NOT FOR PUBLICATION FILED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 a standard of review to be applied at the hearing, the authority she cites did
not obligate the district court to address the merits of her challenge without requiring
prudential exhaustion. The district court was in the best position to decide whether
exhaustion was warranted under the circumstances before it. Should Diaz Reyes
renew her motion to enforce now that the BIA has acted, the district court will again
be in the best position to decide whether the motion contains “new arguments under
the ambit of ensuring compliance with the earlier order,” such that Diaz Reyes must
file a renewed petition for habeas corpus, see id. at 1161, or whether further
exhaustion is warranted, and ultimately, whether the government complied with its
order. Further, the court did not abuse its discretion by declining to waive the
exhaustion requirement. Exhaustion permits a government agency to address its
own potential errors before resort to the crowded dockets of district courts.
3
2. The government’s motion to dismiss the case as moot is denied [Dkt. Entry
No. 31]. Diaz Reyes sought and continues to seek release, relief the BIA has not
afforded.
AFFIRMED.
4