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Department of Justice
Executive Office for Immigration Review
MARTINEZ, LUIS FERNANDO {A089 748 621) C/O ICE, 1115 N. IMPERIAL AVE. EL CENTRO, CA 92243
OHS/ICE Office of Chief Counsel - ELC 1115 N. Imperial Ave. El Centro, CA 92243
A089-748-621
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
Enclosure
Cite as: Luis Fernando Martinez, A089 748 621 (BIA March 25, 2011)
'
U.S. Department ofJustice Executive Office for Inunigration Review Falls Church, Virginia 22041
File:
Date:
MAR 2 5 201:
In re: LUIS FERNANDO MARTINEZ IN BOND PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Pro se
APPLICATION:
The respondent has appealed from the December 14, 2010 decision of an Immigration Judge. The record will be remanded for a new individualized bond hearing. The Board reviews an Immigration Judge,s findings of fact, including findings as to the ,, credibility of testimony, under the "clearly erroneous standard. 8 C.F.R. 1003. l(d)(3)(i); Matter
of S-H-, 23 l&N Dec. 462, 464-65 (BIA 2002) (stating that the Board must defer to the factual
determinations of an Immigration Judge in the absence of clear error). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions oflmmigration Judges
Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) and Casas-Castrillon v. Dept. ofHomeland Security, 535 F.3d 942 (9th Cir. 2008). In Prieto-Romero and Casas-Castrillon, the Ninth Circuit
held that an alien detained in immigration custody while an appeal of a final removal order is pending before the Ninth Circuit is entitled to a bond hearing under section 236(a) of the Act. Because the burden of proof has now shifted since the previous decision of the Immigration Judge regarding respondenfs suitability for custody redetermination, the record will be remanded for further proceedings. ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this decision.
Cite as: Luis Fernando Martinez, A089 748 621 (BIA March 25, 2011)
1
. .
FILE NO.
On Behalf of Respondent:
Pro Se
On May 10, 2010, Immigration Judge Ronald Mullins denied the respondent's request for cancellation of removal as a nonlegal resident and ordered the respondent removed. The respondent appealed, and on August 3, 2010, the Board of Immigration Appeals affirmed the order of removal. The respondent appealed that decision to the Circuit Court of Appeals for the Ninth Circuit, which entered a temporary stay of removal on August 12, 2010. On October 19, 2010, the respondent filed a motion for bond under the rule in
Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) and Casas-Castrillon v. Department of Homeland Sec., 535 F.3d 942 (9th Cir 2008). By an order of November 4, 2010, I granted his
request, and on December 7, 2010, I held the requested bond hearing. However, I find that the respondent was not entitled to bond hearing. He has not been in custody for six months beyond the final administrative order; that date does not arrive until February 3, 2011. Moreover, he has not been subject to mandatory custody without any prior bond hearing. Rather, he had a bond hearing on February 10, 2010, at which time his bond was reduced from 'no bond' to a bond of $20, 000.00. The request for bond must therefore be denied because his case is not within the
v.
rule of Prieto-Romero
v.
DHS, supra.
SO ORDERED