Interim Decision #3221

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 SERVICE:

Richard J. Averwater

ON BEHALF OF RESPONDENT:

Leo Jerome Lahey, Esquire

P.O. Box 51778

Lafayette, Louisiana 70505-1778

General Attorney

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

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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