27 I. & N. Dec. 803
BIA2020Background
- Respondent: Honduran national who entered the U.S. without inspection on Feb. 24, 2019 and was detained by DHS.
- Procedural posture: IJ denied respondent's custody redetermination (bond) on June 5, 2019 (bond memo July 17, 2019); respondent appealed to the BIA; appeal dismissed March 18, 2020.
- IJ findings: respondent not a danger to community or national security, but poses a significant flight risk.
- Facts relevant to flight risk: recent unlawful entry; no prior lawful U.S. status; no family, employment, or community ties in the U.S.; no U.S. court-appearance history.
- Proffered support: a non-family friend submitted a statement, Honduran passport, and utility bill and offered to provide housing and a bus ticket to Texas; IJ found this insufficient and lacked independent proof of the friend’s status or ability to ensure appearance.
- Relief prospects: respondent had a pending asylum application; IJ concluded likelihood of asylum grant was low; EOIR record later shows IJ denied asylum (Nov. 7, 2019) and appeal of that denial is pending.
Issues
| Issue | Respondent's Argument | DHS/Board's Argument | Held |
|---|---|---|---|
| Burden of proof for bond | DHS must prove respondent is a flight risk; respondent cannot be required to prove otherwise | Alien bears burden to show he merits release on bond under §236(a) | Burden remains on alien to prove he is not a flight risk; respondent failed to meet it |
| Sufficiency of third‑party support | Friend’s signed statement, passport, utility bill, and offer to buy ticket suffice to show fixed address/support | Evidence lacked independent proof of friend’s status, relationship, or ability/willingness to secure appearance | IJ reasonably discounted friend’s proffer as inadequate to ensure appearance |
| Relevance of pending asylum claim | Asylum application creates strong incentive to appear; respondent likely to obtain relief | Likelihood of relief is uncertain; asylum is not guaranteed and IJ may weigh it among other factors | IJ reasonably found asylum grant unlikely and gave it limited weight for bond determination |
| Use of bond‑factors outside Matter of Guerra list | IJ improperly considered factors not enumerated in Guerra | IJ may consider any probative, specific evidence relevant to flight risk or danger | BIA approved IJ’s consideration of additional relevant facts in assessing flight risk |
Key Cases Cited
- Carlson v. Landon, 342 U.S. 524 (1952) (upholds executive authority to detain noncitizens pending deportation and supports that detention is not equivalent to release on bond)