U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Vtrgm1a 22041

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Cardenas, Jr., Rudy OHS/ICE Office of Chief Counsel - IMP
Cardenas & Fifield,APC 1115 N. Imperial Ave.
765 Broadway Street El Centro, CA 92243
EL Centro, CA 92243

Name: R .ES-MARTINEZ, R A 256

Date of this notice: 5/24/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: R-R-M-, AXXX XXX 256 (BIA May 24, 2017) J
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike. Sutte 2000

Falls Church, Vtrgm1a 22041

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R -M , R OHS/ICE Office of Chief Counsel - IMP
256 1115 N. Imperial Ave.
CIO MTC- IRDF El Centro, CA 92243
1572 GATEWAY ROAD
CALEXICO, CA 92231

Name: R -M , R A 256

Date of this notice: 5/24/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F .R. 1292.5(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

:' 7 J--IAl-
J
I

0
'

....
l/Jro
Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Malphrus, Garry D.

Userteam:

Cite as: R-R-M-, AXXX XXX 256 (BIA May 24, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: 256 - Calexico, CA Date: MAY 2 2017

In re: OR -M a.k.a.

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF APPLICANT: Rudy Cardenas, Jr., Esquire

ON BEHALF OF OHS: Kathryn Stuever

Senior Attorney

APPLICATION: Redetermination of custody status

The applicant, a native and citizen of Honduras, appealed the hnmigration Judge's bond
decision, dated October 21, 2016, which denied his request for release from detention. See
Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), cert. granted sub nom. Jennings v. Rodriguez,
136 S. Ct. 2489 (2016). The Department of Homeland Security requested summary affirmance.
The record will be remanded.

We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals are reviewed de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii).

The Immigration Judge found "the applicant failed to present additional evidence to overcome
the law of the case" (l.J. Bond Memo at 7). Upon our review, we find this application of law
improper, as each new 6-month period requires a de novo hearing, and the length of detention is
itself a factor. See Rodriguez v. Robbins, supra, at 1086-90. Hence, we will remand the record to
the hnmigration Judge to apply a de novo review of the applicant's particular circumstances.
Accordingly, the following order will be entered.

ORDER: The Immigration Judge's order is vacated and the record is remanded to allow
the hnmigration Judge an opportunity to revi the applicant's case based on the foregoing
decision.

Cite as: R-R-M-, AXXX XXX 256 (BIA May 24, 2017)

..

. . .

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2409 LA BRUCHERIE ROAD
IMPERIAL, CA 92251

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Cardenas & Fifield, APC
Cardenas, Jr., Rudy
765 Broadway Street
EL Centro, CA 92243

Date: Dec 13, 2016

File 256

In the Matter of:

R - , R

Attached is a copy of the written decision of the Immigration Judge.

This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).

Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.

You are granted until to submit a brief

to this office in support of your appeal.

Opposing counsel is granted until to subm tA; a

brief in opposition to the appeal.

Enclosed is a copy of the order/decision of the Immigration Judge.

All papers filed with the Court shall be accompanied by proof

of service upon opposing counsel.
.

. ..
. UL
cc: DISTRICT COUNSEL
1115 N IMPERIAL AVE
EL CENTRO, CA 922430000

. : 11,'i
. .wi
"'11,1'1

I
. -t

I

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
2409 La Brucherie Road
Imperial, California 92251

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File No.: 256 ) Date: December 9, 2016
)
In the Matter of )
) IN BOND PROCEEDINGS
R A R -M , )
)
Applicant. )

ON BEHALF OF THE APPLICANT: ON BEHALF OF THE DEPARTMENT OF

HOMELAND SECURITY

Rudy Cardenas, Jr., Esquire DHS Counsel

765 Broadway Street 1115 North Imperial Avenue
El Centro, California 92243 El Centro, California 92243

BOND MEMORANDUM OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

The applicant was removed from the United States on June 13, 2013. (Form I-871, Notice
of Intent/Decision to Reinstate Prior Order.) On or about August 19, 2015, the applicant illegally
reentered the United States at or near Calexico, California. (Id.) On August 19, 2015, the
Department of Homeland Security ("DHS") personally served upon the applicant a Form 1-871,
Notice of Intent/Decision to Reinstate Prior Order, in which the DHS informed the applicant of its
intention to reinstate the applicant's prior order of removal executed on June 13, 2013. (Id.) The
applicant expressed a fear of return to his home country of Guatemala, and on September 1, 2016,
an asylum officer determined that the applicant has a reasonable fear of facing persecution if he
were returned to Guatemala. (Bond Exh. IA, Form I-899, Record of Determination/Reasonable
Fear Worksheet) On September 15, 2015, the DHS filed a Notice of Referral to Immigration
Judge with the Immigration Court in Imperial, California, thereby vesting this Court with
jurisdiction over the applicant's withholding-only proceedings. (Bond Exh. 1, Form 1-863, Notice
of Referral to Immigration Judge; see also 8 C.F.R. 1208.3 l (e); 1003. l 9(c)( l ) (2015).)

On March 10, 2016, the Court conducted a custody redetermination hearing, pursuant to
Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), cert. granted sub nom. Jennings v.
Rodriguez, 136 S.Ct. 2489 (Mem.), 84 U.S.L.W. 3562 (U.S. June 20, 2016) (No. 15-1204)
(hereinafter "Rodriguez III"), which mandates that the Court hold periodic custody
redetermination hearings for certain detained aliens every six months. The Court found that it had
jurisdiction to conduct a custody redetermination pursuant to Ninth Circuit precedent. (April 19,
2016 Bond Memorandum of the Immigration Judge, at 1 (citing Rodriguez III and Dioufv.


Napolitano, 634 F.3d 1081 (9th Cir. 2011)). During that hearing, the Court detennined that the
OHS met its burden to show, by clear and convincing evidence, that the applicant is a flight risk
and denied bond. (Id. at 2.) The applicant appealed the decision of the Immigration Judge, and
on July 21, 2016, the Board oflmmigration Appeals affinned the Immigration Judge's decision.
(July 21, 2016 Decision of the Board oflmmigration Appeals).

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On August 3, 2016, the applicant petitioned for a six-month review of his custody status,
pursuant to Rodriguez III. (Bond Exh. 2.) On October 21, 2016, the Court conducted a custody
redetennination hearing and detennined that the OHS met its burden to show, by clear and
convincing evidence, that the applicant remains a flight risk. (Order of the Immigration Judge,
Oct. 21, 2016.) Again, the Court denied bond. (Id.) The Court has been infonned that an appeal
of its decision was filed with the Board of Immigration Appeals, and this memorandum explains
the Court's decision to deny bond.

II. STATEMENT OF LAW

a. Jurisdiction

The Court found it had jurisdiction to hold a custody redetennination hearing pursuant to
the law of the case doctrine, which states that courts "generally refuse to reconsider an issue that
has already been decided by the same court or a higher court in the same case." Rodriguez III,
1
804 F.3d at 1080 (citing Gonzalez v. Arizona, 677 F.3d 383, 389 n. 4 (9th Cir.2012) (en banc)).
The Court previously addressed jurisdiction in this case, and the Board of Immigration Appeals
upheld the Immigration Judge's decision. (April 19, 2016 Bond Memorandum of the
Immigration Judge, at l; July 21, 2016 Decision of the Board of Immigration Appeals.)

Furthennore, the Court finds it has jurisdiction to hold a custody redetennination hearing
pursuant to the Rodriguez litigation.2 Congress granted the OHS general authority to detain aliens
"pending a decision on whether the alien is to be removed from the United States." INA 236(a);
see also Casas-Castrillon v. DHS, 535 F.3d 942, 949 (9th Cir. 2008) (noting that aliens "capable
of being removed" are properly held under 236(a)). Aliens detained pursuant to section 236(a),
though initially eligible for release on bond, acquire Rodriguez class membership once their
detention becomes prolonged. See Rodriguez Ill, 804 F.3d at 1085 (citing Casas, 535 F.3d at
949-52).

Congress has also directed the detention of aliens in specific categories. For example,
individuals subject to expedited removal, including those individuals in pending credible fear
proceedings, are mandatorily detained without bond pursuant to section 235(b)(l)(B)(iii)(IV) of
the Immigration and Nationality Act ("the Act"). INA 235. Aliens subject to specific criminal
grounds of inadmissibility or deportability are mandatorily detained without bond under section

1 There are some exceptions to the law of the case doctrine, including where ( l) the decision is clearly erroneous and
"

its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration
appropriate, or (3) substantially different evidence was adduced at a subsequent trial." Gonzalez v. Arizona, 677 F.3d
at 389 n. 4 (citing Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir.1997) (en bane)).
2 The Court alternatively finds that if the applicant is held pursuant to a "final order of removal," the Court has
jurisdiction to make a custody redetermination pursuant to Dioufv. Napolitano, 634 F.3d 108 l (9th Cir. 2011).

256 2 December 9, 2016


236(c) of the Act. Additionally, aliens held"during" or ..beyond" the removal period are subject
to detention pursuant to sections 24l(a)(2) and (a)(6) of the Act, respectively.

In 2013, the District Court for the Central District of California expanded its definition of
the Rodriguez class to include all aliens who "are or were detained for longer than six months
pursuant to one of the general immigration detention statutes pending completion of removal

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proceedings, including judicial review." Rodriguez v. Holder, No. 2: 07- CV- 03239, 2013 WL
5229 795*1 (C.D. Cal. 2013) . As to the definition of"removal proceedings" the district court
noted that such term"does not narrowly refer to its use in [section 240 of the Act], but to any
proceedings to determine whether persons detained pursuant to the general immigration statutes ..
. will be removed from the United States." Id. The district court noted that the Rodriguez class
encompasses four subclasses of aliens including: ( 1) aliens detained under section 235(b) of the
Act; (2) aliens detained under section 236(a) of the Act; (3) aliens detained under section 236(c)
of the Act; and (4) aliens detained under section 24l(a) of the Act. Id. The court further ordered
that ..class membership includes, inter a/ia, detainees incarcerated for restatement [sic] under
[section 24l(a)(5) of the Act], detainees held for proceedings initiated by an administrative
removal order under [section 23 8(b) of the Act]; and detainees held under the general
immigration statutes after entering the United States through the Visa Waiver Program." Id.

This order was affirmed in part and reversed in part by the Ninth Circuit in October 2015.
In reversing in part, the Ninth Circuit excluded aliens detained under section 24l(a) of the Act
from its definition of the Rodriguez class. Rodriguez Ill, 804F.3d at 1074. As such, aliens
subject to prolonged detention under sections 241(a)(2) and (a)(6) of the Act are not eligible for
bond redetermination hearings pursuant to Rodriguez Ill. Id at 1085-1086; but see Dioufv.
Napolitano, 634F.3d 108 1 (9th Cir. 201 1) (holding that individuals held pursuant to a final
removal order have the right to a bond hearing) .

In order for an alien to be detained ..during" or"beyond" a removal period under section
241(a) of the Act, the removal period must have commenced. The removal period begins on the
latest of either 1) the date the order of removal becomes administratively final; or, 2) if the alien
files a petition for review in the court of appeals and the court of appeals orders a stay of removal,
the date of the court of appeals' final order upholding the order of removal. INA
24l(a)( l )(B)(i) -(ii) ; see also Diouf, 634F.3d at 1085. The removal period ends 90 days from
commencement, or when the order is executed and the individual is removed from the United
States, whichever event occurs sooner. See INA 241(a)(l )(C) .

The Ninth Circuit has held that"where an alien pursues reasonable fear and withholding
of removal proceedings following the reinstatement of a prior order of removal, the reinstated
removal order does not become final until the reasonable fear of persecution and withholding of
removal proceedings are complete." Ortiz-Alfaro v. Holder, 694F.3d 955, 95 8 (9th Cir. 2012) ;
see also Andrade-Garcia v. lynch, 828F.3d 829, 833 (9th Cir. 2016) (noting that an IJ's negative
reasonable fear determination constitutes a final order of removal subject to judicial review).
Further, .. [a]t all times before the removal period begins and mandatory detention is authorized by
[section 241(a)(2) of the Act], the alien is subject to discretionary detention under [section 236(a)
of the Act.]" Diouf, 634F.3d at 1085; see also Rodriguez Ill, 804F.3d at 1086 n. 15; Guerra v.
Shanahan, 83 1F.3d 59, 64 (2d Cir. 2016) (holding that ..the language and structure of the statutes

256 3 December 9, 2016



dictate the conclusion that [a person's] detention during the pendency of his withholding-only
proceedings is detention pursuant to [section 236(a) of the Act]. The regulations offer no contrary
suggestion."). Thus, as a prior order of removal does not become "administratively final" until
the withholding-only proceedings are completed, such individuals are not detained pursuant to
section 24l(a) of the Act because their removal period has yet to commence. See INA
24l(a)( l )(B). Rather, Ninth Circuit case law compels this Court to conclude that such individuals

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are held pursuant to section 236(a) of the Act, "pending a decision on whether the alien is to be
removed from the United States." Diouf, 634 F.3d at 1085; but see 8 C.F.R. 1241.8(t).

This conclusion is further supported by the Ninth Circuit's holding that the subclass of
aliens detained under section 24l(a) of the Act who are simultaneously in ongoing removal
proceedings "does not exist." Rodriguez Ill, 804 F.3d at 1074, 1086. Specifically, the Ninth
Circuit noted that pursuant to the district court's definition, all class members must be detained
"pending completion of removal proceedings, including judicial review. The class therefore by
definition excludes any detainee subject to a final order of removal." Id. at 1086. One way
removal proceedings may be considered "ongoing" is if a Court, pending judicial review, issues a
stay of removal. Id. Because detention under section 24l(a) requires the removal period to
commence, it would be impossible to have a detainee simultaneously held "pending completion
of removal proceedings" and "during" or "beyond" the "removal period." Id.; see also INA
24 l (a)(l)(B)(ii) (noting that if a stay is issued, the removal period begins on the date of the
court's final order.) It was for this reason that the Ninth Circuit held that aliens detained under
section 241(a) cannot be class members; "[s]imply put, the [section 241(a)] subclass does not
exist." Rodriguez Ill, 804 F.3d at 1086.

Similarly, the Court finds here that an alien cannot be in withholding-only proceedings
and simultaneously detained under section 24l (a) of the Act. Furthermore, as the district court's
definition of "removal proceedings" extends beyond section 240 proceedings to include any
proceedings held "to determine whether persons detained pursuant to the general immigration
statutes ...will be removed from the United States," this Court finds applicants in withholding
only proceedings are held "pending completion of removal proceedings." Rodriguez v. Holder,
2013 WL 5229795 at *l; Rodriguez Ill, 804 F.3d at 1086. As such the Court concludes that
withholding-only applicants acquire 236(a) subclass membership once their detention becomes
prolonged. See Rodriguez Ill, 804 F.3d at 1090; but see Matter ofA-W-, 25 l&N Dec. 45, 46-47
(BIA 2009). Accordingly, because the applicant has been detained for over 180 days, the Court
finds that it has jurisdiction over the applicant's custody redetermination hearing under Rodriguez
/IJ.3

3 In the alternative, the Court finds that it has jurisdiction to re-detennine the applicant's custody status because the
Ninth Circuit did not explicitly overrule the district court's order expanding the Rodriguez class to include "detainees
incarcerated for restatement [sic] under section [241 (a)(5) of the Act]." Rodriguez, 2013 WL 5229795 at * l.
Accordingly, the Court finds it has jurisdiction to make a custody redetennination for persons in withholding-only
proceedings, as is the case here. Compare Rodriguez Ill, 804 F.3d at 1086, with Rodriguez v. Holder, 2013 WL
5229795 at *I.

256 4 December 9, 2016



b. Burden of Proof and Guerra Considerations

Ninth Circuit case law establishes that individuals detained pursuant to sections 235(b),
236(a), and 236(c) of the Act for over six months must be provided with an individualized bond
hearing before an Immigration Judge. Rodriguez Ill, 804 F.3d at 1077-1085. The OHS has the
burden in such hearings to establish, by clear and convincing evidence, that the applicant is a

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danger to the community or constitutes a flight risk such that his continued detention is justified.
Id at 1077. The Rodriguez III court held that the detention authority must be construed to contain
an implicit reasonable time limitation, such that bond hearings must occur when detention
becomes prolonged. Id. at 1079. A "detention [i]s prolonged when it has lasted six months and is
expected to continue more than minimally beyond six months." Id. at l 078 (citing Dioufv.
Napolitano, 634 F.3d 1081, l 092 n.13 (9th Cir. 2011)) (internal quotations omitted).

The Immigration Judge may consider various factors in determining whether an applicant
merits release from custody, as well as the amount of bond that is appropriate, and may consider
any evidence that is probative and specific. Matter of Guerra, 24 I&N Dec. 37, 40-41 (BIA
2006). The Immigration Judge has broad discretion in deciding which factors to consider in
custody redeterminations, and may choose to give greater weight to one factor over others, as
long as the decision is reasonable. Id These factors may include any or all of the following: (1)
whether the applicant has a fixed address in the United States; (2) length of residence in the
United States; (3) family ties in the United States, and whether they may entitle the applicant to
reside permanently in the United States in the future; (4) employment history; (5) record of
appearance in court; ( 6) criminal record, including the extensiveness of criminal activity, the
recency of such activity, and the seriousness of the offenses; (7) history of immigration violations;
(8) any attempts to flee prosecution or otherwise escape from authorities; and (9) the manner of
entry to the United States. Id (citations omitted). An applicant who is likely to abscond is a poor
bail risk and does not merit release on bond. See id. at 40.

III. FINDINGS AND ANALYSIS

Pursuant to the Rodriguez III litigation, the DHS bears the burden of proof to demonstrate,
by clear and convincing evidence, that the applicant is a danger to the community or constitutes a
flight risk such that his continued detention is justified. Rodriguez Ill, 804 F.3d at 1077. The
OHS did not assert that the applicant poses a danger to the community, and the parties agreed that
flight risk is the only issue in dispute.

The DHS argued that since the Immigration Judge and the Board of Immigration Appeals
issued their decisions denying the applicant's request for a change in his custody status, the
applicant had not submitted any additional information to the Court to demonstrate a change in
the circumstances of his case. The Immigration Judge and the Board of Immigration Appeals
each found that the OHS had met its burden to demonstrate, by clear and convincing evidence,
that the applicant is a flight risk. (April 19, 2016 Bond Memorandum of the Immigration Judge;
July 21, 2016 Decision of the Board of Immigration Appeals.) The OHS argued that these
findings should stand as the law of the case, and that the applicant should continue to be held
without bond.

256 5 December 9, 2016



In response, the applicant's counsel contended the DHS failed to meet its burden to
demonstrate that the applicant presented a flight risk. The applicant appeared without
representation at his previous hearing, during which the judge was concerned about the
citizenship of the applicant's proposed sponsor. The applicant's attorney stated that in the most
recent documents presented to the Court, they had submitted evidence of the proposed sponsor's
citizenship in the form of a Certificate of Naturalization. (Bond Exh. 6, at 2.) The Court

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attempted to verify with the applicant's counsel whether this Certificate of Naturalization was
presented in the previous hearing, and the applicant's counsel answered that it was his belief that
the documents were not presented at the last hearing.

The Court ascertained that the applicant's counsel had represented the applicant on appeal,
which the applicant's counsel confirmed. The Court further inquired whether the applicant's
counsel had requested a remand of the case, and the applicant's counsel answered that he had not
asked for remand. The Court confirmed with the applicant's counsel that this was the same
proposed sponsor as the sponsor presented at the previous hearing, and the applicant's counsel
answered that it was indeed the same sponsor. However, the applicant's counsel claimed the
Court that the sponsor's 2015 tax returns and Certificate ofNaturalization were not included in
the documents previously submitted to the Court. (Bond Exh. 7; Bond Exh. 6, at 2; see also
Applicant's Jan. 18, 2016 Request for Custody Hearing under Rodriguez v. Robbins.) The
applicant's counsel further stated that the applicant had indicated that he could obtain an
alternative sponsor, if necessary. The applicant informed the Court that he is a Christian, works at
the detention center, has been detained for more than 420 days, that his family's economic
wellbeing has suffered because the applicant has been unable to provide them with financial
support while detained, that he has no vices, is suffering psychologically in detention, and is
willing to submit to OPS monitoring to alleviate any flight risk concerns.

The DHS responded to the applicant's arguments by first pointing to specific references to
the proposed sponsor's naturalization and tax documents in the transcript from the previous
hearing, arguing that the information adduced at the present hearing was not substantially
different from that presented and considered at the previous hearing. (Transcript of Mar. 10, 2016
Hearing, at 4; compare Bond Exhs. 6-7 with Mar. 10, 2016 Bond Exh. 2.) Counsel for the DHS
argued that the applicant has limited relief available, due to the fact that he is in withholding-only
proceedings and subject to reinstatement of a prior removal order. Here, the DHS raised concerns
about the jurisdiction of the Court to reconsider the applicant's custody status, but stated that
nonetheless, the law of the case dictates that the applicant continues to be a flight risk.

The applicant's counsel claimed that he believed the Certificate of Naturalization was not
submitted previously because one basis for which the Board of Immigration Appeals dismissed
the applicant's appeal was the insufficiency of the documentation submitted regarding the
proposed sponsor's citizenship. Counsel for the DHS again directed the Court to the March 10,
2016 Transcript of Hearing, which specifically references the Certificate of Naturalization of the
applicant's proposed sponsor, and in which the Immigration Judge asked the applicant what his
relationship was to his proposed sponsor. (Transcript of Mar. 10, 2016 Hearing, at 4.) The
applicant informed the Court at the prior hearing that his proposed sponsor is the husband of the
applicant's friend. (Id.) Counsel for the DHS pointed to the decision of the Board of Immigration
Appeals, which "declined to disturb the Immigration Judge's bond decision." (July 21, 2016

256 6 December 9, 2016


.

Decision of the Board of Immigration Appeals.) The Board of Immigration Appeals referred in
its decision to the Immigration Judge's findings that the evidence of the proposed sponsor's
citizenship was insufficient and that the applicant's relationship with the proposed sponsor was
"ambiguous and undefined." (July 21, 2016 Decision of the Board of Immigration Appeals; see
also April 19, 2016 Bond Memorandum of the Immigration Judge.)

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The Court noted that the OHS did not raise the issue of jurisdiction on appeal, and that
after the Board of Immigration Appeals affirmed the Immigration Judge's decision, the Court's
jurisdictional fmdings became the law of the case. The Court turned to the additional evidence
submitted to the Court before this hearing, which was an unsigned, undated 2015 income tax
document alleged to demonstrate the income of the applicant's proposed sponsor. (Bond Exh. 7.)
The Court compared the income of the applicant's proposed sponsor to the federal poverty
guidelines, and noted that the income of the applicant's proposed sponsor only just meets the
poverty guidelines for a family of four by approximately$500. (Bond Exh. 7); see Form I-864P,
2016 HHS Poverty Guidelines for Affidavit of Support, available at https://www.uscis.gov/sites/
default/files/files/fonn/i-864p.pdf. The Court pointed out that the household of the applicant's
proposed sponsor already consists of four individuals-; with the applicant, the household number
would rise to five. See Fonn I-864P (requiring an income of$35,550 for a household size of
five). Accordingly, the Court questioned the financial ability of the applicant's proposed sponsor
to support the applicant.

Regarding the applicant's claim that the applicant could present an alternative sponsor, the
Court noted that the applicant has had several months to gather and present such evidence since
the Board of Immigration Appeals issued its decision, and that the applicant has had the
assistance of his current legal counsel since he presented his appeal. (See Appellant's Brief; Form
EOIR-27.)

IV. CONCLUSION

The Court considered all of the infonnation, evidence, and arguments presented by the
parties. See Guerra, 24 I&N Dec. at 40. The Court found that the applicant failed to present
additional evidence to overcome the law of the case. Gonzalez v. Arizona, 611F.3dat389 n. 4.
Furthermore, the Court decided that the OHS met its burden to show, by clear and convincing
evidence, that the applicant remains a flight risk. Rodriguez Ill, 804 F.3d at 1077. The Court
determined that no amount of bond or alternative to detention would sufficiently ensure the
respondent's appearance and continued participation in his withholding-only proceedings, or, if
necessary, his surrender for removal from the United States. Id Therefore, the Court denied the
applicant's request for a change in his custody status.

cc: Mr. Cardenas for the applicant.

Counsel for the OHS.

256 7 December 9, 2016