FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAIME ALDOS LEONARDO, JR.,  No. 09-17495

Petitioner-Appellant, D.C. No.

v. 2:07-cv-00545-

PHILLIP CRAWFORD,

SMM

Respondent-Appellee. ORDER

AMENDING

OPINION AND  DENYING

PETITION FOR

PANEL

REHEARING AND

REHEARING EN

BANC AND

AMENDED

OPINION 

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, Senior District Judge, Presiding

Argued and Submitted

October 4, 2010—Pasadena, California

Filed May 13, 2011

Amended August 3, 2011

Before: Susan P. Graber, Raymond C. Fisher and

Jay S. Bybee, Circuit Judges.*

*Judge Graber was drawn to replace Judge Cynthia Holcomb Hall on

the panel following Judge Hall’s untimely death. Judge Graber has read

the briefs, reviewed the record and listened to the tape of oral argument.

10045
Opinion by Judge Fisher

10046 LEONARDO v. CRAWFORD
COUNSEL

Jon M. Sands, Federal Public Defender, and J. Ryan Moore

(argued), Assistant Federal Public Defender, Tucson, Arizona,

for the petitioner-appellant.

Dennis K. Burke, United States Attorney, Randall M. Howe,

Deputy Appellate Chief, and Cynthia M. Parsons, Assistant

U.S. Attorney, Phoenix, Arizona, and William H. Orrick, III

(argued), U.S. Department of Justice, Washington, D.C., for

the respondent-appellee.

Judy Rabinovitz (argued), ACLU Foundation, Immigrants’

Rights Project, New York, New York, Ahilan T. Arulanantham, ACLU Foundation of Southern California, Los

Angeles, California, and Jayashri Srikantiah, Stanford Law

School, Immigrants’ Rights Clinic, Stanford, California, for

amicus curiae American Civil Liberties Union Foundation

and American Civil Liberties Foundation of Southern California.

ORDER

The opinion filed May 13, 2011, slip op. 6263, and appearing at 2011 WL 1814706 (9th Cir. 2011), is amended as follows:

At slip op. 6270, 2011 WL 1814706, at *2, after <see also>

and before <Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir.

2007)>, insert the following: <McCarthy v. Madigan, 503

U.S. 140, 146-49 (1992) (recognizing “at least three broad

10048 LEONARDO v. CRAWFORD
sets of circumstances in which the interests of the individual

weigh heavily against requiring administrative exhaustion”),

superseded by statute on other grounds as stated in Booth v.

Churner, 532 U.S. 731 (2001);>.

With this amendment, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing

en banc and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

No further petitions for rehearing will be entertained.

OPINION

FISHER, Circuit Judge:

Jaime Aldos Leonardo, Jr. appeals the district court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition challenging his prolonged immigration detention without bond.

He contends that his bond hearing, provided under CasasCastrillon v. Department of Homeland Security, 535 F.3d 942

(9th Cir. 2008), violated due process. We write to clarify the

proper procedure for challenging a Casas bond determination:

Once an alien has received a Casas bond hearing before an

immigration judge (IJ), he may appeal the IJ’s decision to the

Board of Immigration Appeals (BIA). If the alien is dissatisfied with the BIA’s decision, he may then file a habeas petition in the district court, challenging his continued detention.

The district court’s decision on the habeas petition may be

appealed to this court. Because Leonardo did not follow this

course here, and thus did not exhaust administrative remedies

LEONARDO v. CRAWFORD 10049
before pursuing habeas relief, we remand to the district court

with instructions to dismiss his petition without prejudice.

BACKGROUND

Leonardo filed a pro se petition for writ of habeas corpus

in federal district court, alleging that his prolonged detention

was unlawful. While Leonardo’s habeas petition was pending,

we decided Casas-Castrillon and Prieto-Romero v. Clark,

534 F.3d 1053 (9th Cir. 2008), which held that procedural due

process entitles aliens detained under 8 U.S.C. § 1226(a),

pending completion of their removal proceedings, to a bond

hearing before an immigration judge to determine whether

their ongoing detention is justified. In light of those decisions,

the district court ordered the government to afford Leonardo

a Casas hearing. The court ordered “that the Court will grant

Petitioner’s Petition for Writ of Habeas Corpus and order

Respondent to release Petitioner, unless Respondent complies

with this Court’s Order and notifies the Court by August 28,

2009.” Order June 29, 2009, at 5. The government afforded

Leonardo a Casas hearing before an immigration judge, and

the IJ denied bond, concluding that Leonardo posed a danger

to the community.

Rather than appealing the IJ’s adverse bond determination

to the BIA, Leonardo filed a motion for review of the IJ’s

decision in his pending habeas case, arguing that the hearing

failed to satisfy due process or conform to the district court’s

previous order. The district court denied the petition. First, the

court concluded that the government had “complied exactly

with this Court’s Order” by providing Leonardo a bond hearing before an immigration judge. Order Oct. 13, 2009, at 3.

Second, the court concluded that it lacked jurisdiction to consider Leonardo’s claims that the hearing lacked due process,

citing 8 U.S.C. § 1226(e), which provides that “[n]o court

may set aside any action or decision by the Attorney General

under this section regarding the detention or release of any

alien or the grant, revocation, or denial of bond.” 8 U.S.C.

10050 LEONARDO v. CRAWFORD
§ 1226(e). The court therefore denied the petition and entered

judgment dismissing the action. The court advised Leonardo

that his “only recourse [wa]s to appeal the bond determination

to the Board of Immigration Appeals.” Order Oct. 13, 2009,

at 4. Leonardo timely appealed the district court’s judgment

to this court.

Leonardo also ultimately appealed the IJ’s adverse bond

determination to the BIA. The BIA reviewed the IJ’s determination de novo, affirmed the IJ’s conclusion that Leonardo

posed a danger to the community and dismissed the appeal.

See In re Leonardo, No. A040-464-700 (B.I.A. Apr. 28,

2010). We take judicial notice of the BIA’s decision. See Fed.

R. Evid. 201.

DISCUSSION

I.

[1] The district court concluded that 8 U.S.C. § 1226(e)

deprives a district court of jurisdiction to review a Casas bond

determination for constitutional and legal error. This conclusion was incorrect. It is now clear that “a federal district court

has habeas jurisdiction under 28 U.S.C. § 2241 to review

Casas bond hearing determinations for constitutional claims

and legal error.” V. Singh v. Holder, No. 10-15715, ___ F.3d

___, 2011 WL 1226379, at *1 (9th Cir. Mar. 31, 2011). “Although § 1226(e) restricts jurisdiction in the federal courts in

some respects, it does not limit habeas jurisdiction over constitutional claims or questions of law.” Id. at *3. The district

court therefore should not have denied Leonardo’s habeas

petition for lack of jurisdiction.

II.

We agree with the government, however, that the district

court should have dismissed Leonardo’s claims, without prejudice, for a failure to exhaust administrative remedies.

LEONARDO v. CRAWFORD 10051
[2] We held in Casas-Castrillon that aliens who are held

in custody under 8 U.S.C. § 1226(a), while their petitions for

review of their removal orders are pending, are entitled to a

bond hearing before an immigration judge. See CasasCastrillon, 535 F.3d at 951. If they are dissatisfied with the

IJ’s bond determination, they may file an administrative

appeal so that “the necessity of detention can be reviewed by

. . . the BIA.” Prieto-Romero, 534 F.3d at 1059. If they

remain dissatisfied, they may file a petition for habeas corpus

in the district court. See V. Singh, ___ F.3d at ___, 2011 WL

1226379, at *1-3. They may then appeal to this court.

[3] Here, Leonardo pursued habeas review of the IJ’s

adverse bond determination before appealing to the BIA. This

short cut was improper. Leonardo should have exhausted

administrative remedies by appealing to the BIA before asking the federal district court to review the IJ’s decision. See

Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003)

(a petitioner “must exhaust administrative remedies before

raising . . . constitutional claims in a habeas petition when

those claims are reviewable by the BIA on appeal”). Once the

BIA rendered its decision, Leonardo could have properly pursued habeas relief in the district court and the district court’s

decision would have been subject to review in this court.

[4] When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the

petitioner has exhausted remedies, unless exhaustion is

excused. See Morrison-Knudsen Co. v. CHG Int’l, Inc., 811

F.2d 1209, 1223 (9th Cir. 1987) (when confronted by an

unexcused failure to exhaust administrative remedies, a district court “may dismiss the action pending exhaustion of

administrative remedies, or it may stay its own proceedings

pending administrative review”); see also McCarthy v. Madigan, 503 U.S. 140, 146-49 (1992) (recognizing “at least three

broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaus10052 LEONARDO v. CRAWFORD
tion”), superseded by statute on other grounds as stated in

Booth v. Churner, 532 U.S. 731 (2001); Puga v. Chertoff, 488

F.3d 812, 815 (9th Cir. 2007) (identifying factors a court

should consider when deciding whether to excuse the prudential exhaustion requirement in a particular case). Here, Leonardo has not asked for a stay. Nor has he demonstrated

grounds for excusing the exhaustion requirement. We accordingly remand to the district court with instructions to dismiss

Leonardo’s petition without prejudice. To the extent Leonardo

has now exhausted his administrative remedies, he may file a

new habeas action in district court challenging the BIA’s

decision denying bond. We express no opinion on the merits

of any claims he may raise.

III.

[5] We reject Leonardo’s contention that the district court

should have addressed his challenges to the IJ’s decision

based on the court’s authority to ensure compliance with its

earlier habeas order. Leonardo is correct that the district court

had authority to review compliance with its earlier order conditionally granting habeas relief. See Gentry v. Deuth, 456

F.3d 687, 692 (6th Cir. 2006) (holding that a federal district

court retains jurisdiction to determine whether a party has

complied with the terms of a conditional order in a habeas

case); Phifer v. Warden, U.S. Penitentiary, 53 F.3d 859, 865

(7th Cir. 1995) (“When a habeas petitioner alleges noncompliance with a conditional order, jurisdiction exists for the

purpose of determining whether the [government] acted in

accordance with the court’s mandate.”); cf. Hamilton v.

Nakai, 453 F.2d 152, 157 (9th Cir. 1972) (“The equitable

jurisdiction of a federal court extends to supplemental or

ancillary bills brought for the purpose of effectuating a decree

of the same court.”). But in this case the district court concluded that the government “complied exactly with this

Court’s Order” by affording a bond hearing before an immigration judge. The district court thus exercised its authority to

ensure compliance with its conditional grant of relief and conLEONARDO v. CRAWFORD 10053
strued Leonardo’s legal challenges following the IJ’s hearing

as raising new arguments not covered by the earlier order.

The district court was under no obligation to address Leonardo’s new arguments under the ambit of ensuring compliance

with the earlier order.

CONCLUSION

The judgment of the district court is vacated, and the case

is remanded with instructions to dismiss Leonardo’s petition

without prejudice. The government’s motion to supplement

the record on appeal, filed May 21, 2010, is granted. Each

party shall bear its own costs on appeal.

VACATED AND REMANDED.

10054 LEONARDO v. CRAWFORD