Professional Documents
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Department of Justice
Name: P , G A 001
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.
Mullane, Hugh G.
Cite as: G-P-, AXXX XXX 001 (BIA Sept. 25, 2017)
, U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
APPEAL
The respondent has appealed from the Immigration Judge's May 2, 2017, order denying him
bond. The basis for the Immigration Judge's decision is set forth in a bond memorandum. The
Department of Homeland of Security (DHS) has not responded to the appeal. The respondent's
appeal will be sustained, and the record will be remanded. 1
The parties agree that the respondent is detained pursuant to section 236(c) of the Immigration
and Nationality Act, and that the Immigration Judge conducted the custody redetermination
hearing pursuant to the authority of the United States Court of Appeals for the Second Circuit's
case, Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015) (holding that a "detainee must be
admitted to bail unless the government establishes by clear and convincing evidence that the
immigrant poses a risk of flight or a risk of danger to the community").
The Immigration Judge suggested it was a close case, but found that the OHS had met its
burden of establishing by clear and convincing evidence that the respondent was a danger to the
community and set no bond (U Bond Mem. at 3-5). We disagree that the DHS has met this high
burden and will remand for consideration of whether the respondent is a flight risk, and if some
bond might be set.
We acknowledge the reasoning of the Immigration Judge and agree that this is a close case,
yet we are not persuaded that the evidence proffered by the OHS establishes, by clear and
convincing evidence, that the respondent is a current danger to the community. However, we
emphasize that the Immigration Judge's consideration of all the evidence of unfavorable conduct
committed by the respondent was appropriate. Contrary to the respondent's contention on appeal,
our decision in Matter of Gue"a, 24 l&N Dec. 37 (BIA 2006), is applicable to this case and
dictates that an Immigration Judge may consider any evidence of bad behavior, including charged
offenses and arrests that did not ultimately result in conviction. The respondent cites no authority
for his argument that Matter of Gue"a is inapplicable or that Lora limited the type of evidence
that may be considered by an Immigration Judge in assessing whether the OHS met its burden to
establish by clear and convincing evidence that an alien poses a danger to the community or a
flight risk (Resp. Brief at 9-15).
Cite as: G-P-, AXXX XXX 001 (BIA Sept. 25, 2017)
I
001
The Immigration Judge found that the respondent had two serious convictions from the late
1990s, and numerous other arrests spanning from 2000 until 2010, all of which were either for
possession of marijuana in the 5th degree or turnstile jumping (IJ Bond Mem. at 3-4; Exh. Bond-
1, 3). The record does not reflect any arrests since 2010. Moreover, the respondent's crimes over
the last decade and a half have not been violent or posed a danger to others. While we agree that
the two convictions from the 1990s are very serious, we note that the respondent served limited
ORDER: The record is remanded to the Immigration Judge for further proceedings consistent
with the foregoing opinion and for the entry of a new decision.
Board Member Hugh G. Mullane would affirm the Immigration Judge and so dissents
without opinion.
2
Cite as: G-P-, AXXX XXX 001 (BIA Sept. 25, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK
In the Matter of
)
G P ) IN BOND PROCEEDINGS
)
RESPONDENT )
CHARGES:
contained in the bond record of proceedings. See Bond Exhibits 1-3. The parties
carefully considered all the documentary evidence and the representations and
arguments, whether expressly cited in this decision or not. The hearing has been held
pursuant to Lora v. Shanahan, 804 F.3d 601, 616 (2nd Cir. 2015). In sum and
J
\ \
substance, the respondent is a native and citizen of Colombia who has been present in
the United States for a lengthy period of time. He was admitted as a lawful permanent
resident in 1974. See Bond Exhibit 1, tab B, the Notice to Appear. During the
the United States and has developed a number of significant health issues. And he has
also amassed a very significant criminal history spanning close to three decades. So all
of these are factors in the Court's balancing of the decision here. The parties agree that
respondent's detained pursuant to INA Section 236(c) and he falls within the ambit of
the Lora decision. The parties agree the Court has jurisdiction to conduct this
proceeding.
LEGAL STANDARDS
The Court recognizes that Lora altered the burden of proof in evidentiary
standards in bond hearings by shifting the burden from the alien to establish he is not a
danger to the community and does not pose a risk of flight, to OHS to establish an alien
should not be released on bond. Under Lora, an IJ "musr set bond "unless the
Government establishes by clear and convincing evidence that the immigrant poses a
Lora did not, however, alter the less-settled precedent decisions from the
BIA regarding the factors that may be considered when determining whether the alien
poses a danger to the community or a risk of flight. See Matter of Guerra, 24 l&N Dec.
37, 40 (BIA 2006). ("An IJ has broad discretion in deciding the factors that he or she
may consult during custody redeterminations. ") Similarly, the principles governing the
standards that must be met before an alien may be released remain in effect. See
Matter of Urena, 25 l&N Dec. 140, 141 (BIA 2009). ("An Immigration Judge should only
set bond if she first determines that the alien does not present a danger to the
community.") Only after determining that an alien does not pose a danger to the
extent of flight risk posed by the alien." See Matter of Urena, 25 l&N Dec. 141 (BIA
convictions in assessing whether an alien is a danger to the community. Id. 40, 41.
Any evidence in the record that is probative and specific can be considered.
respondent poses a danger to the community. The question of whether an alien poses
a danger to the community is broader than determining if the record contains proof of
sufficient for a determination that a respondent should be held without bond. See
ANALYSIS OF CLAIM
The Court finds OHS has met its burden by clear and convincing evidence
that the respondent poses a risk of danger to the community. I do take into
documents, the criminal records in some aspects about those documents that may not
disposition that is contained in Bond Exhibit 1, tab D; and Bond Exhibit 3, involving a
sex abuse conviction from 1998. Even assuming the certificate of disposition in Bond
Exhibit 1 contains an error regarding the penal law section, there is no dispute that the
I do not find that the clear and convincing danger to the community standard cited in
Lora requires that every single piece of evidence standing alone established clear and
criminal docket generated by the criminal courts is generally reliable and probative. And
even taking into account that there may be clerical discrepancies, the record as a whole
is taken into consideration in this bond proceeding. I also take into account the
respondent's disputes about the potential unreliability of a rap sheet. However, this
case does not turn on individual entries in a rap sheet. The overriding factor that I take
into consideration and put significant weight on is the lengthy period of the respondent's
criminal conduct. I do take into account that over time the conduct has become
somewhat less dangerous. I do take into account that the more serious offenses
involve criminal sale of a controlled substance from the mid'90s, and the sex abuse
offense from the late '90s. But these two convictions are undoubtedly for conduct that
the respondent has a longstanding disregard for the criminal laws of this country. And
the respondent's recidivist conduct is a significant factor. And I put weight on that.
Accordingly, given the recidivist conduct stretching over close to three decades, I do
find that OHS has met its burden by clear and convincing evidence that the respondent
poses a risk of danger to the community. I have considered the rehabilitation evidence
and the family and community support. However, I find when weighing all the evidence,
that evidence is insufficient to overcome the criminal history here. Finally, the
respondent has had strong family ties over a lengthy period of time. But he has also
the respondent's health concerns and the arguments about the inadequacy of the
medical care he is receiving in OHS custody. I do not have authority over the adequacy
danger to the community, it does not outweigh the dangerousness established by OHS.
As I noted at the outset, this is a difficult decision to make. I appreciate the trauma that
the respondent may be facing in detention and the prospects of removal to Colombia
after so many years in the United States. However, as heartrending as this situation is,
I decide the dangerousness assessment based on the criminal history and all the other
evidence in the record. And it is with a heavy heart that I make the finding that OHS has
CONCLUSION
Based on the Court's careful weighing of all the evidence, the Court finds
bond be denied.
May 2, 2017
PATRICIA L. BUCHANAN
Immigration Judge
CERTIFICATE PAGE
001
was held as herein appears, and that this is the original transcript thereof for the file of
(Completion Date)