                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 11 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARCOS ANTONIO LOMELI,                           No. 09-17153

              Petitioner - Appellant,            D.C. No. 2:08-cv-00955-PGR

  v.
                                                 MEMORANDUM*
KATRINA S. KANE, Field Office
Director for the Phoenix Field Office of
ICE; et al.,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                Paul G. Rosenblatt, Senior District Judge, Presiding

                       Argued and Submitted March 3, 2014
                              Pasadena, California

Before: BYBEE, BEA, and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Lomeli appeals the district court’s denial of his petition for a writ of habeas

corpus under 28 U.S.C. § 2241(c). We have jurisdiction pursuant to 28 U.S.C.

§ 2253, and we affirm.1

      We decline to entertain Lomeli’s challenge to the procedures used at his

bond hearing pursuant to Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008),

and Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011). Following our decision in

Singh, the government in this case moved the immigration judge (IJ) to conduct a

new bond hearing with a contemporaneous audio record. The IJ denied the motion

because Lomeli opposed the new bond hearing, stating that he wanted the original

bond hearing to stand. In light of these circumstances, we conclude that Lomeli

failed to exhaust his argument that the IJ did not provide sufficiently specific

reasons on the record to justify the denial of bond. See Leonardo v. Crawford, 646

F.3d 1157, 1160–61 (9th Cir. 2011); cf. Singh, 638 F.3d at 1203 n.3.

      Lomeli’s continued detention does not violate due process because “the

government can repatriate [Lomeli] to Mexico if his pending bid for judicial relief

from his administratively final removal order proves unsuccessful.” Prieto-



      1
        The motion for leave to file brief as amicus curiae by the Florence
Immigrant and Refugee Rights Project is GRANTED and the brief that was lodged
is ordered filed. Petitioner Marcos Lomeli’s pro se motion to amend the amicus
brief is DENIED.

                                           2
Romero v. Clark, 534 F.3d 1053, 1062 (9th Cir. 2008). Lomeli has presented no

evidence, “such as a lack of a repatriation agreement with his home country or a

finding that he merits mandatory relief from removal, that prevents [Lomeli’s]

removal to [Mexico] if he ultimately fails in fighting the government’s charge of

removability.” Casas-Castrillon, 535 F.3d at 949. His detention is therefore not

indefinite.

      Finally, we reject Lomeli’s claim that Immigration and Customs

Enforcement lacks the authority to detain him during the pendency of his

citizenship litigation. Lomeli’s claim of citizenship has been rejected three times

by the United States Customs and Immigration Services, and once by a federal

district court. These decisions are binding determinations that Lomeli is an alien,

and therefore the Attorney General is empowered under 8 U.S.C. § 1226(a) to

detain him pending review. Cf. Ng Fung Ho v. White, 259 U.S. 276, 285 (1922);

Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 2008).

      AFFIRMED.




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