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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 LeeslYurg Pike, Suite 2000


Falls Church, Virginia 22041

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Widdison, Jeffrey Bruc;e OHS/ICE Office of Chief Counsel - SOC
McKinney lmmigratio Law 146 CCA Road, P.O.Box 248
PO Box 1800 Lumpkin, GA 31815
Greensboro, NC 27401

Name: D L L J , J A 318

Date of this notice: 9/28/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Greer, Anne J.
Grant, Edward R.

Usertea m: Docket

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Cite as: J-D-L-L-J-, AXXX XXX 318 (BIA Sept. 28, 2017)
U.S. Department of Justice
.
' Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
.

Falls Church, Virginia 22041

File: 318 - Lumpkin, GA Date:


SEP 2 8 2017
In re: J D L L J a.k.a.

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jeffrey B. Widdison, Esquire

ON BEHALF OF OHS: Kelly Johnson


Deputy Chief Counsel

APPLICATION: Redetermination of custody status

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated April 17, 2017, finding that the respondent presented a danger to the community
and ordering him held on a "no bond" condition pursuant to section 236(a) of the Immigration and
Nationality Act, 8 U.S.C. 1226(a). The appeal will be sustained and the record will be remanded
to the Immigration Judge.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions oflmmigration Judges de novo. 8 C.F.R. 1003.l{d)(3)(ii).

An alien in a custody determination under section 236(a) of the Act 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 ofAdeniji, 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 proceedings to remove him or her from the
United,States. See Matter of Urena, 25 I&N Dec. 140 (BIA 2009); Matter ofDrysdale, 20 l&N
Dec. 815 (BIA 1994).

As the record establishes, between 2010 and 2014, the respondent was convicted numerous
times of driving without a license (IJ at 3). While we share the Immigration Judge's concern
regarding the respondent's criminal driving record, we disagree with the Immigration Judge that
such rcord evidences dangerousness, particularly as there is no evidence that the convictions and
charges involved any aggravating circumstances. Accordingly, we reverse the Immigration
Judge's determination that the respondent poses a danger to the community. We will remand the
record, however, for the Immigration Judge to consider and make findings of fact as to whether
the respondent poses a flight risk. See Matter ofAdeniji, 22 I&N Dec. at 1113. Accordingly, the
following orders will be entered.

Cite as: J-D-L-L-J-, AXXX XXX 318 (BIA Sept. 28, 2017)
318

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The Immigration Judge's April 17, 2017, decision is vacated, and the
record is remanded to the Immigration Judge for further proceedings consistent with the foregoing
decision. ._

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Cite as: J-D-L-L-J-, AXXX XXX 318 (BIA Sept. 28, 2017)
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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
United States Immigration Court
146CCARoad
Lumpkin, Georgia 31815

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IN THE MATTER OF: ) In Bond Proceedings
)
D L L J ,J ) File No.: Al -318
)
Respondent ) DETAINED
------- ------

APPLICATION: Bond Redetermination

APPEARANCES

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE GOVERNMENT:

Jeff Widdison, Esq. Assistant Chief Counsel


PO Box 1800 Department of Homeland Security
Greensboro, NC 27402 146 CCARoad
Lumpkin, Georgia 31815

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Respondent is a male citizen and native of Mexico who entered the United States without
inspection at an unknown location. March 21, 2017, the Department of Homeland Security
("Department'1 placed Respondent in removal proceedings through the issuance of a Notice to
Appear (''NTA"), charging him with removability pursuant to section 212(a}(6)(A)(i) of the
Immigration and Nationality Act ("INA" or "Act"), alleging that Respondent was present in the
United States without being admitted or paroled, or who arrived in the United States at any time
or place other than as designated by the Attorney General.

Respondent is currently detained by the Department.

On March 30, 2017, Respondent, via counsel, filed a Motion for a Bond J-Jearing. The
Court conducted a bond hearing on April 17, 2017, at the conclusion of which it denied
Respondent's request for bond. Respondent has appealed this decision to the Board of
Immigration Appeals ("Board") and, therefore. the Court will issue the following decision
denying his request for bond redetermination.

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Il. FINDINGS OF THE COURT

The Act provides that the Attorney General shall take into custody any alien who

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(A) is inadmissible by reason of having committed any offense covered in Section
212(a)(2);
(8) 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
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or--------- -----

(D) is inadmissible under Section 212(a)(3)(B) or deportable under Section


237(a)(4)(B).

INA 236(c)(l ).

The Department is not charging Respondent with removability on any of the bases that
require mandatory detention under section 236(c)(1) of the Act, and thus the court cannot find
Respondent subject to mandatory detention.

Even though he is not subject to mandatory detention, Respondent remains subject to


the provisions of section 236(a) of the Act, which provide that the Attorney General may, in bis
discretion, release a detained alien pending a final decision on removability. Matter of Joseph.
22 I. & N. Dec. 799 (BIA 1999). The Supreme Court has recognized that section 236(a) of the
Act does not give detained aliens the right to release on bond. Matter of D-1-, 23 I. & N. Dec.
572, 575 (A.G. 2003) (citing Carlson v. Landon, 342 U.S. 524, 534 (1952)). The extensive
discretion granted the Attorney General under the statute is confinned by its further proviion
that "[t]he Attorney General's discretionary judgment regarding the application of this section
shall not be subject to review." Id. (citing INA section 236(c)). The courts have consistently
recognized that the Attorney General has extensive discretion when determining whether or not
to release an alien on bond. Id. at 576. Federal regulations provide that the immigration judge's
bond determination may be based on "any information that is available to the immigration judge
or that is presented to him or her by the alien or the [Department]." 8 C.F.R. 1003.19(d).

To qualify for release, the alien must establish that he is not a threat to the community or
a flight risk. Matter of Drysdale, 20 I. & N. Dec. 815, 816-817 (BIA 1994); see also Matter of
Patel, 15 I. & N. Dec. 666 (BIA 1976). An Immigration Judge's decision whether to release an
alien on bond requires an initial determination of whether the alien poses a danger to property or
persons before any release on bond may be considered. Matter of Urena, 25 I. & N. Dec. 140,
141 (BIA 2009) ("Only if an alien demonstrates that he does not pose a danger to the community

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should an immigration judge continue to a detennination regarding the extent of flight risk posed
by the alien.").

In this case, the court will deny Respondents request for a bond as Resp<mdent is a
danger to the community.

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Respondent is not married to a United States citizen or Legal Permanent Resident, nor are
his parents or grandparents United States citizens or Legal Permanent Residents. Respondent
does have one United States citizen child age four years old. Respondent has no United States
citizen siblings and thus far no documents have been filed for any benefit under the INA.

The court accepts Respondent's assertion that he has relief based on hardship to his
United States child. Respondent also asserts that be would qualify for DACA but for the fact he
does not have a GED.

Respondent, however, has a very troublesome criminal history. Respondent bas


admitted driving six to nine years, four times per week without a license. In spite of numerous
arrest and convictions Respondent continues to knowingly and intentionally ignore the most
basic traffic laws in our communities.
January 23, 2010 Respondent was arrested for the crime of ''Traffic Offense"
which resulted in a conviction on March 4, 2010.1
October 2, 2010 Respondent was arrested for the crime of "Traffic Offense "
(times two) which resulted in a conviction on November 23, 2010
November 8, 2010 Respondent was arrested for the crime of "Traffic Offense"
which resulted in a conviction on November 24, 2010
May 30, 2012 Respondent was arrested for the crime of "Traffic Offense" which
resulted in a conviction on October 31, 2012
June l, 2013 Respondent was arrested for the crime of "Traffic Offense" which
resulted in a conviction on July 8, 2013
June 3, 2014 Respondent was arrested for the crime o( "Traffic Offense" which
resulted in a conviction on July I 5, 20 I 4

The Department's investigation was predicated upon information from the Columbus
County Detention Center in North Carolina, where Respondent was charged, March 17, 2017,
with Failure to Appear.

The Court is particularly troubled by Respondent's habitual driving without a valid


license. The Supreme Court of the United States has remarked on the danger to the community
that unlicensed drivers pose: "Automobile licenses are issued periodically to evidence that the
drivers holding them are sufficiently familiar with the rules of the road and are physically
qualified to operate a motor vehicle[, and] ....drivers. without licenses are presumably less safe.

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drivers whose propensities may well exhibit themselves." Delaware v. Prouse, 440 U.S. 648,
658--659 (1979). The court finds the Respondent is a danger to the community.

Respondent should be held without bond because he did not meet his burden of
demonstrating that he does not present a danger to property or persons. See INA 236(a); Matter
of Urena, 25 l&N Dec. 140 (BIA 2009) (holding that only if an alien has established that he or

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she would not pose a danger to property or persons should an Immigration Judge decide the
amount of bond necessary to ensure the alien's presence at proceedings to remove him from the
United States); Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter ofAdeniji, 22 J&N Dec.
1102, 1111-13 (BIA 1999); Matter ofDrysdale, 20 l&N Dec. 81 S, 817 (BIA 1994); 8 C.F.R.
1236.l(cX8). Potentially dangerous aliens may be held in OHS custody without bond during the
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--------- __ _

Matter ofGuerra, 24 I&N Dec. 37 (BIA 2006) (affording Immigration Judges broad discretion
in considering factors that may be considered); 8 C.F.R. 1003.19(d). See also generally Matter
ofD-R-, 25 l&N Dec. 445, 455 (BIA 2011) (Immigration Judge is not required to interpret
evidence in the manner advocated by the respondent).

As the court finds that Respondent has failed to meet his burden of showing that his
release ould not pose a danger to the community. See Matter of Urena, supra. The following
order will issue:

ORDER OF THE IMMIGRATION JUDGE

IT IS ORDERED that Respondent's Motion for Bond Redetermination Shall Be Denied.

June 13, 2017


Date

i Traffic Offense is the charge for Driving Without a License.