236(c) MANDATORY DETENTION A) INADMISSIBLE BY … for 5-03-11 Seminar.pdf · “ON ACCOUNT OF”...

2011 AILA Teleconference/Web Conference © 2011 American Immigration Lawyers Association

Susan Church Outline §236(c) MANDATORY DETENTION: includes all charges where respondent “committed” an

offense:

A) INADMISSIBLE BY REASON OF HAVING COMMITTED AN OFFENSE

UNDER 212(A)(2) – does not require conviction

a. 212(a)(2) includes single crime involving moral turpitude;

b. Exceptions include: i. petty offense exception (max sentence did not exceed one year and actual

sentence did not exceed 6 months) ii. or under 18 exception – under 18 and five years before date of application

for visa :

c. Drug charges involving controlled substance offenses

d. TWO crimes involving moral turpitude – at any time

e. Controlled substance traffickers (a person who the ag knows or has reason to

know has been an illicit trafficker in a controlled substance).

f. Prostitution and commercialized vice

g. Aliens who have asserted immunity from prosecution

h. Traffickers in Persons

B) DEPORTABLE FOR HAVING COMMITTED ANY OFFNESE COVERED

UNDER 237(a)(2)(A)(ii); (A)(iii); (B); (C) OR (D) – requires conviction

a. Two crimes involving moral turpitude – committed at anytime

b. One crime involving moral turpitude where the actual sentence is more than one year; (requires a conviction)

c. Aggravated felony

d. Controlled Substance offense other than single offense of marijuana, under 30 g


e. Firearm offenses

f. Miscellaneous Crimes: convicted of espionage, treason,

C) Saysana and Arreola

SAYSANA v. GILLEN, 614 F.3d 1 (1st Cir. 2010)

MATTER OF ARREOLA, 25 I&N Dec. 267 (BIA 6-23-2010)

Mandatory Detention is not triggered unless:

“The charge for which Transition Period Custody Rules ("TPCR") and only where there has been a post-TPCR release that is directly tied to the basis for detention under sections 236(c)(1)(A)-(D) of the Act. Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), overruled; Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), modified.”

In other words there must be a charge, upon which the respondent was released, after October 8, 1998 that falls under § 236(c)(1)(A)-(D)

PREPARING YOUR CASE•Things to DO:•Meet with your client!•Meet with client’s family•Obtain letters of Support•Review NTA•Review all immigration documents!!!

•Things NOT to DO•Promise your client will receive bond•Ignore Judge idiosyncrasies•Rely only on your client’s mother for your facts!!!

DOCUMENTS TO OBTAIN BEFORE HEARING

•Notice to Appear•CORI•Docket Sheets•Plea Waiver Forms•Police Reports•Letters of Support•Employment Verification•Tax Returns•Photographs•Birth Certificates•Marriage Certificates

MOTION FOR BOND REDETERMINATION• If you have a good faith

argument for bond eligibility or for a “Joseph Hearing”

• Hearing is 3 days usually—don't file if you are out of town or busy!

• Can prompt filing of NTA as well• Not needed if case calendared

PRESENTATION OF YOUR CASE

•Present a sympathetic picture•Are they a good person? Work, friends, family, etc.•Health problems of family members or respondent•Financial obligations•Relationship with children if strong•Mitigating factors in criminal matters•Have family and friends present

•What the judge wants to know:•Age of your client•Where he/she came from•How long they have lived here•How did they come•Do they have any relief•Criminal Record•USC/LPR Children/Relatives•Work history

HELPFUL HINTS:

•KNOW YOUR JUDGE•BE NICE TO THE CLERKS•TALK TO THE TRIAL ATTORNEY•REVEAL THE BAD STUFF FIRST•PROPOSE A REASONABLE NUMBER

CALLING WITNESSES

•PREPARE AHEAD OF TIME•DON’T CALL YOUR CLIENT’S DRINKING BUDDY AS A CHARACTER WITNESS•ASK QUESTIONS IN THIS FORMAT:•WHO•WHAT•WHERE•WHY•WHEN•HOW•DESCRIBE

THE LAW (YIKES)

•“JOSEPH HEARINGS”

• MANDATORY DETENTION

JOSEPH HEARINGS22 I & N Dec. 799 (BIA 1999)

•Respondent is always entitled to hearing to determine whether he/she is subject to mandatory detention•Argue that Respondent was never in custody•Argue Respondent was not convicted•Argue Respondent is not removable

“ON ACCOUNT OF”

•§236(C) requires an arrest be “on account of” one of the grounds of mandatory detentionSaysana v. Gillen, 590 F.3d 7 (1st Cir. 2009) overturned Matter of Saysana, 24 I&N Dec. 602 (BIA 2008)

THE BIA AGREES!

•MATTER OF ARREOLA, 25 I&N Dec. 267 (BIA 6-23-2010)

•“We now hold that section 236(c) of the Act requires mandatory detention of a criminal alien only if he or she is released from non-DHS custody after the expiration of the TPCR and only where there has been a post-TPCR release that is directly tied to the basis for detention under sections 236(c)(1)(A)-(D) of the Act.

WHAT IS CUSTODY?

• Matter of Aguilar-Aquino, 24 I&N Dec. 747 (BIA 2009). Bracelet not custody. Garcia-Garcia, 25 I&N Dec. 747 (BIA 2009).

• Must request amelioration of terms of release within seven days. 8 C.F.R. §1236.1(d)(1)(2008).

ARRIVING ALIENS

•Can challenge characterization as “arriving alien” with Bond Hrg.•Ineligible for Bond Redetermination with IJ•If proper “arriving alien” must go to DRO to request reconsideration; appeal in 10 days INA §236.1(d)(3)(ii)

DEFINITION OF A CONVICTION: INA 101(a)(48)(A)

•Always check docket sheets to find whether a “penalty punishment or restraint on liberty” was imposed.•Court costs, pursuant to M.G.L. M.G.L.A. 280 § 6 “shall not be imposed by a justice as a penalty for a crime.”

HABEAS CORPUS

• Challenge length of detention even under §236(c)

• Winkler v. Horgan, 629 F. Supp. 2D 159 (D. Mass. 2009)(one year); Flores-Powell v. Chadbourne, 2010 U.S. Dist. LEXIS 913 (D. Mass. 2010)(22 months) + others

Habeas (con't)

• Definition of custody, e.g., bracelet, different in Federal Court than with BIA

• Emergency stays--8 C.F.R. §1003.19(h)(4)(i)(2) & 8 C.F.R. §1003.6(c)

• Habeas challenges may be possible with both—seek help!

LAST BUT NOT LEAST

•Stick to your guns: Don’t let the trial attorney dissuade you•Know when to be quiet. Pay attention to your judge.•Tell your client not to make faces, noises or side comments.

Cite as 24 I&N Dec. 37 (BIA 2006) Interim Decision #3544

In re Juan Francisco GUERRA, Respondent

File A96 649 951 - New York

Decided September 28, 2006

U.S. Department of Justice Executive Office for Immigration Review

Board of Immigration Appeals

(1) In a custody redetermination under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2000), where an alien must establish to the satisfaction of the Immigration Judge that he or she does not present a danger to others, a threat to the national security, or a flight risk, the Immigration Judge has wide discretion in deciding the factors that may be considered.

(2) In finding that the respondent is a danger to others, the Immigration Judge properly considered evidence that the respondent had been criminally charged in an alleged controlled substance trafficking scheme, even if he had not actually been convicted of a criminal offense.

FOR RESPONDENT: Jorge Guttlein, Esquire, New York, New York

BEFORE: Board Panel: OSUNA, Acting Vice Chairman; MOSCATO, Board Member; ROMIG, Temporary Board Member.

OSUNA, Acting Vice Chairman:

In an order dated June 7, 2006, an Immigration Judge denied the respondent’s request for a change in custody status after finding that he poses a danger to the community. The respondent has appealed from that order. The respondent argues that the Immigration Judge erred in denying his request for a change in custody status based on information contained in a criminal complaint that has not resulted in a conviction. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a native and citizen of the Dominican Republic who was admitted to the United States in 2000 as a nonimmigrant visitor. The Department of Homeland Security (“DHS”) has charged the respondent with removability for remaining in this country longer than his period of authorized stay.

The respondent seeks release from the custody of the DHS during the pendency of removal proceedings. Section 236 of the Immigration and

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Nationality Act, 8 U.S.C. § 1226 (2000), provides general authority for the detention of aliens pending a decision on whether they should be removed from the United States. Except for certain criminal and terrorist aliens whose detention is mandatory under section 236(c)(1) of the Act, the statute provides authority for the Attorney General to release aliens on bond “with security approved by, and containing conditions prescribed by, the Attorney General.” Section 236(a)(2)(A) of the Act. The Attorney General has delegated this authority to the Immigration Judges. 8 C.F.R. §§ 1003.19, 1236.1 (2006).

In the present matter, the respondent’s custody determination is governed by the provisions of section 236(a) of the Act. An alien in a custody determination under that section must establish to the satisfaction of the Immigration Judge and this Board that he or she does not present a danger to persons or property, is not a threat to the national security, and does not pose a risk of flight. See Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999). An alien who presents a danger to persons or property should not be released during the pendency of removal proceedings. See Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994).

The Immigration Judge concluded that the respondent poses a danger to persons in the community based on evidence in the record that the respondent is currently facing criminal charges for his involvement in an alleged controlled substance trafficking scheme. The record reflects that he has been charged with distribution and possession with intent to distribute a controlled substance, to wit, 5 kilograms and more of mixtures and substances containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A) (2000). Specifically, the criminal complaint, which is signed by a Special Agent of the Drug Enforcement Administration (“DEA”)and forms a part of the bond record, provides that a confidential informant, with whom the Special Agent has worked for over a year on numerous cases and who has provided reliable and accurate information in the past, informed the Special Agent that the respondent is a drug dealer.

According to the criminal complaint, on November 10, 2005, the respondent was observed during police surveillance traveling to the Bronx, New York, in a vehicle with another man named Vallejo. The car stopped and Vallejo’s wife was observed getting into the vehicle. The complaint further states that the vehicle traveled to another location, where Vallejo exited the car. The respondent and Vallejo’s wife drove to a gas station where they waited for 45 minutes before Vallejo arrived in a second vehicle. The complaint indicates that Vallejo got into the vehicle with the respondent, and Vallejo’s wife moved into the second vehicle. Vallejo’s wife drove the second vehicle to a store, where she was approached by law enforcement authorities and consented to a search of the vehicle. The complaint notes that the law enforcement authorities found six kilograms of cocaine in a bag in the vehicle. When the car containing the respondent and Vallejo was subsequently stopped

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by law enforcement authorities, Vallejo admitted that it was his cocaine and that he and the respondent were supposed to sell the cocaine that evening at a location known by the respondent.

The Immigration Judge concluded that in light of the large quantity and dangerous nature of the drugs involved, the respondent poses a danger to the community if released from immigration custody. In particular, the Immigration Judge noted that the criminal complaint prepared by the DEA Special Agent is specific and detailed and that the respondent failed to present any evidence or argument that tended to undermine the reliability of the information contained in the complaint. The Immigration Judge also noted that if, after a full hearing, it is determined that there is “reason to believe” that the respondent is a person who has been involved in the trafficking of drugs, he will be inadmissible to the United States and thus may have an incentive to fail to appear for his Immigration Court hearings.

On appeal, the respondent argues that he has not been convicted of any drug trafficking crimes and that the Immigration Judge should not have found that he poses a threat to the community based on the information contained in a criminal complaint that has not resulted in a conviction. The respondent notes in his appeal brief that he has pled not guilty to the criminal charges and is awaiting trial.1 The respondent was released from criminal custody on a $500,000 bond.

II. ANALYSIS

An alien in removal proceedings has no constitutional right to release on bond. See Carlson v. Landon, 342 U.S. 524, 534 (1952). Rather, section 236(a) of the Act merely gives the Attorney General the authority to grant bond if he concludes, in the exercise of discretion, that the alien’s release on bond is warranted. The courts have consistently recognized that the Attorney General has extremely broad discretion in deciding whether or not to release an alien on bond. See, e.g., Carlson v. Landon, supra, at 540; United States ex rel. Barbour v. District Director of INS, 491 F.2d 573, 577-78 (5th Cir. 1974). Further, the Act does not limit the discretionary factors that may be considered by the Attorney General in determining whether to detain an alien pending a decision on asylum or removal. See, e.g., Carlson v. Landon, supra, at 534 (holding that denial of bail to an alien is within the Attorney General’s lawful discretion as long as it has a “‘reasonable foundation’” (quoting United States ex rel. Potash v. District Director, 169 F.2d 747, 751 (2d Cir. 1948)); United States ex rel. Barbour v. District Director of INS, supra, at 577 (applying the “reasonable foundation” standard to find that

The respondent has conceded removability, but he asserts that he is potentially eligible for relief by virtue of a Petition for Alien Relative (Form I-130) filed by his United States citizen wife.

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denial of bond was warranted where the alien was a threat to national security); see also Sam Andrews’ Sons v. Mitchell, 457 F.2d 745, 748 (9th Cir. 1972) (noting that the Attorney General’s exercise of discretionary power to make rules to administer the Act must be upheld if the rules are founded “‘on considerations rationally related to the statute he is administering’” (quoting Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970)).

The burden is on the alien to show to the satisfaction of the Immigration Judge that he or she merits release on bond. In general, an Immigration Judge must consider whether an alien who seeks a change in custody status is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk. Matter of Patel, 15 I&N Dec. 666 (BIA 1976). Immigration Judges may look to a number of factors in determining whether an alien merits release from bond, as well as the amount of bond that is appropriate. These factors may include any or all of the following: (1) whether the alien has a fixed address in the United States; (2) the alien’s length of residence in the United States; (3) the alien’s family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future; (4) the alien’s employment history; (5) the alien’s record of appearance in court; (6) the alien’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses; (7) the alien’s history of immigration violations; (8) any attempts by the alien to flee prosecution or otherwise escape from authorities; and (9) the alien’s manner of entry to the United States. Matter of Saelee, 22 I&N Dec. 1258 (BIA 2000); Matter of Drysdale, supra, at 817; Matter of Andrade, 19 I&N Dec. 488 (BIA 1987).

An Immigration Judge has broad discretion in deciding the factors that he or she may consider in custody redeterminations. The Immigration Judge may choose to give greater weight to one factor over others, as long as the decision is reasonable. In the present matter, the Immigration Judge determined that evidence in the record of serious criminal activity, even if it had not resulted in a conviction, outweighed other factors, such that release on bond was not warranted.

In light of the broad discretion afforded under section 236(a) of the Act, we find no error in the Immigration Judge’s consideration of the information regarding the respondent’s alleged involvement in a drug trafficking scheme in determining whether the respondent poses a danger to the community. In the context of custody redeterminations, Immigration Judges are not limited to considering only criminal convictions in assessing whether an alien is a danger to the community.2 Any evidence in the record that is probative and

2 Bond proceedings are separate and apart from the removal hearing. 8 C.F.R. § 1003.19(d) (2006); see also Matter of Chirinos, 16 I&N Dec. 276 (BIA 1977). In the context of removal proceedings, a criminal conviction is usually required to prove removability based

(continued...)

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specific can be considered. Therefore, although we recognize that the respondent has not been convicted of the offenses charged in the criminal complaint, we find that unfavorable evidence of his conduct, including evidence of criminal activity, is pertinent to the Immigration Judge’s analysis regarding whether the respondent poses a danger to the community.3

We agree with the Immigration Judge that the respondent has failed to meet his burden of establishing that he warrants release on bond. As the Immigration Judge noted, the evidence of the respondent’s alleged involvement in a drug trafficking scheme contained in the criminal complaint is specific and detailed. The complaint is signed by a DEA agent. It describes the source of the information that the respondent was involved in the sale of drugs. It sets forth the events leading to the respondent’s arrest, including locations, alleged accomplices, and other details. For purposes of determining bond during the pendency of removal proceedings, this was sufficient for the Immigration Judge to conclude that the respondent poses a risk to others, even in the absence of a conviction. Moreover, the Immigration Judge’s decision to give this evidence considerable weight above other factors, including the respondent’s marriage to a United States citizen, was reasonable given the scope and seriousness of the alleged criminal activity.

In this regard, we note that we have long recognized the dangers associated with the sale and distribution of drugs. See Matter of Melo, 21 I&N Dec. 883, 886 (BIA 1997) (noting that the scourge on society of illegal drug trafficking and the associated criminal activity it generates is, at this point, beyond dispute). Inasmuch as the respondent has failed to establish that he does not present a danger to his community, we find that he should not be released from custody during the pendency of his removal proceedings. See Matter of Drysdale, supra. Accordingly, the appeal will be dismissed.

ORDER: The respondent’s appeal is dismissed.

2 (...continued) on criminal grounds. Section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2000). No such requirement exists in bond proceedings. 3 We have reached a similar conclusion in the context of determining an alien’s eligibility for discretionary relief from removal. See Matter of Thomas, 21 I&N Dec. 20, 23-24 (BIA 1995) (considering convictions that were not final in determining whether the alien warranted a grant of voluntary departure in the exercise of discretion).

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Interim Decision #3398

In re Samuel JOSEPH, Respondent

File A90 562 326 - York

Decided May 28, 1999

U.S. Department of JusticeExecutive Office for Immigration Review


(1) For purposes of determining the custody conditions of a lawful permanent resident undersection 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226 (Supp. II 1996), and 8C.F.R. § 3.19(h)(2)(ii) (1999), a lawful permanent resident will not be considered “properlyincluded” in a mandatory detention category when an Immigration Judge or the Board ofImmigration Appeals finds, on the basis of the bond record as a whole, that it is substantial-ly unlikely that the Immigration and Naturalization Service will prevail on a charge of remov-ability specified in section 236(c)(1) of the Act.

(2) Although a conviction document may provide the Service with sufficient reason to believethat an alien is removable under one of the mandatory detention grounds for purposes of charg-ing the alien and making an initial custody determination, neither the Immigration Judge nor theBoard is bound by the Service’s decisions in that regard when determining whether an alien isproperly included within one of the regulatory provisions that would deprive the ImmigrationJudge and the Board of jurisdiction to redetermine the custody conditions imposed on the alienby the Service. Matter of Joseph, 22 I&N Dec. 3387 (BIA 1999), clarified.

(3) When an Immigration Judge’s removal decision precedes the determination, pursuant to 8C.F.R. § 3.19(h)(2)(ii), whether an alien is “properly included” in a mandatory detention cat-egory, the removal decision may properly form the basis for that determination.

(4) An automatic stay of an Immigration Judge’s release order that has been invoked by theService pursuant to 8 C.F.R. § 3.19(i)(2) is extinguished by the Board’s decision in theService’s bond appeal from that release order.

Sandra L. Greene, Esquire, Philadelphia, Pennsylvania, for respondent

Jeffrey T. Bubier, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: DUNNE, Vice Chairman; HEILMAN, HOLMES, HURWITZ,FILPPU, COLE, MATHON, JONES, GRANT, SCIALABBA, and MOSCATO,Board Members. Concurring and Dissenting Opinion: SCHMIDT, Chairman;joined by VACCA, VILLAGELIU, ROSENBERG, and GUENDELSBERGER,Board Members.

FILPPU, Board Member:

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On May 19, 1999, the Board issued an order which dismissed theImmigration and Naturalization Service’s appeal from the ImmigrationJudge’s January 20 and 22, 1999, bond orders releasing the respondent onhis own recognizance. Our order informed the parties that this decisionexplaining the reasons for the order would be forthcoming.

I. THE ISSUES AND SUMMARY

Our jurisdiction in this timely Service appeal is pursuant to 8 C.F.R. §3.1(b)(7) (1999). See also Matter of Joseph, 22 I&N Dec. 3387, at 13-14(BIA 1999); 8 C.F.R. §§ 3.19(h)(2)(ii), 236.1(c)(11), (d)(3) (1999). Today,we explain the import of our ruling in Matter of Joseph, supra, in light ofthe Service’s arguments in this bond appeal. We also address the questionof when an Immigration Judge will have jurisdiction to set bond for a law-ful permanent resident who has been charged by the Service with a groundof removability that would otherwise require the alien’s mandatory deten-tion pending an administratively final order of removal.

As explained below, the Immigration Judge may make a determination onwhether a lawful permanent resident “is not properly included” in a mandato-ry detention category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), eitherbefore or after the conclusion of the underlying removal case. If this thresholdbond decision is made after the Immigration Judge’s resolution of the removalcase, the Immigration Judge may rely on that underlying merits determination.

If the Immigration Judge addresses whether the permanent resident isproperly included in a mandatory detention category prior to completion ofthe case in chief, the Immigration Judge must have very substantial groundsto override the Service’s decision to charge the alien with a ground that sub-jects the alien to detention. Thus, in this context, a lawful permanent resi-dent will not be considered properly included in a mandatory detention cat-egory only when an Immigration Judge is convinced that the Service is sub-stantially unlikely to establish, at the merits hearing, the charge or chargesthat subject the alien to mandatory detention.

In either situation, the Immigration Judge’s bond ruling as to whetherthe alien is “properly included” in a mandatory detention category is sub-ject to the Service’s invocation of the “automatic stay” discussed in ourprior ruling in this case.

II. FACTS AND PROCEDURAL HISTORY

The respondent, a native and citizen of Haiti, was admitted as a lawfulpermanent resident in 1989. The respondent was convicted of the offense of“obstructing and hindering,” a crime under the common law of Maryland.

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The charge to which the respondent pleaded guilty asserts that he “didintentionally and knowingly obstruct and hinder a police officer . . . in theperformance of the [police officer] victim’s duties.” The respondentreceived a 1-year sentence. A statement appended to the criminal chargingdocument asserts that the respondent, after departing his residence in avehicle, was chased by a police officer and was finally apprehended inDelaware after jumping from his moving vehicle. It is not clear why therespondent was being pursued.

It appears that the respondent was taken into Service custody andremoval proceedings were commenced in November 1998, charging that hewas subject to removal under section 237(a)(2)(A)(iii) of the Immigrationand Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as analien who has been convicted of an aggravated felony as defined in section101(a)(43)(S) of the Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996)(obstruction of justice). The Immigration Judge, however, terminated theunderlying removal proceedings on January 20, 1999, after deciding thatthe respondent’s conviction does not qualify as an aggravated felony.

That same day the Immigration Judge issued an oral order in bond pro-ceedings releasing the respondent from custody. The Immigration Judge fol-lowed his January 20, 1999, oral order with a written release order, datedJanuary 22, 1999. The Service timely appealed both the Immigration Judge’sdecision terminating the respondent’s removal proceedings and theImmigration Judge’s order releasing the respondent on his own recognizance.The Service obtained an automatic stay of the release order during the penden-cy of its bond appeal, in accordance with our earlier ruling in this case. Matterof Joseph, supra. At present, we only address the Service’s appeal from theImmigration Judge’s release order and thereby resolve the bond appeal.

III. THE SERVICE’S POSITION

The Service maintains that the respondent’s conviction is for an aggra-vated felony, that he is therefore ineligible for release, and that theImmigration Judge lacked jurisdiction to redetermine the custody conditionsimposed by the Service. The Service further argues that the ImmigrationJudge’s decision in the respondent’s removal proceedings, finding that therespondent is not an aggravated felon, is an improper basis for making a bonddetermination. The Service points out that it has timely appealed theImmigration Judge’s removal decision and that it could prevail in its meritsappeal. It argues that releasing an alien charged as an aggravated felon wouldbe inconsistent with congressional intent in such circumstances.

Nevertheless, the Service has only provided a brief overview of itsarguments on the underlying merits of the removal case, and it declines to“burden these bond proceedings with a complete exposition of its position

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on the merits.” According to the Service, the respondent remains ineligiblefor release because his conviction record provided the requisite “reason tobelieve” that he is removable as an aggravated felon, in accordance with ourearlier ruling in this case. See Matter of Joseph, supra, at 10 (discussing the“reason to believe” language contained in the regulatory history of the cur-rent bond regulations).

IV. THE GOVERNING LAW

The provisions governing the respondent’s detention, pending anadministratively final order in removal proceedings, are section 236 of theAct, 8 U.S.C. § 1226 (Supp. II 1996), and the regulations in 8 C.F.R. §§3.19 and 236.1. The statute prescribes mandatory detention for certainaliens, including those who are deportable by reason of having committedaggravated felonies. Section 236(c)(1)(B) of the Act. An exception, per-taining to cases involving witness protection, does not apply here. Section236(c)(2) of the Act.

The regulations generally do not confer jurisdiction on ImmigrationJudges over custody or bond determinations respecting those aliens subjectto mandatory detention, such as aggravated felons. 8 C.F.R. §3.19(h)(2)(i)(D). The regulations, nevertheless, specifically allow an aliento seek a determination from an Immigration Judge “that the alien is notproperly included within” certain of the regulatory provisions which woulddeprive the Immigration Judge of bond jurisdiction, including the one atissue here. 8 C.F.R. § 3.19(h)(2)(ii). We must examine the import of this lat-ter provision given the present posture of this case.1

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18 C.F.R. § 3.19(h)(2)(i) provides, in relevant part:

Upon expiration of the Transition Period Custody Rules set forth in section303(b)(3) of Div. C. of Pub. L. 104-208, an immigration judge may not redeter-mine conditions of custody imposed by the Service with respect to the followingclasses of aliens:

. . .

(D) Aliens in removal proceedings subject to section 236(c)(1) of the Act (as ineffect after expiration of the Transition Period Custody Rules) . . . .

Aliens convicted of aggravated felonies fall within section 236(c)(1) of the Act, takingthem outside the bond and custody jurisdiction of Immigration Judges. Nevertheless, 8 C.F.R.§ 3.19(h)(2)(ii) provides in part:

[W]ith respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, nothingin this paragraph shall be construed as prohibiting an alien from seeking a deter-mination by an immigration judge that the alien is not properly included withinany of those paragraphs.


In a case such as this, the structure of the bond regulations means thatthe Immigration Judge’s jurisdiction over custody issues is dependent onthe answer to the very same question that underlies the charge of remov-ability in the case in chief. In other words, if the respondent is removable asan aggravated felon, the Immigration Judge lacks any bond jurisdiction.Conversely, the Immigration Judge would have authority to redeterminecustody conditions if the respondent is not removable as an aggravatedfelon.

V. THE REMOVAL DECISION MAY BE A BASIS FOR THE BOND RULING

Given the regulatory scheme, we find no basis to the Service’s contentionthat the Immigration Judge should not be able to use his ruling on the under-lying merits of the removal proceedings as the basis for his finding of juris-diction over the respondent’s bond claim. Nothing in the regulations prohibitssuch action by the Immigration Judge, and the regulatory structure wouldactually seem to encourage the approach taken by the Immigration Judge,because the essential question is identical in both contexts.

The Immigration Judge could have made a threshold assessment in thebond context of whether the respondent’s conviction was properly classifiedby the Service as an aggravated felony. However, the Immigration Judgeelected first to complete the removal hearing. The Immigration Judge foundthat the respondent had not been convicted of an aggravated felony, the onlycharge of removability, and terminated the removal proceedings in therespondent’s favor. Relying on his removal finding, the Immigration Judgethen made a determination in bond proceedings that the respondent was notsubject to mandatory detention and ordered his release. Nothing in thissequence of events violates the structure or spirit of the regulations, giventhat the Service’s appeal of the removal order meant that there was no finalorder in place. See 8 C.F.R. § 236.1(d) (“Once a removal order becomesadministratively final, determinations regarding custody and bond are madeby the district director.”).

VI. MATTER OF JOSEPH EXPLAINED

We also reject the Service’s contention that the same basis for its initialcharge of removability, which we found sufficient for purposes of the auto-matic stay as well, is adequate in this case to provide the needed “reason tobelieve” that the respondent is an aggravated felon when we reach the sub-stance of the bond appeal. In this respect, the Service’s reading of our deci-sion in Matter of Joseph, supra, is erroneous.

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What was decided in Matter of Joseph, supra, was the questionwhether an alien remains “subject to” section 236(c)(1) for automatic staypurposes after the Immigration Judge has decided that he is not subject tomandatory detention. 8 C.F.R. § 3.19(i)(2). The Service quotes languagefrom that decision stating that “the respondent’s conviction record provid-ed the Service with the requisite ‘reason to believe’ that the respondent wasremovable as an aggravated felon, and the respondent thus became ‘subjectto’ section 236(c)(1) of the Act when charged with removability under sec-tion 237(a)(2)(A)(iii).” Id. at 10. The Service appears to argue that the “rea-son to believe” which led it to bring the aggravated felony charge againstthe respondent is sufficient to control for bond purposes until the final res-olution of the underlying removal case. While the Service’s position mayoften be correct as a practical matter in other cases, this is because thenature of many convictions quite clearly make aliens subject to mandatorydetention. But that will not be true in all cases, and we do not find it to betrue here.

To clarify what we said in Matter of Joseph, supra, the respondent’sconviction record provided the Service with the requisite “reason tobelieve” that he had been convicted of an aggravated felony for purposes ofcharging and making the initial custody determination. However, theService’s decision in that regard is not unreviewable by the ImmigrationJudge or the Board in either the bond or the removal context. We found inJoseph that the automatic stay regulation was intended as a means for theService to preserve the “status quo” of the district director’s determinationthat the respondent must be detained, but only until we decide the Service’sappeal from the Immigration Judge’s release order. Matter of Joseph, supra,at 16.

The Service evidently misunderstands the discussion in our earlierdecision of the regulatory history of the automatic stay provision, whichprovides that the Board retains full authority to accept or reject the Service’scontentions in its bond appeal. See Procedures for the Detention andRelease of Criminal Aliens by the Immigration and Naturalization Serviceand for Custody Redeterminations by the Executive Office for ImmigrationReview, 63 Fed. Reg. 27,441, 27,447 (1998); Matter of Joseph, supra, at 12.The Service’s position fails to recognize either the Immigration Judge’s orthe Board’s role in the detention review process, apparently viewing ourauthority as being confined to looking only to whether the Service had abasis for charging the respondent with removability under one of thegrounds listed in section 236(c)(1) of the Act.

Our role in this appeal is, instead, to determine whether theImmigration Judge correctly found that the respondent was not properlyincluded in the mandatory detention scheme. This requires consideration ofthe evidence and argument offered during the bond proceedings on thisquestion and of the force of the Immigration Judge’s reasoning. It is more

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than just a perfunctory review and ratification of the fact that the Servicemay have had a “reason to believe” the respondent was an aggravated felonat the time it began the proceedings.

VII. THE INTERPRETATION OF 8 C.F.R. § 3.19(h)(2)(ii)

Our construction of the regulation at issue here flows directly fromwhat we said in Matter of Joseph. Any presumption that the respondent isan aggravated felon based on his conviction record and the charge broughtby the Service is insufficient, by itself, to control the outcome of the bondappeal if the record as a whole shows otherwise. In this regard, we under-stand that the very purpose of the regulation, 8 C.F.R. § 3.19(h)(2)(ii), isto provide an alien, such as the respondent, with the opportunity to offerevidence and legal authority on the question whether the Service hasproperly included him within a category that is subject to mandatorydetention.

Here, the Immigration Judge was convinced by the respondent’s argu-ments that his Maryland common law “obstructing and hindering” chargeis not an aggravated felony. The Immigration Judge compared the Marylandcase law argued by the respondent to federal law and agreed with therespondent that the elements of the crime, and the types of conduct whichit includes, are not analogous to “obstruction of justice” as contemplated bythe aggravated felony definition at section 101(a)(43)(S) of the Act.

The Service argues, however, that it has appealed the merits decisionterminating removal proceedings. And it contends the following in itsappeal brief: “If the Service turns out to be right, absent the Board’s sus-taining of the instant bond appeal, the respondent, an aggravated felon sub-ject to mandatory custody, will have been released from custody. That is notthe disposition envisioned by Congress in enacting the mandatory custodyprovision of section 236(c).”

But this case involves a lawful permanent resident who has beencharged with only one ground of removability. Under our laws, the respon-dent would be allowed to reside and work in the United States, but for thependency of the aggravated felony charge brought by the Service. And, asnoted above, the bond regulations specifically accord a level of protectionfor aliens charged with grounds that would require mandatory detention.Those regulations allow for an independent assessment by an ImmigrationJudge and the Board, in the preliminary bond context, of whether the alienis “properly included” in a category subject to mandatory detention.

The mere fact that the Service has appealed in the underlying removalcase, and in theory could prevail, cannot be sufficient, by itself, to require thereversal of the Immigration Judge in this bond appeal. If it were, there wouldseem to be little or no point to the regulatory provision that allows the

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Immigration Judge, and the Board on appeal, to make a determination onwhether the alien is “properly included” in a mandatory detention category.

A determination in favor of an alien on this issue does not lead to auto-matic release. It simply allows an Immigration Judge to consider the ques-tion of bond under the custody standards of section 236(a) of the Act. Yet,under the Service’s approach, an alien such as the respondent would seemto have no recourse to that ordinary bond provision, even in cases where theService is wrong in its charge and will lose on appeal. As we explained inconnection with our discussion of Matter of Joseph above, the regulationmust have meaning beyond simply allowing for a perfunctory review of thebasis for the Service’s charge. Indeed, the regulatory history indicates thatthis rule was intended to provide “for an individualized hearing on whetheran alien in custody actually falls within a category of aliens subject tomandatory detention.” 63 Fed. Reg. at 27,444 (emphasis added).

This, however, is a case of first impression, and the regulations do notspell out the precise role of an Immigration Judge or the Board in assess-ing, in the bond context, whether an alien is “properly included” in amandatory detention category. Yet, this case also involves a lawful perma-nent resident. And, as we explain below, we find that the Service is sub-stantially unlikely to establish the charge of deportability in its appeal of theunderlying removal case. Under such circumstances, we find it inappropri-ate to continue to treat the respondent as an alien who is subject to manda-tory detention, if we are to give meaningful life to the regulations allowingfor an examination by Immigration Judges and the Board of this question.Thus, subject to the automatic stay provision, we determine that a lawfulpermanent resident will not be considered “properly included” in a manda-tory detention category when an Immigration Judge or the Board is con-vinced that the Service is substantially unlikely to establish at the meritshearing, or on appeal, the charge or charges that would otherwise subjectthe alien to mandatory detention.

The Immigration Judge here issued his bond ruling after the conclusionof the removal case. As indicated above, the Immigration Judge was enti-tled to rely on that merits decision in making the related bond determina-tion that the respondent was not properly included in a mandatory detentioncategory.

The regulations, however, allow this determination to be made by theImmigration Judge at a very early stage of the overall proceedings. TheService is, of course, entitled to bring any charge it deems warranted in agiven case. Importantly, as the Service points out, the statutory schemeenvisions the detention of aliens subject to grounds such as the aggravatedfelony charge here. Consequently, the Immigration Judge must have verysubstantial grounds to override the custodial effect of the Service’s chargein those cases where the Immigration Judge addresses whether the perma-nent resident is properly included in a mandatory detention category prior

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to completion of the merits hearing.It follows from what we said in Matter of Joseph, supra, at 10, that the

“reason to believe” that the alien “falls within a category barred from release,”which led the Service to bring a particular charge, can often be expected tosuffice until the Immigration Judge resolves the merits of the removal case, aresolution that frequently occurs speedily in cases involving detained crimi-nal aliens. 63 Fed. Reg. at 27,444-45. But the Immigration Judge is able toexamine the basis for that charge and make an independent determinationwhether the alien “actually falls within a category of aliens subject to manda-tory detention.” Id. at 27,444. In requiring that the Immigration Judge be con-vinced that the Service is substantially unlikely to prevail on its charge, whenmaking this determination before the resolution of the underlying case, weprovide both significant weight to the Service’s “reason to believe” that led tothe charge and genuine life to the regulation that allows for an ImmigrationJudge’s reexamination of this issue.

In addition, we note that the bond regulations generally allow for greatflexibility in making rulings on custody issues. For example, 8 C.F.R. §3.19(d) provides in part: “The determination of the Immigration Judge asto custody status or bond may be based upon any information that is avail-able to the Immigration Judge or that is presented to him or her by the alienor the Service.”

Further, in assessing whether an alien is “properly included” in amandatory detention category during a bond hearing taking place early inthe removal process, the Immigration Judge must necessarily look forwardto what is likely to be shown during the hearing on the underlying removalcase. Thus, for example, the failure of the Service to possess a certified copyof a conviction record shortly after taking an alien into custody would notnecessarily be indicative of its ability to produce such a record at the mer-its hearing. And the same could be true of evidence tendered by the alienduring an early bond hearing.

VIII. THE SERVICE’S PROSPECT FOR SUCCESS IN THE REMOVAL CASE

Turning to the bond record in this case, we do have evidence respect-ing the respondent’s conviction for “obstructing and hindering” underMaryland law. We agree with the Immigration Judge that this evidencestrongly indicates that the respondent’s conviction resulted from his actionsto obstruct or hinder his own arrest.

The Maryland case law relied upon by the Immigration Judge, Cover v.State, 466 A.2d 1276 (Md. 1983), reflects that the crime of obstructing andhindering encompasses three types of offenses: (1) positive direct obstruc-tion (i.e. resisting one’s own arrest), (2) passive direct obstruction (where a

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subject refuses or fails to act as directed by a police officer), and (3) posi-tive indirect obstruction (where the police are not acting directly against thesubject, but are acting indirectly against another who has committed, ormay commit, a criminal offense, and the subject does an act which obstructsthem in their general duty to prevent or detect crime, intending to frustratethem in the performance of that duty).

At least in this bond case, the Service has provided little to challengethe Immigration Judge’s determination that the respondent’s offense is notcorrectly classified as an aggravated felony. The Service cites to Matter ofBatista-Hernandez, 21 I&N Dec. 955 (BIA 1997), as support for its posi-tion. However, we agree with the Immigration Judge that, unlike Batista-Hernandez, the respondent in the present case was seeking to evade hisown arrest, rather than obstructing the arrest of another. The Service’sreliance on United States v. John, 935 F.2d 644 (4th Cir. 1991), is likewiseunpersuasive. This sentence enhancement case indicates that mere flightfrom an arresting officer is not sufficient, in itself, to warrant an adjustmentof a defendant’s offense level under the obstruction of justice provision inthe United States Sentencing Guidelines in U.S.S.G. § 3C1.1 (1990). See 18U.S.C.A. ch. 3, § 3C.1.1 (West 1996). The Service has also not addressedthe Immigration Judge’s reliance on the Supreme Court’s decision in UnitedStates v. Aguilar, 515 U.S. 593, 599 (1995), for the proposition that an“intent to influence judicial or grand jury proceedings” is more the sort ofactivity constituting an “obstruction of justice” under the Act than is therespondent’s conviction for obstructing or hindering his own arrest in amanner that does not appear to have endangered the officer.

We do not purport to make a final ruling on whether the respondent’sconviction falls within the aggravated felony provision of section101(a)(43)(S). The possibility remains that the Service might offer someconvincing argument in its merits appeal. However, it opted not to do sohere. On the basis of this bond record, it appears that Maryland’s “obstruct-ing and hindering” law is divisible, encompassing the conduct of resistingone’s own arrest. Even if some of the other categories of activities includedin this crime might potentially be construed as obstruction of justice, wefind that it is substantially unlikely that the offense of simply obstructing orhindering one’s own arrest will be viewed as an obstruction of justice aggra-vated felony under section 101(a)(43)(S) of the Act for removal purposes.Consequently, we agree with the Immigration Judge that the respondent isnot “properly included” in the category of aliens subject to mandatorydetention for bond or custody purposes. 8 C.F.R. § 3.19(h)(2)(ii).

IX. THE RELEASE ORDER

Our determination, in agreement with the Immigration Judge, that the

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respondent is not properly included in a mandatory detention categorywould not ordinarily end the bond inquiry. It simply means that the lawfulpermanent resident could be considered by the Immigration Judge forrelease under the general bond provisions of section 236(a) of the Act. Inthis case, however, the Service has not challenged the specific terms of theImmigration Judge’s release order in its appeal brief.

Consequently, for the foregoing reasons, on May 19, 1999, we enteredan order which extinguished the automatic stay that had attached upon thetendering of the Form EOIR-43 (Notice of INS Intent to Appeal CustodyRedetermination) by the Service in this case. We now repeat that order forthe sake of clarity.

ORDER: The appeal taken by the Service is dismissed.FURTHER ORDER: The respondent shall be released pursuant to

the terms of the Immigration Judge’s January 22, 1999, bond order.

CONCURRING AND DISSENTING OPINION: Paul W. Schmidt,Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D.Rosenberg, and John Guendelsberger, Board Members, joined

I respectfully concur in part and dissent in part.I join entirely in the majority’s rejection of the Immigration and

Naturalization Service’s appellate arguments and in the unanimous conclu-sion that, on this record, the Service is substantially unlikely to prevail onthe merits of the aggravated felony charge. Therefore, I agree that therespondent is not properly included in the category of aliens subject tomandatory detention for bond or custody purposes.

However, I do not share the majority’s view that the proper standard ina mandatory detention case involving a lawful permanent resident alien isthat the Service is “substantially unlikely to prevail” on its charge. Matterof Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in acase such as the one before us should be whether the Service has demon-strated a likelihood of success on the merits of its charge that the respon-dent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drasticstep that implicates constitutionally-protected liberty interests. Where thelawful permanent resident respondent has made a colorable showing in cus-tody proceedings that he or she is not subject to mandatory detention, theService should be required to show a likelihood of success on the merits ofits charge to continue mandatory detention. To enable the ImmigrationJudge to make the necessary independent determination in such a case, theService should provide evidence of the applicable state or federal law underwhich the respondent was convicted and whatever proof of conviction thatis available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to pre-

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vail” is inappropriately deferential to the Service, the prosecutor in this mat-ter. Requiring the Service to demonstrate a likelihood of success on themerits of its charge would not unduly burden the Service and would givemore appropriate weight to the liberty interests of the lawful permanent res-ident alien. Such a standard also would provide more “genuine life to theregulation that allows for an Immigration Judge’s reexamination of thisissue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the meritswould not result in the release of a lawful permanent resident who poses athreat to society. Continued custody of such an alien would still be war-ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where theService has failed to demonstrate a likelihood of success on the merits of itscharge. Consequently, while I am in complete agreement with the decisionto release this lawful permanent resident alien, and I agree fully that theService is substantially unlikely to prevail on the merits of this aggravatedfelony charge, I respectfully dissent from the majority’s enunciation of“substantially unlikely to prevail” as the standard to be applied in all futurecases involving mandatory detention of lawful permanent resident aliens.

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In re Roman KOTLIAR, Respondent

File A79 525 391 - Lancaster

Decided March 21, 2007

U.S. Department of Justice Executive Office for Immigration Review


(1) An alien who has been apprehended at home while on probation for criminal convictions is subject to mandatory detention under section 236(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c)(1) (2000), regardless of the reason for the most recent criminal custody, provided it can be ascertained from the facts that he was released from criminal custody after October 8, 1998, the expiration date of the Transition Period Custody Rules.

(2) An alien need not be charged with the ground that provides the basis for mandatory detention under section 236(c)(1) of the Act in order to be considered an alien who “is deportable” on that ground.

FOR RESPONDENT: Leon B. Hazany, Esquire, Beverly Hills, California

BEFORE: Board Panel: PAULEY and HESS, Board Members; ROMIG, Temporary Board Member.

PAULEY, Board Member:

In a bond redetermination decision dated October 5, 2006, an Immigration Judge denied the respondent’s request for a change in custody status, concluding that there was no jurisdiction to set a bond. The respondent has appealed from that decision. The appeal will be dismissed.

In a November 14, 2006, memorandum decision, the Immigration Judge considered the following facts, which are not in dispute. The respondent is a 33-year-old native and citizen of Russia who last entered the United States on or about April 6, 2001, as a nonimmigrant visitor with authorization to remain until October 5, 2001. Following his failure to depart, he was charged in a Notice to Appear (Form I-862) with having remained in the United States for a time longer than permitted in violation of section 237(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B) (2000). The respondent admitted that he has been convicted of the following offenses in violation of the California Penal Code: false identification to a police officer on June 1, 2006; petty theft with a prior on November 5, 2005; burglary on May 18, 2004; and cable TV theft on November 11, 2002.

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1


The Immigration Judge concluded that the respondent is subject to mandatory detention pursuant to Section 236(c)(1)(B) of the Act, 8 U.S.C. § 1226(c)(1)(B) (2000), because of his multiple convictions for crimes involving moral turpitude. The theft offenses of which the respondent was convicted are clearly crimes involving moral turpitude, so there is no question in that regard before us. United States v. Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992); Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992); see also Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994).

The respondent makes two arguments on appeal. First, he contends that he is not subject to mandatory detention because he did not serve a jail term and was apprehended from his home while on probation, rather than when he was released from criminal custody. However, section 236(c)(1) of the Act expressly states that an alien is subject to mandatory detention and shall be taken into custody when the alien is released, without regard to whether he was released “on parole, supervised release, or probation.”1 Moreover, we have held that an alien who is released from criminal custody (including from an arrest preceding a conviction, as the respondent implicitly conceded took place here) after the expiration of the Transition Period Custody Rules, which occurred on October 8, 1998, is subject to mandatory detention pursuant to section 236(c) of the Act, even if the alien is not immediately taken into custody by immigration officials when released from incarceration. Matter of Rojas, 23 I&N Dec. 117 (BIA 2001); Matter of West, 22 I&N Dec. 1405 (BIA 2000). Although the Immigration Judge did not discuss when the respondent came into custody, it is obvious from the record that he must have been detained at some time after his conviction in 2002. Therefore, the record reflects that the respondent was released from criminal custody after the expiration of the Transition Period Custody Rules. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.

Section 236(c)(1) of the Act provides as follows:

The Attorney General shall take into custody any alien who— (A) is inadmissible by reason of having committed any offense covered in

section 212(a)(2), (B) is deportable by reason of having committed any offense covered in section

237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D), (C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for

which the alien has been sentence to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 212(a)(3)(B) or deportable under section

237(a)(4)(B), when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

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104-208, § 303(b)(3), 110 Stat. 3009-546, 3009-586. Consequently, the respondent’s first argument must fail.

In his second argument, the respondent asserts that because the Notice to Appear did not charge that he is removable on the basis of his convictions, he should not be subject to mandatory detention pursuant to section 236(c)(1)(B)of the Act as one who “is deportable” under section 237(a)(2)(A)(ii) by reason of having committed two crimes involving moral turpitude. We disagree. Where the record reflects that an alien has committed any of the offenses covered in sections 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of the Act, the alien is subject to mandatory detention pursuant to section 236(c)(1)(B) as one who “is deportable” for the offense, without regard to whether the Department of Homeland Security (“DHS”) has exercised its prosecutorial discretion to lodge a charge based on the offense.

We have previously held that the “is deportable” language in the Transition Period Custody Rules does not require that an alien be charged with and found deportable on the ground that provides the basis for mandatory detention. Matter of Melo, 21 I&N Dec. 883, 885 n.2 (BIA 1997) (noting that “bond determinations . . . are normally rendered before any finding of deportability”); see also Matter of Fortiz, 21 I&N Dec. 1199, 1201 n.3 (BIA 1998) (distinguishing Matter of Melo in the context of establishing eligibility for a waiver). For similar reasons, we now hold that the “is deportable” language in the current mandatory custody statute does not require that the alien be charged with or found deportable on the particular ground on which detention is based.

In Matter of Joseph, 22 I&N Dec. 799, 806 (BIA 1999), we held that subject to an automatic stay provision, a lawful permanent resident is not considered “properly included” in a mandatory detention category when an Immigration Judge or the Board finds, on the basis of the bond record as a whole, that it is substantially unlikely that the Immigration and Naturalization Service (now the DHS) will establish at the merits hearing, or on appeal, the charge or charges of removability that would otherwise subject the alien to mandatory detention under section 236(c)(1) of the Act. The alien in that case was charged with being removable as an aggravated felon under section 237(a)(2)(A)(iii) of the Act, which would have rendered him subject to mandatory detention under section 236(c)(1)(B). There was no other charge of removability. We concluded that it was substantially unlikely that the respondent’s offense would be viewed as an aggravated felony and therefore that he was not “properly included” in a mandatory detention category. Id. at 808.

The facts in this matter are distinguishable, in that the ground for removal is unrelated to the convictions subjecting the respondent to mandatory detention. In order to determine whether the respondent is properly included in a mandatory custody category where there is no charge that he is removable

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on the basis of an offense enumerated in section 236(c)(1)(B), we look at the record to determine whether it establishes that he has committed an offense and whether the offense would give rise to a charge of removability included in that provision. In this case, where the respondent admitted that he was convicted of several crimes involving moral turpitude, we do not find that the DHS is substantially unlikely to establish that the respondent’s convictions would support a charge of removability under section 237(a)(2)(A)(ii) of the Act. We therefore conclude that the Immigration Judge properly found him to be subject to mandatory detention.

Our conclusion is consistent with the congressional concern that criminal aliens would continue to commit crimes and would fail to appear for removal hearings if they were not detained, a concern that was noted by the United States Supreme Court in Demore v. Kim, 538 U.S. 510 (2003) (holding that the detention of a lawful permanent resident during removal proceedings pursuant to the mandatory detention provisions of the Act does not violate constitutional due process rights). Not only is the mechanism of mandatory detention required by the Act itself when the DHS has met its burden of showing that an alien has been convicted of, or committed, one of the offenses enumerated in section 236(c)(1) of the Act, but it is also a rational method of ensuring that criminal aliens appear at their hearings and are prevented from committing more crimes in the interim. The respondent is a repeat offender who continues to violate both our immigration and criminal laws. His detention will not only ensure his appearance at his removal proceedings, but it will also prevent him from engaging in further criminal activity.

Where the ground for removal subjects an alien to mandatory detention, the charging document serves as notice to the alien of the circumstances relied on by the DHS to detain him. However, where the basis for detention is not included in the charging document, the alien must be given notice of the circumstances or convictions that provide the basis for mandatory detention and an opportunity to challenge the detention before the Immigration Judge during the bond redetermination hearing. The Immigration Judge’s decision, which found the respondent’s admissions to his convictions to be the basis for mandatory detention, reflects that the respondent had notice and an opportunity to be heard in this matter.

On appeal, the respondent has presented additional evidence of discretionary factors and a claim for relief from removal. In light of the mandatory detention ruling, this evidence is not relevant to the bond redetermination. Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

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140

Matter of Jose Alberto URENA, Respondent

File A087 052 221 - Newark, New Jersey

Decided November 17, 2009

U.S. Department of JusticeExecutive Office for Immigration Review


(1) Dangerous aliens are properly detained without bond pending the completionof proceedings to remove them from the United States.

(2) Only if an alien has established that he would not pose a danger to property or personsshould an Immigration Judge decide the amount of bond necessary to ensure the alien’spresence at proceedings to remove him from the United States.

(3) Where an Immigration Judge characterized an alien seeking release from custodyas a “potential” danger to the community but ordered him released upon the postingof a bond amount, the record was remanded for the Immigration Judge to clarify whetherthe alien met his burden of proving that his release on bond would not pose a dangerto property or persons.

FOR RESPONDENT: Pro se

BEFORE: Board Panel: PAULEY, ADKINS-BLANCH, and GUENDELSBERGER, BoardMembers.

ADKINS-BLANCH, Board Member:

The respondent has appealed from an Immigration Judge’s June 15, 2009,order releasing him from custody upon the posting of a bond in the amountof $15,000. The record will be remanded to the Immigration Judge for furtherconsideration.

The reasons for the Immigration Judge’s custody order are set forthin a bond memorandum prepared on July 10, 2009. The Immigration Judgedetermined that the respondent presents a potential danger to the communitybased on his criminal history, which includes a conviction and severalarrests for offenses with the potential for violent harm to persons. Thestatements presented by the respondent on appeal fail to establish that theImmigration Judge’s conclusion is without a reasonable foundation. SeeMatter of Guerra, 24 I&N Dec. 37, 41 (BIA 2006) (stating that an ImmigrationJudge may properly consider any unfavorable evidence of an alien’s conduct,including arrests that did not ultimately result in conviction). The arguments


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and assertions of fact made by the respondent concerning the hardship of hisdetention are not relevant to the disposition of this matter. We therefore findno error in the Immigration Judge’s determination that the respondent presentsa potential danger to the community.

However, we find it necessary to remand the record to the ImmigrationJudge for clarification of his finding that the respondent presents a “potential”danger. Dangerous aliens are properly detained without bond. See Matterof Guerra, 24 I&N Dec. at 38; Matter of Adeniji, 22 I&N Dec. 1102, 1113(BIA 1999); Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994). In thisregard, dangerous aliens have no constitutional right to be at libertyin the United States pending the completion of proceedings to remove themfrom the country. See Carlson v. Landon, 342 U.S. 524, 537-42 (1952).An Immigration Judge should only set a bond if he first determines that thealien does not present a danger to the community. See Matter of Guerra,24 I&N Dec. at 38. The alien bears the burden of proving that his releasewould not pose a danger to property or persons. See 8 C.F.R. § 1236.1(c)(8)(2009); see also Matter of Adeniji, 22 I&N Dec. at 1113. Only if an aliendemonstrates that he does not pose a danger to the community shouldan Immigration Judge continue to a determination regarding the extent of flightrisk posed by the alien. See Matter of Drysdale, 20 I&N Dec. at 817-18.In this regard, the setting of bond is designed to ensure an alien’s presenceat proceedings and is not properly utilized where an alien presents a dangerto the community. Id.

In this case, the Immigration Judge concluded that the respondentpresented a “potential” danger to the community. If the Immigration Judgeintended to find that the respondent failed to meet his burden under 8 C.F.R.§ 1236.1(c)(8) to show that his “release would not pose a danger to propertyor persons,” then pursuant to our decisions in Matter of Guerra, Matterof Adeniji, and Matter of Drysdale, that determination would require therespondent to remain in custody without bond. Conversely, if the ImmigrationJudge meant to find that despite the potential of danger, the respondent has methis burden of proving that his release would not pose a danger to propertyor persons, then it would be appropriate to consider the other factors in thecase relevant to determining the amount of bond necessary to ensure therespondent’s presence at further proceedings, including his criminal recordas it relates to the likelihood that he will appear at future hearings.

Accordingly, we will remand the record for the Immigration Judge to clarifyhis determination that the respondent presents a potential danger to thecommunity. A precise finding whether the respondent has demonstrated thathe would not pose a danger to property or persons is required, and if therespondent has failed to meet his burden of proof in that regard, then anyrelease on bond is inappropriate. Only if the respondent has established that


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he would not pose a danger to property or persons should the ImmigrationJudge decide the amount of bond necessary to ensure the respondent’spresence at proceedings to remove him from the United States.

ORDER: The record is remanded to the Immigration Judge for furtherproceedings consistent with the foregoing opinion and for the entry of a newdecision.


Bond Issues—Obtaining Bond from the IJ and ICE May 3rd, 2011

Additional Resources Matter of Saysana http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1179P.01A Matter of Arreola http://www.justice.gov/eoir/vll/intdec/vol25/3685.pdf

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