Andre Costa Soares v. Chad Wolf

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRE LUIZ COSTA SOARES, No. 19-56332
Petitioner-Appellant, D.C. No.
5:19-cv-01418-ODW-JC
v.
CHAD F. WOLF, Acting Secretary of the MEMORANDUM*
Department of Homeland Security;
WILLIAM P. BARR, Attorney General;
DAVID MARIN, Los Angeles Field Office
Director, Bureau of Immigration and
Customs Enforcement; GABRIELA
VALDEZ, Assistant Field Office Director,
Adelanto Facility; WARDEN, Geo Group,
Adelanto Detention Facility,
Respondents-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted November 9, 2020**
Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Andre Luiz Costa Soares appeals pro se from the district court’s judgment
dismissing his 28 U.S.C. § 2241 habeas corpus petition. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Zavala v. Ives, 785 F.3d 367, 370
(9th Cir. 2015), and we affirm.
The district court did not err in requiring prudential exhaustion of Costa
Soares’s administrative remedies, where his claim of citizenship rests on disputed
questions of fact and proceedings before the agency are ongoing. See Puga v.
Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (“Courts may require prudential
exhaustion if ‘(1) agency expertise makes agency consideration necessary to
generate a proper record and reach a proper decision; (2) relaxation of the
requirement would encourage the deliberate bypass of the administrative scheme;
and (3) administrative review is likely to allow the agency to correct its own
mistakes and to preclude the need for judicial review.’” (citing Noriega-Lopez v.
Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)); see also Hernandez v. Sessions, 872
F.3d 976, 988 (9th Cir. 2017) (“If a petitioner fails to exhaust prudentially required
administrative remedies, then a district court ordinarily should either dismiss the
petition without prejudice or stay the proceedings until the petitioner has exhausted
remedies.” (citation and internal quotation marks omitted)). The record does not
support Costa Soares’ contention that exhausting administrative proceedings would
be futile. See Hernandez, 872 F.3d at 988 (“a court may waive the prudential
2 19-56332
exhaustion requirement if . . . pursuit of administrative remedies would be a futile
gesture”).
Appellees’ motion to take judicial notice (Docket Entry No. 29) is granted.
Appellant’s motion to take judicial notice (Docket Entry No. 32) is denied.
Appellant’s motion to expedite (Docket Entry No. 35) is denied as unnecessary.
AFFIRMED.
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