ThissamplebriefapplieswhentheINSissueschargingdocument

andrespondenthasnocriminalhistory.Thismotionisprovided
toassistintheresearchandanalysisofimmigrationlaw.Itis
notasubstituteforindependentlegalresearchinanindividual
case.
AttorneysforRespondent
*

UNITEDSTATESDEPARTMENTOFJUSTICE
EXECUTIVEOFFICEFORIMMIGRATIONREVIEW
IMMIGRATIONCOURT
ELOY,ARIZONA

IntheMatterof:
*
Respondent,

)
)
No.A(
)
)
)
Date:*
)
TIME:*

File

InBondRedetermination
Proceedings.

)
)
)
)
)
)

Before:Hon.*

RESPONDENT'SBRIEFONELIGIBILITYFORBOND

ANDREDETERMINATIONOFAMOUNTOFBOND

TABLEOFCONTENTS

Page

I.
II.

INTRODUCTIONANDSTATEMENTOFCASE ......................

RESPONDENT IS ELIGIBLE FOR RELEASE UNDER REASONABLE

BOND ....................................................
U

A.

RESPONDENTISELIGIBLEFORRELEASEUNDERINA
'236..........................................

B.

RESPONDENTISELIGIBLEFORRELEASEEVENUNDER
THETRANSITIONRULES...........................

III. THE EVIDENCE NOW PRESENTED TO THIS COURT INDICATES

THAT RESPONDENT IS NEITHER A DANGER TO THE COMMUNITY
NORATRISKOFFLIGHT,ANDTHUSTHATTHEIMMIGRATION
JUDGESHOULDSETAREASONABLEBOND ......................
U

A.

RESPONDENTISNOTADANGERTOTHECOMMUNITY.......
9

B.
VI.

RESPONDENT WOULD APPEAR FOR ANY SCHEDULED

PROCEEDINGS....................................

CONCLUSION ..............................................

I.

INTRODUCTIONANDSTATEMENTOFFACTS 1

UTP

PT

*ischargedwithbeinganativeandcitizenofCameroon.
HeisastudentwhoenteredtheUnitedStateslegallyonanF1
studentvisaon*.HeattendedtheUniversityoftheDistrictof
Colombia,andthentransferredtoDeAnzaCollege. Hehasbeen

livinginSanJose,Californiasince1992.Hisfieldofstudyis
biology, and he plans to continue his studies and finish his
degreeatSanJoseStateUniversity,inSanJose,California,in
theFall.Mr.*hasclosefamilyintheUnitedStates.Allof
his siblings, his three sisters, live in this country. He is

particularlyclosetohissister*andbrotherinlaw*,aUnited
Statescitizen,ofSanJose,California.
Mr.*'smanyfriendsandcoworkersareverysupportiveof
him.Forthepasttwoyearshehasbeenworkingasasalesmanat
*inSanJose,California. Hissupervisor,*,aUnitedStates
1

TPPT

Factsassertedinthissectionarebasedonthe

citizen,statesthathehasbeena"modelemployeeforthenearly
two years in which we have been associated. He is impeccably
honest, always cheerful, caring and eager to please." See
U

Exhibit2.Heevenfindsit"incredible"thatheshouldneedto
writealetterinsupportofsuch"afine,lawabiding,youngman
attachedexhibits,includingrespondent'sdeclaration,oron

as*." Id .Mr.*,hesays,"isexactlythekindofpersonthis
U

countryshouldactivelyseekoutasapotentialcitizen." Id .
U

*,friendofMr.*andwifeof*,concurs."Ihaveknown*
asaguestinourhome,manytimes.**istrulyakind,warm,
compassionate,andintelligentperson,"shestates. See Exhibit
U

testimonywhichwillbegivenbyrespondent.

3. *, brotherinlaw of Mr. *, and a United States citizen,

agreesthatMr.*,whohehasknownforfouryears,"hasawarm
personality,andheisofgoodcharacterandstrongmoralvalues.
. . . * is a Christian and is well read in the Bible, and
exerciseshisChristianvaluesinallhisdealingswithfriends

andrelatives....*isayoungmanandifgiventhechance
hewillmakeagreatAmerican." See Exhibit4.
U

Mr.*'swarmandgentlepersonalityisalsoreflectedinthe
statementsofhisfriends.*,acoworkerandfriend,statesthat
"heisanenergetic,resourceful,intelligentandtrustingyoung

man." See Exhibit6.*,afriendofMr.*andhisfamilywho

U

hadknownMr.*fortenyears,statesthathe"exhibitsagood
character" and had a "warm and cordial personality". See
U

Exhibit7.Heisthe"embodimentofanexceptionalupbringing,"
who "has extended his family values to friends at school and

associatesatwork." Id .
U

Mr.*hasnohistoryofviolence,drugrelatedactivitiesor
seriouscriminalactivity. Hissingleconvictionforforginga
driver's license resulted from his application for a second
driver'slicenseusinghismiddlenameinsteadofhisfirstname.

Hedidthisnaively,solelybecausehewasunableatthetimeto
paysometraffictickets,anddidnotknowwhatactiontotake.
He now has recognized his mistake, and the judge in his case
determined that he did not merit any jail time, but instead
workedoutthetermsofhisprobationsothathewillnotmiss

schoolorwork.Aswell,aftertwoyears,thejudgetoldhimhe
couldreducetheconvictiontoamisdemeanor.
*hasconfirmedthatMr.*isnotofacriminalmind,but
ratherhis"primaryflawisprocrastinationtemperedwithachild
like innocence." See Exhibit 2. * emphasizes Mr. *'s youth
U

also,andnotesthathe"islearningandinneedofdirection.I
sincerelybelieveGodhasgottenhisattention." See Exhibit6.
U

Mr.*iscurrentlyonprobationforhissingleconviction.
Despitehisattemptsandintentiontocomplywiththetermsof
hisprobation,hehasnotreceivedcrucialinformationthathe

hasneededtodothis.Aspartofthetermsofhisprobation,he
istoreportonaweeklybasistospendTuesdayeveningthrough
Thursday morning in custody. He was to begin this program in
January,butbecausehehadnotbeeninformedoftheprebooking
requirement, when he presented himself on the first day the

prisonofficialswouldnotaccepthim.Aftercontactingbothhis
attorneyandhisprobationofficer,hewastoldthatthejudge
wouldsetanewdateforhimtobegintheprogram.Althoughthis
mistake is rather common, it was apparently recorded as a
violation of his probation, despite the fact that Mr. * fully

intended and attempted to comply with all of the terms of his

probation.
Mr. * continued to report to his probation officer on a
regularbasis,asrequired.Hisprobationofficerindicatedthat
hewouldreceiveinstructionsinthemail,apparentlymeaninghe

wouldreceivenoticeofthenextcourtdate. Heneverreceived
suchnotice,causinghimtomisstheMarch20,1997courtdate
thathadbeenset,andthuscausingawarranttobeissuedfor
hisarrest. Mr.*wouldnothavepurposefullymissedthecourt
date, and would have appeared had he been aware of it. His

criminaldefenseattorneyiscurrentlytryingtohavethecourt
date reset so that Mr. * can complete the requirements of his
probation.
HehasbeeninINScustodysinceApril22,1997.Hewillbe
applyingforasylumasrelieffromremoval,duetothepolitical

situationinhishomecountryof*.Hisbondiscurrentlysetat
$50,000.Althoughhefamilyandfriendsareextremelyanxiousto
havehimreleased,theyarenotabletoaffordtopaythatbond
atthistime. Forthereasonsexplainedbelow,werespectfully
requestthatthebondbeloweredto$5,000.

II.

RESPONDENTISELIGIBLEFORRELEASEUNDERREASONABLEBOND

A.

RESPONDENTISELIGIBLEFORRELEASEUNDERINA'236

...
Thus,respondentdoesnotfallintoanyofthecategories

requiringmandatorydetention,andthusiseligibleforrelease
underINA ' 236(a). Adecisionregardingtheamountofbondto
be imposed should be based on an objective evaluation of the
factorspresented. Amongtherelevantfactorsare: lengthof
residence in the community, employment history, family ties in

theUnitedStates,recordofnonappearancesincourtproceedings,
manner of entry, eligibility for relief from deportation, and
limitedfinancialresources. MatterofPatel ,15I.&N.Dec.
U

666 (BIA 1976), Matter of Spiliopoulos , 16 I&N Dec. 561 (BIA

U

1978); Matter of LeonPerez , 15 I&N Dec. 239 (BIA 1975). In

U

Matter ofAndrade ,19 I&NDec. 488,490 (BIA1987), theBoard

assertedthat:"Arespondent'scharacterisoneofthefactorswe
considerindeterminingthenecessityforortheamountofbond."
As with all discretionary forms of relief, positive and
negative equities must be weighed and balanced. Even if the

court were to give some weight to the contention that a

respondent is a bail risk, the court must weigh this finding
against respondent's significant countervailing positive
equities.Theindividualbearstheburdenofdemonstratingthat
he is not a danger to the community and that he is likely to

appearatanyscheduledhearing.
In Matterof SanMartin , 15I&N Dec.167 (BIA1974), the
U

Board permitted respondent's release on $15,000 bail despite

severaladversefactorsincluding:arecordofnonappearancein
court proceedings; prior flight; the existence of a criminal

record of conviction for possession of cocaine; a history of

immigrationlawviolations;anunlawfulentry;andtheabsenceof
anyclosefamilyties.
In the instant case, respondent provides evidence well in
excess of his burden under the factors enumerated above, as

describedbelow.
B.

RESPONDENT IS ELIGIBLE FOR RELEASE EVEN UNDER THE

TRANSITIONRULES

Even if the transition rules of IIRIRA ' 303(b)(3) were

determined to apply to this case, respondent is eligible for

release. Certain aliens subject to detention under the
transitionalrulesareeligibleforrelease.Theseincludealiens
with such convictions who were "lawfully admitted" and satisfy
theAttorneyGeneralthattheyarenotadangertothesafetyor

property of others and are likely to appear for scheduled

proceedings.'303(b)(3)(B).
The Board of Immigration Appeals ("BIA") has held that a
person with a conviction in one of the categories listed in
IIRIRA ' 303(b)(3) who was lawfully admitted is eligible for

releasefromimmigrationdetentionunderthetransitionalrules,
provided that he can show that he is not a danger to other
persons or property and is likely to appear at future
proceedings. InreNoble ,Int.Dec.#3301(BIA1997). Seealso
U

InreValdez ,Int.Dec.#3302(BIAJan30,1997).Thestandards

foranimmigrationjudge'sdecisioninbondproceedingsunderthe
Transition Period Custody Rules is set forth in Matter of
U

Drysdale ,20I.&N.Dec.815(BIA1994). InreMelo ,Int.Dec.

U

#3313(BIA,Feb.20,1997).
Thus,respondent,whowaslawfullyadmittedonanF1visa,

maybereleasedfromcustodyifhecandemonstratethathewill
notposeadangertothesafetyofotherpersonsorpropertyand
willlikelyappearforanyscheduledproceeding.IIRIRA'303(b)
(3)(B).
III. THE EVIDENCE NOW PRESENTED TO THIS COURT INDICATES THAT
U

RESPONDENTISNEITHERADANGERTOTHECOMMUNITYNORATRISK
OFFLIGHT,ANDTHUSTHATTHEIMMIGRATIONJUDGESHOULDSETA
REASONABLEBOND
U

A.

RESPONDENTISNOTADANGERTOTHECOMMUNITY

In the instant case, respondent provides evidence well in

excessofhisburdenunderthefactorsenumeratedabove.

Respondent's family and friends are eagerly awaiting his

returntotheirlivesinSanJose,California. Respondenthas
neverbeenadangerousorviolentperson.Allofhisfriendsand
familyspeakofhiswarmnatureandhisgoodcharacter.
Respondenthasagoodjobasasalespersonat*.Hewill

return to that job, and then would like to finish his

undergraduatedegreeatSanJoseStateUniversityintheFall.
Hissupervisor,*,statesthatheisa"modelemployee,"whois
"impeccablyhonest,alwayscheerful,caringandeagertoplease."
See Exhibit2.Mr.*'sfriend*alsonotesthathe"istrulya

kind,warm,compassionate,andintelligentperson." See Exhibit

U

3. *, brotherinlaw of Mr. *, and a United States citizen,

agreesthatMr.*,whohehasknownforfouryears,"hasawarm
personality,andheisofgoodcharacterandstrongmoralvalues.
. . . * is a Christian and is well read in the Bible, and

exerciseshisChristianvaluesinallhisdealingswithfriends
andrelatives....*isayoungmanandifgiventhechance
hewillmakeagreatAmerican." See Exhibit4.
U

AllofhisfriendsalsoagreethatMr.*isnotathreator
dangertoanyone.*,acoworkerandfriend,statesthat"heis

anenergetic,resourceful,intelligentandtrustingyoungman."
See Exhibit6.*,afriendofMr.*andhisfamilywhohadknown

Mr.*fortenyears,statesthathe"exhibitsagoodcharacter"
andhada"warmandcordialpersonality". See Exhibit7.Heis
U

the"embodimentofanexceptionalupbringing,"who"hasextended

hisfamilyvaluestofriendsatschoolandassociatesatwork."
Id .

The fact of respondent's single conviction also does not

indicate a dangerous or threatening person. His single
conviction for forging a driver's license resulted from his

applicationforaseconddriver'slicenseusinghismiddlename.
Hedidthisnaively,solelybecausehewasunableatthetimeto
paysometraffictickets,anddidnotknowwhatactiontotake.
See Exhibit1. Atnotimedidhisactionsconstituteadanger

toanyone.Henowhasrecognizedhismistake,andthejudgein

his case determined that he did not merit any jail time, but
insteadgavehimprobation,andallowedhimtoservehis90day
sentencebyspendingtimeincustodyonlyfromTuesdaynightto
Thursdaymorningeachweekfor30weeks.Thejudgedidthisso
thatMr.*wouldnothavetomissschoolorwork.Aswell,after

twoyears,thejudgetoldhimhecouldreducetheconvictiontoa
misdemeanor.ThesefactsdemonstratethatMr.*isnotaviolent
person,oranindividualwhowouldcauseharmtoanyone.Hehas
nootherconvictions,andhasneverhadanydealingswithdrugs,
firearmsorviolence.

Respondent would thus not be a danger to anyone in his

communityifheisreleasedfromcustody. Hehaslearnedfrom
the mistake that led to his single nonviolencerelated
conviction.Helooksforwardtoreturningtoastablelifewith
hisfamilyandfriends,jobandthenschool.

B.

RESPONDENTWOULDAPPEARFORANYSCHEDULEDPROCEEDINGS

Respondentwouldnotbeaflightriskifheisreleasedon
bond.Hewouldlikemorethananythingtoreturntohisfamily
and friends in San Jose, California. He has had a good job

there,whichhewouldliketoreturnto,andhealsoplansto
continuehisstudiesatSanJoseStateUniversitytocompletehis
undergraduatedegree.
Moreover, Mr. * is still on probation from his single
conviction. Hehasbeeninregularcontactwithhisprobation

officer,asrequiredbytheconditionsofhisprobation.Hehas
appearedforeverycourtdateforwhichhereceivednotice. As
well,hehasattemptedtocomplywiththetermsofhisprobation,
butcrucialinformationregardingthishasnotbeengiventoMr.
*, thereby causing a violation to occur. The violation was

causedbynofaultofMr.*.Thetermsoftheprobationrequire
him to spend time in custody each week from Tuesday night to
Thursday morning. Mr. * intended and has attempted to comply
withthisrequirement.Hereportedtotheplaceonthetimeand
date instructed, only to be told that because he had not been

prebooked,hecouldnotstartcompletinghissentence. Mr.*
hadnotbeenpreviouslyinformedoftheneedtoprebook,andhe
calledhislawyerandprobationofficerrightawayafterbeing
informedthathecouldnotstartcomplyingwiththerequirements
of his probation. His criminal defence attorney informed him

thatanotherdatewouldbesetbythejudge. Despitethefact
thatthismistakeisacommononewhichisusuallynotconsidered
aviolationofprobation,itappearstohavebeenrecordedasa
probationviolationinthiscase.
AtnotimedidMr.*intendtoviolatehisprobationoreven

knowinglydoso. Heplanstocompletethisrequirementofhis
sentence as soon as he is informed of a new date for him to
report to custody. Mr. * must also report to his probation
officeronaregularbasis,whichhehasbeendoingaswell.
Mr.*wouldneverfailtoappearatacourthearingofwhich

he was given notice. He has always appeared at the court

hearingsinSuperiorCourtofSantaClaraCountyofwhichhewas
givennotice.Mr.*wasexpectingtoreceivenoticeofthecourt
dateatwhichthejudgewouldsetanewdateforMr.*tosatisfy
the custody conditions of his probation. He never received

noticeofthatdate,althoughundersignedcounselhasnowlearned
thatacourtdateof*wassetforMr.*.Heneverreceivedany
noticeorinformationofthisdate,inwritingorotherwise,and
hencebecausehedidnotknowofit,hedidnotappearincourt
onthatdate.Awarrantforhisarrestwasissuedasaresultof

this.Mr.*ispreparedtoappearforanycourtdateofwhichhe
isgivennotice,ashealwayshasdonebefore.Mr.*isthusnot
aflightriskandnotsomeonewhowouldknowinglyorwillfully
failtoappearatacourthearing.
Mr.*willbesubmittinganapplicationforasylum,basedon

hisfearofreturningtohishomecountryof*becauseofthe
political situation there, the fact that his father is from a
minority group, and based on his family's involvement in
politics.Thus,relieffromremovalisavailabletohim,andhe
thuswouldhavenoreasonnottoappearathisfutureimmigration

hearings.
Respondent thus has every reason to remain in San Jose,
Californiaandtoappearatanyfuturecourthearings.Moreover,
hislifeiswithhisfamily,friends,jobandschoolinSanJose,
California,andhehasnothingtogotoanywhereelse.

VI.

CONCLUSION

For all of the above reasons, this Court should grant

respondent's request that the bond be lowered to a reasonable
amount.Respondentisnotadangertothecommunity,andisnot
a flight risk. He family and friends are eager to have him

releasedfromcustody,butareunabletoaffordthe$50,000bond
currently set, and thus this Court should order respondent's
releasefromcustodyunderareasonablebondof$5,000.

Dated:December2,2015

Respectfully

submitted,

__

_________________________
MarcVanDerHout
AttorneyforRespondent

ZacharyNightingale
AttorneyonBrief

PROOFOFSERVICE

I,theundersigned,say:
Iamovertheageofeighteenyearsandnotapartytothe
withinactionorproceedings;mybusinessaddressis180Sutter
Street,FifthFloor,SanFrancisco,California,94104.
OnDecember2,2015,Icausedtobeservedthewithin
CoverLetter;
RESPONDENT'SBRIEFONELIGIBILITYFORBONDANDREDETERMINATION
OFAMOUNTOFBOND
and
ExhibitsinSupport

ontheopposingcounselbydepositingonecopythereof,enclosed
inasealedenvelopewithpostagefullyprepaid,inamailbox
regularlymaintainedbytheUnitedStatesPostalServiceatSan
Francisco,California,addressedasfollows:
AssistantDistrictCounsel
OfficeofDistrictCounsel
ImmigrationandNaturalizationService
1705E.HannaRd#343
Eloy,AZ85231

ExecutedonDecember2,2015atSanFrancisco,California.

I declare under penalty of perjury that the foregoing is

trueandcorrect.

ZacharyNightingale
Declarant