On March 18, 2020, the Board of Immigration Appeals (BIA or Board) dismissed Respondent’s appeal of the Immigration Judge (IJ’s) denial of his request to be released on bond. Respondent, a native and citizen of Honduras, had entered the U.S. without inspection, been detained by DHS, then requested a change in custody status. The IJ denied his request, finding that Respondent failed to meet his burden of establishing that he would not present a significant risk of flight if released on monetary bond. In an initial footnote, the decision stated that the IJ has determined that Respondent would not pose a danger to the community or a threat to national security if released on bond; DHS did not challenge that finding, so the side issue on appeal was whether Respondent is likely to abscond or is otherwise a poor bail risk.
Respondent claimed error in the IJ’s failure to order his release on bond, asserting on appeal that “DHS should bear the burden of proof to demonstrate that he should not be released on bond, which it has not met.” Alternatively, he contended that the IJ erred in denying bond by mischaracterizing the record, giving insufficient weight to the evidence provided, and impermissibly elevating the burden of proof.
Initially, the BIA noted that one requesting a custody status redetermination under INA §236(a) must establish to the IJ’s and the Board’s satisfaction “that he or she does not present a danger to persons or property, is not a threat to the national security and does not pose a risk of flight.” Thus, Respondent’s assertion that DHS must bear the burden of proof by clear and convincing evidence that he is a flight risk lacks merit because the BIA has previously held that §236(a) places the burden on the applicant to show that he merits release on bond.
Further, in discussing all the factors in IJ should consider in determining whether an applicant is a danger to the community, a threat to national security, or a flight risk, the Board emphasized that bond determinations revolve around one’s circumstances and “the specific facts of the case,” such that any probative and specific evidence may be assessed; the list of factors includes: whether the respondent has a fixed U.S. address; his length of residence here; U.S. family ties and whether they may entitle him to reside here permanently; his employment history; any record of appearance in court; his criminal record, including the extent, recency, and seriousness of any criminal activity; his history of immigration violations; any attempt to flee prosecution or escape from authorities; and, the manner of entry into the U.S. An IJ can also look to the likelihood that “relief from removal will be granted” in determining whether to grant bond.
Here, the opinion found, Respondent had only recently come to the U.S., entered without inspection, and made no claim to ever having had lawful status. He showed no family ties, no employment history, no community ties, or any record of appearances in the U.S. courts, all of which militated against his release on bond because these factors “indicate that he is less likely to appear for his removal hearing.” As such, the BIA concluded, the IJ had properly determined that Respondent “presents a significant risk of flight and should remain in immigration custody pending the outcome of his removal proceedings.”
Respondent also claimed that he has a high incentive to appear for his hearing because he is seeking asylum, asserting past persecution, and a well-founded fear of persecution in Honduras. However, responded the Board, for various reasons, asylum eligibility can be difficult to establish and an IJ may consider an applicant’s circumstances “in determining how likely it is that his application for relief will ultimately be approved.” Therefore, the BIA held that Respondent’s “limited avenue for relief”, combined with his minimal U.S. ties, supported the IJ’s conclusion that Respondent poses a high flight risk and his release on bond is unwarranted. The appeal was dismissed. Matter of R-A-V-P- 27 I&N Dec. 803 (BIA 2020).
