BIA Holds That Release From Federal Criminal Custody Does Not Preclude An Immigration Judge From Denying A Request For Release From Immigration Detention Under INA §236(a).
On January 11, 2024, the Board of Immigration Appeals (BIA or Board), adopting the unanimous view of all U.S. Courts of Appeal that have addressed the question, dismissed Respondent’s appeal of the order of the Immigration Judge (IJ) denying his request for a custody redetermination. Respondent had argued that, because a U.S. magistrate judge granted him release on bail in his Federal criminal proceedings, the IJ was collaterally estopped from making an independent decision on his dangerousness and risk of flight.
Respondent, a native of the Soviet Union and citizen of Russia, was charged with conspiracy, money laundering conspiracy, and money laundering under 18 U.S.C. The indictment alleged that he operated a prostitution ring, transported women from Russia and Eastern Europe to engage in prostitution, and laundered tens of thousands of dollars in prostitution proceeds. The Federal magistrate judge ordered his release from pretrial criminal custody on $200,000.00 bond. After DHS detained him, Respondent filed a custody redetermination request; the IJ denied release on bond, holding that he did not meet his burden in proving he was not a danger to the community or a flight risk. Respondent then appealed.
The BIA first noted that whether the doctrine of collateral estoppel applies to these bond proceedings is a legal issue it reviews de novo, per 8 C.F.R. §1003.1(d)(3)(ii). Respondent claimed the doctrine precluded the IJ from ordering his continued detention, arguing that because the District Court has already found, for pretrial release purposes under the Bail Reform Act of 1984 (BRA), that he was not a danger to the community or a flight risk, the IJ was collaterally estopped from reading a different conclusion.
The Board found that Respondent’s pretrial criminal detention was governed by the BRA, under which the government bore the burden of proving by clear and convincing evidence that he presented danger to the community. Conversely, pre-order immigration detention is governed by INA §236(a); a noncitizen in a redetermination proceeding under this statute, stated the decision, is bound by §236(a), wherein the noncitizen bears the burden of establishing that he or she does not present a danger to the community, a threat to national security, or a flight risk.
The BIA further explained that the BRA and INA allocate the burden of proof to different parties, serve different purposes, govern separate adjudicatory proceedings, and provide independent statutory bases for detention. As such, every Court of Appeals that has addressed this issue has held that pretrial release under the BRA does not preclude pre-removal detention under the INA, citing United States v. Baltazar-Sebastian, 990 F.3d 939 (5th Cir. 2021). And while Baltazar-Sebastian controlled the instant case, the Board took the opportunity to establish a nationwide precedent, holding that release from Federal pretrial criminal custody does not preclude an IJ from denying a request for release from immigration detention per §236(a). Instead, an IJ must determine whether, based on the record, “a respondent has demonstrated that he or she merits release on bond under the custody redetermination provisions of the INA.” The appeal was therefore dismissed. Matter of Panin, 28 I&N Dec. 771(BIA 2024).
