Birru v. Barr

Background

Aylaliya Assefa Birru was detained in Immigration and Customs Enforcement custody. She had been convicted in California of assault with a firearm and later received a removal order requiring her removal to Ethiopia. The Board of Immigration Appeals upheld that order, and Birru filed a petition for review in the Ninth Circuit. The Ninth Circuit granted her request to stay removal while that review remained pending.

Birru had been detained since November 27, 2018, and had not received a bond hearing. She filed a petition under 28 U.S.C. § 2241, a law allowing a federal court to review certain unlawful detention claims. She asserted three grounds: that 8 U.S.C. § 1226(a) entitled her to a bond hearing; that her prolonged detention violated the Fifth Amendment; and that her detention conditions violated the Fifth Amendment because she was particularly vulnerable to COVID-19. She also sought a temporary restraining order requiring her immediate release.

Exhaustion of Administrative Remedies

The respondents argued that Birru’s first two claims were barred because she had not completed her administrative appeal of the Immigration Judge’s denial of a bond hearing. The court rejected that argument. It explained that administrative exhaustion in this context is a non-jurisdictional, prudential requirement, meaning the court may require it as a matter of judicial administration but is not legally barred from hearing the case without it.

The court concluded that exhaustion was unnecessary because Birru’s claims presented legal questions that did not require an administrative record. It also found that requiring her to wait could cause irreparable harm because of the length and uncertainty of her detention and the lack of a schedule for the Board of Immigration Appeals to decide her bond-hearing appeal.

Statutory Basis for Detention

The parties agreed that Birru was initially detained under 8 U.S.C. § 1226(c), which generally requires detention of certain noncitizens convicted of specified offenses. They disagreed about whether her current detention remained governed by that provision after the Board of Immigration Appeals issued a final removal order and she sought judicial review in the Ninth Circuit.

The court applied Casas-Castrillon v. Department of Homeland Security, a Ninth Circuit decision holding that detention authority shifts from § 1226(c) to § 1226(a) when administrative removal proceedings have ended and the noncitizen seeks judicial review. Under § 1226(a), the government may detain a noncitizen during removal proceedings, but the statute requires a bond hearing when the government chooses detention under that provision.

The respondents argued that the Supreme Court’s decision in Jennings v. Rodriguez had displaced Casas-Castrillon. The court disagreed, concluding that Jennings did not clearly conflict with Casas-Castrillon’s holding about when detention authority shifts from § 1226(c) to § 1226(a). The court therefore held that Birru was detained under § 1226(a) and was entitled to a bond hearing.

Disposition

The court held that Birru was entitled to a bond hearing but lacked a sufficient basis to determine whether she was a flight risk or danger to the community. It therefore did not order immediate release. Instead, it ordered the respondents to provide a bond hearing before an Immigration Judge within 30 days. The Immigration Judge was required to have authority to release Birru on bond unless the respondents proved by clear and convincing evidence that she was a flight risk or danger to the community.

The court granted in part and denied in part Birru’s habeas petition. Because the court granted the requested bond-hearing relief, it did not reach her separate Fifth Amendment claims concerning prolonged detention and detention conditions. The court denied her motion for a temporary restraining order as moot.