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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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Covarrubias, Kathleen OHS/ICE
Jenner & Block LLP 606 S. Olive Street, 8th Floor
633 West 5th Street LOS ANGELES, CA 90014
Suite 3600
Los Angeles, CA 90017

Name: R A , M ... A 050

Date of this notice: 10/11/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

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

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: M-R-R-A-, AXXX XXX 050 (BIA Oct. 11, 2017)
U.S. Department of Justice Decision of the Board oflmmigration Appeals
.Executive Office for Immigration Review

Fatls Church, Virginia 22041

File: 050 - Los Angeles, CA Date:

In re: M R R A OCT 1 I 2017

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Kathleen J. Covarrubias, Esquire

APPLICATION: Reduction in bond amount

The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge's
custody order dated April 18, 2017, denying his request for a reduction in bond amount. The
Immigration Judge conducted the bond hearing based on the duration of the respondent's
detention. See Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), cert. granted sub nom.
Jennings v.Rodriguez, 136 S. Ct. 2489 (2016). The Immigration Judge prepared a bond
memorandum for purposes of the respondent's appeal on May 28, 2017. The appeal will be
sustained.

We review findings of fact determined by an Immigration Judge, including credibility findings,


under a "clearly erroneous" standard. 8 C.F.R. 1003.l (d)(3)(i). We review questions of law,
discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de
novo. 8 C.F.R. 1003.l (d)(3)(ii).

The respondent's main contention on appeal is that the $50,000 bond granted by the
Immigration Judge is excessive and in violation of his due process rights. He requests that the
amount of bond be reduced to $1,500 or some other reasonable amount (Respondent's Br. at 4-10).
The Immigration Judge, after considering the positive and negative factors in this case, concluded
that the respondent was neither a danger to the community nor a flight risk that could not be
mitigated by a bond (IJ at 3). The Immigration Judge's factual findings and legal determinations
are supported by the record. Thus, the question to be decided on appeal is the amount of bond that
would be reasonably calculated to ensure the respondent's appearance for future proceedings.

The Immigration Judge determined that a $50,000 bond was reasonable to secure the
respondent's presence at all future proceedings. See Matter ofAndrade, 19 I&N Dec. 488, 490
(BIA 1987). The Immigration Judge's decision was based on the respondent's criminal history,
limited ties to the United States, and his previous attempts to circumvent our immigration laws (IJ
at 4). Considering thefactors identified in the Immigration Judge's bond memorandum and the
concerns specified on appeal, we conclude that a $50,000 bond is excessive under the
circumstances. However, we do not agree with the respondent's assertion that a minimal $1,500
bond is sufficient. Instead, we conclude that a $25,000 bond is more reasonably calculated to
ensure the respondent's appearance if released, and therefore we will reduce the bond amount.

Cite as: M-R-R-A-, AXXX XXX 050 (BIA Oct. 11, 2017)
050

Accordingly, the following order will be issued.

ORDER: The respondent is ordered released from the custody of the DHS on $25,000 bond.

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Cite as: M-R-R-A-, AXXX XXX 050 (BIA Oct. 11, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

File Number:

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A 050 ) DETAINED
)
In the Matter of: )
)
R A , ) IN BOND PROCEEDINGS
M J , )
)
Respondent )

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT:


Kathleen Covarrubias, Esquire Peter Glasgow, Assistant Chief Counsel
Jenner & Block LLP U.S. Department of Homeland Security
633 West 5th Street, Suite 3600 606 South Olive Street, Eighth Floor
Los Angeles, California 90071 Los Angeles, California 90014

BOND MEMORANDUM OF THE IMMIGRATION JUDGE

I. Procedural History

Marvin Joel Rodriguez Aroche ( Respondent) is a native and citizen of Guatemala. On


December 6, 2013, the Court conducted a custody redetermination hearing in Respondent's case
pursuant to section 236 of the Immigration and Nationality Act (INA). 8 C.F.R. 1236.l(d).
Because Respondent was an arriving alien, the Court denied his request for a bond due to lack of
jurisdiction.

On March 25, 2014, the Court conducted a custody redetermination hearing in


Respondent's case pursuant to Rodriguez v. Holder, No. CV 07-3239 TJH RNBX, 2013 WL
5229795 (C.D. Cal. Aug. 6, 2013) aff'd in part, rev 'd in part sub nom. Rodriguez v. Robbins, 804
F.3d 1060 (9th Cir. 2015) (order affirming permanent injunction in part, but narrowing the class).
After considering all of the evidence presented during the hearing, the Court concluded that the
U.S. Department of Homeland Security (Department) had met its burden of establishing, by clear
and convincing evidence, that Respondent's continued detention is justified because he is a flight
risk. See Rodriguez, 2013 WL 5229795 at *4; Rodriguez, 804 F.3d at 1074. As a result, the Court
denied his request for a bond. On April 3, 2014, Respondent appealed the Court's custody
redetermination decision to the Board of Immigration Appeals (Board).

On April 28, 2014, Respondent filed a motion for a custody redetermination hearing
pursuant to Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). On May 22, 2014, the Court
denied Respondent's motion. On June 11, 2014, Respondent appealed the Court's decision to the
Board.
t:>n October 7, 2014, the Board dismissed both of Respondent's appeals regarding his
Rodriguez custody redetermination hearing and his motion for a custody redetermination hearing
pursuant to Casas-Castrillon.

On December 19, 2014, Respondent filed a second motion for a custody redetermination
hearing pursuant to Casas-Castrillon, and on January 9, 2015, the Court conducted a custody

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redetermination hearing pursuant to Casas-Castrillon. After considering all of the evidence
presented during the hearing, the Court found that there was no material change in circumstances
to justify modifying Respondent's release status. The Court concluded that the Department had
met its burden of establishing, by clear and convincing evidence, that Respondent's continued
detention was justified because he was a flight risk. Therefore, the Court denied his request for a
bond. On February 4, 2015, Respondent appealed the Court's decision to the Board. The Board
dismissed his appeal on June 29, 2015.

On March 9, 2016, the Court conducted a second custody redetermination hearing pursuant
to Rodriguez. After considering all of the evidence presented during the hearing, the Court
concluded that the Department had met its burden of establishing, by clear and convincing
evidence, that Respondent's continued detention is justified because Respondent is a flight risk.
See Rodriguez, 2013 WL 5229795 at *4; Rodriguez, 804 F.3d at 1074. As a result, the Court
denied Respondent's request for a bond. On April 6, 2016, Respondent appealed the Court's
custody redetermination decision to the Board. On August 5, 2016, the Board remanded the case
to the Court to "consider whether a bond amount could be set that is reasonably calculated to
ensure [Respondent's] presence at future hearings." Marvin Joel Rodriguez Aroche, A 206 060
050 (BIA August 5, 2016).

On August 31, 2016, the Court conducted a third custody redetermination hearing pursuant
to Rodriguez. After considering all of the evidence presented, the Court granted Respondent's
application for bond in the amount of $50,000. On September 28, 2016, Respondent appealed the
Court's custody redetermination decision to the Board, but he subsequently withdrew his appeal
on January 26, 2017.

On April 18, 2017, the Court conducted a fourth custody redetermination hearing pursuant
to Rodriguez. At the hearing, Respondent admitted to being convicted of driving under the
influence (DUI) on two occasions, as well as false impersonation. After considering all of the
evidence presented, the Court granted Respondent's application for bond in the amount of$50,000.
On May 8, 2017, Respondent appealed the Court's custody redetermination decision to the Board.
The Court provides this Memorandum to facilitate the Board's review of Respondent's appeal.
See Immigr. Ct. Prac. Man., Chap. 9.3(e)(vii) (January 31, 2017).

II. Law and Analysis

In Rodriguez v. Holder, the U.S. District Court for the Central District of California
(District Court) ordered that bond hearings be conducted in the cases of several identified class
members, each of whom have remained in immigration custody for longer than six months without
being afforded a bond hearing. See 2013 WL 5229795 at *4. Specifically, the District Court
ordered the Department to provide class members with an individualized bond hearing before an

2
Iigration Judge. See id. In Rodriguez v. Robbins, the Ninth Circuit affinned the District
Court's order, yet narrowed the class members entitled to an individualized hearing to those in
custody pursuant to sections 235(b), 236(a), and 236(c) of the Immigration and Nationality Act
(INA) and excluded those detained under section 24 l (a) of the INA. 804 F.3d at 1060. Moreover,
the Ninth Circuit clarified that bond hearings must be held for the identified class members every
six months, regardless of whether the detainee has had a previous bond hearing. Id.

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In Rodriguez bond proceedings, the Department is required to establish by clear and
convincing evidence that the alien's continued detention is justified because the alien is a danger
to the community or a flight risk. See id. In Matter of Guerra, 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. 37, 39 (BIA 2006). 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; see also Matter of Saelee, 22 I&N Dec. 1258, 1262-63 (BIA 2000); Matter of Drysdale, 20
I&N Dec. 815, 817 (BIA 1994); Matter ofSugay, 17 I&N Dec. 637, 638-39 (BIA 1981). 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) manner of entry to the
United States.

Guerra, 24 l&N Dec. at 40. Additionally, the Court "may choose to give greater weight to one
factor over others, as long as the decision is reasonable." Id.

In the present matter, the Court considered the positive and negative factors in
Respondent's case and determined that the Department did not establish, by clear and convincing
evidence, that Respondent poses a danger to the community or is a flight risk. The Court set a
bond at $50,000 to ensure Respondent's presence at future hearings.

In assessing Respondent as a danger to the community, the Court noted that Respondent
was convicted of DUI in 2003 and 2008. He was sentenced to five to six days in jail. His
driver's license was suspended after the first arrest. He completed Alcoholics Anonymous
classes and community service and was given a restricted license. Thereafter, at some point, his
license expired, and during his 2008 DUI, he did not have a valid license. Respondent was also
convicted of false impersonation for using a false name sometime prior to his first DUI and
completed community service. Given the length of detention, the passage of time following his
last conviction, and his completion of classes and community service as ordered by the Court,
the Court found that the Department failed to established, by clear and convincing evidence, that
Respondent poses a danger to the community. See Singh v. Holder, 638 F.3d 1196, 1203-06 (9th
Cir. 2011) (holding that criminal history alone may not be sufficient for a finding of danger to

3
the conimunity); Matter of Urena, 25 I&N 140, 141-42 (BIA 2009) ("An Immigration Judge
should only set a bond if [s ]he first determines that the alien does not present a danger to the
community.").

In assessing Respondent's risk of flight, the Court noted that Respondent has somewhat
limited ties to the United States. He is single with no children. In 2011, he went to Mexico upon

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the advice of an immigration attorney, who instructed him to wait outside of the United States
for immigration documents. He admitted to entering without inspection on three occasions. The
first occurred in San Ysidro, California; the second occurred in Otay Mesa; and during the third,
he turned himself into immigration, which began the instant proceedings. With that said,
Respondent has several family members in the United States, such as multiple younger nephews
with status, though he has no close members with status. His father is deceased, and his mother
does not have status. He also has a history of employment as a gardener, security guard, and
flyer distributor. He has lived at the same residence with his mother for the past twenty-three
years. Considered cumulatively, the Court found. that the Department had failed to prove, by
clear and convincing evidence, that Respondent poses a flight risk.

At the previous Rodriguez bond hearing, the Court granted release on bond in the amount
of $50,000. Respondent testified that he remained in detention because his family was unable to
afford the bond amount. His family had $5,000, and the bond companies wanted a 20% down
payment. Respondent testified that obtaining more money is difficult for his family as his
mother is ill. Respondent's witness, Jose Aguilera, a United States citizen, testified on
Respondent's behalf. He is Respondent's brother-in-law and has known him for twenty years.
He testified that Respondent could live at his home and that he would financially support
Respondent. He also testified that Respondent's sister had called the bond companies. Mr.
Aguilera has property, though he is unaware of the amount of equity. Mr. Aguilera himself has
not tried to secure a bond for Respondent using his property as collateral but was willing to do
so.

Because the Court found that the Department had failed to prove, by clear and convincing
evidence, that Respondent poses a danger to the community or a flight risk, the Court concluded
that Respondent is eligible for a bond pursuant to Rodriguez. The Court, taking into account
Respondent's criminal history, weak ties to the United States, and previous attempts to circumvent
United States immigration laws, determined that a bond in the amount of$50,000 was reasonable
to secure his appearance at all future proceedings before the Court. See Matter ofAndrade, 19
l&N Dec. 488, 490 (BIA 1987). As such, the Court declined the modify the bond amount.

Accordingly, the Court entered the following orders:

4
ORDERS

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


pursuant to Rodriguez v. Holder be GRANTED.

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IT IS FURTHER ORDERED that Respondent be released from custody upon payment
of a bond in the amount of $50,000.

DATE: .rjd- cg)f:J