Interim Decision #3037
MATTER OF ANDRADE
In Bond Proceedings Pursuant to 8 C.F.R. § 242.2(b)
A-12271705
Decided by Board November 20, 1987
(1) In bond redetermination proceedings, the Board of Immigration Appeals may
consider the respondent's extensive and recent criminal record in determining the
necessity for a bond or the appropriate amount of a bond.
(2) The Board determined that the respondent's numerous convictions indicate a
consistent disrespect for the laws of the United States and adversely reflect upon
his character.
(3) In setting a substantial bond, the Board took into consideration the respondent's
disrespect for the law, his poor character, and the effect of his crimes upon his
eligibility for relief from deportation.
(4) An alien's early release from prison and transition to a parole status do not necessarily reflect rehabilitation, and, therefore, such facts do not carry significant
weight in determining whether he is a good bail risk for immigration purposes.
ON BEHALF OF RESPONDENT: ON )3EIIALF OF SERVICE:
Pro se Ronald E. LeFevre
District Counsel
Beverley M. Phillips
General Attorney
BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members. Concurring
Opinion: Heilman, Board Member.
The Immigration and Naturalization Service has appealed from
an immigration judge's February 27, 1987, decision releasing the
respondent on his own recognizance, after the district director had
set bond at 05,000. The appeal will be sustained and the bond will
be raised to $10,000.
By Order to Show Cause, Notice of Hearing, and Warrant for
Arrest of Alien (Form I-221S) dated February 20, 1987, the respondent was alleged to be a native and citizen of Mexico who was
admitted to Lhe United States on April 9, 1960, as a lawful permanent resident, but who was deportable for having been convicted of
two crimes involving moral turpitude. See section 241(a)(4) of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1982). At
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the time the Order to Show Cause was issued, the district director
ordered a $15,000 bond. Following a bond redetermination hearing,
the immigration judge determined that release on recognizance
was appropriate for several reasons_ She noted that the respondent
had been a lawful permanent resident since the age of 3 and that
his entire family are United States citizens or lawful permanent
residents. The immigration judge found that, although the respondent had a criminal record, there was no evidence that he had ever
failed to appear for immigration or criminal proceedings. She
relied on the fact that the state parole authorities had granted the
respondent early release. Such release, stated the immigration
judge, "demonstrates an assessment by experts, who are better
qualified than I am on such matters, that he is rehabilitated and
does not constitute a threat to public safety," and that he is not
likely to abscond. In addition, the immigration judge considered the
respondent's possible eligibility for a waiver of deportation under
section 212(c) of the Act, S U.S.C. § 11820 (1982). She expressed the
view that the respondent has "many factors in his case which
would militate toward a favorable exercise of discretion" on a section 212(c) application and that the respondent would therefore
have every reason to appear for deportation proceedings to pursue
this remedy. Citing Matter of Kwun, 13 I&N Dec. 457 (BIA 1969,
1970), the immigration judge held that the respondent should not
be denied bail "for punitive reasons, nor should the alien be deprived of his liberty pending deportation proceedings unless there
are compelling reasons." She concluded that the decision to impose
a $15,000 bond "reflects the displeasure" of the Service at the re-
,
spondent's criminal record. Finding that the respondent was "not a
flight risk," she released him on his own recognizance.
The Service has filed a lengthy brief on appeal detailing why, in
its view, the immigration judge's decision should be vacated and a
substantial bond set. Without addressing each of the Service's contentions specifically, we agree that a substantial bond is necessary
in this case.
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 the national security
or is 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 previous criminal or immigration law violations may properly be considered. See id.; Matter of San Martin,
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15 I&N Dec. 167 (13IA 1974); Matter of Moise,
12 I&N Dec. 102 (13IA
1967); Matter of
9 I&N Dec. 575 (BIA 1962).
In the present case, the respondent does have a very long residence in this country, having lived here virtually all his life. He
also has his family living here. However, he does not have a stable
employment history. Indeed, during much of the last 12 years the
respondent appears to have been engaged in criminal activity or incarcerated for his crimes. The respondent was convicted in 1975, as
a juvenile, for attempted robbery. He was convicted of burglary
twice, in 1981 and in 1985. In 1986, he was convicted of receipt of
stolen goods. He was sentenced to 16 months' imprisonment for
this crime and was released on probation in February of 1987. On
April 1, 1987, the respondent was convicted for receiving stolen
property.
We consider the respondent's extensive and recent criminal
record to be a very serious matter militating against his release
without a significant bond. While we do not consider a criminal
record per se a reasonable basis for a high bond amount, we find it
a relevant consideration in determining the necessity for or the appropriate amount of bond insofar as it relates to a respondent's
character. More importantly, we find a conviction record relevant
to a respondent's bond status to the extent that it relates to his potential eligibility for relief from deportation, which in turn may be
an incentive or disincentive for him to appear at his deportation
hearing. A respondent with a greater likelihood of being granted
relief from depoitation has a greater motivation to appear for a deportation hearing than one who, based on a criminal record or otherwise, has less potential of being granted such relief.
In the case at hand, the respondent's numerous convictions indicate a consistent disrespect for the laws of the United States and
adversely reflect upon his character. A respondent's character is
one of the factors we consider in determining the necessity for or
the amount of a bond. Further, we do not agree with the immigration judge that the respondent's early release from prison on parole
in February of 1987 indicates that be is rehabilitated and is unlikely to abscond. Indeed, we find that the immigration judge placed
undue reliance on the respondent's parole in reaching her decision.
Incarcerated individuals may be released from prison early on
parole for reasons other than rehabilitation. We do not believe this
factor in and of itself carries significant weight in determining
whether an alien is a good bail risk for immigration purposes. We
note that in this particular case the respondent was convicted on
another criminal charge only 2 months after his release on parole.
Under these facts, we are unwilling to assume, as the immigration
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judge did, that the respondent's release on parole indicates his rehabilitation, and we are not persuaded that such parole warrants
his release without bond in these proceedings.
More significantly, while we agree with the immigration judge
that an alien's potential eligibility for relief from deportation can
reflect on the likelihood of his appearance at deportation proceedings, we believe she placed undue weight on this respondent's eligibility for section 212(c) relief. While the respondent obviously has
equities which could weigh in favor of a grant of that relief, there
also are very serious adverse factors militating against a grant of
discretionary relief. Without ruling on the merits of such an application, a matter beyond the scope of our review in these bond proceedings, we conclude that the respondent's potential eligibility for
relief under section 212(c) of the Act does not warrant his release
without bond or on a minimal bond. While the respondent may
appear statutorily eligible for such relief, his lengthy and recent
conviction record negatively affects the discretionary grant of the
same, thereby giving him less motivation to appear at his deportation hearing.
We emphasize that the setting of a substantial bond in this case
does not represent punishment to the respondent for his crimes, an
inappropriate action for the Board, the immigration judge, or the
district director to take. Rather, it reflects our conclusion that the
respondent's crimes, combined with the other evidence of record,
negatively affect the likelihood of his future appearance such that
his release on a lower bond is not warranted. We note further that
the Service has informed us that the respondent failed to appear
for a scheduled deportation hearing on June 17, 1987, and that the
respondent has not challenged this information.
Upon consideration of the totality of the circumstances in this
case, we find that a $10,000 bond is necessary to ensure the respondent's appearance at future immigration proceedings. Accordingly, the Service's appeal will be sustained and the following order
will be entered_
ORDER: The appeal is sustained and the respondent is ordered held on bond in the amount of $10,000.
Concurring Opinion: Michael J. Heilman, Board Member
I respectfully concur.
This appeal may be sustained on the ground that the respondent
failed to appear for his scheduled deportation hearing. This is clear
evidence that a bond is required to assure his appearance. While
this factor arose subsequent to his filing of the bond appeal, in my
view it may be taken into account where, as here, the respondent
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has had an opportunity to respond to the adverse information, and
has failed to do so.
The majority's reliance on "character" as evidenced by his criminal convictions, as a basis to require a substantial bond, strikes me
as likely to cause more problems than it will resolve. Since the
term "character" is fairly nebulous, it may be seen as incorp orating all types of behavior which would have little bearing on the
possibility of an alien absconding. I assume that the majority
would limit the application of character determinations to egregious criminal behavior, and not to such factors as personal living
arrangements, or the acceptance of welfare, or other similar indices of "bad" character.
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