U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virgm1a 22041

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Abrusley, Luke H. OHS - ICE Office of Chief Counsel -
Luke Abrusley Law OAKDALE 2
Po Drawer 1299 1010 E. Whatley Rd.
Oakdale, LA 71463 OAKDALE, LA 71463

Name: N -G , J O A 305

Date of this notice: 12/26/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Kendall Clark, Molly
Neal, David L

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: J-O-N-G-, AXXX XXX 305 (BIA Dec. 26, 2017)
8.S. Department of Justice Decision of the Board of Immigration Appeals
ExeCHtive Office for Immigration Review
\

Falls Church, Virginia 22041

File: 305 - Oakdale, LA Date: DEC 2 6 2017

In re: J O N -G

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IN BOND PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Luke H. Abrusley, Esquire

ON BEHALF OF DHS: Sherron Ashworth

Assistant Chief Counsel

APPLICATION: Redetermination of custody status

The respondent, a native and citizen of Honduras, has appealed from the Immigration Judge's
decision dated July 18, 2017. The Immigration Judge issued a bond memorandum setting forth
the reasons for the bond decision on August 10, 2017. The Immigration Judge found that the
respondent presented a danger to the community and a flight risk and ordered him held on a "no
bond" condition pursuant to section 236(a) of the Immigration and Nationality Act, 8 U.S.C.
§ 1226(a). Subsequent to filing the appeal, the respondent also filed a Motion to Remand for
Reconsideration and Redetermination of Bond, asserting a material change in circumstances since
the Immigration Judge's bond redetermination. The appeal will be sustained, the record will be
remanded, and the motion to remand will be denied as moot.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. § 1003.l(d)(3)(ii).

Upon de novo review, we disagree with the Immigration Judge that the respondent poses a
danger to the community (U at 2). 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." Matter ofGuerra, 24 I&N Dec. 37, 38 (BIA 2006); 8 C.F.R. § 1236.l(c)(8).
The Immigration Judge concluded that the respondent poses a danger to the community due to his
arrest for reckless operation of a motor vehicle (IJ at 2). While we do not discount the fact that
the respondent was arrested for driving recklessly, or diminish the seriousness of the misconduct,
the respondent has filed evidence on appeal indicating that the state has declined to pursue criminal
charges against him for the incident involving reckless driving (see Motion to Remand, attachment
A). This sole arrest that did not result in prosecution is not sufficient to establish that the
respondent is a danger to the community.

Cite as: J-O-N-G-, AXXX XXX 305 (BIA Dec. 26, 2017)
 305

We share the Immigration Judge's concerns regarding the respondent's flight risk and agree
that he poses some risk of flight given his recent arrival in the United States (U at 2). However,
the 18-year-old respondent also has family ties in the United States, including his mother and sister.
He is employed and attending school. Moreover, the respondent submitted evidence showing that
he has obtained the predicate state court order needed to apply for special immigrant juvenile
("SU") status under section 10l (a)(27)(J) of the Act, 8 U.S.C. § 1 101(a)(27)(J), and has filed a

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Form 1-3 60 (Petition for Amerasian, Widow(er), or Special Immigrant) with the United States
Citizenship and Immigration Services ("USCIS"), that is currently pending. Given these factors,
we will remand the record to the Immigration Judge to set a monetary bond that is reasonable and
sufficient to ensure the respondent's presence at future proceedings under these circumstances.
See Matter of Guerra, 24 I&N Dec. at 38.

Accordingly, the following orders will be entered.

ORDER: The respondent's bond appeal is sustained, the Immigration Judge's decision is
vacated, and ,the record is remanded to the Immigration Judge for further proceedings.

FURTHER ORDER: The respondent's motion to remand is denied as moot.

Cite as: J-O-N-G-, AXXX XXX 305 (BIA Dec. 26, 2017)
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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
OAKDALE, LOUISIANA

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IN THE MATTER OF ) IN BOND PROCEEDINGS
)
J O N -G ) File No.: 305
)
Respondent )
)

MOTION: Bond Appeal

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT:

Jaesa W. McLin, Esq. Assistant Chief Counsel
Riguer Silva, LLC OHS/ICE/Litigation Unit
3213 Florida Avenue, Suite C 1010 East Whatley Road
Kenner, Louisiana 70065 Oakdale, Louisiana 71463

MEMORANDUM AND DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL & FACTUAL HISTORY

On April 9, 2014, the U.S. Department of Homeland Security, Immigration and Customs
Enforcement ("Department") served the Respondent with a Notice to Appear ("NTA") alleging
that he is a native and citizen of Honduras who arrived in in the United States at Hidalgo, Texas
on April 8, 2014 and was not admitted. Based on these allegations, the Department charged the
Respondent as removable pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality
Act ("Act").

The Respondent was ordered removed in absentia on June 15, 2015. On September 17,
2015, a motion to reopen was granted. On July 10, 2017, the Department issued an arrest warrant
as well as a notice of its determination to detain the Respondent without bond. The Respondent,
through counsel, requested a review of the Department's custody decision. The Court held a bond
hearing for July 18, 2017. At that hearing, the Court denied the Respondent's request for a change
in custody status. The Respondent reserved appeal.

The Respondent, through counsel, subsequently appealed the Court's decision to the
Board of Immigration Appeals ("BIA"). Consequently, the Court has prepared a written
memorandum that establishes the nature and substance of the specific factual information
considered in reaching its bond determination. See Matter of Adeniii, 22 I&N Dec. 1102 (BIA
1999) (purporting that an Immigration Judge has the responsibility to prepare a written bond
memorandum to ensure that the evidence presented at the underlying bond hearing is contained in
the record).

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II. APPLICABLE LAW & ANALYSIS

If an alien is not subject to mandatory detention, he or she may be released from custody
upon a showing that he or she: (1) poses no danger to persons or property in the community; and
(2) is not a flight risk unlikely to appear for further proceedings. 8 C.F.R. § 1236.1(c)(8). In making
such a determination, the Court has broad discretion in deciding the facts to consider in custody

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redetermination and may choose to give greater weight to one factor over others, as long as the
decision is reasonable. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006). Relevant factors include: a
stable employment history, the length of residence in the community, the existence of family ties,
a fixed address, equities in the United States, availability of relief and the likelihood of it being
granted, a record of nonappearance at court proceedings, manner of entry, the use of fraudulent
documents, previous and pending criminal or immigration law violations, and any evidence of bad
behavior, including arrests that did not ultimately result in a conviction. Matter of Andrade, 19
l&N Dec. 488, 489 (BIA 1987); Matter of Patel, 15 I&N Dec. 666 (BIA 1976); Matter of Adeniii,
22 l&N Dec. 1102 (BIA 1999); Guerra, 24 l&N Dec. at 40. After the Court's initial bond
redetermination, an alien may request a subsequent bond redetermination upon a demonstration
that his or her circumstances have materially changed since the prior bond determination. 8 C.F.R.
§ 1003.19(e).

The Respondent's bond worksheet indicates he is an eighteen-year-old citizen of Honduras

who entered the United States in 2014. He is single and does not have any children. His other
family ties includes his mother and sister, both of whom have no status. The Respondent is
employed in housekeeping at the Holiday Inn in Metairie, Louisiana and also attends high school.
The Respondent does not have any property or assets. The Respondent has a pending 1-360 and is
seeking adjustment as a special immigrant juvenile. The Respondent's criminal history includes a
recent arrest for reckless operation of a vehicle and possession of marijuana. See Form 1-213,
Record of Deportable/lnadmissible Alien; Arrest Record.

Based on the testimony provided by the Respondent and the evidence presented, the Court
finds that the Respondent poses a danger to the community and a flight risk. Respondent's actions
placed the community at risk by driving recklessly. Reckless driving frequently results in injury to
others and/or damage to property. Thus, holding him without bond is necessary to minimize those
risks. The BIA has consistently held that dangerous individuals are properly detained without
bond. See Matter of Urena, 25 l&N Dec. 140, 141 (BIA 2009).

Furthermore, the Court balanced the Respondent's family ties, length of residence, equities
in the United States, employment history, criminal and immigration violations, and availability of
relief when determining his custody status. His meager ties to this country, limited availability of
relief, and manner of entry poses a significant flight risk. As the Court is granted broad discretion
in making such a determination, it finds that holding the Respondent without bond is necessary to
assure his appearance at future court proceedings and ultimately for removal, if necessary. Guerra,
24 l&N Dec. 37 (BIA 2006) (affording the Immigration Judge broad discretion in considering
factors that may be considered); see also Matter of D-R-, 25 l&N Dec. 445, 455 (reasoning that
the Immigration Judge is not required to interpret evidence in the manner advocated by the
respondent). Therefore, Respondent's request for a change in custody status must be denied.

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•.

Accordingly, the following order shall be entered:

ORDER: IT IS HEREBY ORDERED that Respondent's motion for subsequent bond

redetermination is DENIED.

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Date John \lEil ck, Jr.
Immigration Judge

CERTIFICATE OF SERVICE

THIS DOCUMENT WAS SERVED BY: MAIL <)4.) PERSONAL SERVICE (P)

TO: [ ] ALIEN [ ] ALIEN c/o Custodial Officer [ y ) ALIEN'S ATTY/REP � [ ] DHS

DATE: ti\\\ a..011 BY: COURT STAFF Jn. P�h

Attachments: [ ] EOIR-33 [ ] EOIR-28 [ ] Legal Services List [ ] Other

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