Interim Decision #2744
• MATTER OF SHAW
IN BOND PROCEEDINGS PURSUANT TO 8 C.F.R. 242.2(b)
A-24021848
Decided by Board December 14, 1979
(1) The fact that a respondent is the subject of pending criminal charges and the
seriousness of those charges are relevant to an inquiry into the amount of an immigration bond necessary to assure the respondent's presence at future deportation
proceedings.
(2) It is inappropriate for the immigration judge to speculate as to the possible rationale
for a minimal bond set by a state court in a pending criminal proceeding and to find
that the low criminal bond weighs in favor of a larger immigration bond.
(3) The manner of a respondent's entry into the United States is relevant in a bond
determination inquiry.
(4) A $5,000 appearance bond was not unwarranted in the case of a respondent who came
forward with no evidence of community ties of any nature that would suggest his
continuing availability for future immigration proceedings, who was charged with a
serious criminal offense involving the possession of firearms, and whose manner of
entry into the United States was unknown.
CHARGE:
Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Failure to establish entry
information as required under section 291 [8 U.S.C. 1361]
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Barst & Mukamal, Esquires Daniel Meisner
121 John Street Trial Attorney
New York, New York 10038
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The respondent appeals from the November 23, 1979, decision of the
immigration judge ordering the $10,000 bond imposed by the District
Director reduced to the amount of $5,000. The respondent seeks further
reduction of the bond. The appeal will be dismissed.
The respondent, a 21-year-old native and citizen of Jamaica, came
into the custody of the Service following his arrest by New York State
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authorities on charges relating to the criminal possession of firearms. '
The respondent was released by the state authorities in November
1979 after posting a one dollar bond. He was released into the custody
of the Service because an Order to Show Cause had been issued on
November 8, 1979. The District Director then set a $10,000 immigration
appearance bond. The respondent requested a bond redetermination
hearing before the immigration judge.
The immigration judge concluded that a significant bond was necessary in this case to assure the respondent's appearance at future
immigration proceedings. He noted in this regard the respondent's
minimal ties to the community,' the serious nature of the criminal
charge, the minimal amount of the criminal bond, and the fact that the
sole indication of the respondent's future appearances was a statement
that he would appear when called. He reduced the bond to $5,000,
however, because the respondent apparently had no prior criminal
record.
The respondent appeals, seeking a reduction of the bond from $5,000
to $500 to $1,000. It is submitted that the immigration judge erred in
declining to hear testimony regarding the circumstances of the respondent's arrest, in relying on the "seriousness" of the criminal
charges in determining the amount of the bond when the state court
having jurisdiction over the criminal proceeding ordered the respondent released on a minimal bond, and by speculating that the state court
fixed the bond in a minimal amount because of an awareness that the
respondent was to be released into Service custody.
We have held that an alien generally should not be detained or
required to post bond pending a determination of deportability unless
there is a finding that he is a threat to national security or a poor bail
risk. Matter of Patel, 15 I&N Dec. 666 (BIA 1976). In determining the
necessity for and the amount of bond, such factors as a stable employment history, the length of residence in the community, the existence
of family ties, a record of nonappearance at court proceedings, and the
nature of the respondent's criminal or immigration law history may
properly be considered. See Matter of Patel, supra; Matter of San
Martin,
15 I&N Dec. 16'7 (BIA 1974); Matter of Moise,
12 I&N Dec. 102
(BIA 1967); Matter of S Y L ,
9 I&N Dec. 575 (BIA 1962). Moreover,
- - -
The decision of the immigration judge indicates that the respondent and the four
other persons arrested with him were charged with criminal possession of a weapon in
the second degree and with possession of stolen property. The record contains no
evidence regarding the nature of the charges, however, other than a surety receipt which
reflects the offense as being the criminal possession of a weapon in the third decree. The
charges apparently stem from the alleged possession of seven handguns and one sawedoff shotgun.
I The respondent's sole family tie was apparently a lawful permanent resident uncle.
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both the fact that a respondent is the subject of pending criminal
charges and the seriousness of those charges are relevant to an inquiry
into the amount of an immigration bond necessary to assure a respondent's presence at future deportation proceedings.
On the facts before us, however, we find that the immigration judge
placed an undue reliance on the parading criminal charges and the lack
of a large criminal bond in setting the significant bond ordered in this
case. We find it inappropriate to speculate as to the possible rationale
for the one dollar bond set in the criminal proceeding, and we do not
agree that the fact that a low criminal bond was set somehow weighs in
favor of a larger immigration bond.
Although we disagree with this aspect of the immigration judge's
rationale for ordering a significant bond, we do not fmd that a $5,000
bond is unwarranted under the facts of this case. The respondent has
apparently come forward with no evidence below or on appeal, as to the
length of his residence in the United States. We do not know if it has
been a matter of weeks, months, or years. There is nothing of record
regarding the respondent's employment history, or even an indication
of whether he was employed at the time of his arrest. There is no
statement as to where the respondent resided in the country, how long
he lived there, or with whom he lived. Other than an indication that he
has a lawful permanent resident uncle in this country, there is in fact
no evidence at all of community ties of any nature which would suggest
his continuing availability for future immigration proceedings. This
complete lack of information regarding community ties, when considered with the serious criminal charge pending against the respondent and the fact that it is unknown how or when he entered the United
States, warrants the significant bond imposed by the immigration
judge.3
Accordingly, on the record now before us, we will order the appeal
dismissed.
ORDER1 The appeal is dismissed.
The manner of a respondent's entry is relevant in a bond determination inquiry. For
example, a greater bond will ordinarily be warranted in the case of a respondent who
entered the United States unlawfully (through evasion of immigration authorities nr rise
of a false identity) than in the case of a respondent, otherwise similarly situated, who
has entered this country lawfully using a true identity. When a respondent declines to
state the time and manner of his entry, it will not be assumed that he entered lawfully.
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