Interim Decision #3197
MATTER OF ELLIS
In Bond Proceedings Pursuant To 8 C.F.R. § 242.2(d)
A-29041047
Decided by Board March 8, 1993
In bond proceedings governed by section 242(a)(2)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1252(a)(2)(13) (Supp. III 1991), the alien bears the burden of
showing that he is lawfully admitted to the United States, not a threat to the community,
and likely to appear before any scheduled hearings. Matter of De La Cruz,
20 I&N Dec.
346 (BIA 1991), modified.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Pro 30 William F. MeColough
General Attorney
BY: Milhollan, Chairman; Dunne, Norris, Vacca, and Heilman, Board Members
The respondent has appealed a decision, dated October 8, 1992, in
which the immigration judge ordered that the respondent remain
detained in the custody of the Immigration and Naturalization
Service. The appeal will be dismissed.
The respondent is a native and citizen of Jamaica. He first entered
the United states as a visitor for pleasure in November 1985. The
respondent has three children living in the United States. One child
lives in Connecticut with an aunt, and the other two children are in
New York with their mother. The respondent is not married. The
respondent has no parents or siblings residing in the United States. He
claims to have worked sporadically in the United States in roofing,
painting, and at a carwash_
On July 24, 1991, the respondent pleaded guilty under an alias to
possession of narcotics and possession of narcotics with intent to sell.
The respondent was convicted under his true name in April 1991 of
possession of a pistol in a motor vehicle without a permit, for which he
was sentenced to 17 months in prison. In September 1990, the
respondent made a false claim regarding lawful permanent resident
status during questioning by Service officials in Connecticut.
On June 17, 1992, the Service issued an Order to Show Cause and
Notice of Hearing (Form I-221) against the respondent, charging him
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first with deportability under section 241(aX2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (Supp. II 1990),
in light of his controlled substance conviction. The respondent was
also charged under section 241(a)(2)(A)(iii) of the Act, because his
conviction constitutes an aggravated felony pursuant to section
101(a)(43) of the Act,
8 U.S.C. § 1101(a)(43) (Supp. II 1990). See
Matter of Barrett,
20 I&N Dec. 171 (BIA 1990). The district director of
the Service determined that the respondent should be detained
without bond. The respondent then requested a custody redetermination. The immigration judge denied the respondent's request for a
change in custody status. This appeal followed.
In his Notice of Appeal (Form EGIR-26), the respondent requests
that he be granted a bond determination. In standard bond proceedings under section 242(a)(1) of the Act,
8 U.S.C. § 1252(a)(1) (1988),
an alien, whom the Service in its discretion has arrested and taken into
custody, generally should not be detained or required to post bond
pending a determination of deportability except on a finding that he is
a threat to the national security or is a poor hail risk. Matter of Patel,
15 I&N Dec. 666 (BIA 1976). Since he is an alien convicted of an
aggravated felony, the respondent's request for a bond redetermination
hearing is governed by section 242(a)(2) of the Act,
8 U.S.C.
§ 1252(a)(2) (Supp. III 1991).
Section 242(a)(2)(A) of the Act states that the Attorney General
"shall take into custody" any alien convicted of an aggravated felony
and, subject to section 242(a)(2)(B), "shall not release" such felon from
custody. Section 242(a)(2)(B) of the Act currently provides:
The Attorney General may not release from custody any lawfully admitted alien who
has been convicted of an aggravated felony, either before or after a determination of
deportability, unless the alien demonstrates to the satisfaction of the Attorney
General that such alien is not a threat to the community and that the alien is likely to
appear before any scheduled hearings.
Formerly, section 242(a)(2)(B) of the Act,
8 U.S.C. § 1252(a)(2)(B)
(Supp. II 1990), required that the alien hold lawful permanent resident
status, as opposed to having been lawfully admitted to the United
States.' This revision was brought about by section 306(a)(4) of the
Miscellaneous and Technical Immigration and Naturalization Amendments of 1991,
Pub. L. No. 102-232, 105 Stat. 1733, 1751. See H.R.
Rep. No. 383, 102d Cong., 1st Sess. 7, reprinted in 1991 U.S.C.C.A.N.
'Section 242(a)(2)(B) of the Act, as formerly written, provided:
The Attorney General shall release from custody an alien who is lawfully admitted for
permanent residence on bond or 'such other conditions as the Attorney General may
prescribe if the Attorney General determines that the alien is not a threat to the
community and that the alien is likely to appear before any scheduled hearings.
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1372, 1378. Prior to this amendment, we had interpreted the language
of section 242(a)(2)(B) in Matter of De La Cruz, 20 I&N Dec. 346 (BIA
1991). In Matter of De La Cruz we held that the statutory scheme and
language of section 242(a)(2)(B) created a presumption against the
release from Service custody of any alien convicted of an aggravated
felony unless the alien demonstrated that he was an alien lawfully
admitted for permanent residence, not a threat to the community, and
likely to appear for any scheduled hearings' Matter of De La Cruz is
hereby modified to the extent necessary to comport with the revised
statutory language of section 242(a)(2)(B) of the Act. Specifically, we
hold that the alien bears the burden of showing that he was lawfully
admitted to the United States, that he is not a threat to the
community, and that he is likely to appear before any scheduled
hearings.
Here, the immigration judge stated in his decision that the
respondent is not statutorily eligible for any form of relief from
deportation, which is a factor that contributes to the likelihood that
the respondent will not appear for his deportation hearing. See, e.g.,
Matter of Andrade,
19 I&N Dec. 488, 490 (BIA 1987). Further, the
immigration judge found that the respondent's serious criminal history
rendered him a threat to the community. The respondent failed to
rebut these findings. Accordingly, the appeal will be dismissed.
ORDER The appeal is dismissed.
2 This interpretation is reinforced by the revised statutory language of section
242(a)(2)(B) of the Act, which now states that the Attorney General is prohibited from
releasing a lawfully admitted alien convicted of an aggravated felony "unless the alien
demonstrates" that he is neither a threat to the community nor a poor bail risk. This
language more clearly reflects that the alien has the burden of going forward to establish
his eligibility for release from custody than did the former language, which stated that
the Attorney General "shall" conditionally release an alien if he determines that the
alien is not a threat to the community and not a poor bail risk.
