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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 leesburg Pike, Suue 2000


Falls Church. Vtrgmta 22041

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C , E OHS/ICE Office of Chief Counsel - SFR
P .0. Box 26449
San Francisco, CA 94126-6449

Name: C , E A -516

Date of this notice: 4/20/2017

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For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/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: E-C-, AXXX XXX 516 (BIA April 20, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 516 - San Francisco, CA Date:


APR 2 0 2017
In re: E C a.k.a.

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS: Grace H. Cheung


Assistant Chief Counsel

APPLICATION: Redetermination of custody status

In a decision dated October 26, 2016, an Immigration Judge ordered the respondent released
from the custody of the Department of Homeland Security ("DHS") on the condition that he post
1
a $7,500 bond. Section 236(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C.
1226(a)(2)(A) (2011). The DHS has appealed from that decision, arguing that the
Immigration Judge should have ordered the respondent detained without bond because he poses
a danger to the community. The appeal will be dismissed.

The respondent, a native and citizen of El Salvador, is in ongoing removal proceedings based
on a charge that he is present in the United States without having been admitted or paroled.
Section 212(a)(6)(A)(i) of the Act, 8 U.S.C. 1182(a)(6)(A)(i). After taking the respondent into
custody, the DHS made an initial determination that he should remain in detention without bond.
The respondent thereafter requested a bond redetermination hearing before an Immigration Judge
pursuant to 8 C.F.R. 1236.l (d)( l ), and at the conclusion of a hearing held on October 26, 2016,
the Immigration Judge ordered the DHS to release the respondent upon his payment of a $7,500
bond and compliance with conditions related to his enrollment in a residential alcohol
rehabilitation program. This timely appeal followed.

An alien in bond proceedings bears the burden of demonstrating that he merits release.
Matter of Fatahi, 26 I&N Dec. 791, 793, 795 & n.3 (BIA 2016); Matter of Guerra, 24 I&N
Dec. 37, 40 (BIA 2006). To meet that burden, the alien must demonstrate that his release would
not pose a danger to property or persons, among other things. Matter of Fatahi, supra, at 793;
Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009); Matter of Adeniji, 22 I&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 an

1 The reasons for the Immigration Judge's decision are set forth in a bond memorandum dated
November 28, 2016.

Cite as: E-C-, AXXX XXX 516 (BIA April 20, 2017)
.

.
516

alien's release on bond is permissible or advisable, and therefore 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)).

On appeal, the OHS maintains that the respondent would pose a danger to the community if
released. In support of that argument, the OHS points out that the respondent sustained two

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convictions-in May 2016 and June 2016-for driving under the influence ("DUI") in violation
of section 23152(a) of the California Vehicle Code, as well as 2011 and 2013 convictions for
public intoxication (OHS Brief at 3-4). We agree with the OHS that the respondent's very recent
DUI convictions raise serious concerns.

The Immigration Judge acknowledged the respondent's crimes and the DHS's evidence
regarding recidivism associated with DUI offenses (l.J. Bond Memo at 2). Nevertheless, she
concluded that the respondent carried his burden of proving that he would not endanger the
community if released. In support of that determination, the Immigration Judge found that the
respondent participated in alcohol rehabilitation programs during his detention and presented
evidence of enrollment in a residential treatment program if released and of available support and
assistance from his family (l.J. Bond Memo at 2-3). The Immigration Judge's bond order also
directed the respondent to remain in treatment after release and to attend Alcoholics Anonymous
meetings.

In bond proceedings, a finding of future dangerousness is legally dispositive of an alien's


eligibility for release. Matter of Urena, supra, at 141 ("Dangerous aliens are properly detained
without bond"); Matter of Drysdale, 20 l&N Dec. 815, 817 (BIA 1994) ("[l]f the alien cannot
demonstrate that he is not a danger to the community upon consideration of the relevant factors,
he should be detained in the custody of the Service"). Such a finding necessarily involves a
prediction as to the likelihood that the alien will reoffend or otherwise engage in dangerous
conduct in the future. In immigration proceedings, an Immigration Judge's predictive findings
of what may or may not occur in the future are findings of fact, which are subject to a clearly
erroneous standard of review. Matter of Z-Z-0-, 26 l&N Dec. 586, 590 (BIA 2015); see also
Matter of Fatahi, supra, at 793 n.2 (noting that an Immigration Judge's factual findings in bond
proceedings are subject to clear error review); 8 C.F.R. 1003.l(d)(3)(i); cf also United States
v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (reviewing dangerousness findings for clear error in
the bail context).

Clear error review is significantly deferential, and precludes us from reversing the
Immigration Judge even if we are convinced that we would have weighed the evidence of
dangerousness differently had we been the factfinder. See Anderson v. City of Bessemer City,
NC, 470 U.S. 564, 573 74 (1985). "[W]here there are two permissible_views of the evidence, the
factfinder's choice between them cannot be clearly erroneous." Id., at 574. We conclude that
the Immigration Judge's determination was based on a "permissible view of the evidence," and
therefore we defer to it. In light of that assessment, we will not disturb the Immigration Judge's
judgment that the respondent is eligible for release on bond and conditions as set by the
Immigration Judge.

Accordingly, the following order will be issued.

Cite as: E-C-, AXXX XXX 516 (BIA April 20, 2017)
' I

' . 516
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ORDER: The appeal is dismissed.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Cite as: E-C-, AXXX XXX 516 (BIA April 20, 2017)
.. ( (
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-
J

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
100 MONTGOMERY ST., SUITE 800
SAN FRANCISCO, CA 94104

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C , E

Date: Nov 28, 2016

File -516

In the Matter of:


C , E

Attached is a copy of the written decision of the Immigration Judge.


This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).

Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.

You are granted until to submit a brief


to this office in support of your appeal.

Opposing counsel is granted until to submit a


brief in opposition t

Enclosed is a copy of of the Immigration Judge.

All papers filed with be accompanied by proof


of service upon opposing counsel.

UL
cc:
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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
San Francisco, CALIFORNIA

File Number: A 516 )


)

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In the Matter of: )
)
C , ) IN BOND PROCEEDINGS
E , )
)
Respondent )

BOND MEMORANDUM AND ORDERS OF THE IMMIGRATION JUDGE

I. Procedural Historv

Ever Calderon (Respondent) is a native and citizen of El Salvador. On August 22, 2016,
the U.S. Department of Justice (Department) charged Respondent with inadmissibility for
entering the United States without inspection. On September 7 and 28, 2016, and October 26,
2016 the Court conducted custody redetermination hearings in Respondent's case pursuant to
section 236 of the Immigration and Nationality Act (INA). 8 C.F.R. 1236.l(d). At the hearing,
the court considered evidence about Respondent's two recent arrests for driving under the
influence of alcohol:

1. On May 9, 2016, Respondent was convicted of driving under the influence, in


violation of section 23152(a) of the California Vehicle Code. For this offense he was
sentenced to five days in jail and 36 months of probation; and
2. On June 9, 2016, Respondent was again arrested for driving under the influence, (in
violation of section 23152(a) of the California Vehicle Code. For this offense he was
sentenced to sixty days in jail and five years of probation.

At the conclusion of the third hearing, the Court granted Respondent bond in the amount of
$7 ,500 with a requirement that he comply with a conditions related to his enrollment in a
residential alcohol rehabilition program and his long term participation in weekly meetings, such
as those run by Alcoholics Anonymous, for the abuse of alcohol. Respondent is further required
to bring evidence of compliance with these conditions upon return to court.

DHS appealed the Court's custody redetermination decision to the Board of Immigration
Appeals (Board). The Court provides this Memorandum to facilitate review of DHS' appeal.
See Immigr. Ct. Prac. Man., Chap. 9.3(e)(vii).
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II. Law and Analysis

An alien may request a bond redetermination hearing before the Court at any time before
the issuance of an administratively final order of removal. 8 C.F.R. 1236.l(d). The Court is
authorized to detain, release, or set bond for the alien pursuant to section 236 of the INA. Id.
Generally, the Court is without jurisdiction to set a bond for certain classes of mandatory

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detainees, enumerated in section 236(c)(l) of the INA. 8 C.F.R. 1003.19(h)(2)(i)(D). Section
236(a) of the INA governs the detention of those aliens who are not subject to the mandatory
detention provisions. Because Respondent is not detained under section 236(c) of the INA, the
Court has jurisdiction to consider his request for bond. See INA 236(a).

An alien requesting release on bond bears the burden of proving by clear and convincing
evidence that he does not pose a danger to the community and is not a flight risk.
Matter ofGuerra, 24 I&N Dec. 37, 40 (BIA 2006); 8 C.F.R. 1236.l(c)(3). In
Matter ofGuerra, the Board made clear that the Court "has extremely broad discretion in
deciding whether or not to release an alien on bond." 24 I&N Dec. at 39. The Board provided
an extensive, but not exhaustive, list of factors that the Court may consider when determining
whether an alien should be released on bond. Id. at 39-40. These factors include:

(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.

Id. at 40. The Court "may choose to give great weight to one factor over others, as long as the
decision is reasonable." Id. Furthermore, the Court has broad discretion to set the bond amount.
Prieto-Romero v. Clark, 534 F.3d 1053, 1067 (9th Cir. 2008) (addressing discretion);
Matter of Sugay, 17 l&N Dec. 637, 638-39 (BIA 1981) (enumerating relevant factors); Matter of
Spiliopoulos, 16 l&N Dec. 561, 562 (BIA 1978) (granting a request for a reduction in the bond
amount).

Here, the Court considered the positive and negative factors in Respondent's case and
determined that he does not pose a significant danger to the community or a flight risk such that
no amount of bond was appropriate. As such, the Court found that release on a $7,500 bond was
reasonable, under certain conditions. The Court noted Respondent's criminal record, including
his two 2016 convictions for driving under the influence of alcohol. Furthermore, the court has
considered the evidence submitted by DHS regarding the pernicious nature and risk of
recidivism by individuals convicted of driving under the influence of alcohol.

Respondent admitted that he had a problem with alcohol and that he drove his car twice

A 516 Page 2
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in 2016 after consuming alcohol. Respondent has participated in rehabilitation programs during
his OHS detention and presented evidence of his intent to continue participating in these
activities after release from custody, including a residential rehabilitation program.

The Court also acknowledged that Respondent, age 33, has lived half of his life in the
United States. Respondent arrived here 1999 and has the support of his family who have
arranged his immediate enrollment in a residential rehabilitation facility upon his release from

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OHS custody. Respondent's parents and two siblings are TPS registrants and one sibling is a
U.S. citizen. Respondent has a fixed address and plans to return to work for his last employer. He
was a TPS registrant and is afraid of returning to El Salvador. In light of all of the evidence
presented, the Court determined that a bond in the amount of $7,500 was reasonable to mitigate
any potential flight risk and secure Respondent's appearance at all future proceedings before the
Immigration Court.

Based on the foregoing, the Court entered the following orders:

ORDERS

IT IS HEREBY ORDERED that Respondent's request for custody redetermination be


GRANTED.

IT IS FURTHER ORDERED that Respondent be released from custody upon payment


of a bond in the amount of$7,500.

IT IS FURTHER ORDERED that Respondent directly enroll in an alcohol


rehabilitation program upon release from OHS custody and therafter attend weekly [Alcoholics
Anonymous] classes and be prepared to provide proof of such enrollment and attendance
whenever he returns to the immigration court for hearings.

DATE: NOV 2 8 2016

Immigration Judge

A 516 Page 3

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