Unreported / Non-Citable
Background
Mohamed Salah, a native and citizen of Cuba who arrived in the United States in 2001 and became a lawful permanent resident in 2008, filed a petition under 28 U.S.C. § 2241 on August 13, 2026. He challenged his detention as a violation of the Fifth Amendment's Due Process Clause. The court recounted his December 19, 2022 conviction for conspiracy to commit bank fraud and wire fraud, a 27-month sentence, and an order to pay $7,484,163 in restitution. After his release from federal custody on September 25, 2025, he was transferred to immigration custody and detained at the Adelanto ICE Processing Center.
At a March 30, 2026 bond hearing, an immigration judge denied custody redetermination. The immigration judge found that the Department of Homeland Security had shown by clear and convincing evidence that Salah presented a danger to community property, citing the bank-fraud conviction and restitution order. Salah had presented evidence that a main witness recanted and that his criminal defense lawyer was seeking to overturn the conviction. A further custody-redetermination motion was denied without a hearing on July 28, 2026 for lack of materially changed circumstances. Salah sought immediate release or another bond hearing, arguing that the immigration judge had misapplied the burden of proof, abused discretion, and failed to provide a constitutionally adequate hearing. Respondents argued mootness, nonexhaustion, and the absence of a due-process violation or legal error.
The Court’s Holding
The court denied the petition on administrative-exhaustion grounds. It explained that a detainee who loses a bond hearing can appeal to the Board of Immigration Appeals, which reviews questions of law, discretion, and judgment de novo and factual findings for clear error. Under Leonardo v. Crawford, the detainee must appeal to the BIA before asking a federal district court to review the immigration judge's decision. The court reasoned that BIA review would develop the rationale for the bond determination, prevent detainees from bypassing the administrative appellate process, and allow the agency to correct the asserted deficiencies through remand or a reasoned final decision.
Although exhaustion in immigration habeas cases is prudential rather than jurisdictional, the court found no exception applicable. It distinguished Singh v. Holder and Hernandez v. Sessions, which involved purely legal or systemic challenges, from Salah's case-specific objections to one immigration judge's application of the clear-and-convincing standard and dangerousness findings. The court also held that detention during an ordinary BIA appeal did not, by itself, establish irreparable injury sufficient to excuse exhaustion; otherwise, the exception would apply in every bond denial. Because Salah had not pursued a BIA appeal, the court denied the petition and expressly declined to reach his other claims.
Key Takeaways
- A noncitizen challenging an immigration judge's bond determination ordinarily must appeal to the BIA before seeking federal habeas review of that decision.
- The court treated exhaustion as prudential, but found that Salah's objections to the application of the burden of proof and the findings in his particular case did not qualify for an exception.
- The BIA could review the immigration judge's legal and discretionary determinations, correct factual errors, or remand for a new hearing and a reasoned decision.
- Ordinary detention while an administrative appeal proceeds was not enough by itself to establish irreparable injury and excuse exhaustion.
- The denial rested solely on nonexhaustion, and the court did not decide Salah's remaining due-process arguments or order release or a new bond hearing.
Why It Matters
The decision applies the Ninth Circuit's administrative-exhaustion framework to a direct habeas challenge to immigration-judge bond orders, emphasizing that the BIA is the initial forum for case-specific complaints about the reasoning and findings supporting detention. It also distinguishes challenges to the legal framework governing detention from disputes over how that framework was applied in an individual proceeding.
The ruling leaves Salah's substantive due-process claims unresolved. Its practical consequence is that he must use the available BIA appellate process before obtaining federal review of the bond decisions, subject to the court's recognition that compelling facts can affect exhaustion in other cases.