U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike, S11i1e 2000 Falls C/111rc/1, Virginia 22041

Norman, Nancy B., Esq. Law Offices of Nancy B. Norman 154 Lynnway, Suite 1C, Seaport Landing Lynn, MA 01902

OHS/ICE Office of Chief Counsel - BOS P .0. Box 8728 Boston, MA 02114

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Name: ARGUETA SANDOVAL, JOSE MIGUEL

A046-177-199

Date of this notice: 1/18/2011

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: Cole, Patricia A. Greer, Anne J. Pauley, Roger

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jose Miguel Argueta Sandoval, A046 177 199 (BIA Jan. 18, 2011)

U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 le<sburg Pike. Suite 2000 Falls C/111rcl1, Virginia 12041

ARGUETA SANDOVAL, JOSE MIGUEL 26 LONG POND RD PLYMOUTH, MA 02360

OHS/ICE Office of Chief Counsel BOS P .0. Box 8728 Boston, MA 02114

Immigrant & Refugee Appellate Center | www.irac.net

Name: ARGUETA SANDOVAL, JOSE MIGUEL

A046-177-199

Date of this notice: 1/18/2011

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F .R. 1292.5(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision.
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DOWtL ct2tVL)
Donna Carr Chief Clerk

Enclosure

Panel Members: Cole, Patricia A. Greer, Anne J. Pauley, Roger

Cite as: Jose Miguel Argueta Sandoval, A046 177 199 (BIA Jan. 18, 2011)

. .

,.

U.S.

' Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: In re:

A046 177 199 - Boston, MA JOSE MIGUEL ARGUETA SANDOVAL

Date:

JAN 18 2011

IN BOND PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Nancy B. Norman, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION: Custody redetermination

The respondent has appealed from the Immigration Judge's August 25, 2010, bond decision. The Immigration Judge issued a bond memorandum setting forth the reasons for the bond decision on September 29, 2010. The Immigration Judge found that the respondent failed to establish that he is not a danger to persons or property and denied his request for bond pursuant to section 236(a) of the Immigration and Natjonality Act, 8 U.S.C. 1226(a). The Department of Homeland Security ("DHS") has not filed a response to the respondent's appeal. The appeal will be sustained, and the record will be remanded. 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). 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.l (d)(3)(ii).

An alien in a custody determination under section 236(a) of the Act must establish to the

satisfaction of the Immigration Judge and this Board 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. See Matter ofAdeniji, 22 l&N Dec. 1102 (BIA 1999). An alien who presents a danger to persons or property should not be released during the pendency of proceedings to remove him or her from the United States. See Matter ofDrysdale, 20 l&N Dec. 815 (BIA 1994). The record shows that the respondent was admitted to the United States as a lawful permanent resident on July 29, 1996. On November 10, 2008, the respondent was arrested for speeding and failure to stop for police. On March 11, 2009, he was arrested for possession of class B drugs, to wit: cocaine and operating a motor vehicle under the influence of liquor. He was convicted on May 4, 2009, for possession of class B drugs. The Immigration Judge noted another arrest for possession of a class B substance on May 20, 2010 (l.J. at 3-4). The respondent claims on appeal that this arrest was actually for failure to pay the court costs and fines associated with the May 4, 2009, conviction rather than an arrest for a second drug possession offense. Finally, the respondent was arrested on August 13, 2010, for driving with a suspended license and unsafe operation of a motor vehicle.

Cite as: Jose Miguel Argueta Sandoval, A046 177 199 (BIA Jan. 18, 2011)

A046 177.199 The Immigration Judge noted the respondent's positive factors, which include his family ties and employment history. In particular, the respondent has two United States citizen children, one of whom has some special needs, and his mother and five siblings, all of whom have lawful status in the United States. In addition, the respondent provides financial support to his children. The Immigration Judge held that, notwithstanding the positive factors, the respondent failed to meet his burden of demonstrating that he is not a danger to the community. The respondent argues on appeal that the Immigration Judge incorrectly referenced a second possession of class B drugs offense. He also notes that his criminal history was limited to a 2-year period and that he resided in the United States lawfully for 12 years before being charged criminally.

Immigrant & Refugee Appellate Center | www.irac.net

We disagree with the Immigration Judge's denial of bond. We find that the respondent's positive factors, including his lengthy residence, significant family ties, and employment history, outweigh his criminal history. In addition, we note that the Immigration Judge erroneously stated that the respondent had been arrested for a second possession of a class B substance. Further, while he was arrested for driving with a suspended license in August of 2010, the charges were dismissed. Morever, our records indicate that the Immigration Judge granted the respondent relief from removal on December 22, 20 I 0. Thus, we do not find that the respondent is a danger to persons or property such that his release on bond is precluded. Accordingly, the following orders are entered. ORDER: The respondent's appeal is sustained. ORDER: The Immigration Judge's August 25, 2010, bond decision is vacated, and the record is remanded for the Immigration Judge to set bond.

FOR THE BOARD

Board Member Roger A. Pauley respectfully dissents and would find that the respondent's recent history of driving infractions involving moving violations renders him a danger.

Cite as: Jose Miguel Argueta Sandoval, A046 177 199 (BIA Jan. 18, 2011)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT JFK FEDERAL BLDG., ROOM 320 BOSTON, MA 02203

ATTORNEY-AT-LAW NORMAN, NANCY B. 154 LYNNWAY UNIT #1 C LYNN, MA 01902

SEAPORT LANDING

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IN THE MATTER OF ARGUETA SANDOVAL,

FILE A 046-177-199 JOSE MIGUEL

DATE:

Oc t 5,

2010

UNABLE TO FORWARD - NO ADDRESS PROVIDED ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST BOARD OF IMMIGRATION APPEALS MUST BE MAILED TO: OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041 ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6), 8 u.s.c. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT: IMMIGRATION COURT JFK FEDERAL BLDG., BOSTON, MA 02203

ROOM 320

OTHER:

M e"'o

COURT CC: MENENDEZ, BERNARD JFK BLDG, ROOM 425 BOSTON, MA, 022030000

IMMIGRATION COURT

Jw

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BOSTON, MASSACHUSETTS IN THE MATIER OF: ARGUETA SANDOVAL, Jose Miguel A 046-177-199 Respondent

) ) ) )

Immigrant & Refugee Appellate Center | www.irac.net

In Bond Proceedings DETAINED

CHARGES:

Immigration Nationality Act ("INA") 237(a)(2)(B)(i) - Alien, who at any time after admission, has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 2 1 U.S.C. 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana. Custody Status Redetermination

APPLICATION:

ON BEHALF OF RESPONDENT:

ON BEHALF OF DHS:

Nancy B. Norman, Esq. Law Offices of Nancy B. Norman 154 Lynnway, #IC, Seaport Landing Lynn, MA 01902

Office of the Chief Counsel Assistant Chief Counsel 15 New Sudbury Street Room 425 Boston, MA 02203

MEMORANDUM CONCERNING THE AUGUST 25, 2010, DECISION OF THE IMMIGRATION COURT

This memorandum is submitted pursuant to Title 8 of the Code of Federal Regulations (8 C.F.R.) 1236. l (d) (2010) and provides reasons why the Immigration Court denied the Respondent's request for a change in custody status.
I. Procedural History

The Respondent, Jose Miguel Argueta Sandoval, is the subject of a Notice to Appear ("NTA"), which the Department of Homeland Security ("DHS") personally served him on August 16, 2010. See NTA. In the NTA, the DHS alleges that the

Rspondent: (1) is not a citizen or national of the United States; (2) is a native and citizen of Guatemala; (3) was admitted to the United States at Miami, Florida on or about July 29, 1996 as a lawful permanent resident ("LPR"); and (4) was, on May 4, 2009, convicted in the Malden District Court at Malden Massachusetts for the offense of Possession Class B, Drugs, to wit: Cocaine, in violation of Massachusetts General Laws 94C, Section 34. Id. Based upon this information, the DHS charged the Respondent with removability from the United States pursuant to INA 237(a)(2)(B)(i), as an alien, who at any time after admission, has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana.
II. Applicable Law

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Where an alien is not subject to mandatory detention, the Court has jurisdiction to exercise its discretion by either: (1) continuing to detain the alien; or (2) releasing the alien on bond of not less than $1,500.00. See INA 236(a). Under previous Board of Immigration Appeals (Board) precedent decisions addressing general bond provisions, an alien ordinarily would not be detained unless he or she presented a threat to national security or a risk of flight. See, e.g., Matter ofPatel, 15 I&N Dec. 666 (BIA 1976) (citing Carlson v. Landon, 342 U.S. 524 ( 1952)). Nonetheless, by virtue of 8 C.F.R. 1003. l 9(h)(3), an alien now bears the burden of proof and persuasion, and must first demonstrate, by clear and convincing evidence, that release would not pose a danger to other persons or property. If an alien meets this burden, 8 C.F.R.1003. l 9(h)(3) then provides that the alien must further demonstrate, by clear and convincing evidence, that the alien is likely to appear for any scheduled proceeding or interview. 8 C.F.R. 1003. l 9(h)(3). The Board has consistently held that the following factors are significant in a bond redetermination:
I.

Fixed address in the United States. (BIA 1979);

See Patel,

15 I&N Dec. at 666 17

2.

Length of residence in the United States. l&N Dec. 177 (BIA 1979);

See Matter of Shaw,

3.

Family ties in the United States, particularly those which can confer immigration benefits on the alien. See Shaw, 17 I&N Dec. at 177; Patel, 15 I&N Dec. at 666.

4.

Employment history in the United States, including length and stability. See Shaw. 17 I&N Dec. at 177; Patel, 15 I&N Dec. at 666. Immigration record. See Shaw, 17 l&N Dec. at 177; .Matter o fSan Martin, 15 l&N Dec. 167 (BIA 1974); Matter of Moise, 12 I&N Dec. 102 (BIA 1967); Attempts to escape from authorities or other flight to avoid prosecution. Patel, l 5 I&N Dec. at 666; San Martin, 15 I&N Dec. at 167. Prior failures to appear for scheduled court proceedings. See Shaw, 17 l&N Dec. at 177; Patel, 15 l&N Dec. at 666; San Martin, 15 I&N Dec. at 167; and Criminal record, including extensiveness and recency, indicating consistent disrespect for the law and ineligibility for relief from deportation/removal. Maller of Andrade, 19 l&N Dec. 488 (BIA 1987).

5.

6.

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7.

8.

The determination of the Court s to custody status or bond may be based upon any information that is available or that is presented by the alien or the OHS. 8 C.F.R. 1003.l 9(d). A criminal alien seeking custody redetermination under INA 236(a) must show that he does not present a danger to property or persons. It is the responsibility of the Court and parties to ensure the bond record establishes the nature and substance of the specific factual information considered in reaching the bond determination.
III. Findings of Fact and Conclusions of Law

As a preliminary matter, the OHS did not allege that the Respondent was subject to mandatory custody pursuant to INA 236(c), and the Court finds that the record does not demonstrate that the provisions under INA 236(c) apply to him. The Court recognized the positive factors identified by the Respondent, namely his family ties and employment history; however, these factors were not dispositive. The Respondent was required to demonstrate, by clear and convincing evidence, that he does not pose a danger to persons or property. There are compelling reasons to grant bond, namely his two United States citizen children, one of whom has special needs, and the financial support that he provides for his family, but the serious and recent charges against the Respondent outweigh those circumstances. The bond record indicates that on November 10, 2008, the Respondent was arrested for speeding and failure to stop for the police; on March 11, 2009, the Respondent was arrested and charged with illegal possession of a Class B substance as well as operating under the influence of liquor ("QUI"); on May 20, 2010, the

Respondent, again, was arrested and charged with possession of a Class B substance; and on August 13, 20 10, the Respondent was cited for operating a vehicle after revocation or suspension of his driver's license. Notwithstanding the positive factors presented in this case, the Court finds that the Respondent fell short of establishing that he is not a danger to the community. In light of the Respondent's recent criminal history, specifically his OUI and controlled substance violations, the Court concluded that he failed to meet his burden and demonstrate, by clear and convincing evidence, that he is not a danger to persons and property. Consequently, the Court denied the Respondent's request for bond.

Immigrant & Refugee Appellate Center | www.irac.net

....

Date

--'PAUL M. GAGNO

United States Immigration Judge