United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN, District Judge
Marlon Paz Nativi is an asylum seeker who claims he is being
detained due to his inability to pay the bond amount set to
secure his release pending his immigration proceedings, in
violation of statutory and constitutional protections. (Dkt.
No. 1 at 1.) Because Paz Nativi has failed to exhaust
administrative remedies, his petition for a writ of habeas
corpus is denied.
Nativi, a native and citizen of Guatemala, has been detained
by the Department of Homeland Security (“DHS”)
since he entered the United States on or about July 1, 2016.
(Dkt. No. 1 ¶ 1.) On July 28, 2016, an asylum officer
interviewed Paz Nativi and determined that he demonstrated a
“credible fear of persecution, ” entitling him to
a full hearing before an immigration judge. (Id.
¶ 20.) On November 1, 2016, Paz Nativi had a bond
hearing before an immigration judge, who set bond at $20,
000. (Id. ¶ 21.) In setting bond, the
immigration judge relied on the bond determination factors
outlined in Matter of Guerra, 24 I. & N. Dec. 37
(B.I.A. 2006); she did not take into account Paz Nativi's
ability to pay. (Id.) Paz Nativi appealed the
immigration judge's decision to the Board of Immigration
Appeals (“BIA”). (See Dkt. No. 12 Ex.
Nativi filed his petition for a writ of habeas corpus on
November 1, 2016. (Dkt. No. 1 ¶ 27.) The petition
focuses on the immigration judge's failure to consider
Paz Nativi's ability to pay in determining the
appropriate bond amount. Paz Nativi argues that his continued
detention resulting from the bond determination violates 8
U.S.C. § 1226, as well as the Due Process and Equal
Protection guarantees of the Fifth Amendment and the
Excessive Bail Clause of the Eighth Amendment to the United
the scheme governing immigration bond proceedings,
non-citizens have the right to appeal decisions by
immigration judges to the BIA. See 8 C.F.R. §
1236.1(d)(3) (“An appeal relating to bond and custody
determinations may be filed to the Board of Immigration
Appeals . . . .”); see also Id. §
1003.19(f); id. § 1003.38(a); id.
§ 1003.1(b). There is no statutory requirement of
administrative exhaustion before immigration detention may be
challenged in federal court by a writ of habeas corpus;
however, such exhaustion is generally required as a
prudential matter. See Araujo-Cortes v. Shanahan, 35
F.Supp.3d 533, 538 (S.D.N.Y. 2014) (“Since Congress is
silent on the issue, courts have applied a judicially created
requirement that, generally, a petitioner must exhaust his
administrative remedies before seeking federal court
intervention.”); see generally Howell v.
I.N.S., 72 F.3d 288, 291 (2d Cir. 1995) (“Under
the doctrine of exhaustion of administrative remedies,
‘a party may not seek federal judicial review of an
adverse administrative determination until the party has
first sought all possible relief within the agency
itself.'” (quoting Guitard v. U.S. Sec'y of
Navy, 967 F.2d 737, 740 (2d Cir. 1992))).
cases in this District have applied this prudential
exhaustion requirement to defer decision on habeas petitions
where a BIA appeal of a bond determination is pending.
See, e.g., Palaniandi v. Jones, No. 15 Civ.
4021, 2016 WL 1459607, at *2 (S.D.N.Y. Mar. 10, 2016)
(“In these circumstances, Petitioner's remedy lies
with the BIA, to which he has already filed an appeal. Should
the BIA affirm [the immigration judge's] decision,
Petitioner may seek the appropriate judicial review at that
time.”); Herrera v. Mechkowski, No. 15 Civ.
07058, 2016 WL 595999, at *1 (S.D.N.Y. Feb. 11, 2016)
(“Herrera has already filed with the BIA an appeal to
contest the bond denial on the same grounds he contends
warrant permission to amend his habeas petition. If the BIA
reverses the immigration judge's decision and grants
Herrera a new hearing, then his request to amend his petition
would be moot. If the BIA affirms the immigration judge's
decision, Herrera may file another habeas petition . . .
.”); Molina Posadas v. Shanahan, No. 15 Civ.
5691, 2016 WL 146556, at *1 (S.D.N.Y. Jan. 12, 2016)
(“To the extent that Petitioner wishes to argue that
the [Bond] Hearing did not satisfy the requirements of §
1226(a) and the Due Process Clause, once any administrative
exhaustion requirements have been satisfied, he may file
another habeas petition raising these new arguments.”).
Paz Nativi has appealed his bond determination to the BIA,
raising the same grounds as those raised in his petition to
this Court. That appeal is currently pending. In resolving
the appeal, the BIA could modify Paz Nativi's bond
amount, and could even evaluate the process followed by the
immigration judge in setting Paz Nativi's bond. The
pendency of a BIA appeal that could potentially moot Paz
Nativi's habeas petition counsels for the Court to stay
its hand until the exhaustion of administrative review in the
name of preserving scarce judicial resources and avoiding the
possibility of duplicative or conflicting rulings. If the BIA
affirms the immigration judge's bond determination, Paz
Nativi may then file a new habeas petition.
Paz Nativi's three arguments to the contrary justifies
excusing the prudential exhaustion requirement.
may be excused where: “(1) available remedies provide
no genuine opportunity for adequate relief; (2) irreparable
injury may occur without immediate judicial relief; (3)
administrative appeal would be futile; and (4) in certain
instances a plaintiff has raised a substantial constitutional
question.” Beharry v. Ashcroft, 329 F.3d 51,
62 (2d Cir. 2003) (quoting Able v. United States, 88
F.3d 1280, 1288 (2d Cir. 1996)).
Paz Nativi argues that he will suffer irreparable harm if he
is required to exhaust administrative remedies. However, the
harm Paz Nativi identifies-continued detention-is
insufficient to qualify as irreparable injury justifying
non-exhaustion. See Giwah v. McElroy, No. 97 Civ.
2524, 1997 WL 782078, *4 (S.D.N.Y. Dec. 19, 1997) (“If
incarceration alone were the irreparable injury complained
of, then the exception would swallow the rule that the INS
administrative remedies must be exhausted before resorting to
the federal courts.”).
Paz Nativi argues that administrative appeal would be futile,
as the agency has “predetermined the issue before
it.” Montestime v. Reilly, 704 F.Supp.2d 453,
456 (S.D.N.Y. 2010) (quoting Garcia v. Shanahan, 615
F.Supp.2d 175, 180 (S.D.N.Y. 2009)). In support of this
argument, he cites several BIA decisions rejecting the
relevance of ability-to-pay considerations in bond
determinations. (Dkt. No. 14 at 6.) However, these decisions
do not show that administrative appeal would be futile as to
Paz Nativi himself (as the BIA could modify his bond
determination) or as to Paz Nativi's underlying claim
more generally (as the BIA could consider the ability-to-pay
issue more broadly). The government cites multiple cases in
which the BIA has reduced bond amounts on appeal. (Dkt. No.
13 at 14.) Moreover, the factors to be considered in bond
determinations set out in Guerra are nonexclusive,
meaning that the BIA, even relying on Guerra, could
consider ability to pay as a factor in bond determinations.
Guerra, 24 I. & N. Dec. at 39-40.
Paz Nativi argues that exhaustion should be excused because
his petition raises substantial constitutional questions.
(Dkt. No. 14.) However, because Paz Nativi's
constitutional claims could be mooted by a BIA decision
setting a reduced bond or remanding for further
bond-determination proceedings, and because his procedural
due process claim could also be addressed head-on by the BIA,
there is insufficient justification to excuse Paz Nativi from
the exhaustion requirement here. See United States v.
Gonzalez-Roque,301 F.3d 39, 47-48 (2d ...