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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department f •ustice Executive Office for

U.S. Department f •ustice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

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

Offices of Morris Fateha 911 Avenue U Brooklyn, NY 11223 Name: Z , K N A

Name: Z

of Morris Fateha 911 Avenue U Brooklyn, NY 11223 Name: Z , K N A 5107

, K

Morris Fateha 911 Avenue U Brooklyn, NY 11223 Name: Z , K N A 5107 Leesburg

N

Fateha 911 Avenue U Brooklyn, NY 11223 Name: Z , K N A 5107 Leesburg PiU,

A

Fateha 911 Avenue U Brooklyn, NY 11223 Name: Z , K N A 5107 Leesburg PiU,

5107 Leesburg PiU, Suite 2000

Falls Church, Virginia

22041

OHS/ICE Office of Chief Counsel - NYD 201 Varick, Rm. 1130 New York, NY 10014

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,

and order in the above-referenced case. Sincerely, Enclosure Panel Members: Greer, Anne J. Malphrus, Garry

Enclosure

Panel Members:

Greer, Anne J. Malphrus, Garry D. Mullane, Hugh G.

Donna Carr

Chief Clerk

SchwalLA

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

more unpublished BIA decisions, visit www.irac.net/unpublished/index Cite as: K-N-A-Z-, AXXX XXX 412 (BIA Nov. 22, 2017)

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

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Refugee Appellate Center, LLC | www.irac.net •' . U.S. Department of Justice Executive Office for

U.S. Department of Justice

Executive Office for Immigration Review

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Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Board of Immigration Appeals Falls Church, Virginia 22041 File: 412 - New York, NY Date:  

File:

412 - New York, NY Date:

412 - New York, NY

Date:

 

In re:

K

K

N

N

A

A

Z

Z

NOV

2 2

2017

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);

or

Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002).

We review

questions

of law, discretion,

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 Lorav. 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

Nationality Act, 8 U.S.C. § 1 lOl(a), and he is thus not 1 The respondent asserts

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.

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 ofMadrigal-Calvo, 21 I&N Dec. 323,

327 (BIA 1996); Matter ofAdetiba, 20 l&N Dec. 506, 508 (BIA 1992).

See INSv. Phinpathya, 464 U.S. 183, 188 n.6 (1984) (unswom statements in a brief

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

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Immigrant & Refugee Appellate Center, LLC | www.irac.net 412 subject to mandatory detention pursuant to section
Immigrant & Refugee Appellate Center, LLC | www.irac.net 412 subject to mandatory detention pursuant to section

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 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

(BIA 1994). In contrast, at the respondent's Lora v. Shanahan hearing, theDHS 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.

ofDrysdale, 20 l&N Dec. 815

We now review the Immigration Judge�s rulings at the conclusion of the Lora v. Shanahan

hearing.

factors in determining whether an alien merits release on bond. See Matter of Guerra, 24 I&N

Dec. 37, 40 (BIA 2006).

Immigration Judges and the Board have wide discretion and may look to a number of

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).

2

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

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net 412 At the same time, the respondent has
Immigrant & Refugee Appellate Center, LLC | www.irac.net 412 At the same time, the respondent has

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 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.

the entry of a new decision consistent with this opinion. 3 Nothing in this order prohibits

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.

3

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

However, as noted above, OHS has the burden of proof. 3 Cite as: K-N-A-Z-, AXXX XXX
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UNITED

EXECUTIVE

STATES

OFFICE

DEPARTMENT

OF

JUSTICE

FOR

IMMIGRATION

REVIEW

 

IMMIGRATION

COURT

 
 

201

VARICK

ST.,

RM

1140

 

NEW

YORK,

NY

10014

 

Law Offices of Morris Fateha

 

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

Fateha, Morris

 

911 Avenue U

Brooklyn, NY 11223

 
 

THE

 

FILE

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FILE A 412

412

 

DATE:

Jun

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THIS

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IS

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IMMIGRATION

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YOUR

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ATTACHED

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BOARD

OF

IMMIGRATION

APPEALS

 
 

OFFICE

OF

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5107

Leesburg

Pike,

Suite

2000

 

FALLS

CHURCH,

VA

22041

 

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YOUR

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Immigrant & Refugee Appellate Center, LLC | www.irac.net / UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE
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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 In the Matter of Z , K N A Respondent.
File No.:
412
In the Matter of
Z
, K
N
A
Respondent.

Bond Proceedings

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 an attempt or conspiracy)

to

APPLICATIONS:

8C.F.R.§1003.19

Custody/bond

ON BEHALF OF RESPONDENT Morris Fateha, Esq. Law Offices of Morris Fateha 911 Avenue U Brooklyn, NY 11223

ON BEHALF OF OHS Joshua Lee, Esq. Assistant Chief Counsel 201 Varick Street, Room 1130 New York, NY 10014

I.

MEMORANDUM DECISION OF THE IMMIGRATION JUDGE

NY 10014 I. MEMORANDUM DECISION OF THE IMMIGRATION JUDGE Procedural History Kaid Nagip Ayed Zokari ("the

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.

I

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net ( they unlawfully exchanged Supplemental Nutrition
Immigrant & Refugee Appellate Center, LLC | www.irac.net ( they unlawfully exchanged Supplemental Nutrition

(

& Refugee Appellate Center, LLC | www.irac.net ( they unlawfully exchanged Supplemental Nutrition

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 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.

the Respondent's request for a change in custody status. · I I . Legal Standards and

·

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.

Respondent is a danger to the community and a flight risk. A. Danger to the Community
Respondent is a danger to the community and a flight risk. A. Danger to the Community

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.

that the Respondent poses a risk of danger to the community. The Respondent pleaded guilty to
that the Respondent poses a risk of danger to the community. The Respondent pleaded guilty to

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

tax dollars to subsidize low-income households, permitting them to obtain a more nutritious diet

[using]

2

malnutrition tax dollars to subsidize low-income households, permitting them to obtain a more nutritious diet [using]

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

B.

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& Refugee Appellate Center, LLC | www.irac.net B. j by increasing the food purchasing power of

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 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.

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

evidence that the immigrant poses a risk of flight or a risk of danger to the
evidence that the immigrant poses a risk of flight or a risk of danger to the

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

evidence that the immigrant poses a risk of flight or a risk of danger to the

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

review of the record, the following Order is entered: ORDER IT IS HEREBY ORDERED that the

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

DEN:. ) Date
DEN:.
)
Date

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Immigration Judge

2 The 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.

hearing. The hearing was conducted on May 15, 2017, but the submission was received by the

3