Cotrufo

Cite as 

 (BIA 2025)                                Interim Decision #4132




             Matter of Alessandro COTRUFO, Respondent
                       Decided by Board August 28, 2025 1
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                         Board of Immigration Appeals

  The respondent’s recent convictions involving unlawful sexual conduct with a minor,
combined with the probation officer’s report submitted for the purpose of sentencing, show
that the respondent is a danger to the community.
FOR THE RESPONDENT: Robert F. Jacobs, Esquire, Santa Fe Springs, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Saida K. Ulle, Assistant Chief
Counsel
BEFORE: Board Panel: HUNSUCKER, Appellate Immigration Judges; GEMOETS and
MCCLOSKEY, Temporary Appellate Immigration Judges.
HUNSUCKER, Appellate Immigration Judge:


    The Department of Homeland Security (“DHS”) appeals from the
Immigration Judge’s November 1, 2024, decision 2 ordering the respondent’s
release from custody on a bond of $6,500, and alternatives to detention at
DHS’ discretion. The respondent has filed a brief on appeal. We will sustain
DHS’ appeal, vacate the Immigration Judge’s bond order, and order the
respondent held in DHS’ custody without bond.

    We will sustain DHS’ appeal because, under our de novo review, the
Immigration Judge erred in holding that the respondent met his burden of
proving that his release would not present a danger to the community. See
Matter of Guerra, 

 (BIA 2006) (“The burden is on the
alien to show to the satisfaction of the Immigration Judge that he or she
merits release on bond.”). Whether an alien poses a danger to the community
upon release is a question of judgment that we review de novo, but the factual

1
    Pursuant to Order No. 6419-2025, dated September 23, 2025, the Attorney General
designated the Board’s decision in Matter of Cotrufo (BIA Aug. 28, 2025), as precedent in
all proceedings involving the same issue or issues. See 

(g)(3) (2025).
Editorial changes have been made consistent with the designation of the case as a
precedent.
2
   On November 20, 2024, the Immigration Judge issued a written decision in support of
the bond order.
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findings underlying the judgment are reviewed for clear error. 

(d)(3)(i)–(ii) (2025).

    We discern no clear error in the Immigration Judge’s findings that the
respondent was recently convicted of one felony count of unlawful sexual
intercourse with a minor, in violation of section 261.5(c) of the California
Penal Code, and two counts of oral copulation (one felony and one
misdemeanor) of a person under 18 years of age, in violation of section
287(b)(1) of the California Penal Code. Section 261.5(c) provides as
follows:
     A person who engages in an act of unlawful sexual intercourse with a minor who is
     more than three years younger than the perpetrator is guilty of either a misdemeanor
     or a felony, and shall be punished by imprisonment in a county jail not exceeding
     one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(c) (West 2024). Section 287(b)(1) provides as
follows:
     Except as provided in Section 288, any person who participates in an act of oral
     copulation with another person who is under 18 years of age shall be punished by
     imprisonment in the state prison, or in a county jail for a period of not more than one
     year.

(b)(1) (West 2024).

   We also discern no clear error in the Immigration Judge’s findings that
the State court sentenced the respondent to 180 days in jail, 24 months of
probation, and restitution for the convictions. We also discern no clear error
in the Immigration Judge’s finding that it is undisputed that when the
respondent was 18 years old, he engaged in sexual intercourse and oral
copulation with a 14-year-old female, who initially told him that she was
16 years of age. The Immigration Judge also correctly found that the
respondent has no other conviction and successfully completed his sentence.

    We also discern no clear error in the Immigration Judge’s findings that
the probation officer, who prepared a report dated July 26, 2024, for the State
court conducted two objective tests, the Ohio Risk Assessment and the
Static 99, which indicated that the respondent is at a low or average risk of
reoffending. The record also reflects, however, that the probation officer’s
report characterized the respondent’s conduct as manipulative of a
“particularly vulnerable” 14-year-old girl, that the respondent displayed
“criminal sophistication or professionalism” in that he was aware of the girl’s
past sexual abuse trauma and used it to satisfy his own sexual gratification,
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and that the respondent had caused physical or emotional injury and did not
appear to be remorseful.

    The Immigration Judge’s decision to limit his review to only the
“undisputed facts and objective data” in the probation officer’s report, on the
grounds that the declarants were not available for cross-examination, was
unreasonable. See Matter of Guerra, 

 (holding that “[a]n
Immigration Judge has broad discretion in deciding the factors that he or she
may consider in custody redeterminations” and that “[t]he Immigration Judge
may choose to give greater weight to one factor over others, as long as the
decision is reasonable”). “In the context of custody redeterminations,
Immigration Judges are not limited to considering only criminal convictions
in assessing whether an alien is a danger to the community.” 

. “Any
evidence in the record that is probative and specific [including evidence of
criminal activity] can be considered.” 

 at 40–41. The probation officer’s
report is based on the officer’s assessment of the record evidence and
interviews with witnesses, was provided to the State court for its
consideration in sentencing the respondent for the convicted offenses, and is
relevant to whether he poses a danger if released to the community.

    Further, while the respondent objected to the Immigration Judge’s
consideration of the probation officer’s report on the grounds that it contains
hearsay, “it is well settled that hearsay rules are not binding in immigration
proceedings,” and “[i]n immigration proceedings, the ‘sole test for admission
of evidence is whether the evidence is probative and its admission is
fundamentally fair.’” See Matter of E-F-N-, 

, 593
(BIA 2022) (citations omitted). The probation officer’s report is probative
of the circumstances of the respondent’s criminal conduct, and the admission
of the report was fundamentally fair, as the respondent, the party with the
burden of proof in these bond proceedings, had the opportunity to present
evidence contradicting the statements in the probation officer’s report. In
fact, on appeal, the respondent does not object to inclusion of the probation
officer’s report in the record, and instead cites to it in support of his claim
that he is not a danger because the State court’s sentence, including the State
court’s decision not to require the respondent to register as a sex offender,
was based in part on the probation officer’s report.

   Under our de novo review, we conclude that the Immigration Judge erred
in holding that the respondent met his burden of proving that he is not a
danger. See 

(d)(3)(ii). The respondent was recently
convicted of two felonies and a misdemeanor involving unlawful sexual
intercourse and oral copulation with a 14-year-old girl when the respondent
was 18 years old. While the respondent initially thought the female was
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16 years old, he subsequently learned that she was 14 years old, and yet he
continued to engage in unlawful sexual relations with her. The respondent
intentionally engaged in unlawful sexual behavior with a girl who, due to her
young age, and the fact that she had experienced prior sexual abuse, was
especially vulnerable to the respondent’s unlawful sexual behavior. The
respondent’s behavior reflects a willingness and ability to manipulate
vulnerable persons into engaging in unlawful conduct to meet his own desires
and to do so at great harm to them.

    Thus, the respondent has not met his burden of proving that his release
would not pose a danger to the community.                      See Matter of
Beltrand-Rodriguez, 

 (BIA 2025) (holding that DHS met
its burden of proving dangerousness by clear and convincing evidence
because the alien engaged in sexual conduct with a 12-year-old female who
was also his half-sister, and thus his behavior was “dangerous and subjected
a person who was particularly vulnerable because of her age and her familial
relationship to the respondent to unlawful sexual conduct.”); see also
McKune v. Lile, 

 (2002) (noting that “[s]ex offenders are a
serious threat in this Nation”); Gonzalez-Cervantes v. Holder, 

 (9th Cir. 2013) (“Sexual abuse . . . is universally condemned by
Americans of conscience, not merely because it is wrong but because its evil
tendrils are detrimental to society.” (omission in original) (citation omitted));
Matter of Guerra, 

 (noting that evidence of criminal
activity is pertinent to whether the respondent poses a danger to the
community).

    Moreover, while the Ohio Risk Assessment indicated that the respondent
is at a low risk of reoffending, the Static 99 indicated that the respondent had
an average risk of reoffending, which further supports a determination that
the respondent did not meet his burden of proving that his release would not
pose a danger to the community. Further, while the State court did not
require the respondent to register as a sex offender, the State court convicted
the respondent of two felonies and a misdemeanor involving unlawful sexual
conduct with a minor and sentenced him to 180 days in jail for the offenses.

    The respondent argues that the State court’s willingness to accept a plea
deal negotiated between the State and the respondent’s criminal counsel, and
the State court’s imposition of a sentence which, among other things, did not
require the respondent to register as a sex offender, supports a determination
that he is not a danger to the community. On the contrary, the Immigration
Judge and the Board do not owe deference to any particular aspect of the
State court’s sentencing order in these immigration bond proceedings,
including the State court’s decision against requiring the respondent to
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register as a sex offender. See Matter of Choc-Tut, 

(BIA 2025) (noting that Immigration Judges “do[] not owe a State court
custody order deference . . . [because] [t]he legal standards for bail in State
court may be different than in Immigration Court and there may be a variety
of reasons why an Immigration Judge may or should reach a different
determination than a State court judge”).

   The respondent also cites to positive equities in the record, including his
contributions to the community, as evidence demonstrating that he is not a
danger. The respondent’s argument is unavailing because “family and
community ties generally do not mitigate an alien’s dangerousness.”
Matter of Siniauskas, 

 (BIA 2018).

    Under our de novo review, we hold that the respondent did not meet his
burden of proving that his release would not pose a danger to the community,
and the Immigration Judge erred in granting the respondent’s release on
bond. See Matter of Urena, 

 (BIA 2009) (“Dangerous
aliens are properly detained without bond.”). Accordingly, the following
orders will be entered.

   ORDER: DHS’ appeal is sustained.
   FURTHER ORDER: The Immigration Judge’s November 1, 2024,
bond order is vacated, and the respondent is ordered held in DHS’ custody
without bond.




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