U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041

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Fateha, Morris OHS/ICE Office of Chief Counsel - NYD
Law Offices of Morris Fateha 201 Varick, Rm. 1130
911 Avenue U New York, NY 10014
Brooklyn, NY 11223

Nar\ie: Z , F N A A -416

Date of this notice: 10/6/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

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

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: F-N-A-Z-, AXXX XXX 416 (BIA Oct. 6, 2017)

;u.s. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 416-New York, NY Date:

OCT-62.117
In re: F N A Z ak.a.

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Morris Fateha, Esquire

APPLICATION: Redetermination of custody status

The respondent, a native and citizen of Yemen and lawful permanent resident of the United
States since 2003, appeals from the bond decision of the Immigration Judge, dated May 15, 2017.1
The Immigration Judge denied the respondent's request for a change in custody status pursuant to
Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), and found that the respondent posed a danger to
the community. The Department of Homeland Security (DHS) has not responded to the appeal.
The appeal will be sustained and the record will be remanded to the Immigration Judge.

We review Immigration Judges' fmdings of fact for clear error, but questions of law, discretion,
and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3)(i), (ii).

Upon de novo review, we disagree with the Immigration Judge's determination that the OHS
has established, by clear and convincing evidence, that the respondent is a danger such that his
continued detention is warranted. See Lora v. Shanahan, 804 F.3d at 615-16. Specifically, as the
Immigration Judge noted, the respondent has equities in this country, including his status as a
lawful permanent resident since 2003, his significant family ties, including family members with
lawful status, and the hardship to his family caused by his detention (IJ at 3).

The sole negative factor in this matter is the respondent's 2012 conviction for conspiracy to
commit food stamp fraud, which is a serious conviction. As the record establishes, the respondent
was involved in a fraud scheme over a period of nine months, in which he and two others
unlawfully exchanged Supplemental Nutrition Assistance Program government benefits for cash
(IJ at 1-2). As a result of the conviction, the respondent was sentenced to three years of probation
and ordered to pay restitution (IJ at 2).

Upon careful consideration of the factors presented, we conclude that, while the respondent's
criminal conviction is serious, it is his only criminal offense and was not a violent offense. The
conviction and its circumstances do not establish by clear and convincing evidence that the
respondent poses a danger to the community. Accordingly, we reverse the Immigration Judge's

1 To the extent that the respondent asserts that he is a citizen of the United States, we note that
such claim relates to his removal proceedings, which are separate and apart from these bond
proceedings. 8 C.F.R. 1003.19(d).

Cite as: F-N-A-Z-, AXXX XXX 416 (BIA Oct. 6, 2017)

 416

determination that the respondent poses a danger to the community. We will remand the record,
however, for the Immigration Judge to consider and make findings of fact as to whether the
respondent poses a flight risk. See Matter ofGuerra, 24 l&N Dec. 37, 40 (BIA 2006).
Accordingly, the following order will be entered.

ORDER: The respondent's bond appeal is sustained, the Immigration Judge's decision is

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vacated and the record is remanded to the Immigration Judge for further proceedings.

Cite as: F-N-A-Z-, AXXX XXX 416 (BIA Oct. 6, 2017)

,,-

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARICK STRET, ROOM 1140
NEW YORK, NEW YORK

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File No.: 416

In the Matter of

Z ,F N A Bond Proceedings

Respondent.

CHARGES: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act

("INA") (Conviction of an aggravated felony involving fraud or deceit)
INA 237(a)(2)(A)(iii) (Conviction of an aggravated felony relating to
an attempt or conspiracy)

APPLICATIONS: 8 C.F.R. 1003.19 Custody/bond

ON BEHALF OF RESPONDENT ON BEHALF OF DHS

Morris Fateha, Esq. Joshua Lee, Esq.
Law Offices of Morris Fateha Assistant Chief Counsel
911 Avenue U 201 Varick Street, Room 1130
Brooklyn, NY 11223 New York, NY 10014

MEMORANDUM DECISION OF THE IMMIGRATION JUDGE

I. Procedural History

F N A Z ("the Respondent") is a native and citizen of Yemen.1 Notice to

Appear (''NTA"). He was admitted to the United States ("U.S.") at New York, New York on
September 23, 2003 as a lawful permanent resident ("LPR"). Id.

On July 26, 2012, the Respondent was convicted of conspiracy to commit food stamps
fraud in violation of 18 USC 371. See DHS' submission dated May 15, 2017, Tab Bat 4. The
indictment states that the Respondent, al6ng with others, engaged in a fraudulent scheme in which

1 The Respondent claims that he has a pending application for certificate of citiz.enship with the Citizenship and

Immigration Services ("CIS"). He claims he should be a United S Citiz.en ("USC") but he is not due to errors
made by the embassy and CIS on different occasions. For the purposes of this hearing, the Respondent is not a USC
presently.

1
..

they awfully exchanged Supplemental Nutrition Assistance Program ("SNAP") government

benefits for cash. Id. at 12-13. The Respondent and others "fraudulently debited EB T cards as
though SNAP benefit recipients had purchased food products, when in fact, the Respondent and
others agreed with SNAP recipients to give the recipients a portion of the cash proceeds generated
from the fraudulent EBT transactions and to keep a portion of those proceeds for themselves." Id.
at 13. The Respondent was sentenced to three years of probation with special conditions of

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supervision. dI . at 5-6. He was also ordered to pay $295,000 in restitution. Id. at 7.

On December 6, 2016, DHS served the Respondent with a N TA, charging him with
removability under INA 237(a)(2)(A)(iii), conviction of an aggravated felony involving fraud
or deceit, and 237(a)(2)(A)(iii), conviction of an aggravated felony relating to conspiracy or
attempt. On February 28, 2017, the Respondent initially appeared before this Court for a master
calendar hearing and a custody determination hearing. The Court denied bond. On May 15, 2017,
the Court conducted a custody determination hearing pursuant to Lora v. Shananan, 804 F.3d 601
(2d Cir. 2015). For the reasons that follow, the Court will deny the Respondent's request for a
change in custody status.

II. Legal Standards and Analysis

Although the Second Circuit has upheld mandatory detention, it has ruled that an
immigrant detained under INA 236(c) must be afforded a bond hearing within six months of
detention. Lom, 804 F.3d at 616 (holding that to "avoid the constitutional concerns raised by
indefinite detention, an immigrant detained pursuant to section 1226(c) must be afforded a bail
hearing before an immigration judge within six months of his or her detention."). For an immigrant
to continue to be detained under N
I A 236(c), the government bears the burden to establish "by
clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the
community." Id at 612 (citing Rodriguez v. Robbins, 715 F.3d 1127, 1131 (9th Cir. 2013)) (an
immigrant "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."); see also
Matter ofGuerr 24 l&N Dec. 37, 40 (BIA 2006); Matter of Patel, 15 l&N Dec. 666 (B A I 1976).
In applying these standards, the Court finds that DHS has established by clear and convincing
evidence that the Respondent is a danger to the community and a flight risk.

A. Danger to the Community

Before considering a respondent's risk of flight, an Immigration Judge must first determine
whether a detained respondent presents a risk of danger to the community. Matter of Ure1m, 25
l&N Dec. 140, 141 (BIA 2009). Here, the Court finds that DHS has met its burden by clear and
convincing evidence that the Respondent poses a risk of danger to the community.

The Respondent pleaded guilty to conspiracy to commit food stamp fraud. See DHS's
submission dated May 15, 2017, Tab Bat 4-8. The Court is particularly troubled by the harm
caused by such criminal conduct to an important federal benefits program, which, in the long run,
adversely affects not only the taxpayers of this nation but also the vulnerable population it is meant
to serve. The food stamp program was established to "alleviate hunger and malnutrition . . . [using]
tax dollars to subsidize low-income households, permitting them to obtain a more nutritious diet

2
by increasing the food purchasing power of eligible households." Id. at 9. The Court views the
Respondent's conduct in this case, which ultimately led to his conviction, to be very problematic.
Furthermore, the Respondent was ordered to pay $295,000 in restitution to the government entity
that operates the SNAP benefits program, indicating the severe impact the Respondent's crime had
on the benefits program. Id. at 7.

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To rebut this showing of dangerousness, the Respondent's counsel stated that the
Respondent has significant community ties and USC family members who would suffer hardship.
However, at the time of the hearing, there was no corroborating evidence provided.2 Nevertheless,
the Court is sympathetic to any hardship that the Respondent's family might face due to his
detention. However, the Court is more concerned about the Respondent's own criminal conduct
and the danger it poses to the public. This Court considers food stamp fraud and especially when
the damages are so significant, as is the case here, to be a very serious crime. Therefore, after
taking into consideration, the evidence in the record, the Court finds that DHS has established that
the Respondent poses a danger to the community.

B. Risk of Flight

For an immigrant to continue to be detained under INA 236(c), the government bears the
burden to establish "by clear and convincing evidence that the immigrant poses a risk of flight or
a risk of danger to the community." (emphasis added) Lora, 804 F.3d at 612 (citing Rodriguez v.
Robbins, 715 F.3d 1127, 1131 (9th Cir. 2013)) (an immigrant "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."); see also Guerra, 24 l&N Dec. at 40; Patel, 15 l&N Dec.
at 666.

Given that DHS has established that the Respondent poses a strong danger to the
community by clear and convincing evidence, it is not necessary for DHS to establish that the
Respondent poses a flight risk. Id.

Accordingly, after a careful review of the record, the following Order is entered:

ORDER

IT IS HEREBY ORDERED that the Respondent's request for a change in custody status be
DENIED.

Date

2 The Respondent's counsel submitted an untimely memorandum in support of his motion for custody and bond
determination hearing. The hearing was conducted on May 15, 2017, but the submission was received by the Court
on June 13, 2017..