U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pi/ce, Suite 2000

Falls Church, Virginia 22041

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Unger, Mia OHS/ICE Office of Chief Counsel - NYD
The Legal Aid Society 201 Varick, Rm. 1130
199 Water Street, 3rd Fl New York, NY 10014
New York, NY 10038

Name: P , G A 001

Date of this notice: 9/25/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Greer, Anne J.
Mullane, Hugh G.

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Userteam: Docket

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Cite as: G-P-, AXXX XXX 001 (BIA Sept. 25, 2017)
, U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 001-NewYork, NY Date: SEP 2 5 2017

In re: G P a.k.a

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Mia Unger, Esquire

APPLICATION: Redetermination of custody status

The respondent has appealed from the Immigration Judge's May 2, 2017, order denying him
bond. The basis for the Immigration Judge's decision is set forth in a bond memorandum. The
Department of Homeland of Security (DHS) has not responded to the appeal. The respondent's
appeal will be sustained, and the record will be remanded. 1

The parties agree that the respondent is detained pursuant to section 236(c) of the Immigration
and Nationality Act, and that the Immigration Judge conducted the custody redetermination
hearing pursuant to the authority of the United States Court of Appeals for the Second Circuit's
case, Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015) (holding that a "detainee must be
admitted to bail unless the government establishes by clear and convincing evidence that the
immigrant poses a risk of flight or a risk of danger to the community").

The Immigration Judge suggested it was a close case, but found that the OHS had met its
burden of establishing by clear and convincing evidence that the respondent was a danger to the
community and set no bond (U Bond Mem. at 3-5). We disagree that the DHS has met this high
burden and will remand for consideration of whether the respondent is a flight risk, and if some
bond might be set.

We acknowledge the reasoning of the Immigration Judge and agree that this is a close case,
yet we are not persuaded that the evidence proffered by the OHS establishes, by clear and
convincing evidence, that the respondent is a current danger to the community. However, we
emphasize that the Immigration Judge's consideration of all the evidence of unfavorable conduct
committed by the respondent was appropriate. Contrary to the respondent's contention on appeal,
our decision in Matter of Gue"a, 24 l&N Dec. 37 (BIA 2006), is applicable to this case and
dictates that an Immigration Judge may consider any evidence of bad behavior, including charged
offenses and arrests that did not ultimately result in conviction. The respondent cites no authority
for his argument that Matter of Gue"a is inapplicable or that Lora limited the type of evidence
that may be considered by an Immigration Judge in assessing whether the OHS met its burden to
establish by clear and convincing evidence that an alien poses a danger to the community or a
flight risk (Resp. Brief at 9-15).

1 The respondent's request for oral argument is denied.

Cite as: G-P-, AXXX XXX 001 (BIA Sept. 25, 2017)
I
001

The Immigration Judge found that the respondent had two serious convictions from the late
1990s, and numerous other arrests spanning from 2000 until 2010, all of which were either for
possession of marijuana in the 5th degree or turnstile jumping (IJ Bond Mem. at 3-4; Exh. Bond-
1, 3). The record does not reflect any arrests since 2010. Moreover, the respondent's crimes over
the last decade and a half have not been violent or posed a danger to others. While we agree that
the two convictions from the 1990s are very serious, we note that the respondent served limited

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jail time and has not been charged with similar behavior again. Furthermore, the Immigration
Judge noted that the respondent has been in the United States as a lawful permanent resident since
1974-nearly 43 years-and he has numerous health problems limiting his mobility; his age and
health further support the understanding that the respondent is not a current danger (IJ Bond Mem.
at 2; Exh. Bond 2). The DHS has a very high burden in this case, and they have not responded to
the appeal. We are unpersuaded that the evidence adduced establishes that the respondent poses
an ongoing danger to the community. As such, the Immigration Judge should evaluate the
respondent's flight risk and determine whether an appropriate bond may be set. On remand, both
parties may submit additional evidence.

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent
with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

Board Member Hugh G. Mullane would affirm the Immigration Judge and so dissents
without opinion.

2
Cite as: G-P-, AXXX XXX 001 (BIA Sept. 25, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK

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File: 001 May 2, 2017

In the Matter of

)
G P ) IN BOND PROCEEDINGS
)
RESPONDENT )

CHARGES:

APPLICATIONS: Custody, voluntary departure termination pursuant to Section

236(c) of the Immigration and Nationality Act, Lora bond hearing.

ON BEHALF OF RESPONDENT: MIA UNGER, ESQUIRE

LEGAL AID SOCIETY

ON BEHALF OF OHS: SARAH B. CAMPBELL, ASISSTANT CHIEF COUNSEL

ORAL DECISION OFTHE IMMIGRATION JUDGE

FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background is drawn from the exhibits

contained in the bond record of proceedings. See Bond Exhibits 1-3. The parties

carefully considered all the documentary evidence and the representations and

arguments, whether expressly cited in this decision or not. The hearing has been held

pursuant to Lora v. Shanahan, 804 F.3d 601, 616 (2nd Cir. 2015). In sum and
J
\ \

substance, the respondent is a native and citizen of Colombia who has been present in

the United States for a lengthy period of time. He was admitted as a lawful permanent

resident in 1974. See Bond Exhibit 1, tab B, the Notice to Appear. During the

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respondent's presence in the United States, he has developed very strong family ties in

the United States and has developed a number of significant health issues. And he has

also amassed a very significant criminal history spanning close to three decades. So all

of these are factors in the Court's balancing of the decision here. The parties agree that

respondent's detained pursuant to INA Section 236(c) and he falls within the ambit of

the Lora decision. The parties agree the Court has jurisdiction to conduct this

proceeding.

LEGAL STANDARDS

The Court recognizes that Lora altered the burden of proof in evidentiary

standards in bond hearings by shifting the burden from the alien to establish he is not a

danger to the community and does not pose a risk of flight, to OHS to establish an alien

should not be released on bond. Under Lora, an IJ "musr set bond "unless the

Government establishes by clear and convincing evidence that the immigrant poses a

risk of flight or a risk of danger to the community."

Lora did not, however, alter the less-settled precedent decisions from the

BIA regarding the factors that may be considered when determining whether the alien

poses a danger to the community or a risk of flight. See Matter of Guerra, 24 l&N Dec.

37, 40 (BIA 2006). ("An IJ has broad discretion in deciding the factors that he or she

may consult during custody redeterminations. ") Similarly, the principles governing the

standards that must be met before an alien may be released remain in effect. See

Matter of Urena, 25 l&N Dec. 140, 141 (BIA 2009). ("An Immigration Judge should only

set bond if she first determines that the alien does not present a danger to the

001 2 May 2, 2017

,

community.") Only after determining that an alien does not pose a danger to the

community "should an Immigration Judge continue to a determination regarding the

extent of flight risk posed by the alien." See Matter of Urena, 25 l&N Dec. 141 (BIA

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2009).

The BIA further held in Guerra that 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. Id. 40, 41.

Any evidence in the record that is probative and specific can be considered.

Accordingly, even if a respondent has not been convicted of offenses charged in a

criminal complaint, unfavorable evidence of conduct, including evidence of criminal

activity, is pertinent to the Immigration Judge's analysis regarding whether the

respondent poses a danger to the community. The question of whether an alien poses

a danger to the community is broader than determining if the record contains proof of

specific acts of past violence or direct evidence of an inclination toward violence.

Circumstantial evidence that an alien poses a danger to the community at large is

sufficient for a determination that a respondent should be held without bond. See

Matter of Fatahi, 26 l&N Dec. 791, 795 (BIA 2016).

ANALYSIS OF CLAIM

DANGER TO THE COMMUNITY

The Court finds OHS has met its burden by clear and convincing evidence

that the respondent poses a risk of danger to the community. I do take into

consideration the arguments respondent has made regarding some individualized

documents, the criminal records in some aspects about those documents that may not

be reliable. Specifically, the respondent disputes the reliability of the certificate of

disposition that is contained in Bond Exhibit 1, tab D; and Bond Exhibit 3, involving a

001 3 May 2, 2017

 (
'

sex abuse conviction from 1998. Even assuming the certificate of disposition in Bond

Exhibit 1 contains an error regarding the penal law section, there is no dispute that the

respondent was convicted at a minimum of the offense described in Bond Exhibit 3.

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And I do find that the indictment is some probative evidence of the underlying conduct.

I do not find that the clear and convincing danger to the community standard cited in

Lora requires that every single piece of evidence standing alone established clear and

convincing evidence of dangerousness. Rather, the record as a whole is considered. A

criminal docket generated by the criminal courts is generally reliable and probative. And

even taking into account that there may be clerical discrepancies, the record as a whole

is taken into consideration in this bond proceeding. I also take into account the

respondent's disputes about the potential unreliability of a rap sheet. However, this

case does not turn on individual entries in a rap sheet. The overriding factor that I take

into consideration and put significant weight on is the lengthy period of the respondent's

criminal conduct. I do take into account that over time the conduct has become

somewhat less dangerous. I do take into account that the more serious offenses

involve criminal sale of a controlled substance from the mid'90s, and the sex abuse

offense from the late '90s. But these two convictions are undoubtedly for conduct that

presents a risk of danger to the community.

However, even the respondent's more recent criminal conduct involving

marijuana is problematic with respect to danger to the community because it establishes

the respondent has a longstanding disregard for the criminal laws of this country. And

the respondent's recidivist conduct is a significant factor. And I put weight on that.

Accordingly, given the recidivist conduct stretching over close to three decades, I do

find that OHS has met its burden by clear and convincing evidence that the respondent

poses a risk of danger to the community. I have considered the rehabilitation evidence

001 4 May 2, 2017

 \

and the family and community support. However, I find when weighing all the evidence,

that evidence is insufficient to overcome the criminal history here. Finally, the

respondent has had strong family ties over a lengthy period of time. But he has also

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engaged in criminal conduct not withstanding those family ties. I also take into account

the respondent's health concerns and the arguments about the inadequacy of the

medical care he is receiving in OHS custody. I do not have authority over the adequacy

of OHS medical care. I understand it is a sympathetic factor. But with respect to

danger to the community, it does not outweigh the dangerousness established by OHS.

As I noted at the outset, this is a difficult decision to make. I appreciate the trauma that

the respondent may be facing in detention and the prospects of removal to Colombia

after so many years in the United States. However, as heartrending as this situation is,

I decide the dangerousness assessment based on the criminal history and all the other

evidence in the record. And it is with a heavy heart that I make the finding that OHS has

met its burden.

CONCLUSION

Based on the Court's careful weighing of all the evidence, the Court finds

the respondent should not be released on bond.

IT IS HEREBY ORDERED, that respondent's application for release on

bond be denied.

May 2, 2017

PATRICIA L. BUCHANAN
Immigration Judge

001 5 May 2, 2017

 ( (

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE PATRICIA L.

BUCHANAN, in the matter of:

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G P

001

NEW YORK, NEW YORK

was held as herein appears, and that this is the original transcript thereof for the file of

the Executive Office for Immigration Review.

DARRYL FABIA (Transcriber)

DEPOSITION SERVICES, lnc.-2

JUNE 25, 2017

(Completion Date)