prejudice because Petitioner has not exhausted his administrative remedies with respect to his claims due to the fact that he did not administratively appeal his bond decision to the BIA. They cite to Leonardo v. Crawford, No. 09-17495, 2011 WL 3319433 (9th Cir. Aug. 3, 2011) in support of their argument. In that case, the Ninth Circuit held that an alien was required to exhaust his administrative remedies by appealing to the BIA before seeking habeas review of an IJ's bond determination. Leonardo, 2011 WL 3319433, at *1 ("Once an alien has received a Casas bond hearing before an immigration judge (IJ), he may appeal the IJ's decision to the [BIA]. If the alien is dissatisfied with the BIA's decision, he may then file a habeas petition in the district court, challenging his continued detention. . . . 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."). However, the Court in Leonardo also recognized that the exhaustion requirement may, in some circumstances, be excused. Id. at *3; see also Morrison-Knudsen Co., Inc. v. CHG Int'l, Inc., 811 F.2d 1209, 1223 (9th Cir. 1987); Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)("Courts may require prudential exhaustion if '(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.'" (citation omitted)). Here, although Petitioner did not appeal the determination in his bond hearing, he has made multiple requests for a bond redetermination hearing, all of which have been ...