Immigration Appeals Decisions

Since the Supreme Court issued its decision in Kucana v. Holder, 558 U. S. ____ (2010) on January 20th of this year, rumors about the decision have been rampant.  A couple of well-known attorneys have explained the significance of the decision in the media in very imaginative ways.  The media then turned this analysis into news and so the snowball of expectations keeps growing.  While most United States Supreme Court decisions tend to be relatively long and discuss the law in a very analytical or academic manner, it is important for you to understand the main holding in the case.

 In Kucana, the Supreme Court held that the United States Courts are barred from reviewing discretionary decisions related to sections of the Immigration and Nationality Act where the discretion is based on statutory authority. The issue here was related to the regulatory exercise of discretion in motions to reopen removal, deportation, or exclusion proceedings. 

Before you contact the Immigration Court that handled your case, the Board of Immigration Appeals, or the Department of Homeland Security, you must first  BE AWARE that you are exposing yourself to the very realistic possibility that Immigration and Customs Enforcement will try to enforce the order entered against you – even if you are right.  

The Kucana decision principally deals with the authority (a simpler way of saying jurisdiction) of United States Courts of Appeals, the courts before which one files a petition for review of decisions of the Board of Immigration Appeals. Within that limited scope, this case specifically deals with whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) bans any United States Court from reviewing the discretionary decision of the Attorney General authorized in certain statutes.  

 Two things are especially important with respect to this case:  The first is that a Federal statute is a law passed by the Congress and signed by the President of the United States. Regulations are rules created by the Executive Branch to enforce these statutes.  The second thing you need to remember is that Immigration Courts and the Board of Immigration Appeals are part of an agency within the Department of Justice, that is, the Attorney General. How a case is decided in a United States Court is different than how a case is decided by agencies in the Executive Branch. United States Courts give great deference to decisions of Federal agencies in enforcing the decisions delegated to them by Congress through statutes.

If you have survived this discussion so far, you realize that Kucana is a limited legal decision.  The Supreme Court remanded or returned the case to the Seventh Circuit Court of Appeals to act according to the  instructions in its opinion.  An opinion in the legal sense is an explanation of a court’s decision. What could this mean for you?  The bottom line is that we DO NOT know how the Department of Justice will implement this seemingly technical decision.  

If you are in a situation where you are about to file a petition for review, have one pending with a court of appeal, or may have had one denied based on this issue, you may want to contact your attorney and discuss how this ruling applies to you.  If you already have a final order of removal, deportation, or exclusion, understand that this ruling does not change the statutory restrictions on motions to reopen, including the number and timeliness restrictions.  It certainly does not address the substance or merits of a motion to reopen proceedings.

PLEASE REMEMBER THAT THIS IS GENERAL INFORMATION
YOU NEED TO DISCUSS YOUR CASE WITH AN ATTORNEY WHO IS KNOWLEDGEABLE ABOUT THESE ISSUES AND THE FACTS OF YOUR CASE.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Thalassa Kingsnorth, Esquire

Dominique J. Honea
Assistant Chief Counsel

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] – Present without being admitted or paroled

Sec. 212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(2)(A)(i)(I)] – Crime involving moral turpitude

The Department of Homeland Security (hereinafter “DHS”) appeals from the decision of the Immigration Judge dated September 4, 2009, that terminated the respondent’s removal proceedings as the DHS had failed to meet its burden to establish the respondent’s alienage. The appeal will be sustained and the record remanded.

We review the findings of fact, including determinations of credibility, made by the Immigration Judge under a clearly erroneous standard. 8 C.F.R. § 1003.1(d)(3)(i). All other issues, including whether the parties have met the relevant burden of proof, and issues of discretion, are reviewed under a de novo standard. 8 C.F.R. § 1003.1(d)(3)(ii).

The DHS contends that the Immigration Judge erred by excluding from evidence the Record of Deportable/Inadmissible Alien (Form 1-213), a printout of a DHS previous encounters log, and a DHS Record of Sworn Statement in Affidavit Form (I.J. at 3-4; Exhs. 3, 5, 8). The DHS also contends that the Immigration Judge erred in not allowing a continuance so that it could authenticate these records.

The respondent has testified that he was born abroad (Tr. at 45). This admission raises a presumption of the respondent’s alienage and shifts the burden to him to establish his lawful status in the United States. 8 U.S.C. §§ 240(c)(2), (c)(3)(A); Scales v. INS, 232 F.3d 1159, 1163 (9th Cir. 2000); Matter of Gonzalez, 16 I&N Dec. 44 (BIA 1976).

The respondent contends that he is mentally incompetent to testify regarding the circumstances of his birth. However, he has not presented any medical or other evidence to substantiate any disorder that would render him incapable of answering the basic question regarding his alienage. Therefore, we find the Immigration Judge’s credibility determination to be clearly erroneous (I.J. at 5).

Furthermore, the circumstances of this case show that it is likely the documents presented by the DHS are authentic. It was error for the Immigration Judge to deny the DHS’s request for a continuance in order to meet the technical requirements of authentication under Ninth Circuit precedent. Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1995); Lopez-Chavez v. INS, 259 F.3d 1176, 1181 (9th Cir. 2001) (authentication merely requires certification from the custodian of records that an I-213 or other DHS records are a true and correct copy).

Accordingly, the following order will be entered.

ORDER: The DHS appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Edward R. Grant
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Susana Abarca, Esquire

Thomas G. Crossan, Jr.
Assistant Chief Counsel

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] – Present without being admitted or paroled

The respondent, a native and citizen of Honduras, appeals from an Immigration Judge’s decision dated January 15, 2009, denying the respondent’s motion to reopen removal proceedings conducted in absentia on June 5, 2003. The respondent’s appeal will be dismissed.

We affirm the Immigration Judge’s decision denying the respondent’s motion to reopen her removal proceedings that were conducted in absentia. Specifically, we find no error in the Immigration Judge’s conclusion that the respondent did not demonstrate that the in absentia order of removal qualifies for rescission. See section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C); see also 8 C.F.R. § 1003.1(d)(3)(ii) (stating that the Board reviews questions of law de novo). Nor do we find clear error in the factual findings leading up to that determination. See 8 C.F.R. § 1003.1(d)(3)(i). Pursuant to section 240(b)(5)(C) of the Act, an order issued following proceedings conducted in absentia may be rescinded only upon a motion to reopen filed (a) within 180 days after the date of the order of removal if the alien demonstrates that he failed to appear because of exceptional circumstances, or (b) at any time if the alien demonstrates he did not receive proper notice of the hearing, or because he was in Federal or State custody and failed to appear through no fault of his own. The respondent’s motion is untimely as it was filed well after 180 days, more than 5 years, after the date of the order of removal and, in any event, establishes no exceptional circumstances that would excuse the respondent’s failure to appear.

Furthermore, it is undisputed that the respondent was personally served with the Notice to Appear and provided oral notice in Spanish of the consequences of failing to appear at her scheduled hearing. However, the record reveals that the respondent failed to provide an address at which she could be contacted in accordance with section 239(a)(1)(F)(i) of the Act, 8 U.S.C. § 1229(a)(1)(F)(i) (Exhs. 1A, 2A). See also section 240(b)(5)(B) of the Act. Significantly, the respondent on appeal does not assert that she did, in fact, provide the required address. [FN1] Nor does the record reveal that the respondent provided the required written notice of any change of address, including a Post Office box, or telephone number. See sections 239(a)(1)(F)(ii), 240(b)(5)(B) of the Act. [FN2]

On this record, and in view of the 2003 final removal order, we decline to set aside the Immigration Judge’s decision denying the respondent’s motion to reopen, for the reasons explained by the Immigration Judge. Accordingly, we will enter the following order.

ORDER: The respondent’s appeal is dismissed.

Patricia A. Cole
FOR THE BOARD

FN1. The respondent’s apparent assertion on appeal that the government’s alleged knowledge of an address related to a different proceeding involving a different alien number does not relieve the respondent of her duty to provide an address and telephone number at which she may be contacted respecting proceedings under section 240 of the Act. See section 239(a)(1)(F)(i) of the Act.

FN2. The respondent’s apparent assertion that the Immigration Court improperly denied her FOIA request is without merit (Resp. Br. at 2). The record reveals that the respondent did not comply with the appropriate procedures for filing such request (Resp. Br. at Tab C).

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Georgia B. Gillett, Esquire

Claire W. Matecko
Assistant Chief Counsel

In an oral decision dated September 28, 2009, an Immigration Judge found the respondent removable; determined that he did not demonstrate eligibility for any relief from removal; and ordered him removed from the United States to Belize. [FN1] The respondent appealed from that decision. The appeal will be dismissed.

The respondent was found removable as charged, as inadmissible as convicted of a controlled substance violation under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II). As substantiated by conviction documents (Ex. 2), he has a 2008 Florida conviction upon a guilty plea for the offense of “purchase or possession with intent to purchase cocaine.” For that crime, he was sentenced to imprisonment of 31 days. He became a lawful permanent resident by at least 1972 and possibly as early as 1969.

We agree with the Immigration Judge’s conclusions concerning the respondent’s removability and ineligibility for relief. [FN2]

On appeal, the respondent contends that the Immigration Judge should have granted him a continuance so that he could obtain immigration counsel and could pursue post-conviction relief concerning his conviction. He alleges that his conviction may be invalid due to a defective guilty plea.

We agree with the Immigration Judge’s determination to deny the continuance. The decision to grant or deny a continuance is within the discretion of the Immigration Judge, and good cause must be shown for a continuance. See Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1997); Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983); 8 C.F.R. § 1003.29 (2009). The respondent, as an alien in immigration proceedings, has no constitutional right to appointed counsel under the Sixth Amendment to the United States Constitution. However, he has a statutory right to counsel at no expense to the government. See section 292 of the Act, 8 U.S.C. § 1362. At the outset of the hearing on September 28, 2009, the Immigration Judge informed the respondent that he could secure an attorney or representative and ascertained that he had been provided the required list of free and low-cost legal services. However, when the Immigration Judge inquired whether the respondent wanted more time to locate an attorney, the respondent answered, “I’d like to proceed, sir.” (Tr. at 1-2).

We find that the Immigration Judge appropriately went forward with the proceedings without affording the respondent a continuance. Concerning the validity of the respondent’s conviction, the fact that he may be pursuing post-conviction relief in the form of a collateral attack on his conviction in state criminal court does not affect its finality for federal immigration purposes. See Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992). The respondent has presented no evidence with this appeal that any attack on the conviction has resulted in any vacatur or has even been filed.

To the extent that the respondent contends that his removal proceedings were unfair, we find that he has not demonstrated any error by the Immigration Judge in not granting a continuance or in handling his hearing, under the circumstances of this case. We also find that he has not demonstrated any resultant prejudice such as would constitute a due process violation. See Ali v. Gonzales, 440 F.3d 678 (5th Cir. 2006).

Finally, the respondent appears to seek humanitarian relief. He notes that he is 61 years old, blind in one eye, and disabled. He states that he has a United States citizen wife of 49 years; a United States citizen mother who is terminally ill with cancer; and 5 children, all of whom are either United States citizens or lawful permanent residents. He indicates that he would like to stay in the United States with his family members. In this regard, we recognize that this Board and the Immigration Judges have limited jurisdiction and can grant only those forms of relief from removal that are expressly authorized by Congress. See Matter of Medina, 19 I&N Dec. 734 (BIA 1988). We have no power to grant equitable remedies or to confer general humanitarian relief on aliens, even though a particular case may pose sympathetic circumstances. If the respondent wishes to obtain relief on humanitarian grounds, including for reasons related to his family members or the health of himself or any relative, he must pursue such relief with the Department of Homeland Security.

Accordingly, we will dismiss the appeal.

ORDER: The appeal is dismissed.

John Guendelsberger
FOR THE BOARD

FN1. The proceedings before the Immigration Judge in this matter were completed in San Antonio, Texas through video conference pursuant to section 240(b)(2)(A)(iii) of the Act, 8 U.S.C. § 1229a(b)(2)(A)(iii).

FN2. As the Immigration Judge observed (I.J. at 2), the respondent is ineligible for cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a), because he was previously granted a waiver under section 212(c) of the Act. See section 240A(c)(6) of the Act. The respondent has not specified any other form of relief for which he believes that he might be eligible or for which he would like to apply, nor do we discern any available relief for him based on the current record.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Micaela A. Guthrie
Assistant Chief Counsel

The respondent’s timely motion to reconsider the Board’s October 30, 2009, will be denied. See Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006); section 240(c)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b). In our previous order, we dismissed the respondent’s appeal from the Immigration Judge’s decision denying the respondent motion to terminate the proceedings based on a claim to United States citizenship. The respondent now specifically claims that the Board failed to make a determination that he is a “national” of the United States based upon service in U.S. Army and oaths of allegiance to the United States. See Motion to Reconsider at 5-6. Service in the armed forces of the United States and taking the standard military oath does not make a person a national, however. Warmington v. Keisler, 254 Fed. Appx. 287, 289 (5th Cir. 2007), citing Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 938-40 (9th Cir. 2004) (holding that service in the armed forces of the United States, along with the taking of the standard military oath, does not alter an alien’s status to that of a “national” within the meaning of the Act). Accordingly, the respondent’s motion to reconsider is denied. [FN1]

David B. Holmes
FOR THE BOARD

FN1. The respondent’s request to stay removal is also denied.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Steve Spurgin, Esquire

Dixie Lee Pritchard
Assistant Chief Counsel

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony

The respondent, a native and citizen of Mexico, and lawful permanent resident of the United States, appeals an Immigration Judge’s September 18, 2009, decision finding that he was removable for having committed an aggravated felony under section 101(a)(43(F) of the Immigration and Nationality Act (the Act); 8 U.S.C. § 1101(a)(43)(F). The appeal will be dismissed.

On August 22, 2008, the respondent was convicted of evading arrest or detention with a motor vehicle, in violation of section 38.04 of the Texas Penal Code, and sentenced to 2 years incarceration. On the basis of this conviction, the DHS initiated the present removal proceedings, charging the respondent as removable as an alien convicted of an aggravated felony, a “crime of violence” under 18 U.S.C. § 16 for which the term of imprisonment is at least 1 year. See section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F). The Immigration Judge found the respondent’s offense was a crime of violence under 18 U.S.C. § 16, and ordered him removed from the United States.

In reaching his conclusion, the Immigration Judge found the offense of evading arrest or detention with a motor vehicle to be substantially equivalent in conduct and risk to the offense of unauthorized use of a motor vehicle under section 31.07 of the Texas Penal Code (I.J. at 3). The Immigration Judge noted that the United States Court of Appeals for the Fifth Circuit (Fifth Circuit), held in United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999), that the unauthorized use of a motor vehicle is a crime of violence. Therefore, because the offenses were substantially equivalent in conduct and risk, the Immigration Judge found the offense of evading arrest or detention with a motor vehicle to also be a crime of violence (I.J. at 3).

On appeal, the respondent argues that the Fifth Circuit has reversed its decision that the unauthorized use of a motor vehicle is a crime of violence. See Serna-Guerra v. Holder, No. 07-60634, 2009 WL 4609835 (5th Cir. 2009). Respondent’s brief at 2. The respondent argues that because the Immigration Judge relied upon grounds which are no longer valid in reaching his conclusion, the case should be remanded to the Immigration Judge for further review.

In reaching his conclusion, the Immigration Judge did rely on the Fifth Circuit’s holding in Galvan-Rodriguez, id. However, remand is not necessary as the Fifth Circuit has also recently issued a decision in United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009), which supports the Immigration Judge’s conclusion that the offense of evading arrest or detention with a motor vehicle is a crime of violence under 18 U.S.C. § 16(b). This Board retains independent judgment and discretion regarding pure questions of law and the application of a particular standard of law to the facts of a case. See Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008); see also 8 C.F.R. § 1003.1(d)(3).

Under 18 U.S.C. § 16(b), an offense is a crime of violence, if the offense is a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The Fifth Circuit held in Harrimon, that the offense of evading arrest or detention with a motor vehicle is a violent felony under the Armed Career Criminal Act (ACCA) because it presented a serious potential risk of physical injury to another. Id. at 537. While Harrimon addressed the ACCA statute and not the Immigration and Nationality Act, the two statutes use only slightly different language. Specifically, under the ACCA, the risk must be a “serious potential risk” of physical injury to another, instead of the “substantial risk” under the Act. The Fifth Circuit considered the offense generically, and concluded that fleeing by vehicle is purposeful, violent and aggressive, and in the ordinary case, poses a serious risk of injury to others. Id. at 534. Having made these findings regarding the ordinary case, we conclude that the Fifth Circuit decision that the offense of evading arrest or detention with a motor vehicle is a violent felony, carries over to the definition of crime of violence under 18 U.S.C. § 16(b) of the Act. See James v. United States, 550 U.S. 192, 207-8 (2007). Therefore, the respondent’s offense is a “crime of violence” under 18 U.S.C. § 16(b) and, in view of the 2-year sentence he received, an aggravated felony under section 101(a)(43)(F). Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

Roger A. Pauley
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

David P. Finn
Assistant Chief Counsel

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony

Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] – Convicted of crime involving moral turpitude

The respondent, a native and citizen of Jamaica, has appealed from the Immigration Judge’s decision dated October 22, 2009. The appeal will be dismissed.

As found by the Immigration Judge, the respondent was admitted to the United States as a lawful permanent resident on April 22, 2004. On December 11, 2006, the respondent was convicted of second degree robbery in violation of section 211 of the California Penal Code and sentenced to a term of imprisonment of 3 years.

We will affirm the Immigration Judge’s determination that the respondent is subject to removal as charged and ineligible for any relief. The respondent’s argument on appeal that his conviction does not qualify as an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101 (43)(F), because the statute covers conduct that would not constitute a crime of violence, is without merit since the record of conviction shows that he pled guilty to count 1 of the felony complaint which charged that he took property unlawfully and by force or fear from the person of another. See also Nieves-Medrano v. Holder, 2010 WL 27339 (9^th Cir. 2010). [FN1] The respondent is ineligible for any relief for the reasons stated in the Immigration Judge’s decision (I.J. at 3-4).

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

Roger A. Pauley
FOR THE BOARD

FN1. The respondent’s reliance on United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) to argue that Cal. Penal Code § 211 is broader than a generic robbery statute is misplaced because, unlike the vehicle theft statute involved in that case (Cal. Penal Code § 10851 (a)), which expressly reaches the conduct of an accessory, there is no mention of accessory liability in Cal. Penal Code § 211. The respondent has not identified a case in which California has applied the statute in that way, and it would appear that an accessory to robbery after the fact would be charged and convicted as such under both Cal. Penal Code §§ 32 and 211. Therefore, we cannot conclude that a conviction under Cal. Penal Code § 211 may be based on a finding of something less than conduct which fits within the definition of a generic robbery offense. See Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061-1062 (9th Cir. 2009).

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Samuel W. Asbury, Esquire

Thomas P. Molloy
Assistant Chief Counsel

The respondent has appealed the June 4, 2008, decision of an Immigration Judge denying his request for pre-conclusion voluntary departure. The respondent, a native and citizen of Mexico, argues that the Immigration Judge applied an incorrect legal standard, namely a good moral character requirement, that does not exist for pre-conclusion voluntary departure and he asks that the record be remanded for further consideration of his request for voluntary departure. The motion to remand will be granted.

Voluntary departure under section 240B(a) of the Act is considered pre-hearing or pre-conclusion voluntary departure, which allows for a voluntary departure period of up to 120 days and has less stringent eligibility criteria than post-conclusion voluntary departure under section 240B(b) of the Act. See Matter of Arguelles, 22 I&N Dec. 811, 817 (BIA 1999); 8 C.F.R. § 1240.26(b); see also Matter of Cordova, 22 I&N Dec. 966, 967 (BIA 1999); Matter of Ocampo, 22 I&N Dec. 1301, 1303 (BIA 2000). Most significantly, an alien may be granted voluntary departure under section 240B(a) of the Act without being required to establish good moral character. Matter of Arguelles, supra, at 817. Thus, the Immigration Judge could properly grant this form of relief even if the respondent has certain criminal convictions, or has committed other actions indicative of a lack of good moral character. However, we have emphasized that discretion remains a required element of voluntary departure under both sections 240B(a) and 240B(b) of the Act. Id.

The record reveals that the respondent requested pre-conclusion voluntary departure, and that the Department of Homeland Security did not oppose this minimal form of relief. Tr. at 5. Despite the non-opposition of DHS, the Immigration Judge concluded that the respondent’s 2008 conviction for Operating a Motor Vehicle While Intoxicated precluded the respondent from demonstrating that he merited a favorable exercise of discretion. Although the respondent is not required to establish good moral character in order to be eligible for such relief under 240B(a), the Immigration Judge is within his authority to deny voluntary departure as a matter of discretion, based upon a decision that considers both favorable and unfavorable factors of record. See Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972).

The respondent argues that new facts have arisen, namely his subsequent marriage to a United States citizen and the approval of a visa petition based on that marriage. He requests that the record be remanded so that the Immigration Judge may consider these new factors related to his request for voluntary departure. The DHS has not opposed the respondent’s motion to remand. Since these new facts occurred after the Immigration Judge’s discretionary denial, we will grant the respondent’s motion to remand so that the Immigration Judge may consider these new favorable factors.

Edward R. Grant
FOR THE BOARD

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Anser Ahmad, Esquire

Bruce B. Dizengoff
Assistant Chief Counsel

The Department of Homeland Security (DHS) has filed an interlocutory appeal of an Immigration Judge’s decision dated September 8, 2009, denying its motion to vacate the August 13, 2009, order reopening the respondent’s removal proceedings. [FN1] Ordinarily the Board does not entertain interlocutory appeals, to avoid piecemeal review of the multiple queries that may arise during the course of removal proceedings. Matter of M-D-, 24 I&N Dec. 138, 139 (BIA 2007), and cases cited therein. We have on occasion accepted interlocutory appeals to address significant jurisdictional questions about the administration of the immigration laws, or to correct recurring problems in the handling of cases by Immigration Judges. See, e.g., Matter of Guevara, 20 I&N Dec. 238 (BIA 1990, 1991); Matter of Dobere, 20 I&N Dec. 188 (BIA 1990). The issue of whether the Immigration Judge properly denied the DHS’s motion to vacate is not a recurring problem in Immigration Judges’ handling of cases. Further, although the DHS characterizes as jurisdictional the issue of whether Matter of Bulnes, 25 I&N Dec. 57 (BIA 2009) controls in a case where a Motion to Reopen was filed less than 2 hours after the respondent’s removal, we decline to address that characterization at this juncture. The question raised in this interlocutory appeal does not fall within the limited ambit of cases where we deem it necessary to exercise interlocutory jurisdiction.

Accordingly, the following order will be entered.

ORDER: The record shall be returned to the Immigration Court with no further action.

Anne J. Greer
FOR THE BOARD

FN1. We observe that the Immigration Judge’s order dated September 8, 2009, titled “Order Granting Motion to Vacate,” states that the DHS’s motion to vacate is denied, but further states that the August 13, 2009, order reopening removal proceedings and staying removal “is hereby vacated.” As the order appears to have been prepared by the DHS in conjunction with the motion to vacate, it appears that the Immigration Judge struck the preprinted word “granted” and replaced it with “Denied,” but simply overlooked the portion of the pre-prepared order indicating that the August 13, 2009, order was vacated.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Ernest Wilson, Esquire

Lauren Farber Weintraub
Assistant Chief Counsel

The Department of Homeland Security (the “DHS”) has appealed from the Immigration Judge’s October 28, 2009, custody order granting the respondent’s request for a redetermination of the conditions of his custody and ordering that the respondent be released upon posting a bond in the amount of $15,000. On November 9, 2009, the Immigration Judge issued a brief memorandum in support of his decision. The record will be remanded to the Immigration Judge.

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. § 1003.1(d)(3)(i); see also Matter of S-H-, 23 I&N Dec. 462, 464-65 (BIA 2002). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R § 1003.1(d)(3)(ii).

We acknowledge the DHS’s initial argument that the Immigration Judge lacked jurisdiction to conduct the October 28, 2009, custody redetermination hearing as the respondent is subject to mandatory detention based on his 2003 drug conviction. See section 236(c)(1)(B) of the Act, 8 U.S.C. § 1226(c)(1)(B). We also acknowledge the DHS’s alternative argument that assuming the respondent is not subject to mandatory detention, he nevertheless failed to rebut the presumption that he presents a danger and threat to the community. See section 236(a) of the Act; Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Adeniji, 22 I&N Dec. 1102, 111-13 (BIA 1999); Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994) (providing that the interpretation of whether an alien has rebutted the presumption against him is a two-step analysis and unless the alien demonstrates that he is not a danger to the community upon consideration of the relevant factors, we do not address likelihood that he will abscond); 8 C.F.R. § 1236.1(c)(3). Potentially dangerous aliens may be held in the custody of the Department of Homeland Security without bond during the pendency of removal proceedings. See Carlson v. Landon, 342 U.S. 524, 537-42 (1952). In this regard, we appreciate the DHS’s concern that the respondent may present a danger and threat to the community, particularly given the evidence in the record relating to the respondent’s August 12, 2003, arrest and related criminal charges resulting from that arrest, including Reckless Endangerment. Unlawful Possession of Marijuana, Criminal Possession of a Weapon, Failure to Obey Stop Signs or Yield Signs, Reckless Driving, and Unlicensed Operator. See Matter of Guerra, supra, at 40 (affording the Immigration Judge broad discretion in considering factors that may be considered including evidence in the record of serious criminal conduct, even where such conduct has not resulted in a conviction).

The bond memorandum prepared by the Immigration Judge does not adequately address whether the DHS was substantially unlikely to establish a charge of removability that would subject the respondent to mandatory detention – namely, a charge under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i). Nor does the bond memorandum address any of the positive and adverse factors developed in the record relevant to whether the respondent successfully rebutted the presumption that he is a danger and threat to the community or whether he presents a flight risk Given these deficiencies, the record is inadequate for appellate review. See Matter of A-P-, 22 I&N Dec. 468 (BIA 1999) (stating that the Immigration Judge is “responsible for the substantive completeness of the decision”); Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984) (noting that “[t]he Board is an appellate body whose function is to review, not create, a record”). Accordingly, we will remand the record to the Immigration Judge for the issuance of a new decision. See Matter of S-H-, supra, at 463 (remanding to the Immigration Judge noting the lack of factual findings and legal analysis).

Accordingly, the following orders will be entered.

ORDER: The record is remanded to the Immigration Judge for the issuance of a new and complete decision.

John Guendelsberger
FOR THE BOARD