These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
bond
The Board of Immigration Appeals reversed the grant of bond to a non-citizen recently convicted of statutory rape and oral copulation with a 14-year-old girl. “The respondent’s behavior reflects a willingness and ability to manipulate vulnerable persons into engaging in unlawful conduct to meet his own desires and to do so at great harm to them.”
The full text of Matter of Cotrufo can be found here:
The Board of Immigration Appeals has determined that Immigration Judges lack jurisdiction to consider the bond request of a non-citizen who entered the United States without admission and who has been present in the United States for at least two years. “Under section 235, Congress created three different categories of applicants for admission. The first two categories are covered by section 235(b)(1)(A) of the INA, 8 U.S.C. § 1225(b)(1)(A). They include: (1) arriving aliens inadmissible under section 212(a)(6)(C) or 212(a)(7), 8 U.S.C. § 1182(a)(6)(C), (a)(7), and (2) aliens not admitted or paroled into the United States who are inadmissible under section 212(a)(6)(C) or 212(a)(7), 8 U.S.C. § 1182(a)(6)(C), (a)(7), and “who ha[ve] not affirmatively shown, to the satisfaction of an immigration officer, that [they] ha[ve] been physically present in the United States continuously for the 2-year period immediately prior to the date of determination of inadmissibility.” “The third category of applicants for admission subject to the inspection, detention, and removal procedures set forth in section 235 of the INA, 8 U.S.C. § 1225, are those aliens who are seeking admission and who an immigration officer has determined are ‘not clearly and beyond a doubt entitled to be admitted.’ INA § 235(b)(2)(A), 8 U.S.C. § 1225(b)(2)(A). This category is a ‘catchall provision that applies to all applicants for admission not covered by [section 235(b)(1)].’”
“The respondent provides no legal authority for the proposition that after some undefined period of time residing in the interior of the United States without lawful status, the INA provides that an applicant for admission is no longer ‘seeking admission,’ and has somehow converted to a status that renders him or her eligible for a bond hearing under section 236(a) of the INA, 8 U.S.C.A. § 1226(a).”
“Aliens, like the respondent, who surreptitiously cross into the United States remain applicants for admission until and unless they are lawfully inspected and admitted by an immigration officer. Remaining in the United States for a lengthy period of time following entry without inspection, by itself, does not constitute an ‘admission.’ Likewise, being arrested pursuant to a warrant and placed into removal proceedings does not constitute an admission. Therefore, just as Immigration Judges have no authority to redetermine the custody of arriving aliens who present themselves at a port of entry, they likewise have no authority to redetermine the custody conditions of an alien who crossed the border unlawfully without inspection, even if that alien has avoided apprehension for more than 2 years.”
The full text of Matter of Yajure Hurtado can be found here:
https://www.justice.gov/eoir/media/1413311/dl?inline
The Board of Immigration Appeals has determined that the Department of Homeland Security had met its burden of proving a non-citizen was a flight risk because the non-citizen submitted contradictory proof of the residence of his sponsor and did not submit a statement from the sponsor. “The Immigration Judge also clearly erred in finding that the proposed sponsor has a fixed address in Hallandale, Florida. The documents provide three different addresses for the sponsor, two in Hallandale, Florida, and another in Hopatcong, New Jersey. The documentation for a residential lease in Hallandale, Florida, provides a different address than the bill for electric services in the same location. There is no explanation from either the respondent or the sponsor as to which of the multiple addresses, if any, is Mr. G-’s fixed address, and whether the respondent will be residing with him at the address upon release from custody. Further complicating this factual analysis is the submission of a different address in New Jersey, without clarification by the respondent or Mr. G-. Thus, the Immigration Judge clearly erred in finding that the sponsorship documents reflected that the sponsor has a fixed address in Hallandale, Florida, and that the respondent would reside with him there.”
The full text of Matter of Dobrotvorskii can be found here:
The Board of Immigration Appeals has determined that a non-citizen who provides inconsistent address information to immigration officers is a flight risk.
The full text of Matter of Akhmedov can be found here:
The Board of Immigration Appeals has overturned a bond grant to an individual facing pending drug trafficking charges, finding the person to be a danger to the community.
The full text of Matter of Salas Pena can be found here:
The Board of Immigration Appeals has reversed the grant of bond to a non-citizen recently convicted of aggravated assault, noting that the conviction involved “the applicant’s decision to engage in violent behavior against her partner by pouring alcohol on his back and setting him on fire using a cigarette. The victim sustained burns on his head, face, and torso and had to be placed in a medically-induced coma.”
The full text of Matter of C-M-M- can be found here:
The Board of Immigration Appeals has found that a grant of withholding of removal that is pending appellate review by the Board does not justify release on bond when there are significant adverse factors present. In this case, those factors included “the respondent entered the United States unlawfully on September 6, 2023, does not have work history in this country, was arrested for petty theft on October 22, 2023, removed her court ordered GPS ankle monitor, and assisted her son in fleeing from law enforcement after shooting at a police officer.”
The full text of Matter of E-Y-F-G- can be found here:
The Board of Immigration Appeals has determined that an applicant for admission who is arrested and detained without a warrant while arriving in the United States, whether or not at a port of entry, and subsequently placed in removal proceedings is detained under section 235(b) of the Immigration and Nationality Act and is ineligible for any subsequent release on bond under section 236(a) of the INA.
“An ‘applicant for admission; is defined, in relevant part, as an alien ‘who arrives in the United States whether or not at a designated port of arrival.’ An alien, like the respondent, ‘who tries to enter the country illegally is treated as an ‘applicant for admission.’” The Board further noted that the only exception to mandatory detention of applicants for admission is parole, which suggests that anyone who meets the definition of an applicant for admission who is not detained is actually paroled in the United States. However, the parole is terminated by the service of a Notice to Appear, which in turn, permits later detention under section 235(b) of the non-citizen.
The full text of Matter of Q. Li is found here:
The Board of Immigration Appeals has determined that an Immigration Judge may consider a State court’s decision as to dangerousness and the amount of bail that was set in criminal proceedings, but that the Immigration Judge does not owe a State court custody order deference in immigration bond proceedings. “The legal standards for bail in State court may be different than in Immigration Court and there may be a variety of reasons why an Immigration Judge may or should reach a different determination than a State court judge. It is for the Immigration Judge to make his or her own determination as to dangerousness under the custody redetermination provisions of the INA and applicable precedent.”
The full text of Matter of Choc-Tut can be found here:
The Ninth Circuit has issued an amended decision in Martinez v. Clark, finding that it has jurisdiction to review the agency’s determination that a non-citizen is a danger to the community under an abuse of discretion standard. The court concluded that the dangerousness determination is a mixed question of fact and law.
The full text of Martinez v. Clark can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/27/21-35023.pdf
The Fourth Circuit has affirmed the denial of habeas relief to a non-citizen subject to on-going withholding-only proceedings, finding that his removal was still reasonably foreseeable, despite the length of his detention. The court also found that due process did not require the immigration court to provide him with another bond hearing.
The full text of Vasquez Castaneda v. Garland can be found here:
The Board of Immigration Appeals (Board) has determined that the agency is not estopped from detaining a non-citizen in immigration custody without bond simply because a magistrate released him on pre-trial bail in a federal criminal proceeding. The Board noted that the criminal proceedings, the government bears the burden of proving a defendant is a flight risk or danger to the community to justify detention without bail, while in the immigration context, the non-citizen bears the burden of proving he is not a flight risk or danger to the community to justify the granting of bond.
The full text of Matter of Panin can be found here:
The Ninth Circuit has determined that a 236(a) bond hearing, which places the burden of proof on the detainee, is constitutionally sufficient, and there is no requirement to provide a subsequent hearing that places the burden of proof on the government.
“Most obviously, after the Supreme Court’s decisions in Jennings and Arteaga-Martinez, it remains undetermined whether the Due Process Clause requires additional bond procedures under any immigration detention statute.” “As our own precedents demonstrate, § 1226(a) stands out from the other immigration detention provisions in key respects. Section 1226(a) and its implementing regulations provide extensive procedural protections that are unavailable under other detention provisions, including several layers of review of the agency’s initial custody determination, an initial bond hearing before a neutral decisionmaker, the opportunity to be represented by counsel and to present evidence, the right to appeal, and the right to seek a new hearing when circumstances materially change.” “Moreover, as we noted above, throughout the course of his detention, Rodriguez Diaz has had the right to seek an additional bond hearing if his circumstances materially change.” “And to the extent that the agency made errors of law in denying Rodriguez Diaz’s requests, these decisions would also be subject to judicial review in habeas.” “In sum, while Rodriguez Diaz’s private interest and the government’s interests are both substantial here, the private interest of a detained alien under § 1226(a) is lower than that of a detained U.S. citizen, and the governmental interests are significantly higher in the immigration detention context.” “For the reasons given, § 1226(a)’s procedures satisfy due process, both facially and as applied to Rodriguez Diaz.”
The court left open the possibility that another detainee might bring a successful as-applied challenge to the procedures in the future.
The full text of Rodriguez Diaz v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/11/21/20-16245.pdf
The Supreme Court has determined that there is no statutory requirement to provide a bond hearing to an individual subject to a reinstated order of removal. The Court left open the possibility that such hearings might be required by the Constitution.
The full text of Johnson v. Arteaga-Martinez can be found here:
The Ninth Circuit has determined that the determination of whether a particular noncitizen poses a danger to the community is a discretionary determination, which a federal court may not review. “What one immigration judge may find indicative of a propensity for danger, another may see as progress toward redemption. This is exactly the type of discretionary judgment that § 1226(e) insulates from judicial review.”
The court further rejected the petitioner’s assertion that due process required the Immigration Judge to consider alternatives to detention before deeming him to be a danger to the community. “Due process does not require immigration courts to consider conditional release when determining whether to continue to detain an alien under § 1226(c) as a danger to the community.”
The full text of Martinez v. Clark can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/15/21-35023.pdf
The Fourth Circuit has reversed a class-wide injunction requiring DHS to bear the burden of proof on flight risk and danger to the community in bond proceedings. The court concluded that “1252(f)(1) expressly precludes ‘jurisdiction or authority to enjoin or restrain’ provisions of the immigration laws, including § 1226(a), on a class-wide basis.”
With respect to the claim of an individual class member that DHS should bear the burden of proof in bond proceedings, the Court concluded that noncitizens “are due less process when facing removal hearings than an ordinary citizen would have.” The court concluded that the procedures employed in bond hearings that place the burden of proof on the non-citizen comply with the requirements of due process. The court acknowledged that this creates a circuit split with the First Circuit.
Finally, the court also rejected the argument that due process requires an immigration judge to consider a non-citizen’s ability to pay when setting a bond amount. The court acknowledged that this creates a circuit split with the Ninth Circuit.
The full text of Miranda v. Garland can be found here:
The First Circuit has determined that not all persons detained under section 1226(c) have a constitutional right to a hearing concerning the reasonableness of their continued detention after they have been detained longer than six months, find that such analyses must be conducted on a case-by-case basis.
The full text of Reid v. Donelan can be found here:
The First Circuit has determined that in a 236(a) bond hearing, the Department of Homeland Security bears the burden of proving the detainee is a danger to the community and a flight risk. With respect to danger, the burden is clear and convincing evidence. For flight risk, the burden is preponderance of the evidence. The court determined that this burden allocation is required by the Due Process Clause of the Fifth Amendment.
The full text of Hernandez-Lara v. Lyons can be found here:
The Supreme Court has determined that individuals detained following the reinstatement of a prior removal order are not detained under 8 USC 1226, and therefore, are not entitled to bond hearings under that section.
The full text of Johnson v. Guzman Chavez can be found here:
The Third Circuit has reaffirmed that a mandatory detainee under 236(c) can bring an as-applied constitutional challenge to prolonged detention. A district court hearing a habeas claim in these circumstances should consider four factors: 1) the length of detention; 2) whether detention is likely to continue; 3) the reasons for delay; and 4) whether the conditions of confinement are meaningfully different from criminal detention. Once a bond hearing is ordered in a prolonged detention setting, the government bears the burden of proving by clear and convincing evidence that the detainee is a flight risk or a danger to the community.
The full text of German Santos v. Warden Pike County Correctional Facility can be found here:
