Birru v. Barr

Background

Aylaliya Assefa Birru was detained by Immigration and Customs Enforcement after serving a prison sentence for assault with a firearm. The Department of Homeland Security began removal proceedings, an immigration judge ordered her removed to Ethiopia, and the Board of Immigration Appeals upheld that decision. Birru then sought review in the Ninth Circuit, which stayed her removal while that review remained pending.

Birru also sought a bond hearing from the immigration judge. After that request was denied, she appealed to the Board of Immigration Appeals; that appeal was still pending when she filed this federal petition asking the court to review her detention. She raised three claims: that federal immigration law required a bond hearing, that her prolonged detention violated due process, and that her conditions of confinement violated due process because of her post-traumatic stress disorder and vulnerability to COVID-19.

Administrative exhaustion

The respondents argued that Birru could not proceed because she had not completed her administrative appeal. The court treated exhaustion here as a prudential requirement, meaning a court-created rule that can be excused rather than a jurisdictional requirement that the court must always enforce.

The court concluded that exhaustion was not required because Birru’s claims presented legal questions that did not require an additional agency record. The court also found that requiring her to wait could cause irreparable harm because she had been detained since November 2018, had not received a bond hearing, and there was no indication when the Board of Immigration Appeals would decide her pending appeal. The court therefore allowed the first and second claims to proceed without completed administrative exhaustion.

Bond-hearing claim

The court held that Birru was currently detained under 8 U.S.C. § 1226(a), not § 1226(c). Section 1226(c) generally requires detention for certain noncitizens charged with removability based on specified convictions, while § 1226(a) gives the government discretionary detention authority and requires a bond hearing when that authority is used.

The court relied on Ninth Circuit precedent holding that detention authority shifts from § 1226(c) to § 1226(a) after the Board of Immigration Appeals issues a final removal order and the noncitizen seeks judicial review of that order. The court concluded that the Supreme Court’s decision in Jennings v. Rodriguez did not clearly overturn that part of the Ninth Circuit’s rule. Because Birru’s removal order was final and her petition for review was pending in the Ninth Circuit, the court held that she was entitled to a bond hearing under § 1226(a).

Disposition

The court did not decide Birru’s separate claim that her prolonged detention violated the Fifth Amendment or her claim concerning the conditions of her confinement, because the statutory bond-hearing claim resolved the requested hearing. The court also declined to order immediate release because it lacked enough information to decide whether Birru posed a flight risk or danger to the community.

The court granted in part and denied in part Birru’s petition for a detention review under 28 U.S.C. § 2241. It ordered the respondents to provide a bond hearing before an immigration judge within 30 days. At that hearing, the government would have to prove by clear and convincing evidence that Birru was a flight risk or danger to the community; otherwise, the immigration judge would have authority to grant release on bond. The court denied as moot Birru’s motion for a temporary restraining order, which had sought immediate release.