Interim Decision #3221
MATTER OF DRYSDALE
In Bond Proceedings Pursuant to 8 C.F.R. § 242.2(d)
A 41454.629
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Decided by Board May 25, 1994
(1) In bond proceedings under section 242(a)(2)(B) of the Immigration and Nationality
Act, 8 U.S.C. § 1252(a)(2)(B) (Supp. IV 1992), there is a presumption against the
release from the Immigration and Naturalization Service's custody of any alien
convicted of an aggravated felony unless the alien demonstrates that he was lawfully
admitted to the United States, is not a threat to the community, and is likely to appear
for any scheduled hearings.
(2) If a lawfully admitted alien convicted of an aggravated felony cannot rebut the
statutory presumption that ho is a danger to the community, he should be detained in
the custody of the Service.
(3) Once a lawfully admitted alien convicted of an aggravated felony rebuts the
presumption that he is a danger to the community, the likelihood that he will appear
for future proceedings becomes relevant in assoaiug tho amount of bond needed to
motivate the respondent to appear.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Leo Jerome Lahey, Esquire Richard J. Averwater
P.O. Box 51778 General Attorney
Lafayette, Louisiana 70505-1778
BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members
The respondent has appealed from a decision, dated November 29.
1993, in which the immigration judge ordered that a bond be set for
the respondent in the amount of $20,000. The appeal will be
dismissed.
The respondent is a native and citizen of Jamaica, who entered the
United States as a lawful permanent resident on June 24, 1988, when
he was 17 years of age. The respondent attended high school in the
United States. However, he left school without graduating and
continued to reside with his mother and five brothers in Los Angeles,
California, for 1 year. He then traveled to Oregon to live with a cousin.
This cousin was engaged in drug trafficking, with which the respondent
also became involved. The respondent was subsequently convicted on
May 14, 1991, in the United States District Court for the District of
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Oregon, of the offense of distribution of cocaine. While the respondent's criminal trial was pending, he remained in a halfway house.
The respondent's mother and three of his brothers are lawful
permanent residents. The respondent's other two brothers are United
States citizens. The respondent's employment history consists of an
unspecified period of part-time employment in a grocery store while he
was living with his family in Los Angeles. Also, after leaving high
school, the respondent completed coursework in typing, computer use,
and word processing with the Los Angeles Urban League Youth
Services. The record contains a letter which states that the respondent
has an employment prospect with a cleaning company in Los Angeles.
On July 15, 1991, the Immigration and Naturalization Service
issued an Order to Show Cause and Notice of Hearing (Form I-221)
against the respondent, charging him with deportability under section
241(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1251(a)(2)(A)(iii) (Supp. III 1991), because the drug trafficking
crime of which he was convicted constitutes an aggravated felony
pursuant to section 101(a)(43) of the Act,
8 U.S.C. § 1101(a)(43)
(Supp. HI 1991). The district director of the Service determined that
the respondent should remain detained in the Service's custody, The
respondent requested a custody redetermination. The immigration
judge determined that bond should be set in the amount of $20,000.
This appeal followed.
On appeal, the respondent requests that bond be set at $5,000 or
less. He claims that the immigration judge set bond in an excessive
amount because he failed to give sufficient weight to the evidence that
was presented to show that the respondent is neither a threat to the
community nor a bail risk.
Since the respondent was convicted of an aggravated felony, his
request for a bond redetermination is governed by section 242(a)(2) of
the Act,
8 U.S.C. § 1252(a)(2) (Supp. IV 1992). Matter ofEllts,
20 I&N
Dec. 641 (BIA 1993). 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
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.
We have held that the statutory scheme and the language of section
242(a)(2)(B) create a presumption against the release from Service
custody of any alien convicted of an aggravated felony unless the alien
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demonstrates that he was lawfully admitted to the United States, is not
a threat to the community, and is likely to appear for any scheduled
hearings. Matter of De La Cruz, 20 I&N Dec. 346 (BIA 1991),
modified, Matter of Ellis, supra.
Here, the immigration judge found that the respondent had
rebutted the statutory presumption because his successful completion
of a term in a halfway house, as well as his exemplary behavior as a
prisoner, demonstrated that he was not a danger to the community or a
bail risk. Specifically, the immigration judge stated that the respondent
"is not a flight risk or a danger to the community." However, he added
that "a significant bond is still needed to insure his presence at future
hearings."
Upon our review of the record, we find, contrary to the respondent's
allegation on appeal, that the immigration judge did consider the
factors relevant to a bond determination in rendering his decision. See
Matter of Andrade,
19 I&N Dec. 488, 489 (BIA 1987);
8 C.F.R.
§ 242.2(h)(1) (1993). However, the immigration judge's statement that
the respondent is "not a flight risk or a danger to the community" is
inconsistent with his determination that a $20,000 bond is required to
ensure the respondent's presence at future hearings. Once it is
determined that an alien does not present a danger to the community
or any bail risk, then no bond should be required. See generally Matter
of Patel,
15 I&N Dec. 666 (BIA 1976); Matter of Kwun,
13 I&N Dec.
457 (BIA 1969, 1970).
We interpret the statutory framework under section 242(a)(2)(B) of
the Act, in terms of evaluating whether the alien has rebutted the
statutory presumption against him, to involve a two-step analysis.
First, if the alien cannot demonstrate that he is not a danger to the
community upon consideration of the relevant factors, he should be
detained in the custody of the Service. We reach this conclusion by
reference to the plain words of section 242(a)(2)03) of the Act, which
requires an alien convicted of an aggravated felony to demonstrate
that he "is not a threat to the community." See also Carlson v. Landon,
342 U.S. 524, 537-42 (1952) (stating that potentially dangerous
resident aliens may be detained without bail during pendency of
deportation proceedings); cf. United States v. Salerno,
481 U.S. 739,
746 52 (1 987) (upholding authorization of pretrial detention on the
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basis of future dangerousness as a permissible form of regulation under
the Bail Reform Act of 1984). However, if an alien rebuts the
presumption that he is a danger to the community, then the likelihood
that he will abscond becomes relevant.
Section 242(a)(2)(B) of the Act requires an alien convicted of an
aggravated felony to show that he is "likely to appear for any
scheduled hearing," as opposed to mandating a showing that he will
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appear. Unlike the standard for determining if there is a danger to the
community, this language allows for flexibility. The likelihood, or
probability, of appearance could vary from none to great. This enables
the immigration judge to set a bond according to his assessment of the
amount needed to motivate the respondent to appear in light of the
considerations deemed relevant to bond determinations. This bond
constitutes an appearance bond, as contemplated by the regulation at 8
C.F.R. § 242.2(h)(2) (1993), which deals with release procedures for
aliens convicted of an aggravated felony.
Here, the immigration judge, for the reasons stated in his decision,
found that the respondent does not present a danger to the community. However, it was his assessment that a significant bond was
required. The purpose of the bond is to ensure the respondent's
presence at future proceedings. Under the circumstances presented
here, where the respondent left his parental home and moved to
another area, committed a serious drug trafficking crime soon after
entering the United States, and was ineligible for any form of relief
from deportation, we agree with the immigration Judge's bond
determination. This assessment is reinforced by the fact that the
respondent is now subject to an administratively final order of
deportation.' See Matter of Andrade, supra;
8 C.F.R. § 242.2(h)(1)
(1993). Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
I The respondent's appeal front an immigration judge's order of deportation was
dismissed by this Board on February 24, 1994.
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