U.S. Department of Justice

Executive Office for Immigration Review Board ofImmigration Appeals

Office ofthe Clerk 5107 Leesburg Pike, Suite 2000 Falls Church. Virginia 20530

Rachel M. Hass, Esq. McDavid, Burke Alan Esq. Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Ave Suite 4100 Dallas, TX 75201

DHS/ICE Office of Chief Counsel - SNA 8940 Fourwinds Drive, 5th Floor San Antonio, TX 78239

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Date of this notice: 1/30/2015

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

DOYUtL

CaAAJ

Donna Carr. Chief Clerk

Enclosure Panel Members: Guendelsberger, John

Userteam: Docket

u.s. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

.416-

Falls Church, Virginia 20530

Files:

San Antonio, TX

Date:

[JAN 30 2Cij

417 418 419

Inre:

IN BOND PROCEEDINGS APPEAL ON BEHALF OF RESPONDENTS: Rachel M. Hass, Esquire Burke A. McDavid, Esquire ON BEHALF OF DHS:

Philip A. Barr Assistant Chief Counsel

APPLICATION: Change in custody status

The Department of Homeland Security appeals from the Immigration Judge's orders, dated October 2 and 3, 2014, granting the respondents' requests for a change in custody status. The Immigration Judge issued a bond memorandum on November 5,2014, setting forth the reasons for his decision. The appeal will be dismissed. We review the Immigration Judge's findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, are subject to de novo review. 8 C.F.R. § 1003.1(d)(3). We do not find that the Immigration Judge failed to provide a "reasonable foundation" for his decision. See DHS Brief on Appeal, dated Dec. 16,2014, at 2. The Immigration Judge properly considered the evidence relevant to the dangerousness of the respondents, the threat they pose to national security, and their flight risk. See Matter of Guerra, 24I&N Dec. 37 (BIA 2006); see also (U. at 2-7). The DRS nonetheless argues that the Immigration Judge did not correctly apply the Attorney General's precedential decision of Matter of D-J-, 23 I&N Dec. 572 (A.G. 2003). See DRS Brief on Appeal, dated Dec. 16,2014, at 5. We disagree. The Immigration Judge did consider the national security and immigration policy interests implicated by the encouragement of further unlawful mass migrations and the release of these respondents pending the resolution of their removal proceedings. See (I.J. at 3-7). We have likewise considered the impact on such interests of releasing these respondents (and similarly situated aliens). See Matter ofD-J-, supra, at 581. However, we do not find that a denial of bond is necessary under these circumstances.

~16etal.' There are material distinctions between this matter and the facts presented in Matter ofD-J-. The alien in that case arrived in the United States approximately one year after the terrorist attacks of September 11,2001, as part of an influx of seagoing migrants. Matter ofD-J-, supra, at 576-80. He was among a group of aliens who carried little or no identification and who attempted to evade coastal interdiction and law enforcement authorities ashore. Id. By contrast, the respondents in these proceedings are a family unit from EI Salvador who entered the United States by crossing the southern border in July 2014 (1.1. at 1). There is no evidence in the record that the respondents sought to flee or escape the officers who apprehended them (LJ. at 2).1 Although the Immigration Judge is required to consider evidence that generally connects the respondents to a "surge in illegal immigration" (I.J. at 4-5), he is not precluded from weighing such evidence against the respondents' conflicting evidence. See (1.1. at 5-7) (stating that "the author of the Vanderbilt [University] report cited by [two of the Government's affiants] provided an affidavit in response to [their] interpretation of his report, calling it 'a superficial and selective understanding of [the report's] main findings"'). We find no clear error in the Immigration Judge's fmdings concerning the respondents' relationship to any active migration networks. Upon review of the record, we conclude that the extraordinary remedy of the continued detention of the respondents without bond in order to deter future waves of mass migration is not warranted. The Attorney General's decision in Matter ofD-J- does not compel a contrary result. See Matter ofD-J-, supra, at 581 (stating only, "[I]n all future bond proceedings involving aliens seeking to enter the United States illegally, where the Government offers evidence from sources in the Executive Branch with relevant expertise establishing that significant national security interests are implicated, Us and the BIA shall consider such interests.,,).2 We agree with the Immigration Judge's reasons for fmding that the respondents are not a danger to the community, and we agree that a $5,000 bond is an appropriate amount to assure the lead respondent's appearance at future hearings. Regarding the respondents' risk of flight, the Immigration Judge found that the respondents have a fixed address in the United States, have established prima facie eligibility for relief from removal, and are represented by counsel. See (U. at 2-3). The Immigration Judge has broad discretion in selecting the factors to consider in custody redeterminations. Matter ofGuerra, supra, at 40.

1 We also note that the respondents' relief applications remain pending before an Immigration Judge, whereas the asylurri application filed by the alien in Matter of D-J- was denied by an Immigration Judge before the Attorney General issued his decision (U. at 3). Cf Matter ofD-J-, supra, at 573.

2 In light of our conclusions regarding the Immigration Judge's application of Matter ofD-J- to the facts of these cases, we need not address his initial determination that Matter ofD-J- is "not dispositive of the issue before the Court concerning these respondents" (I.J. at 5).

2

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.

Finally, although we conclude that the lead respondent's release under a bond of $5,000 is

reasonable, the Immigration Judge's orders will be modified to clarify that the derivative respondents are to be released on conditional parole. See section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.s.C. §1226(a)(2)(B). The Immigration Judge indicated in his orders that the derivative respondents would be released on their own recognizances; however, he explicitly conditioned their releases upon the lead respondent's posting of the $5,000 bond. Accordingly, the following orders will be entered. ORDER: The appeal is dismissed. FURTHER ORDER: The Immigration Judge's orders are modified to reflect that the derivative respondents are released on conditional parole.

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