U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virg1ma 22041

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Roberts, Susan Michael OHS/ICE Office of Chief Counsel -BLM
Roberts Immigration Law Office, Ltd. (MSP)
816 West Saint Germain Street, Suite 607 1 Federal Drive, Suite 1800
Saint Cloud, MN 56301 Ft. Snelling, MN 55111

Name: F T ,E 0...

Date of this notice: 5/19/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

111 J
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Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: E-D-J-F-T-, AXXX XXX 302 (BIA May 19, 2017)
 ,, ,

I U.S. Department of Justice Decision of the Board of Immigration Appeals

'Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: 302 - Fort Snelling, MN Date: MAY 1 9 2017

In re: E D J F -T

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Susan M. Roberts, Esquire

ON BEHALF OF OHS: Kenneth R. Knapp

Assistant Chief Counsel

APPLICATION: Redetermination of custody status

The Department of Homeland Security (OHS) has appealed 1 the Immigration Judge's
December 29, 2016, bond order granting the respondent's request for a change in custody status
and setting a bond of$10,000.2 The respondent opposes the DHS's appeal. The reasons for the
Immigration Judge's custody order are set forth in a bond memorandum, dated January 11, 2017.
The DHS's appeal will be dismissed.

We will affirm the Immigration Judge's bond determination. An Immigration Judge has
wide latitude in deciding the factors to be considered in determining whether an appropriate bond
may be set to ensure an alien's presence at future removal proceedings. Matter of Guerra,
24 I&N Dec. 37, 39-40 2006).
(BIA The respondent bears the burden of demonstrating that he
merits release from custody. Id. To satisfy that burden, he must demonstrate that his release
would not pose a danger to property or persons, and that he is not a flight risk. Matter of Urena,
25 I&N Dec. 140, 141 (BIA 2009); Matter of Adeniji, 22 l&N Dec. 1102, 1111-13 (BIA 1999)
(relying in part on 8 C.F.R. 1236. l (c)(8)). An Immigration Judge has broad discretion to
consider any matter he or she deems relevant when determining whether a lawfully detained
person's release on bond is permissible or advisable; thus, a custody redetermination that has a
"reasonable foundation" will not be disturbed on appeal. Matter of Guerra, supra, at 39-40
(relying in part on Carlson v. Landon, 342 U.S. 524, 534 (1952)). The Immigration Judge
granted the respondent's request for a change in custody status because she determined that the
respondent does not pose a danger to the community (Bond Memo at 2).

1 The OHS has filed a motion for concurrent consideration of appeals. However, as each of the
appeals listed in the motion has unique facts to consider, the motion will be denied.

2 The record reflects that the respondent was released from custody on January 10, 2017, upon
posting bond.

Cite as: E-D-J-F-T-, AXXX XXX 302 (BIA May 19, 2017)
 302

The Immigration Judge took into consideration the DHS's argument that the respondent
poses a danger to the community based on his 2016 criminal conviction for driving under the
influence of alcohol ("DUI") as well as his 2015 conviction for driving without a driver's license
(Bond Memo at 2). Although the Immigration Judge noted the seriousness of the respondent's
criminal convictions, she also noted that the respondent has a riewbom United States citizen
child and the mother of his child, who lives in the United States, is presently seeking asylum

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(Bond Memo at 3). See 8 C.F.R. 241.4(t) (listing factors that the DHS must weigh in
considering whether to recommend further detention or release of a detainee, including, inter
alia, the detainee's criminal history, evidence of recidivism or rehabilitation, ties to the United
States, and history of absconding or failing to appear for immigration or other proceedings).

Moreover, the Immigration Judge weighed the respondent's equities, which include his
strong family ties in the United States against his criminal conviction (Bond Memo at 2). See
Matter of Guerra, supra, at 40. We are not persuaded by the DHS's appellate argument that the
respondent has not presented any evidence showing that he does not pose a danger to persons or
property since the respondent explicitly states that his sole DUI conviction did not result in any
3
property damage or personal injury (DHS's Brief at 2-3; Respondent's Brief at 6).

After consideration of the record before us, we conclude that the Immigration Judge
appropriately considered the factors discussed in Matter of Guerra, supra, in evaluating whether
a bond may be set in this case. Thus, while we acknowledge the DHS's arguments on appeal, we
affirm the Immigration Judge's order setting a $10,000 bond as reasonably calculated to ensure
the respondent's presence in removal proceedings. See Matter of Guerra, supra.

Accordingly, the following order will be entered.

ORDER: The DHS's bond.appeal is dismissed.

3
We note that the respondent has submitted additional evidence on appeal. However, the Board
may not make factual findings on appeal. See 8 C.F.R. 1003.l(d)(3)(iv) (limiting the Board's
appellate fact-finding authority); see also Matter of Fedorenko, 19 I&N Dec. 57, 73-74 and n.10
(BIA 1984).

Cite as: E-D-J-F-T-, AXXX XXX 302 (BIA May 19, 2017)


DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
FORT SNELLING, MINNESOTA

JAN 11 2017

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File Number: -302

In the Matter of: )

)
E d J F -T ) In Removal Proceedings
)
Respondent. )

Charge: INA 237(a)(l)(B) - after admission as a nonimmigrant under Section

10l(a)(l5) of the Act, you have remained in the United States for a time longer
than permitted, in violation of this Act or any other law of the United States.

Re: Bond Redetermination

RESPONDENT: ON BEHALF OF DHS:

E d J F -T , pro se Diane Dodd, Esq.
Asst. Chief Counsel/ICE
1 Federal Dr., Ste. 1800
Fort Snelling, MN 55111

BOND DECISION OF THE IMMIGRATION JUDGE

I. Background

E d J F -T , Respondent, is a 21-year-old man and a native and citizen of

Ouatemala. (Ex. 1). Respondent was admitted to the United States at Los Angeles, CA on or
about May 2, 2014 as a H2B non-immigrant. Id. Respondent remained in the United States
beyond August 10, 2014 without authorization from the Immigration and Naturalization Service
or its successor the Department of Homeland Security. Id.

On December 20, 2016, the Department of Homeland Security (OHS) commenced removal
proceedings with the filing of the Notice to Appear (NTA) charging Respondent with
removability pursuant to the above-captioned charge of the Immigration and Nationality Act
("the Act" or "INA"). Id. Respondent acknowledged receipt of the NTA, admitted the
allegations, and the Court sustained the charge. Respondent declined to designate a country of
removal, and the Court designated Guatemala should such action become necessary. DHS has
determined that Respondent is ineligible for bond, and Respondent requested a bond
redetermination hearing by this Court. The Court conducted a bond redetermination hearing on
December 29, 2016.

BOND DECISION - 302 1



II. Legal Analysis

An immigration judge may consider a wide variety of factors in setting bond, including the
respondent's immigration history, criminal record, family ties in the United States, and length of
time in the United States. See Matter of Guerri}, 24 I&N Dec. 37 (BIA 2006). Further, a bond

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should only be set if the immigration judge determines that a respondent is not a danger to the
community. Matter of Ureili!, 25 I&N Dec. 140 (BIA 2009). If the Court determines that the
respondent is not a danger to the community, the Court should then assess the respondent's
potential flight risk. Id.

Respondent seeks a $5,000 bond. Respondent has a newborn U.S. citizen child and the mother of
his child also lives in the U.S. She is without status and is seeking asylum. Respondent was
convicted of a DUI in 2016 and no driver's license in 2015. Although drunk driving can be
dangerous to the community, the Court declines to create a bright line rule that a drunk driving
arrest or conviction automatically renders a respondent a danger to the community without
considering other factors in an individual case. In light of the nature of Respondent's criminal
history and his family ties the Court finds Respondent is not a danger to the community.

However, given the recency of Respondent's criminal history and the fact that Respondent has
failed to report for a probation appointment in the past, the Court considers Respondent a
potential flight risk. In light of all of the factors, the Court feels that Respondent has both
positive and negative factors, and on the balance a bond is appropriate but at a higher amount
than requested by Respondent. The Court concludes that a $10,000 bond is appropriate to ensure
that Respondent will appear at his hearings and for removal if so ordered. Accordingly, the Court
enters the following order:

ORDER

IT IS HEREBY ORDERED that Respondent's request for a bond be GRANTED in the

amount of $10,000 and with the condition of no further DUI arrests.

KriSln W. Olmanson

Immigration Judge

BOND DECISION - 302 2