U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Munoz, Pamela G OHS/ICE Office of Chief Counsel - EPD
The Islas Munoz Law Firm, PLLC 8915 Montana Avenue, Suite 0
9900 Montana Ave. El Paso, TX 79936
Suite 82
El Paso, TX 79925

Name: R -V , R A 708

Date of this notice: 111212018

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

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

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Userteam: Docket

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Cite as: R-R-V-, AXXX XXX 708 (BIA Jan. 12, 2018)
U.S. Department o� Justice Decision of the Board oflmrnigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 708 - El Paso, TX Date: JAN 1 2 2018

In re: R R -V a.k.a.

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pamela G. Munoz, Esquire

ON BEHALF OF DHS: Martin Celis

Assistant Chief Counsel

APPLICATION: Change in custody status

In a decision dated August 10, 2017, an Immigration Judge granted the respondent's request
for a change in custody status and allowed his release upon the posting of bond in the amount of
$25,000, pursuant to section 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a).
The bond decision is accompanied by the Immigration Judge's explanatory memorandum dated
September 20, 2017. The respondent appealed, asking for a lower bond. The appeal will be
sustained.

Under the circumstances of this case, we find that a $10,000 bond is adequate to ensure
the respondent's appearance at upcoming immigration proceedings. On July 25, 2017, the
respondent, a native and citizen of Mexico, was found removable as charged, as in the United
States in violation of law under section 237(a)(l)(B) of the Act, 8 U.S.C. § 1227(a)(l)(B). He
has been in the United States over 14 years; has ties in this country to a wife and two sons,
the elder of whom is a lawful permanent resident; and is potentially eligible for cancellation of
removal for nonpermanent residents. We have considered the respondent's appellate contentions
regarding his belief that a reduced bond for him is warranted. Upon review of the relevant
factors, we conclude that a bond amount of $10,000 is sufficient in this case. See Matter
of Guerra, 24 I&N Dec. 37, 40-41 (BIA 2006). Accordingly, we issue the following order.

ORDER: The bond appeal is sustained; the August 10, 2017, bond decision is vacated; and
bond is set for the respondent at $10,000.

FOR THE BOARD

Board Member Garry D. Malphrus respectfully dissents without separate opinion.

Cite as: R-R-V-, AXXX XXX 708 (BIA Jan. 12, 2018)
,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
8915 MONTANA AVENUE, SUITE 100

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EL PASO, TEXAS 79925

IN THE MATTER OF: ) CUSTODY REDETERMINATION/

) BOND PROCEEDINGS
)
R R V , ) FILE NO: 708
)
)
Respondent. ) DATE: September 20, 2017
)

On Behalf of the Respondent: On Behalf of the Department:

Pamela Genghini Munoz, Esq. Assistant Chief Counsel Martin Celis
9900 Montana Ave., Suite B2 U.S. Department of Homeland Security
El Paso, TX 79925 11541 Montana Ave., Suite 0
El Paso, Texas 79925

MEMORANDUM DECISION

I. Relevant Factual Findings and Procedural History1

On July 3, 2003, the Respondent, a citizen of Mexico, entered the United States on a
visitor's visa. The Respondent, who is now 57 years-old, did not leave the United States as
required by his visa. He has remained in the U.S. since 2003, living in both Arizona and Texas.

The Respondent's bond hearing was held on August 10, 2017. Based on the evidence
presented, the court granted the Respondent a bond in the amount of $25,000, with OPS
monitoring at DHS' discretion. This Memorandum Decision memorializes the bond proceedings
in this matter.

Prior to being detained, the Respondent lived with his wife, who is in the United States
without legal status, in Goldsmith, TX. The Respondent has two sons. One, who is 19 or 20
years-old, has no legal status in the United States. It is unclear where that son lives. Another
son, who is 28 years-old and is a resident, and his wife, who is a United States citizen, live on the
same parcel of land as the Respondent.

1 The court's findings of fact are based on Bond Exhibits 1, 2, and 3, and the testimony presented
·

at the Respondent's bond hearing.

R R V
708

The Respondent presently has no relative through which he can petition to remain
permanently in the U.S., but he is planning to do so if his son becomes a United States citizen.
In three years, the Respondent's son can apply to become a citizen.

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The Respondent has been employed in the United States. His 2016 tax return listed his
joint adjusted gross income as $44,326. His 2015 tax return listed his joint adjusted gross
income as $67,664. His 2014 tax return listed his joint adjusted gross income as $72,000. His
2013 tax return listed his joint adjusted gross income as $48,473. He does not have a criminal or
immigration record.

The Respondent's son also submitted a tax return showing the son's joint income for
2016 was $55,779.

The Respondent does not fear being persecuted or tortured should he be removed to
Mexico.

The Respondent's potential eligibility for relief is in the form of cancellation of removal.
The basis for his claim is that he currently supports his wife and younger son and if he was
removed, his resident son would then financially support those relatives.

II. Statement of Law

In deciding the Respondent's request for bond, the court applied the bond provisions of
INA § 236(a), codified at 8 U.S.C. § 1226(a). In doing so, the court undertook a two-step
analysis to determine whether the Respondent met his burden of establishing entitlement to a
bond. First, the court resolved whether or not the Respondent's release would pose a danger to
persons or property in the community. Matter ofAdeniji, 22 l&N Dec. 1102 (BIA 1999). If the
court concluded that the Respondent did present such a danger, then the court did not need to
consider whether the Respondent posed a flight risk or whether he was, instead, likely to appear
for any future proceedings. See, e.g., Matter of Urena, 25 l&N Dec. 140, 141 (BIA 2009)
(noting that "only if an alien demonstrates that he 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.").

As discussed below, because the court found that the Respondent had met his burden on
the dangerousness prong, the court then turned to the issue of whether the Respondent had met
his burden of proof and demonstrated by a preponderance of the evidence that he was not a flight
risk. In deciding this issue, the court considered factors set out in Matter of Guerra, 24 l&N
Dec. 37, 40 (BIA 2006) and Matter ofAndrade, 19 l&N Dec. 488, 491 (BIA 1987). Those
factors include whether the Respondent has a fixed address, the Respondent's length of residence
in the United States, the Respondent's family ties in the United States and whether such ties may
entitle the Respondent to reside in the United States permanently in the future, the Respondent's
employment, the Respondent's record of appearances in court, the Respondent's criminal record
(including the recency and seriousness of any offense), the Respondent's history of immigration
violations, any attempts the Respondent made to flee prosecution or escape from authorities, the

2
 R R V
708

Respondent's manner of entry into the United States, and the Respondent's potential eligibility
for relief from removal.

In analyzing these factors, the court was permitted to, and did, afford greater weight to
certain factors over others. See Matter ofGuerra, 24 I&N Dec. 3 7, 40 (BIA 2006).

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III. Analysis & Findings

The court's analysis follows:

Because there is no evidence of the Respondent having a criminal record, the court
concluded that he had met his burden of proving he did not present a danger to people or
property.

The Respondent has a fixed address in the United States where he would be living with,
at least, his wife. His son and daughter-in-law also live on that same property. This factor
weighs in the Respondent's favor but was not given significant weight. The Respondent has
lived in both Arizona and Texas and the fact that he currently has a fixed address in Texas would
not weigh heavily on any desire he may have to abscond.

The Respondent has lived in the United States for 14 years. This factor weighs in the
Respondent's favor. Yet, because the Respondent lived in the U.S. illegally and undetected for
the vast majority of that time, the court did not assign significant weight to this factor on the
Respondent's risk of flight.

The Respondent does have family members in the United States. At this time, though, he
has no relatives who might qualify as individuals through which he can obtain legal status in the
United States. Furthermore, the Respondent's wife and unmarried son do not have legal status in
the United States. This factor weighs against the Respondent but was not given great weight.

The Respondent has a significant work history in the United States and provided tax
returns demonstrating that he was well-paid. This factor weighs in the Respondent's favor and
was given some weight.

The Respondent has no criminal record and no history of immigration violations

unrelated to his current case. These factors weigh in favor of the Respondent. The court does
not accord significant weight to these factors on the issue of flight. While it could be argued that
not having a criminal history demonstrates that the Respondent is a rule follower, that point is
negated by the fact that the Respondent has remained in the United States for almost 14 years
·without the legal authority to do so. The court will note, however, that the Respondent's lack of
criminal and immigration history were also taken into account in finding that the Respondent had
met his burden of establishing that he was not a danger to persons or property.

The Respondent entered the country legally but then avoided detection for nearly 14
years. Thus, the Respondent's manner of entry weighs in his favor but is cancelled out by his
ability to avoid apprehension by immigration officials for such a long period of time.

3
' ..

· R R V
708

At this time, the Respondent's only avenue ofrelieffrom removal is in the form of
cancellation ofremoval. On the limited bond record, it does not appear as ifthe Respondent has
a strong claim. Ofcourse, whether he is ultimately granted cancellation ofremoval will be
decided after he submits more evidence and after he is provided with a full hearing. But based
on the bond record, the Respondent's claim that ifhe is removed his resident son will suffer

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exceptional and extremely unusual hardship because he will take it upon himselfto support his
mother and brother, who is 19 or 20, does not seem like a strong case. The Respondent might
prevail on his claim for relief, which he needs to do in order to remain in the United States. The
limited bond record, though, suggests that he will have a difficult time prevailing. Thus, this
factor weighs against the Respondent. 2

Based on a review ofthe evidence presented at the bond hearing, and weighing that
evidence as described above, the court found that a bond in the amount of$25,000, with OPS
monitoring at OHS' discretion, was required to reasonably assure the Respondent's appearance
at his future hearings.

Accordingly, the following order is entered:

ORDER: IT IS HEREBY ORDERED THAT the Respondent's request for

custody re-determination is GRANTED and that he is to be released from
custody upon the posting ofa $25,000 bond.

IT IS HEREBY FURTHER ORDERED THAT OHS may employ OPS

monitoring ofthe Respondent at its discretion.

�: Dean S. Tuckman
Immigration Judge

2 That the Respondent might be able to obtain legal status through his son, assuming his son
applies to become, and then does become, a United States citizen in three years, is simply too
speculative at this time to be considered as a significant positive factor in the Respondent's
potential eligibility for relieffrom removal.