Leonardo v. Crawford (9th Cir. 5/13/2011)

In 2008, the Ninth Circuit decided Casas-Castrillon v. DHS, which held that aliens detained pending completion of their removal proceedings are entitled to a bond hearing before an immigration judge to determine whether their ongoing detention is justified.  While a very important case for those in detention, there were several areas which the ruling did not address.  For instance, what happens when a bond hearing is conducted but the immigration judge denies bond?  After all, Casas-Castrillon only holds that a detainee is entitled to a bond hearing.  It doesn’t hold that a request for bond must be granted.  The immigration judge still has the discretion to grant or deny bond, based on a showing by the government that the detainee is a flight risk or a danger to society.  The case discussed herein addresses the question of what is the proper procedure for appealing the decision of an immigration judge who denies bond.

The facts of this case are not particular important, but the holding is critical to those who deal with detention cases.  It’s a good thing to have rights, but it is surely a dangerous thing when such rights are within the unfettered discretion of a single person.  That is why an appeal process is always necessary to ensure that abuse of discretion does not occur.  If it does happen (because even in the best case scenario, judges will make mistakes), it is essential that a legal mechanism is in place which would allow a detainee to appeal the decision against him and cure the abuse.

The Court set forth the following procedure for appealing the decision of an immigration judge who denies bond.  First, the Respondent must file an administrative appeal with the BIA.  If the BIA does not provide the relief requested, the respondent may then file a petition for habeas corpus with a federal district court.  If the Respondent does not agree with the district court’s ruling, then he/she may appeal to the Ninth Circuit Court of Appeals.  This is generally the end of the line for appeals.  Of course there’s always an appeal to the U.S. Supreme Court, but this is more theoretical than reality because the Supreme Court rarely hears habeas cases, and even if it did, would unlikely overrule an unfavorable decision from the Ninth Circuit (which deservedly has the reputation for being the most favorable circuit with regard to immigrant rights).  These steps must be followed precisely, because failing to do so would be a cause for dismissal of the appeal for not exhausting all administrative remedies.