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U.S.

Department f •ustice
Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg PiU, Suite 2000


Falls Church, Virginia 22041

Fateha, Morris OHS/ICE Office of Chief Counsel - NYD

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Law Offices of Morris Fateha 201 Varick, Rm. 1130
911 Avenue U New York, NY 10014
Brooklyn, NY 11223

Name: Z ,K N A A - -412

Date of this notice: 11/2212017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Malphrus, Garry D.
Mullane, Hugh G.

SchwalLA
Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: K-N-A-Z-, AXXX XXX 412 (BIA Nov. 22, 2017)
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U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 412 - New York, NY Date:


NOV 2 2 2017
In re: K N A Z

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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, is a lawful permanent resident of the
United States. The respondent has appealed from the Immigration Judge's May 15, 2017, denial
of bond after a hearing under Lorav. Shanahan, 804 F.3d 601 (2d Cir. 2015), cert. denied by Lora
v. Shanahan, 136 S. Ct. 2494 (2016). On June 26, 2017, the Immigration Judge issued a
memorandum setting forth the reasons for his decision. The appeal will be sustained and the record
will be remanded.

The Board reviews findings of fact, including the determination of credibility, for clear error.
8 C.F.R. § 1003.l(d)(3)(i) (2017); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007);
Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or
judgment, and other issues de novo. 8 C.F.R. § 1003.l(d)(3)(ii).

The Immigration Judge determined that the Department of Homeland Security ("OHS")
carried its burden to show, by clear and convincing evidence, that the respondent poses a danger
to property or persons (IJ at 2-3). See Lorav. Shanahan, 804 F.3d at 616. In this regard, the record
supports the Immigration Judge's finding that on July 26, 2012, the respondent was convicted of
conspiracy to commit food stamp fraud in violation of 18 U.S.C. § 371 (IJ at 1; DHS's 5/15/17
Submission, Tab B at 2).1

As an initial matter, the respondent contends that his indefinite detention is unconstitutional
(Respondent's Br. at 13-14). We conclude that any constitutional concerns caused by the duration
of the respondent's detention were resolved when he received the hearing required under Lora
v. Shanahan. See Lora v. Shanahan, 804 F.3d at 616.

The respondent further argues that he was not convicted of an aggravated felony, as defined in
section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1 lOl(a), and he is thus not

1 The respondent asserts that he will move to vacate the plea agreement as a result of ineffective
assistance of counsel (Respondent's Br. at 23). The respondent has not presented evidence that he
has done so. See INSv. Phinpathya, 464 U.S. 183, 188 n.6 (1984) (unswom statements in a brief
are not evidence); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (same). In any
event, notwithstanding the respondent's assertions, his conviction remains final for immigration
purposes given that it has not been overturned. See Matter of Madrigal-Calvo, 21 I&N Dec. 323,
327 (BIA 1996); Matter ofAdetiba, 20 l&N Dec. 506, 508 (BIA 1992).

Cite as: K-N-A-Z-, AXXX XXX 412 (BIA Nov. 22, 2017)
412

subject to mandatory detention pursuant to section 236(c)(l)(B) of the Act, 8 U.S.C.


§ 1226(c)(l)(B) (Respondent's Br. at 14-15). The respondent claims that conspiracy is not
enumerated in the statute defining aggravated felonies (Respondent's Br. at 14-15). We disagree,
as the Act expressly defines as an aggravated felony "an attempt or conspiracy to commit an
offense described in this paragraph." Section 10l(a)(43)(U) of the Act. Along these lines, a
Notice to Appear in the record reflects that the DHS has charged the respondent in his separate

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removal proceedings with removability pursuant to section 237(a)(2)(A)(iii) of the Act, 8 U.S.C.
§ 1227(a)(2)(A)(iii), as one convicted of an aggravated felony, as defined in sections
10l(a)(43)(M) and (U) of the Act.2

Additionally, the respondent asserts that he is entitled to a hearing pursuant to


Matter ofJoseph,22 I&NDec. 799, 802 (BIA 1999) (Respondent's Br. at 21-22). The respondent,
who would bear the burden of proof in a Matter ofJoseph hearing, has presented no argument on
appeal suggesting that the DHS would be substantially unlikely to prevail on the charges of
removability in his separate removal proceedings. See Matter ofJoseph, 22 I&NDec. at 802.

Moreover, even assuming that the respondent could make this showing, he would then bear
the burden of proving his eligibility for bond pursuant to section 236(a) of the Act. An alien in a
custody determination under section 236(a) must prove to the satisfaction of the Immigration Judge
and this Board that he 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. Matter of Urena, 25 l&N Dec. 140 (BIA 2009);
Matter ofAdeniji, 22 I&N Dec. 1102 (BIA 1999); Matter ofDrysdale, 20 l&N Dec. 815
(BIA 1994). In contrast, at the respondent's Lora v. Shanahan hearing, the DHS had the burden
of proving, by the heightened clear and convinciq.g evidence standard, that the respondent poses a
danger to persons or property in order for him to be held without bond. Lora v. Shanahan, 804
F.3d at 616.

We now review the Immigration Judge�s rulings at the conclusion of the Lora v. Shanahan
hearing. Immigration Judges and the Board have wide discretion and may look to a number of
factors in determining whether an alien merits release on bond. See Matter of Guerra, 24 I&N
Dec. 37, 40 (BIA 2006).

The Immigration Judge properly found that the respondent and his coconspirators engaged in
a scheme in which they unlawfully exchanged Supplemental Nutrition Assistance Program
("SNAP") government benefits for cash (IJ at 1-2; DHS's 5/15/17 Submission, Tab B at 10-11).
We agree with the Immigration Judge that the respondent's record of conviction shows that he and
his coconspirators caused significant harm to a federal benefits program (IJ at 2-3; DHS's 5/15/17
Submission, Tab B at 5).

2 The respondent also avers that his crime was not particularly serious under Matter ofFrentescu,
18 I&NDec. 244 (BIA 1982) (Respondent's Br. at 16-18). However, Matter ofFrentescu provides
a framework for determining whether an alien is ineligible for asylum and withholding of removal
for having committed a particularly serious crime bar, which is not relevant in bond proceedings.
See sections 208(b)(2)(A)(ii) and 24l(b)(3)(B)(ii) of the Act, 8 U.S.C. §§ l158(b)(2)(A)(ii) and
123l(b)(3)(B)(ii).

Cite as: K-N-A-Z-, AXXX XXX 412 (BIA Nov. 22, 2017)
412

At the same time, the respondent has no further criminal record, including during the period
when he was released on bail for 18 months while his criminal case was pending (Respondent's Br.
at 3-4, 7, 11). The OHS further does not challenge the respondent's assertions that he has fully
complied with his 3-year probation sentence, and that he was making restitution payments until he
was detained in connection with these proceedings (Respondent's Br. at 4). The respondent also
correctly observes that his crime-although serious-was nonviolent (Respondent's Br. at 4). The

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Immigration Judge did not find that the respondent is apt to commit another offense if he is
released. This case turns largely on who bears the burden of proof and pursuant to Lora v.
Shanahan, OHS bears the burden. Overall, while the record establishes that the respondent
committed a crime that harmed a federal benefits program, we reverse the holding that the OHS,
based on this record, has carried its burden to show, by clear and convincing evidence, that the
respondent presently poses a danger to property or persons (U at 2-3). See Lora v. Shanahan, 804
F.3d at 616.3

We will remand the record for the Immigration Judge to assess flight risk and determine
whether a bond can be set that is reasonably calculated to ensure the respondent's presence,
applying the appropriate burden of proof. See id As relevant to this inquiry, the Immigration
Judge should address respondent's claim that he is not subject to removal because he derived
United States citizenship through his father, and his argument that his record of appearance at his
past criminal hearings shows that he is not a flight risk (Respondent's Br. at 3-9, 13, 18-20).
Additionally, the Immigration Judge should allow the parties to submit additional evidence and
argument.

ORDER: The appeal is sustained and the record is remanded for further proceedings and the
entry of a new decision consistent with this opinion.

3 Nothing in this order prohibits the Immigration Judge from considering any additional
information regarding the respondent's dangerousness. However, as noted above, OHS has the
burden of proof.

Cite as: K-N-A-Z-, AXXX XXX 412 (BIA Nov. 22, 2017)
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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
201 VARICK ST., RM 1140
NEW YORK, NY 10014

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Law Offices of Morris Fateha
Fateha, Morris
911 Avenue U
Brooklyn, NY 11223

IN THE MATTER OF FILE A 412 DATE: Jun 30, 2017


Z , K N A

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION


IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

. ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT


OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 u. �..·:c.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 u.s.c. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
201 VARICK ST., RM 1140

� �
NEW YORK, NY 10014
c>
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COURT CLERK
IMMIGRATION COURT FF
CC: ASSISTANT CHIEF COUNSEL ;
201 VARICK STREET, ROOM i1130
NEW YORK, NY, 10014

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UNITED STATES DEPARTMENT OF JUSTICE


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

File No.: 412

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In the Matter of

Z ,K 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: 8C.F.R.§1003.19 Custody/bond

ON BEHALF OF RESPONDENT ON BEHALF OF OHS


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

Kaid Nagip Ayed Zokari ("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 7, 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 OHS' submission dated May 15, 2017, Tab B at 2. The
indictment states that the Respondent, along with others, engaged in a fraudulent scheme in which

1 The Respondent claims that he has a pending application for certificate of citizenship with the Citizenship and
Immigration Services ("CIS"). He claims he should be a United States Citizen ("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.

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


benefits for cash. Id. at 10-1 l. The Respondent and others "fraudulently debited EBT 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 11. The Respondent was sentenced to three years of probation with special conditions of

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supervision. Id. at 3-4. He was also ordered to pay $295,000 in restitution. Id. at 5.

On January 6, ·2011, DHS served the Respondent with a NTA, 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 condueted 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. Lora, 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 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." 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 of Guerra, 24 I&N Dec. 37, 40 (BIA 2006); Matter of Patel, 15 I&N Dec. 666 (BIA 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 Urena, 25
I&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 B at 2-6. 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 s�rve. 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

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by increasing the food purchasing power of eligible households." Id. at 7. 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 5.

To rebut this showing of dangerousness, the Respondent's counsel stated that the

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Respondent has significant community ties and family members who would suffer hardship.
However, at the time of the hearing, there was 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) Lor� 804 FJd 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 Guerr� 24 l&N Dec. at 40; Patel, 15 l&N Dec.
at 666.

Given that OHS 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

DEN : $o)1
IT IS HEREBY ORDERED that the Respondent's request for a change in custody status be
.

Date )
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Immigration Judge /'

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