P-C-M

Interim Decision #3165




                            MATTER OF P-C-M-
        In Bond Proceedings Pursuant to 

(d)

                                    A-27332079

                  Decided by Board December 13, 1991

(1) An immigration judge may not redetermine custody status on his own motion and
  shall do so only upon application from the respondent or his representative.
(2) The potential difficulties that the Immigration and Naturalization Service may face
   in executing a final order of deportation because of the conditions existing in the
  country of deportation are not a proper consideration for an immigration judge in
  redetermining an alien's custody status.

ON BEHALF OF RESPONDENT:                            ON BEIIALP OP SERVICE:
  Pro se                                              Richard Knuck
                                                      General Attorney

BY:   Dunne, Acting Chairman; Heitman, Board Member, Nejelski, Temporary Board
      Member



   The Immigration and Naturalization Service has appealed from an
immigration judge's June 6, 1991, decision to release the respondent
from custody upon his own recognizance. The appeal will be sustained
and the previous bond of $10,000 will be reinstated.
   The respondent is a 23-year-old native and citizen of Angola who
entered the United States on May 29, 1985, as a refugee. His status
was subsequently adjusted to that of a lawful permanent resident on
May 30, 1989, retroactive to his date of entry. On February 25, 1991,
an Order to Show Cause and Notice of Hearing (Form 1-221) was
issued charging the respondent with deportability under section
241(a)(11) of the Immigration and Nationality Act, 

(a)(11) (1988), as an alien convicted of a controlled substance
violation. The respondent was subsequently taken into custody and the
Service set bond at $10,000, a sum upheld by an immigration judge on
March 13, 1991. In his decision, the immigration judge noted that the
respondent has been convicted of a number of crimes, including grand
theft on a person, burglary, possession of cocaine, and possession for
sale of a narcotic substance. The immigration judge additionally noted
that the respondent had no family in the United States, had resided in

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several areas of the country since entry, and did not appear to be
eligible for any statutory relief. Considering all of these factors, the
immigration judge concluded that the respondent was a danger to
society and presented a poor bail risk, and that therefore no reduction
in bond was warranted. The respondent subsequently filed an appeal,
which we dismissed on April 22, 1991.
   On April 5, 1991, the respondent tendered his application for
asylum, and a hearing was scheduled for June 6, 1991, before a
different immigration judge. At this hearing, the immigration judge,
on her own motion, released the respondent from custody upon his
own recognizance. In her written decision, the immigration judge
noted that the Service would be unable to deport the respondent to
Angola due to the current political situation in that country, and
therefore he would probably be released after the hearing regardless of
the outcome, with little likelihood of being deported in the near future.
Further, the immigration judge found that the respondent would soon
be eligible for relief from deportation under section 212(c) of the Act, S
U.S.C. 1182(c) (Supp. II 1990), and that he may still receive asylum
and/or withholding of deportation. With the above in mind, the
immigration judge concluded that there was no point in holding a
hearing on the merits, and that because the respondent was not a flight
risk or a danger to society, he should be released upon his own
recognizance. Additionally, the immigration judge granted a change of
venue to Los Angeles.
   The Service subsequently filed this appeal alleging that the immigration judge erred in her bond redetermination because no significant
change of circumstances has occurred which would warrant releasing
the respondent upon his own recognizance. It further contends that the
immigration judge erred in making the motion sua sponte without a
motion from the respondent, and that the immigration judge did not
have the authority to overrule a previous bond determination made by
another immigration judge.'
   Initially, we note that the immigration judge erred in addressing the
bond and custody issues at a hearing on the merits of an asylum claim.
The regulations clearly state that `Icjonsideration ... by the Immigration Judge of an application or request of an alien regarding custody or
bond shall be separate and apart from any deportation hearing or
proceeding ... and shall form no part of such hearing or proceeding."

  'In the appeal brief, the Service has raised issues relating to the immigration judge's
decision to continue the proceedings and change venue. We will not address these issues
because only the appeal from the determination of custody status is bcfore us. Further,
bond and deportation proceedings should not be intermingled. See 8 § 242.2(d)
(1991).

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(d) (1991). Therefore, the immigration judge erred in
considering the asylum and bond issues at the same hearing. See
Matter of Chirinos, 16 18EN Dec. 276 (BIA 1977).
  The Service also alleges error because the immigration judge
addressed the issue sua spout; and not upon application from the
respondent. There is no indication in the record that the respondent
renewed any application for a redetermination of his custody status.
The regulations at 

(b) and 242.2(d) (1991) only
provide authority for the immigration judge to redetermine custody
status upon application by the respondent or his representative. It was
therefore improper for the immigration judge herself to instigate the
motion.
   In addition to finding procedural irregularities, we also conclude
that the immigration judge did not have proper cause for releasing the
respondent on his own recognizance. The immigration judge's decision
appears to have been largely based on her conclusion that the Service
would not be able to deport the respondent to Angola due to the
political situation there and would eventually release him despite any
finding of deportability. This is not a valid basis for reducing or
eliminating bond. The factors to be considered in determining the
need for or the amount of bond are those relevant to deciding whether
the alien is a poor bail risk or a threat to national security. See Matter
of Patel, 

 (BIA 1976). The potential difficulty in
executing a final order of deportation is not a factor significant, or
even remotely related, to these considerations. Further, when a final
order of deportation is made, it is the Attorney General, acting
through the Immigration and Naturalization Service, who decides
when to deport the alien, and under what conditions he will remain in
the United States in the interim. See section 243 of the Act, 

 (1988); 

.2—.7 (1991). It is therefore inappropriate for the immigration judge to contemplate the Attorney General's action at this point and to reduce the respondent's bond based on
such speculations.
   The immigration judge's decision also appears to have been
influenced by the respondent's application for asylum and future
eligibility for relief from deportation under section 212(c) of the Act.
The immigration judge concluded that these possibilities greatly
reduced the risk of the respondent absconding Upon release. We do not
agree. First of all, the respondent is not yet eligible for section 212(c)
relief, and the immigration judge should not be predicting future
events. Further, while the asylum claim is currently pending and is
properly considered in a bond determination, it is not enough to
overcome the negative factors in this case, which the immigration
judge failed to consider in rendering her opinion. The respondent has

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no family in the United States and no other community ties. He
appears to have moved frequently since entering the country and has
no history of steady employment. Most significant is his history of
criminal behavior, which includes crimes ranging from drug offenses
to grand theft of a person and burglary. These convictions reflect
adversely on his character with respect to his potential for absconding
upon release and also make questionable his eligibility for asylum,
withholding of deportation, and other forms of relief from deportation. The immigration judge failed to note these convictions and the
respondent's lack of family and community ties in her opinion.
Therefore, the immigration judge did not consider all facets of the
case. Furthermore, there was no change of circumstances which would
warrant relief from the previous bond determination. For these
reasons, and because the immigration judge improperly combined
bond and deportation proceedings and proceeded to a redetermination
of custody status without an application by the respondent, the
Service's appeal will be sustained, and the original bond of $10,000
will be reinstated.
   ORDER:         The appeal is sustained. The immigration judge's
decision to release the respondent upon his own recognizance is
vacated, and the respondent's bond is reinstated to $10,000.




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