RIVERA y BUJOSA LAW OFFICE P.L.L.C.

DETAINED
409 North Loop 336 West - Suite 1
Conroe, Texas 77301
Tel.: (936) 756-5961
Fax: (936) 873-7611
e-mail: oriverabujosahou@gmail.com

Octavio M. Rivera-Bujosa
Attorney for the Respondent

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
HOUSTON, TEXAS

In the Matter of: File No.: A 201-950-751

DIAZ ABARCA, DANIA Custody Redetermination Hearing

Respondent Before Immigration Judge,

In Removal Proceedings Hon. JUDEGE FOWLER

MEMORANDUM IN SUPPORT OF RESPONDENT’S REQUEST FOR CUSTODY

REDETERMINATION

COMES NOW, the Respondent, Dania Diaz Abarca, through her attorney of record,

whom very respectfully STATES and PRAYS to the following:

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 INTRODUCTION

Lately, there has been an increased concern from our law firm and several other

attorneys practicing before this Honorable Court; concerning the Honorable Court’s

findings in cases involving respondents who have been living in the United States for

many years without committing a single crime, but who have been recently arrested for a

given offense and have a pending criminal case.

In particular, we have notice that respondent’s with no criminal record but who

have been arrested for a DWI have been found to be a danger to the community just

because of that pending charge. We respectfully remind the Honorable Court that

Congress has passed any law stating that a DWI conviction make a given respondent

subject to mandatory detention. The fact that lately, the Honorable Court has

consistently found respondents a danger to the community because of a pending charge

for a DWI or other offenses which Congress have not included withing the mandatory

detention list-INA 236(c)(1)(A).

I. STATEMENT OF FACTS

The respondent is a native and citizen of El Salvador who has been residing in the

United States for the last seventeen (17) years of her life. She is the mother of six (6)

United States citizen children. The oldest one is nineteen (13) years old and the youngest

is two (2) years old.

The Department of Homeland Security ("Department") issued her a Notice to

Appear, Form I-862, and determined that she should remain detained during removal

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proceedings. The respondent has filed worksheets and supporting evidence requesting her

release on a bond.

The Department has not argued that the respondent is subject to mandatory

detention because she is not subject to mandatory detention. The Department has not

alleged, nor is there any evidence, that the respondent is connected in any way to a

terrorist organization or a criminal gang. The Department has not alleged, nor is there any

evidence, that the respondent has ever hurt anyone or threatened to hurt anyone.

A. PAST CONDUCT OF THE RESPONDENT

The respondent was arrested on December 23rd, 2019 for the Class B

misdemeanor offense of driving while intoxicated. For that offense, she pled guilty and

served twenty (20) days of confinement at the Montgomery County Jail.

Aside from the arrest described above, the respondent has not been arrested for

any other crimes, and instead has been shouldering the burden of providing for her

family, including her six United States children. As explained by Mr. Moreno Pinto, in

his affidavit, the respondent is an excellent mother to her children and her family

members.

The respondent intends to explain the circumstances of her arrest at the upcoming

hearing and will sworn to the Honorable Court that she will never drive without

authorization again.

The facts here are clearly distinguishable from Siniauskas because the respondent

has only a single conviction for driving while intoxicated during the almost seventeen

years or so that she has been residing in the United States. Similarly, the respondent

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under oath, will explain the Honorable Court the events that gave rise to the charge of

possession of cocaine.

II. LEGAL ARGUMENT

There is no legal dispute that any alien seeking bond must show that he is not a

risk of flight or a danger to the community. See Matter of Guerra, 24 I&N Dec. 37 (BIA

2006); Matter of Urena, 25 I&N Dec. 140 (BIA 2009). The core dispute is factual: will

the respondent's future conduct cause any danger to the community if he were to be

released from custody, and will the respondent appear in Court when required. See

Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015) (holding that an Immigration Judge's

predictive findings of what may or may not occur in the future are findings of fact, which

are subject to a clearly erroneous standard of review.).

A. DANGER TO THE COMMUNITY

The respondent recognizes that driving while intoxicated is "an extremely

dangerous crime" and a "significant adverse consideration" in bond proceedings. See

Matter of Siniauskas, 27 I&N Dec. 207, 208-09 (BIA 2018) (citations omitted).

Nevertheless, the Board has never held that bond should be denied to aliens with any

arrest or conviction for driving while intoxicated, regardless of the particular

circumstances. Had that been the desired holding, the Board could have said so.

B. RISK OF FLIGHT

The respondent respectfully asks the Honorable Court to carefully consider all of

the Guerra factors, including the respondent's residence in the United States for over

seventeen years; his extensive family ties, her eligibility to seek relief from removal in

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 the form of cancellation of removal and adjustment of status for certain nonpermanent

residents.

The Respondent respectfully submits to the consideration of the Honorable Court that

respondent's recent arrest is an aberration in an otherwise clean record, or is not indicative of

possibly recurrent behavior which would pose a danger to others.

Respondent is a devoted mother, who has worked hard and paid her taxes. In that regard,

respondent's past conduct, as described by her children, family members and friends; shows that

the respondent will act in a law-abiding fashion in the future.

RESPECTFULLY SUBMITTED

Dated: May 9th, 2019 , Esq.

Octavio M. Rivera-Bujosa
SM 180153
409 North Loop 336 West
Suite 1
Conroe, Texas 77301
Phone: (832) 296-6048
(936) 756-5961
Fax: (936) 873-7611
oriverabujosahou@gmail.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 9th, 2019 a true and correct copy of the foregoing
Memorandum has been mailed to the following address by regular mail: 126 Northpoint Drive,
Room 2020, Houston Texas 77060.

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May 9th, 2019 _____________________________
Date Octavio M. Rivera-Bujosa