Elsa Diaz Reyes v. Alejandro Mayorkas

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELSA DIAZ REYES, No. 21-35142 Petitioner-Appellant, D.C. No. 2:20-cv-00377-JLR v. MEMORANDUM* ALEJANDRO MAYORKAS, Secretary, Department of Homeland Security; et al., Respondents-Appellees. Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding Argued and Submitted July 8, 2021 Seattle, Washington Before: HAWKINS and IKUTA, Circuit Judges, and CALDWELL,** District Judge. Elsa Diaz Reyes, a native and citizen of El Salvador, appeals the district court’s denial of her motion to enforce its order granting a conditional writ of habeas * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation. corpus and requiring the government to provide her with a bond hearing. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. After spending a year and a half in mandatory immigration detention pursuant to 8 U.S.C. § 1226(c), Diaz Reyes filed a habeas petition seeking a bond hearing. After briefing and argument, the district court conditionally granted the petition and ordered her release unless the government justified her continued detention by clear and convincing evidence. After an immigration judge (“IJ”) denied bond, Diaz Reyes returned to the district court to seek enforcement of that order, asserting that the government failed to meet its burden because it presented no evidence she was a flight risk and relied only on twenty-year-old criminal conduct to establish she was a danger to the community. The district court denied her motion on the grounds that she was required to exhaust her administrative remedies by filing an appeal with the Board of Immigration Appeals (“BIA”) and that waiver was not warranted. While the instant appeal was pending, the BIA vacated the IJ’s bond denial and remanded for further proceedings.1 The IJ then denied bond anew, finding in a form order that Diaz Reyes was a flight risk and a danger to the community. In response to these agency proceedings, the government filed a motion to dismiss this appeal as moot. 1 Diaz Reyes’s request for judicial notice of the post-briefing agency proceedings is granted [Dkt. Entry No. 28]. 2 1. Assuming without deciding that the district court was permitted to order the government to provide Diaz Reyes with a bond hearing, it was not an abuse of discretion to require her to exhaust her arguments before the BIA prior to seeking enforcement of the order. Under Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011), a petitioner is generally required to exhaust administrative remedies before seeking judicial review of challenges to an IJ’s denial of bond. Although Diaz Reyes argues that her motion differs from the one at issue in Leonardo because she merely seeks enforcement of the preexisting conditional habeas order, which specified …

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