U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Imig, Jeffrey OHS/ICE Office of Chief Counsel - EAZ
Haralson, Miller, Pitt, Feldman & McAnally, Eloy Detention Ctr, 1705 E. Hanna Rd
PLC Eloy, AZ 85131
1 S. Church Ave, Suite 900
Tucson, AZ 85701

Name: S -A , R A -926

Date of this notice: 4/7/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: R-S-A-, AXXX XXX 926 (BIA April 7, 2017)

U.S. D.epartment of Justice Decision of the Board of Immigration Appeals
Executive Offire for Immigration Review

Falls Church, Virginia 22041

File: 926 - Eloy, AZ Date:

APR - 7 2017
In re: R S -A a.k.a.

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF APPLICANT: Jeffrey Imig, Esquire

ON BEHALF OF OHS: Hoyt Hoyt

Assistant Chief Counsel

APPLICATION: Redetermination of custody status

The Department of Homeland Security ("OHS") appeals from the Immigration Judge's
October 4, 2016, order granting the applicanf s request for a redetermination of custody status
hearing and ordering the applicant released from custody upon posting a $20,000 bond. The
reasons for the Immigration Judge's custody order are set forth in an October 28, 2016, bond
memorandum. The applicant opposes the appeal, and cross appeals the amount of the bond set
by the Immigration Judge. Both appeals will be dismissed.

We review for clear error. the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including issues of law, judgment, and discretion. 8 C.F.R. 1003.l(d)(3)(ii).

In April 2015, the applicant - a native and citizen of Guatemala - was removed from the
United States by the OHS (Exh. 4). Shortly thereafter, she reentered the United States without
permission, with the result that the OHS reinstated her removal order pursuant to section
24l(a)(5) of the Immigration and Nationality Act, 8 U.S.C. 123l(a)(5). The OHS did not
immediately remove the applicant pursuant to that reinstated removal order, however, because
the applicant was found by an asylum officer to have a "reasonable fear of persecution or
torture in her home country. See 8 C.F.R. 241.8(e), 1208.31. On September 22, 2015, the
OHS referred the applicant's case to an Immigration Judge for ''withholding-only" proceedings
pursuant to 8 C.F.R. 1208.3l(e) (Exh. 10). At the time of the Immigration Judge's bond
decision, the applicant had been detained by the OHS for more than 6 months.

In September 2016, the applicant filed a motion requesting that the Immigration Judge grant
her a custody review hearing pursuant to the decision of the United States Court of Appeals for
the Ninth Circuit inRodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), cert.
granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016), which held in relevant part that
bond hearings in Immigration Court must be made available to aliens who have been detained by
the OHS for more than 180 days pursuant to sections 235(b) or 236(c) of the Act, 8 U.S.C.
1225(b), 1226(c) (Exh. 1). Although the Immigration Judge determined that the applicant
was being detained pursuant to section 24l(a)(6) of the Act rather than sections 235(b) or 236(a),

Cite as: R-S-A-, AXXX XXX 926 (BIA April 7, 2017)

 926 I

he nonetheless granted her motion for a bond hearing, concluding that Diouf v. Napolitano
(Diouf II}, 634F .3d 1081, 1086 (9th Cir. 2011), requires that aliens detained pursuant to section
241(a)(6) of the Act for more than 6 months be granted such hearings (l.J. at 2-3). Having
concluded that he had jurisdiction to redetermine the applicant's custody status, the Immigration
Judge found that she poses a serious flight risk, but ultimately determined that this risk could be
abated by the payment of a $20,000 bond.

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I. JURISDICTION

The DHS's primary argument on appeal is that Diouf II does not grant the Immigration Judge
jurisdiction to redetermine the applicant's custody status because, although the applicant's
detention is governed by section 241(a) of the Act, she is in withholding-only proceedings rather
than removal proceedings.

While we agree with the Immigration Judge's ultimate determination that he had.jurisdiction
to conduct a }?ond hearing in this case, we do not agree with his conclusion - which the DHS
evidently shares - that the applicant is being detained pursuant to section 241(a)(6) of the Act.
Instead, we are persuaded by the language and history of Rodriguez III that the applicant, whose
removal is subject to further administrative review before an Immigration Judge on her
application for withholding of removal, is detained pursuant to section 236(a) of the Act and
entitled to the bond redetermination hearing mandated by that decision. A brief review of the
Rodriguez litigation and the Ninth's Circuit's most recent holding will demonstrate why this is
the case.

In September 2012, the United States District Court for the Central District of California
Western Division issued an Order and Preliminary Injunction in Rodriguez v. Robbins,
No. 2:07-CV-03239 (C.D. Cal. Sep. 13, 2012), affd, 715 F.3d 1127 (9th Cir. 2013)
(Rodriguez II), requiring the government to identify all class members detained pursuant to
8 U.S.C. 1226 and 1225(b) of the Act and to provide each of them with a bond hearing before
an Im.migration Judge with power to grant their release. See also Rodriguez v. Hayes
(Rodriguez/), 578F.3d 1032 (9th Cir. 2009), amended by 591F.3d 1105 (9th Cir. 2010).

Subsequently, in August 2013, the United States District Court for the Central District of
California Western Division issued an Order and Permanent Injunction clarifying that detainees
incarcerated for re[in]statement under section 241(a)(5) of the Act, detainees held for
proceedings initiated by an administrative removal order under section 238(b) of the Act,
8 U.S.C. 1228(b) (expedited removal), and detainees held under the general immigration
statute after entering the United States through the Visa Waiver Program are also members of the
previously certified class of individuals entitled to a bond hearing. See Rodriguez v. Holder, No.
2:07-CV-03239, 2013 WL 5229795 (C.D. Cal. Aug. 6, 2013). The court indicated that members
of all four subclasses - those detained under sections 235(b), 236(a), 236(c), and 241 - should be
afforded bond hearings after 6 months of detention, consistent with Rodriguez II.

The appeal of the District Court's decision in Rodriguez v. Holder, supra, was considered in
Rodriguez III, in which the Ninth Circuit affirmed the first three subclasses but not the subclass
detained pursuant to section 241(a). In Rodriguez III, the Ninth Circuit noted that "the class is

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 926 .

defmed, in relevant part, as non-citizens who are detained 'pending completion of removal
proceedings, including judicial review."' Id at 1086. The Ninth Circuit stated that the
petitioners in that case had described the section 241(a) subclass as consisting of individuals who
had received a stay of removal from the Board or a court. However, the Ninth Circuit stated that,
if an individual's removal has been stayed "pending further administrative review, then the order
of removal is not yet 'administratively final."' Id. The Ninth Circuit concluded that section

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241(a) was inapplicable to an individual whose removal has been stayed. Id at 1085-86. In this
regard, the Ninth Circuit cited its previous precedents holding that section 241(a) does not apply
while administrative proceedings or judicial review are pending. See Owino v. Napolitano,
575 F.3d 952, 955 (9th Cir. 2009); Prieto-Romero v. Clark, 534 F.3d 1053, 1059 (9th Cir. 2008);
Casas-Castrillon v. DHS, 535 F.3d 942, 947 (9th Cir. 2008).

The Immigration Judge, in his October 28, 2016, bond memorandum, stated that the
applicant is not a member of the Rodriguez class (l.J. at 3). However, the clear language of
Rodriguez III noted above compels us to reject this interpretation. The DHS has not argued on
appeal - and the Im.migration Judge did not conclude in his bond memorandum - that the
removal of individuals such as the applicant would not be stayed while an Im.migration Judge
considered an application for withholding of removal. This is the central point underlying the
Ninth Circuit's determination that the section 24 l (a) subclass does not exist. In this regard, the
Ninth Circuit states that individuals with pending administrative proceedings or judicial review
are not being detained pursuant to section 241(a). See Rodriguez Ill, supra, at 1086; see also
Owino v. Napolitano, supra; Prieto-Romero v. Clark, supra; Casas-Castrillon v. DHS, supra.
Further, as the Rodriguez III court found the general detention statute at section 236(a) governs
the section 235(b) and 236(c) class members, section 236(a) would also govern those individuals
whose removal has been stayed pending further administrative review, such as the applicant,
once they had been detained for 6 months. See Rodriguez Ill, supra, at 1079, 1082; see also
Rodriguez II, supra, at 1139 (noting that its decision in Diouf v. Napolitano, supra, at 1086,
"strongly suggested that immigration detention becomes prolonged at the six-month mark
regardless of the authorizing statute").

For the foregoing reasons, we reject the DHS's argument that the Im.migration Judge lacked
jurisdiction to redetermine the applicant's custody status. Although we conclude that the
applicant was entitled to such a hearing pursuant to Rodriguez III rather than Diouf II (as the
Im.migration Judge determined), hearings conducted pursuant to Rodriguez III and Diouf II are
substantively identical. Accordingly, on the present facts no constructive purpose would be
served by a remand of the record to the Immigration Judge.

II. THE MERITS

Turnin to the merits, the Immigration Judge found that the applicant poses a very substantial
f
flight risk. In support of that determination, the Im.migration Judge noted that the applicant has

1 The Im.migration Judge did not fmd that the applicant poses a danger to the community, nor
does the DHS argue that she does on appeal.

Cite as: R-S-A-, AXXX XXX 926 (BIA April 7, 2017)

..

926

limited ties to the United States, when she was initially apprehended at the border she told
immigration officials she was a Mexican citizen, she was previously removed after her first
unlawful entry, resulting in the reinstatement of her removal order and a conviction for unlawful
entry under 8 U.S.C. 1325(a)( l ), and she has provided inconsistent statements related to her
allegation that she was forced to carry the drugs that she transported across the United States
border (l.J. at 3-4; Exhs. l , 3, 4, 5). The Immigration Judge permissibly determined that her

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conduct reflects a propensity on the applicant's part to disregard the immigration laws when she
thinks it necessary to ensure her continued presence in the United States. Further, the applicant's
only means of avoiding future removal are her withholding of removal claim and a pending T
visa application, which face uncertain prospects, particularly in light of the applicant's
inconsistent statements. Under the circumstances, we find no basis to disturb the Immigration
Judge's flight risk assessment. See Matter of Fatahi, 26 l&N Dec. 791, 792 n.2 (BIA 2016)
(explaining that the Board reviews an Immigration Judge's factual findings for clear error in
bond proceedings).

The DHS agrees that the applicant poses a flight risk, but argues that the Immigration Judge
erred by permitting her to be released on bond. We discern no such error. A non-dangerous
alien need not remain in detention if there is a bond amount that will give her sufficient incentive
to appear for future proceedings. The Immigration Judge found that a $20,000 bond would be
sufficient incentive here, and that finding has a reasonable foundation in the record. Thus, we
will not disturb it.

For her part, the applicant claims that she does not pose a serious flight risk and that the
$20,000 bond ordered by the Immigration Judge was excessive. We disagree on both counts.
The applicant's history of immigration violations, her undisputed removability, and her obvious
desire to remain in this country even in the face of immigration-enforcement efforts support the
Immigration Judge's determination that she poses a serious flight risk. We do not minimize the
economic and other hardships associated with posting a high bond; however, the only factor
relevant to the Immigration Judge's setting of a bond is whether the amount specified is
reasonably calculated to ensure the applicant's appearance for future proceedings. The $20,000
bond ordered here satisfies that criterion.

In conclusion, Rodriguez III gave the Immigration Judge jurisdiction to redetermine the
applicant's custody status, and the Immigration Judge reasonably exercised that jurisdiction by
ordering the applicant released on $20,000 bond. Accordingly, the following orders will be
issued.

ORDER: The DHS's appeal is dismissed.

FURTHER ORDER: The applicant's cross-appeal is dismissed.

Cite as: R-S-A-, AXXX XXX 926 (BIA April 7, 2017)

 ..

,
J '
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1705 EAST HANNA ROAD, SUITE 366
ELOY, ARIZONA 85131

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IN THE MATTER OF: ) IN BOND PROCEEDINGS
)
S -A ,R )
) FILE NO. A -926
)
RESPONDENT ) DATE: October 28, 2016
)

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DEPARTMENT:

Jeffrey Imig, Esquire Assistant Chief Counsel
Haralson, Miller, Pitt, Feldman & McAnally, PLC Department of Homeland Security
1 S. Church Ave., Ste. 900 1705 East Hanna Road
Tucson, Arizona 85701 Eloy, Arizona 85131

MEMORANDUM ORDER OF THE IMMIGRATION COURT

I. PROCEDURAL HISTORY

The above-named respondent is a female native and citizen of Guatemala. (Bond Exh. 3,
Form 1-213 at 1 (July 15, 2015).) The respondent most recently entered the United States on
July 15, 2015, near Nogales, Arizona. (Id) At that time, she was not inspected by an
immigration officer and did not have documents permitting her to legally enter the United States.
(Id) The Department of Homeland Security ("OHS" or "the Department") reinstated the
respondent's prior removal order and, after a reasonable fear interview in which an asylum
officer determined that the respondent had a reasonable fear of returning to her home country,
filed a Notice of Referral to an Immigration Judge on September 22, 2015. (Exh. 10, Notice of
Referral to IJ.) The respondent was therefore placed in withholding only proceedings.

The Department determined that the respondent would remain in custody pending her
immigration proceedings and the respondent requested a custody redetermination hearing
pursuant to Rodriguez v. Robbins. (Bond Exh. 1, Resp't Statement on Eligibility and Request for
Custody Redetermination Hr'g; Rodriguez v. Robbins, 804 F. 3d 1060, (9th Cir. Oct. 28, 2015).)
Although the Court found that it did not have jurisdiction under Rodriguez, it found that it had
jurisdiction for the hearing under Diouf II and on October 4, 2016, the Court held a custody
redetermination hearing. (IJ Order (Oct. 4, 2016); Dioufv. Napolitano, 634 F.3d 1081, 1092 (9th
Cir. 2011) (Diouf !/).)
 .

,
. . _J
S -A
A -926

II. STATEMENT OF LAW

On October 28, 2015, in a decision which affirmed the district court's permanent
injunction in part and remanded in part, the Ninth Circuit Court of Appeals held that Rodriguez
class membership extends only to aliens detained under 235(b), 236(a), and 236(c) of the

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Immigration and Nationality Act ("INA" or "the Act"), and not to aliens held under 241(a) of
the Act. Rodriguez, 804 F. 3d at 1070, 1090. However, Rodriguez did not resolve the issue of
under what authority aliens in withholding of removal proceedings are detained.

The Immigration and Nationality Act indicates that individuals with administratively
final orders of removal are detained pursuant to section 24 l (a). That section mandates detention
of aliens who have been ordered removed during the removal period and authorizes that such
aliens may be held in custody even beyond the removal period if they are inadmissible pursuant
to INA 212, removable pursuant to INA 237(a)( l )(C), 237(a)(2), 237(a)(4), or are deemed a
risk to the community or the Attorney General determines they are unlikely to comply with the
order of removal. INA 241(a). The removal period begins when the removal order becomes
administratively final. Id.

In Ortiz-Alfaro the Ninth Circuit concluded that withholding only proceedings are not
"final" as defined in INA 10 l (a)(47)(B) for purposes of judicial review. Ortiz v. Alfaro, 694
F.3d 955, 958-960 (9th Cir. 2012). However, the Ninth Circuit did not in Ortiz-Alfaro or
elsewhere 1 consider whether the prior order of removal which the Department seeks to reinstate
against an alien in withholding only proceedings is administratively final as contemplated by
INA 241(a)( l )(B)(i) for purposes of identifying the applicable statutory detention authority.
Id. at 958; See also Acevedo-Rojas v. Clark, 2014 WL 6908540 at *3-4 (2014 W.D. Wash.) (the
reinstated removal order for an alien in withholding only proceedings is administratively final,
and the alien is therefore detained pursuant to INA 241(a)). Because the outcome of the
withholding-only proceedings does not affect the validity of the reinstated removal order, these
are two separate inquiries. Section 123 l (a)(5) provides that "the prior order of removal is
reinstated from its original date and is not subject to being reopened or reviewed." Thus the
reinstated removal order relates back to the date of the original removal order-an
administratively final order-and is itself administratively final because it cannot be reopened or
reviewed. Indeed, even if an alien is granted withholding of removal, that relief is only country
specific and will have no effect on the validity of the reinstated removal order. Although such an
alien can no longer be removed to the country specified in the removal order, the alien can still
be removed from the United States.

Thus, while the withholding only proceedings are not final and consequently subject to
judicial review, the reinstated removal order - which has already been executed at least once - is
administratively final. Consequently, an alien in withholding only proceedings, who is subject to
a reinstated removal order, is detained pursuant to INA 24 l (a)(6). The Department agrees that
the respondent is being detained pursuant to INA 241(a).

1 The Ninth Circuit has not considered whether a reinstated order of removal is administratively final despite
ongoing withholding of removal proceedings, and to the Court's knowledge, neither have any other courts of
appeals.

2
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-A

A -926

The Ninth Circuit has held that "individuals detained under 24l(a)(6) are entitled to the
same procedural safeguards against prolonged detention as individuals detained under 236(a),"
and that "an individual facing prolonged immigration detention under [INA 24l(a)(6)] is
entitled to release on bond unless the government establishes that he is a flight risk or a danger to
t
the community." Dioufv. Napolitano, 634 F.3d 1081, 1083-4 (9 h Cir. 2011) (Diouf 11) . Despite
the government's assertion that Diouf II applies only to aliens who are similarly situated to the

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petitioner in that case - aliens with a motion to reopen is pending in the court of appeals - the
court's decision "extend[ing] Casas-Castrillon to aliens detained under 24l(a)(6)" is not so
constrained. Id. at 1086. For example, in describing the scope of INA 24l(a)(6) the court
noted that the statute "encompasses aliens such as Diouf, whose collateral challenge to his
removal order (a motion to reopen) is pending in the court of appeals, as well as to aliens who
have exhausted all direct and collateral review of their removal orders but who, for one reason or
another, have not yet been removed from the United States." Id. at 1085. The general
applicability of Diouf II to aliens detained pursuant to INA 24l(a) is further supported by the
Ninth Circuit in Rodriguez III where the court specifies that aliens in prolonged detention under
INA 24l(a)(6) must receive bond bearings pursuant to Diouf fl Rodriguez, 804 F. 3d at 1086
n.14.

Therefore, although aliens in withholding only proceedings are not members of the
Rodriguez class, inasmuch as they are detained under INA 24l(a)(6) , such aliens subject to
prolonged detention have a right to a bond hearing under Diouf 11

III. FINDINGS AND ANALYSIS

As a preliminary issue, the court affirms that it has jurisdiction to hear this custody
redetermination hearing under Diouf II. In as much as the respondent is detained under INA
24l(a) , and has been detained for more than 180 days, she is entitled to a bond hearing under
Dioufll

Here, the Department asserted that the respondent is an extreme flight risk. (Hr' g (Oct. 4,
2016) .) The Court notes that there are factors in the record that indicate that the respondent
would be a flight risk. The respondent first entered the United States unlawfully on or about
April 16, 2015, and was removed on April 22, 2015. (Bond Exh. 4, Form 1-213 (Apr. 21, 2015);
Bond Exh. 8, Departure Verification.) When she was apprehended she told immigration officials
that she was a Mexican citizen and that she had no fear of return to her home country. (Bond
Exh. 4, Form 1-213 (Apr. 21, 2015); Bond Exh. 9, Sworn Statement of Proceedings.) She
returned to the United States unlawfully on July 15, 2015 (Bond Exh. 3, Form 1-213 (July 15,
2015).) She was thereafter criminally convicted of Illegal Entry in violation of Title 8 U.S.C.
1325(a)( l ) and was sentenced to thirty days in jail with credit for time served for this most
recent entry. (Bond Exh. l , Attach. A, Conviction Records.) Again, when questioned upon
apprehension, she did not express a fear of return to her home country. (Bond Exh. 3, Form 1-
213 (July 15, 2015) .) However, this time, the respondent admitted that she was a native of
Guatemala, not Mexico. (/d.) The respondent's previous attempts of entering the United States
indicate future flight-risk as such acts show a disregard for the immigration and criminal laws of
this country. The respondent's credibility, and therefore her likelihood of relief, is extremely
undercut by her inconsistent statements regarding her home country and her failure to express

3
. .

s A. .
A -926

fear of return to her home country, twice, despite all the events underlying her claims for
withholding of removal and protection under CAT occurring prior to her first entry.

The respondent's accounts of her travels are also peppered with inconsistencies. During
her reasonable fear interview the respondent stated that she was forced to carry drugs across the
United States border or she would be turned over to a rival cartel who would kill her, but in her

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affidavit she stated that she was threatened with rape if she did not carry the drugs. (See Bond
Exh. 10, Reasonable Fear Interview; see also Exh.1, Attach. A, Resp't Affidavit.) Additionally,
in her affidavit the respondent stated that she injured her head by falling on a rock, whereas in
the reasonable fear interview she stated a rock was thrown at her. (Id.) The inconsistencies in
the respondent's account of her travels reduce the likelihood that her pending T-visa application
will be granted.

The Court notes that the respondent does have a permanent place to reside with her
lawful permanent resident aunt if released from custody. (Bond Exh. I, Attach. B.) However,
the Court continues to have significant concerns that the respondent would fail to appear at
future hearings.

On this record, the Court has considered the factors that contribute to a finding that the
respondent is a flight risk and finds that such risk can be mitigated by an appropriate bond.
However, because the respondent does pose a significant flight-risk, a high bond is necessary to
assure her future appearance. Accordingly, the Court finds that a bond in the amount of
$20,000.00 would reasonably assure the respondent's appearance at any future hearings.

IV. CONCLUSION

Accordingly, the Court shall enter the following Order:

ORDER: IT IS HEREBY ORDERED THAT the respondent's request for custody

redetermination is
GRANTED and that the respondent be released upon posting
bond in the amount of $20,000.

ps
s Immigration Judge

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