U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike. Suite 2000

Falls Church, Virgm1a 22041

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Ibrahim, Jama, Esq. OHS/ICE Office of Chief Counsel - SOC
Ibrahim & Rao LLP 146 CCA Road, P.O.Box 248
6675 Peachtree Industrial Blvd. Lumpkin, GA 31815
Suite 100
Atlanta, GA 30360

Name: S , E A 170

Date of this notice: 8/17/2017

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.
Neal, David L

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: E-S-, AXXX XXX 170 (BIA Aug. 17, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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

S ,E OHS/ICE Office of Chief Counsel - SOC
170 146 CCA Road, P.O.Box 248
STEWART DETENTIONC CENTER Lumpkin, GA 31815
146 CCA ROAD
LUMPKIN, GA 31815

Name: SANDOVAL, EDY A 170

Date of this notice: 8/17/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

~ Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Greer, Anne J.
Neal, David L

Cite as: E-S-, AXXX XXX 170 (BIA Aug. 17, 2017)
' U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 170 - Lumpkin, GA Date:

AUG 1 7 2017
In re: E S

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jama Ibrahim, Esquire

ON BEHALF OF OHS: Steven B. Fuller

Assistant Chief Counsel

APPLICATION: Change in custody status

The respondent appeals from the Immigration Judge's April 19, 2017, custody decision
denying the respondent's bond request. The Immigration Judge set forth her reasons for the
custody order in a May 15, 2017, bond memorandum. The Department of Homeland Security has
filed a brief in opposition to the appeal. The record will be remanded.

We review findings of fact by the Immigration Judge for clear error, while all other issues,
including whether the parties have met the relevant burden of proof, are reviewed de novo.
8 C.F.R. 1003.l(d)(3)(i)-(ii) (2017).

An alien in a custody determination under section 236(a) of the Immigration and Nationality
Act, 8 U.S.C. 1226(a}, must establish to the satisfaction of the Immigration Judge and this Board
that he or she does not present a danger to persons or property, is not a threat to the national
security, and does not pose a risk of flight. See Matter ofAdeniji, 22 I&N Dec. 1102 (BIA 1999).
An alien who presents a danger to persons or property should not be released during the pendency
of proceedings to remove him or her from the United States. See Matter of Urena, 25 l&N
Dec. 140 (BIA 2009).

We acknowledge the Immigration Judge's reasoning. However, on the record before us, we
find that the evidence is insufficient to demonstrate that the respondent presents a danger to the
community. The respondent has three arrests, in September 2010, October 2013, and March 2017,
for driving without a license (IJ at 3; Record of Deportable/lnadmissible Alien at 3). While we do
not condone driving without a license, we note that these are his only arrests in his approximately
14 years of living in the United States and nothing reflects that he has caused an accident
(IJ at 1, 3-4; Respondent's Br. at 7). Moreover, we disagree with the Immigration Judge that the
speculative nature of the respondent's eligibility for relief and any potential issues with his tax
returns preclude the respondent from establishing that he is not a danger to the community
(IJ at 3).

We thus find it appropriate to remand the record for the Immigration Judge to make a flight
risk determination. On remand, both parties may submit additional evidence.

Cite as: E-S-, AXXX XXX 170 (BIA Aug. 17, 2017)
 170

Accordingly, the following order will be entered.

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.

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FOR 119 BOARD

Cite as: E-S-, AXXX XXX 170 (BIA Aug. 17, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
United States Immigration Court
146CCA Road
Lumpkin, Georgia 31815

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IN THE MATTER OF: ) In Bond Proceedings
)
S ,E G ) File No.: 170
)
Respondent ) DETAINED

APPLICATION: BondRedetermination

APPEARANCES

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE GOVERNMENT:

Jama Ibrahim, Esq. Assistant Chief Counsel

6675 Peachtree Industrial Blvd Department of Homeland Security
Ste: 100 146 CCARoad
Atlanta, GA 30360 Lumpkin, Georgia 31815

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Respondent is a male citizen and native of Guatemala who claims to have entered the
United States without inspection at an unknown location in approximately 2003. March 20,
2017, the Department of Homeland Security ("Department") placed Respondent in removal
proceedings through the issuance of a Notice to Appear (''NTA"), charging him with
removability pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"
or "Act"), alleging that Respondent was present in the United States without being admitted or
paroled, or who arrived in the United States at any time or place other than as designated by the
Attorney General.

Respondent is currently detained by the Department.

On March 29, 2017, Respondent, via counsel, filed a Motion for Bond Hearing. The
Court attempted to conduct a bond hearing on April 12, 2017, however as neither government
counsel nor Respondent's counsel had knowledge of whether a NTA had been filed on the
Respondent the court was without jurisdiction to proceed and therefore took no action. The court
found it did not have jurisdiction to consider Respondent's bond request because, under Matter

1
of Werner, 25 l&N Dec. 45 (BIA 2009), the Attorney General has not delegated authority to
immigration judges to redetennine the custody of alien for whom no Notice to Appear has been
issued and served.

Thereafter, April 19, 2017, the court conducted a second bond hearing at the conclusion

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of which it denied Respondent's request for bond. Respondent has appealed this bond decision to
the Board of Immigration Appeals ("Board") and, therefore, the Court will issue the following
decision denying his request for bond redetermination.

II. FINDINGS OF THE COURT

The Act provides that the Attorney General shall take into custody any alien who

(A) is inadmissible by reason of having committed any offense covered in Section

212(a)(2);
(B) is deportable by reason of having committed any offense covered in Section
237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D);
(C) is deportable under Section 237(a)(2)(A)(i) on the basis of an offense for which
the alien has been sentence[d] to a tenn of imprisonment of at lease 1 year; or
(D) is inadmissible under Section 212(a)(3)(B) or deportable under Section
237(a)(4)(B).

INA 236(c)( l ).

The Department is not charging Respondent with removability on any of the bases that
require mandatory detention under section 236(c)( l ) of the Act, and thus the court cannot find
Respondent subject to mandatory detention.

Even though he is not subject to mandatory detention, Respondent remains subject to

the provisions of section 236(a) of the Act, which provide that the Attorney General may, in his
discretion, release a detained alien pending a final decision on removability. Matter of Joseph,
22 I. & N. Dec. 799 (BIA 1999). The Supreme Court has recognized that section 236(a) of the
Act does not give detained aliens the right to release on bond. Matter of D-J-, 23 I. & N. Dec.
572, 575 (A.G. 2003) (citing Carlson v. Landon, 342 U.S. 524, 534 (1952)). The extensive
discretion granted the Attorney General under the statute is confinned by its further provision
that "[t]he Attorney General's discretionary judgment regarding the application of this section
shall not be subject to review." Id. (citing INA section 236(c)). The courts have consistently
recognized that the Attorney General has extensive discretion when determining whether or not
to release an alien on bond. Id. at 576. Federal regulations provide that the immigration judge's

2
 (

bond determination may be based on "any information that is available to the immigration judge
or that is presented to him or her by the alien or the [Department]." 8 C.F.R. 1003.19(d).

To qualify for release, the alien must establish that he is not a threat to the community or
a flight risk. Matter of Drysdale, 20 I. & N. Dec. 815, 816-817 (BIA i994); see also Matter of

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Patel, 15 I. & N. Dec. 666 (BIA 1976). An Immigration Judge's decision whether to release an
alien on bond requires an initial determination of whether the alien poses a danger to property or
persons before any release on bond may be considered. Matter of Urena, 25 I. & N. Dec. 140,
141 (BIA 2009) ("Only if an alien demonstrates that he does not pose a danger to the community
should an immigration judge continue to a deter:mination regarding the extent of flight risk posed
by the alien.").

In this case, the court will deny Respondent's request for a bond as Respondent is a
danger to the community.

Respondent is not married to a United States citizen or Legal Permanent Resident, nor are
his parents or grandparents United States citizens or Legal Permanent Residents. Respondent
has no United States citizen siblings and thus far no documents have been filed for any benefit
under the INA.

Respondent does have four United States citizen children: 6 year old twins, a two year
old, and an 8 month old. While the court accepts Respondents assertions that he has relief based
on exceptional and extremely unusual hardship to his United States citizen children, the children
are all very young and that relief is purely speculative at this time.

Further, the court notes Respondent has, on numerous occasions, listed brothers and
sisters as income tax deductions without any evidence as to whether he has provided more than
fifty percent of their care, or even where they live. Further, Respondent's tax returns reflect
exemptions for mileage, but Respondent works for a company that has a contract with his city so
why would he need a gas exemption? Upon query from the court as to whether he informed the
contract company of his immigration status, Respondent refused to answer the court's questions.
To the court this represents Respondent's lack of respect for the laws of the United States.

On September 14, 2010 was arrested for Driving Without a Valid License, and was
convicted and ordered to pay a fine of $1000.00. October 11, 2013, was again arrested for
driving without a license with time expiring. March 17, 2017, Respondent was arrested for the
third time for driving without a license, his state bond was paid and he was transferred to USICE
custody. Upon inquiry by the court Respondent stated he had been driving without a license
since for the past seven years at least 2 times per week.

The Court is particularly troubled by Respondent's habitual driving without a valid

3
 .
'

license. The Supreme Court of the United States has remarked on the danger to the community
that unlicensed drivers pose: "Automobile licenses are issued periodically to evidence that the
drivers holding them are sufficiently familiar with the rules of the road and are physically
qualified to operate a motor vehicle[, and] . ... drivers without licenses are presumably less safe
drivers whose propensities may well exhibit themselves." Delaware v. Prouse, 440 U.S. 648,
658-659 (1979). The court finds the Respondent is a danger to the community.

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Respondent should be held without bond because he did not meet his burden of
demonstrating that he does not present a danger to property or persons. See INA 236(a); Matter
of Urena, 25 I&N Dec. 140 (BIA 2009) (holding that only if an alien has established that he or
she would not pose a danger to property or persons should an Immigration Judge decide the
amount of bond necessary to ensure the alien's presence at proceedings to remove him from the
United States); Matter of Guerra, 24 l&N Dec. 37 (BIA 2006); Matter ofAdeniji, 22 l&N Dec.
1102, 1111-13 (BIA 1999); Matter ofDrysdale, 20 l&N Dec. 815, 817 (BIA 1994); 8 C.F.R.
1236.l(c)(8). Potentially dangerous aliens may be held in DHS custody without bond during the
pendency of removal proceedings. See Carlson v. Landon, 342 U.S. 524, 537-42 (1954). See
Matter ofGuerra, 24 l&N Dec. 37 (BIA 2006) (affording Immigration Judges broad discretion
in considering factors that may be considered); 8 C.F.R. 1003.19(d). See also generally Matter
ofD-R-, 25 l&N Dec. 445, 455 (BIA 2011) (Immigration Judge is not required to interpret
evidence in the manner advocated by the respondent).

As the court finds that Respondent has failed to meet his burden of showing that his
release would not pose a danger to the community. See Matter of Urena, supra. The following
order will issue:

ORDER OF THE IMMIGRATION JUDGE

IT IS ORDERED that Respondent's Motion fo Bond Redetermination Shall Be Denied.

May 15. 2017

Date

4
 .
--
-
......

. .
- _) ..

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
146 CCA ROAD, PO BOX 248
LUMPKIN, GA 31815

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

S , E
STEWART DETENTIONC CENTER
146 CCA ROAD
LUMPKIN, GA 31815

Date: Apr 18, 2017

File 170

In the Matter of:

SANDOVAL, EDY GIOVANNY

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 to the appeal.

X Enclosed is a copy of the order/decision of the Immigration Judge.

All papers filed with the Court shall be accompanied by proof

of service upon opposing counsel.

Sincerely,

- gw
Immigration Court Clerk UL
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UNITED STATES DEPARTMENT OF JUSTICE

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EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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IMMIGRATION
LUMPKIN, GA COURT
FILE: 170
I F:

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S , EDY GIOVANNY
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IN REMOVAL PROCEEDINGS
ORDERWITH
OF THE IMMIGRATION
RESPECT TO CUSTODYJUDGE
Request having
respondent been to
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is the Department of
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denied. that the request for a change in custody status be
ORDERED that the request be granted and that respondent be:
released from custody on his own recognizance
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