** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **
Executive Office for Immigration Review
Board of Immigration Appeals
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.