T f4 P.

Amorow, Oscar L.
FED. & Immigration Law Practice, MD
6495 New Hampshire Avenue, Ste 318
Hyattsville, MD 20783
Name: RODRIGUEZ, RICARDO JOSE
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church. Virginia 22041
OHS/ICE Ofice of Chief Counsel BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A00-886-952
Date of this notice: 4/14/2011
Enclosed is a copy of the Boad's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Pauley, Roger
Wendtland, Linda S.
Sincerely,
Donna Carr
Chief Clerk
. . . . . . . . . v=#
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Cite as: Ricardo Jose Rodriguez, A200 886 952 (BIA April 14, 2011)
U.S. Deparment of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 22041
File: A200 886 952 - Baltimore, MD
In re: RICARO JOSE RODRIGUEZ
I BOND PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RSPONDENT: Oscar L. Amorow, Esquire
APP LI CA TI ON: Redeterination of custody
fPR 14 Z011
. The respondent, a native and citizen of Venezuela, appeals fom the Immigration Judge's
decision setting bond in the amount of $25,000. The Immigation Judge issued a bond memoradum
setting frth the reasons fr this decision on Febrar 7, 2011. The appeal will be sustained and the
record will be remanded.
The Board reviews an Immigation Judge's fndings of fct, including fndings as to the
credibility of testimony, under the "clearly eroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals fom
decisions of Immigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii); Matter of A-S-B-, 24 l&N
Dec. 493 (BIA 2008).
The respondent's custody proceedings ae govered by section 236(a) of the Act. See Matter of
Adenii, 22 I&N Dec. 1102, 1111-13 (BIA 1999). Therefre, the respondent bears the burden to
show that he does not present a threat to the community and a risk of fight fom frther proceedings.
Id. In interreting whether an alien has met this burden, we have fund that unless the alien
demonstrates that he is not a danger to the community upon consideration of the relevant fctors,
he should be detained in the custody of the DHS. See Matter of Drsdale, 20 l&N Dec. 815,
817 (BIA 1994). Only where the alien has proven that he is not a danger to the community does the
likelihood that he will abscond become relevat. Id. Potentially dangerous aliens may be held in
the custody of the DHS without bond during the pendency of removal proceedings. See Carlson
v. Landon, 342 U.S. 524, 537-42 (1952). And, contrary to the respondent's appellate agument, an
Immigation Judge has broad discretion in determining whether to release an alien on bond, and
can consider many fctors, including evidence of criminal activity not resulting in a conviction,
in exercising that discretion. See Mater of Guerra, 24 l&N Dec. 3 7 (BIA 2006).
The Department of Homeland Security ("the OHS") had set bond in the respondent's case at
$25,000. Afer noting that the respondent entered the United States some 13 years ago (at age 5) as
a visitor and acknowledging that the respondent appeared to have an avenue to adjust his status
through an approved family-based visa petition, the Immigration Judge concluded that a $15,000
bond was reasonable given the respondent's recent arrest, pending criminal charges, and alleged
admission of a affliation with the Latin Kings (a steet gang). Bond Memorandum at 2-3.
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Cite as: Ricardo Jose Rodriguez, A200 886 952 (BIA April 14, 2011)
M
A200 886 952
On appeal, the respondent argues that this amount is excessive, because (1) he is eligible fr
adjustment of status, (2) he has extensive family ties that minimize his fight risk, (3) his alleged
admission of membership in a steet gang was not part of the record. See Respondent's Brief at 3-5.
We fnd that a remand is required to clarif the Immigation Judge's reasoning fr setting a
$15 ,000 bond. The Immigation Judge's orer is silent on whether he viewed the respondent's arest
as constituting evidence refecting that he poses a danger to the people or propert of the United
States. In this regard, the Immigration Judge cited evidence (such as the fcts underlying the
respondent's arest ad his alleged membership in a steet gang) that could tend to show his
dangerousness. However, the Immigation Judge never made fndings of f act regading this evidence
or reached any conclusion regarding dangerousness. Further, while the Immigration Judge cited fcts
that typically are relevant towad making a deterination about an alien's risk of fight (such as
eligibility fr relief fom removal and ties to family or the community), some of the fctual fndings
contain clear eror. For example, the approved visa petition through which the respondent intends
to adjust his status was fled by his grandmother on his fther's behalf, not by the respondent's
mother on his behalf as the Immigration Judge fund. Bond Memorandum at 2. While this eror
may appear immaterial, we do not fnd it so. The identit of the petitioner and her relationship to
the benefciary is directly relevant to the availability of relief. The respondent's status as a derivative
benefciar of an approved visa petition fled by his grandmother on behalf of his fther indicates
that the respondent (and his fther) would fll into a third-preference family-based categor,
impacting availabilit of the visa, and, terefre, the likelihood of relief. See, e.g., April 2011 Vsa
Bulletin (refecting a March 2001 priority date fr third-preference family based visa petitions such
as those fled by the respondent's grandmother on behalf of her married son).'
In any event, none of the details regarding the respondent's risk of fight is set frth in the
Immigration Judge's order. Assuming that te Immigation Judge did not fnd that the respondent
poses a danger, we fnd that the order does not refect why the Immigration Judge believes that the
respondent poses a risk of fight, or why bond in the amount of $15,000 is reasonably calculated to
ensure his appearance at fture removal proceedings. We therefre will remand this matter fr the
enty of a new order that sets frt this reasoning.
Accordingly, the fllowing orders will be entered.
ORER: The appeal is sustained.
FURTHER ORDER: The record is remanded fr fther proceedings consistent with this order.
1 See http://ww.tavel.state.gov/visaulletin/bulletin 5368.html.
2

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Cite as: Ricardo Jose Rodriguez, A200 886 952 (BIA April 14, 2011)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND
IN THE MATTER OF IN REMOVAL PROCEEDINGS
RODRIGUEZ, Rcardo Jose Case #Al00-886-952
RESPONDENT
CHARGES:
APPLICATION:
INA 212(a)(6)(A)(i), a amended, a an alien present in the
United States without being admitted or paroled, or who has
arrived in the United States at any time or place other than
designated by the Attorey General.

Change in Custody Status

APPEARNCES
ON BEHALF OF RESPONDENT: ON BEHALF OF THE DHS:
Oscar L. Amorow, Esq.
6495 New Hampshire A venue
Suite 318
Hyatsville, MD 20783
Randolph Blair, Esq.
Assistant Chief Counsel
31 Hopkns Plaza, 16t Floor
Baltimore, MD 2120 I
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BOND MEMORNDUM
The respondent is a eighteen-year-old male, native and citizen of Venezuela. On December
22, 2010 the respondent was served with a Notice to Appea ("NTA") which alleges that the
respondent (1) is not a citizen or national of the United States; (2) is a native and citizen of
Venezuela; (3) arrived in the United States at an unkown place on an unknown date; and (4) was
not admitted or paroled afer inspection by an Immigration Ofcer. Based on these allegations, the
NTA charges the respondent with removability pursuant to INA 212(a)(6)(A)(i).1
The respondent was taken into custody by the Department of Homelad Security ("OHS").
On December 22, 2010 he was issued a For 1-286, Notice of Custody Deterination, setting bond
at $25,000.
On January 11, 2011 the respondent fled a motion requesting a bond redeterination
hearing. In his motion, he indicated that he entered the United States on a B-2 visitor visa on
December 15, 1997, when he was fve years old: He stated that he has lived in the United States
with his parents and three siblings since that tim

. He further stated that he is curently a student at

Northwood High School and that he is scheduled to graduate in May 2011. Moreover, the
respondent indicated that his mother is a United States citizen, that his fther was granted an
immigrant visa as the spouse of a United States citizen and fled an application fr adjustment of
status, and that he is a derivative benefcia of his fther's application. He believes that he is
eligible to adjust his status under INA 245(i). He ackowledged that he was recently ar ested and
that criminal charges may be pending against him, but states that he has not been indicted. The
respondent submitted vaious frs of documentation in support of his motion fr bond
redeterination, including copies of his passport, his school records, ad documents relating to the
pending petition fled by his father.
On Januar 14, 2011 the respondent appeared befre the Court fr a bond redeterination
hearing. The DHS indicated that the respondent told an immigration ofcer that he was a member
10n January 14, 2011 the Depatment of Homeland Security ("OHS") indicated that it
now believes that the respondent entered on a visitor visa and remained in the United States fr a
time longer than peritted. As a result, the DHS intends to amend the NT A to refect the proper
charge of removability.
2
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--
of the Latin Kings, a street gang. The DHS also infrmed the Court that the respondent was arested
in December 2010 fr the unlawfl taking of a motor vehicle and thef of proper valued at more
than $1000. The DHS frther noted that drugs, a frearm, and burglar tools were fund while
searching the vehicle in question. In light of these fcts, the DHS argued that the $25,000 bond was
appropriate.
Counsel fr the respondent stated that he was unaware of any afliation between the
respondent and any gang. However, he stated that if released the respondent would continue to
attend high school and live with his parents and siblings. Further, he noted that there was no
indication that the ofenses allegedly commited by the respondent were violent in nature, a point the
OHS did not contest.
Afer considering the position of the parties and all evidence, including the respondent's
arest, the Court set bond at $15,000. This amount is reasonable given the respondent's long
residence in the United States, his ties to the United States ad his possible eligibility fr adjustment
,

of status. The order was issued on January 14, 2011.
Date
3
Da<
United States Immigation Judge
Baltimore, Marlad
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