Romero Romero v. Kaiser

Background

Nectali Ulises Romero Romero filed an amended and supplemental petition seeking release from custody under the Department of Homeland Security’s Immigration and Customs Enforcement division. The opinion states that Romero is a Salvadoran national and a long-time resident of the United States. In 2016, he was convicted in Los Angeles Superior Court of lewd and lascivious acts with a minor under 14 and received a six-year prison sentence. After his scheduled release from prison in December 2019, Immigration and Customs Enforcement detained him under 8 U.S.C. § 1226(c).

In an earlier round of this case, the court ordered the government to release Romero unless it gave him a custody hearing before an immigration judge. The government gave him that hearing, and the immigration judge ordered his release with conditions. The Board of Immigration Appeals later vacated that release order and ordered Romero detained without bond, finding by clear and convincing evidence that he was a danger to the community and a flight risk. After further proceedings, an immigration judge held another detention hearing in September 2022 and ordered Romero detained without bond in October 2022. Immigration and Customs Enforcement detained Romero when he appeared for a check-in appointment in November 2022.

First Claim: Required Hearing and Due Process

Romero argued that the government could not detain him again based on the Board’s reversal of his earlier release order without first giving him a new hearing. The court held that this claim was largely moot because the government had provided the requested hearing. The court found no other identified procedural denial, such as exclusion of evidence, an inconvenient hearing, or lack of counsel. The court also rejected Romero’s argument that due process required the second hearing to be conducted by the same immigration judge who had ordered his earlier release. The court concluded that no further relief was available on this claim.

Challenges to the Board’s Order

Romero challenged the Board’s January 2022 order on several grounds. He argued that the Board failed to use the correct review standard, made factual findings itself, relied on improper factors, failed to consider alternatives to detention, and ignored controlling precedent or violated due process.

The court applied Martinez v. Clark, a Ninth Circuit decision holding that federal courts cannot review the discretionary determination under 8 U.S.C. § 1226(e) of whether a noncitizen is dangerous. The court extended that reasoning to the Board’s determination that Romero was a flight risk, holding that flight-risk assessments are also discretionary when related to mandatory detention. The court therefore lacked jurisdiction to review Romero’s challenge to how the Board weighed evidence concerning his dangerousness.

The court concluded that it could review certain legal and procedural challenges. It found that the Board recited and applied the clear-error standard and that Romero had not shown otherwise. The court agreed that the Board had made three factual findings on appeal from a contested probation report, contrary to the governing regulation. But it found the error immaterial because the additional facts were a small part of the Board’s reasoning and were unlikely to have affected the outcome. The court also found no error in the Board’s discussion of the long-term harm associated with child sexual abuse and concluded that the Board’s decision showed that it considered detention necessary rather than merely failing to consider alternatives.

The court held that Romero’s challenges to the Board’s order in his second and fourth claims for relief failed. It also held that his Administrative Procedure Act claim was not viable even assuming such a claim could be brought, because the regulatory violation did not affect the outcome.

Challenges to the October 2022 Immigration-Judge Order

Romero challenged the immigration judge’s finding that he was dangerous and argued that the order contained signs that the judge had not required the government to meet its clear-and-convincing-evidence burden. The government argued that Romero had not exhausted his administrative remedies because he had not first appealed the immigration judge’s order to the Board.

The court held that administrative exhaustion was required. It explained that Romero ordinarily had to appeal the immigration judge’s detention order to the Board before seeking federal habeas review. Because Romero had not asked the court to stay the case, the court dismissed his challenges to the immigration judge’s order without prejudice for failure to exhaust administrative remedies. The court stated, alternatively, that it would deny relief on those challenges: Martinez barred review of the dangerousness determination, and Romero had not shown procedural “red flags” indicating that the immigration judge applied the wrong legal standard or burden of proof.

Disposition

The court dismissed Romero’s challenges to the immigration judge’s detention order without prejudice for failure to exhaust administrative remedies. In the alternative, it would deny relief on those challenges. The court denied relief on all other claims, denied the amended petition, and directed the clerk to enter judgment for the respondents.