Interim Decision #3313
In re Modesto Adalberto MELO-Pena, Respondent
File A36 557 344 - Oakdale
Decided February 20, 1997
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In bond proceedings under the Transition Period Custody Rules, the standards set forth in
Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994), apply to the determinations of whether
the alien’s release pending deportation proceedings will pose a danger to the safety of persons or of property and whether he or she is likely to appear for any scheduled proceeding.
(2) The “is deportable” language as used in the Transition Period Custody Rules does not
require that an alien have been charged and found deportable on that deportation ground.
Matter of Ching,
12 I&N Dec. 710 (BIA 1968); and Matter of T-,
5 I&N Dec. 459 (BIA
1953), distinguished.
(3) The Transition Period Custody Rules do not limit “danger to the safety of persons or of
property” to the threat of direct physical violence; the risk of continued narcotics trafficking
also constitutes a danger to the safety of persons.
FOR THE RESPONDENT1: Kerry William Bretz, Esquire, New York, New York
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Harris Lee Leatherwood,
Assistant District Counsel
BEFORE: Board Panel: HOLMES, FILPPU, and GUENDELSBERGER, Board Members.
HOLMES, Board Member:
This is a timely appeal from an Immigration Judge’s February 14, 1996,
bond redetermination decision denying the respondent’s request for a change
in custody status and ordering him detained without bond. The appeal will be
dismissed.
The respondent, a 29-year-old native and citizen of the Dominican Republic, was admitted to the United States as a lawful permanent resident on July
22, 1978, when he was 11 years old. In this country, the respondent has accumulated a criminal history including convictions for two drug-trafficking
offenses in 1987 and 1989. The respondent’s convictions are substantiated by
conviction documents in the file. He was charged with deportability for his
1 Attorney Bretz’s February 18, 1997, request to withdraw as counsel is granted.
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1987 drug-trafficking offense as having been convicted of a controlled substance violation under section 241(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B) (1994). In denying the respondent’s request
for a change in custody status, the Immigration Judge concluded that, while
there were some equities presented, he was “not convinced that the respondent would refrain from any further criminal activity if he were released on
bond.” The record reflects that the respondent is currently detained in immigration custody.
In accordance with Matter of Noble,
21 I&N Dec. 672 (BIA 1997), the
respondent’s bond redetermination is now governed by the Transition Period
Custody Rules (“transition rules”) enacted during the pendency of the appeal
by section 303(b)(3) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of
Pub. L. No. 104-208, 110 Stat.
3009-546, 3009-586 (enacted Sept. 30, 1996) (“IIRIRA”). See also Matter of
Valdez,
21 I&N Dec. 703 (BIA 1997).
As a lawfully admitted alien, the respondent is eligible for release from
immigration custody under the transition rules, provided he can satisfy the
statutory dangerousness and flight risk requirements similar to those which
were applied by the Immigration Judge below. Matter of Noble, supra; see
also Matter of Drysdale,
20 I&N Dec. 815 (BIA 1994). Given that the inquiries are essentially the same, in reviewing the Immigration Judge’s findings
on flight risk and dangerousness to the community, we apply our aggravated
felony bond case law as reflected in Matter of Drysdale, supra. See Matter of
Noble, supra, at 687.
On appeal, the respondent makes three general arguments relating to the
Immigration Judge’s determination that he failed to rebut the statutory presumption of dangerousness to the community.
First, the respondent asserts that because he was not charged with deportation as an aggravated felon, he should not be required to rebut any presumption of dangerousness to the community as a prerequisite to a bond
determination.
Second, the respondent argues that, even if it is presumed that he poses a
danger to the community, the Immigration Judge erred in determining that
this presumption had not been rebutted in this case. In this regard, the respondent indicates that the Immigration Judge gave the “overwhelming favorable
factors” and supporting documentation only superficial consideration at best.
As for the equities weighing in his favor, the respondent points to his long
residence in this country, strong family and community ties as confirmed by
documentation, and responsibility to support and care for his minor child
who is ill.
Third, the respondent submits that the Immigration Judge gave undue
weight in the bond analysis to his prior “three” drug convictions. As evidence
that he is presently not a danger to the community, the respondent states that
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he has never been convicted of a “violent” crime and has made rehabilitation
efforts since committing the drug-trafficking crimes over 8 years ago.
We address in turn each of the respondent’s arguments. First, it was the
respondent’s 1989 conviction for the drug-trafficking offense which brought
him within the ambit of former section 242(a)(2) of the Act, 8 U.S.C.
§ 1252(a)(2) (1994), not the deportation ground under which he was actually
charged. The respondent does not dispute that he was convicted of the 1989
drug-trafficking offense and therefore qualified as an aggravated felon as that
term was defined in the Act. See section 101(a)(43) of the Act,
8 U.S.C.
§ 1101(a)(43) (1994); see also
8 C.F.R. §§ 242.2(c), (h) (1996). Nor does he
dispute that the Immigration Judge advised him at the bond redetermination
hearing that he faced the presumptions of dangerousness to the community
and risk of flight.
The respondent is subject to similar presumptions of dangerousness and
flight risk under the transition rules, even though he was never charged with
deportability as an aggravated felon. The respondent’s controlled substance
deportation charge is one of the deportation grounds covered in the transition
rules.2 See section 303(b)(3)(A)(iii) of the IIRIRA. At a minimum, we find
that evidence of the respondent’s 1987 and 1989 drug-trafficking convictions
is sufficient to bring him within the controlled substance deportation ground
covered in the transition rules. Id.; see also section 101(a)(43) of the Act, as
amended by IIRIRA § 321, 110 Stat. at 3009-627. In sum, we find that the
Immigration Judge correctly found applicable the presumptions of former
section 242(a)(2)(B) of the Act, and we find that these presumptions apply to
the respondent’s bond redetermination under the now governing transition
rules.
2 We are not satisfied that the meaning of the “is deportable” language in section
303(b)(3)(A)(iii) of the IIRIRA, a bond provision, is controlled by Matter of Ching, 12 I&N
Dec. 710 (BIA 1968) (finding “is deportable” language for suspension of deportation purposes
to require a charge and finding of deportability on that ground); or Matter of T-,
5 I&N Dec. 459
(BIA 1953). Cf. Kimm v. Rosenberg,
363 U.S. 405 (1960) (implicitly finding that “is
deportable” language in section 19 of the 1917 Immigration Act does not require a charge of
deportability); see also Mullen-Cofee v. INS,
976 F.2d 1375 (11th Cir. 1992). These prior
Board decisions analyzed provisions involving eligibility for relief from deportation, issues
which arise after a finding of deportation has already been made, in contrast to bond
determinations which are normally rendered before any finding of deportability. Moreover, we
note that it would be a Pyrrhic victory for the respondent (and lead to an absurd result) if we
were to adopt a construction of the “is deportable” language in section 303(b)(3)(A)(iii) as
requiring that the alien be charged with and found deportable as an aggravated felon. That is to
say, if the respondent’s aggravated felony convictions did not bring him within the scope of
section 303(b)(3)(A)(iii), then they would render him subject to mandatory detention under
section 303(b)(3)(A)(i) of the IIRIRA (covering aliens “convicted” of an aggravated felony for
which there is no explicit authority to release under the transition rules). Cf. Matter of Noble,
supra, at 682-85. It would be nonsensical to construe the law so as to bar the release of an alien
convicted of an aggravated felony until he or she was charged and found deportable as an
aggravated felon, but thereafter to allow for release on bond.
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Second, the record reflects that the Immigration Judge considered the
favorable factors presented by the respondent, including those substantiated
by documentation. The respondent’s family ties, long residence, and responsibility for his minor child have some relevance to the question of danger to
the community, although this evidence is primarily relevant to the issue of
flight risk. Despite the contention to the contrary, we find that the Immigration Judge gave proper weight to the favorable equities presented by the
respondent in assessing whether he overcame the presumption that he posed
a danger to the community if released pending deportation.
Third, the Immigration Judge gave appropriate weight in the bond analysis to the respondent’s prior criminal record, including his 1987 and 1989
drug-trafficking convictions. We note that the transition rules do not limit
“danger to the safety of other persons or of property” to the threat of violence.
Distribution of drugs is also a danger to the safety of persons. The scourge on
society of illegal drug trafficking and the associated criminal activity it generates is at this point beyond dispute. The record reflects that the respondent
has served over 8 years in criminal incarceration for his 1987 and 1989
drug-trafficking offenses. He acknowledged at the bond redetermination
hearing that he sold cocaine for 2 years. As the Immigration Judge noted, the
respondent returned to drug-trafficking activities only shortly after being
released from criminal incarceration for the 1987 offense. Particularly in
view of his past history, the respondent’s rehabilitation efforts during his last
7 years of criminal incarceration are not sufficient to overcome the statutory
presumption of dangerousness to the community in this case. We agree with
the Immigration Judge that, particularly given the respondent’s recidivist
criminal background, he has not rebutted the presumption that his release
would pose a danger to the community by virtue of future narcotics
trafficking.
ORDER: The appeal is dismissed.
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