- Introduction: The Matter of Fatahi
- Facts of the Case and Procedural History
- Board's Analysis and Decision
On August 3, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Fatahi, 26 I&N Dec. 791 (BIA 2016) [PDF version]. In the Matter of Fatahi, the Board held that when determining whether an alien should not be released on bond during removal proceedings for being a “danger to the community,” the immigration judge “should consider both direct and circumstantial evidence of dangerousness.” Furthermore, the Board held that the immigration judge should consider whether the evidence of dangerousness implicates national security considerations. In this article, we will examine the facts underlying the Matter of Fatahi, the Board's reasoning and decision, and what the new precedent decision means going forward.
- The respondent, a native of Iraq and a citizen of Syria, entered the United States as a K1 nonimmigrant [see article] in 2014 with a Syrian passport.
- Later in 2014, the respondent adjusted from K1 status to conditional permanent resident status based on his marriage to a U.S. citizen.
- In 2016, the Department of Homeland Security (DHS) questioned the respondent about the validity and origin of his passport. The respondent ultimately surrendered his passport and was permitted to depart the United States on a previously scheduled trip to Turkey.
- When the respondent returned to the United States in February of 2016, he was again questioned about the validity of his passport. The DHS issued the respondent a notice to appear, charging him as removable under section 237(a)(1)(A) for having been inadmissible at the time of his adjustment of status.
In removal proceedings, the Immigration Judge found that the respondent had entered the United States using a fraudulent “stolen blank” passport. The Board's discussion explains that this means that “the passport book was issued legitimately by the issuing government, but the respondent's identity information was entered without the government's approval by an unauthorized person.” Upon further examination, the Immigration Judge found that the respondent's passport book had been stolen from the Syrian government by operatives of the Islamic State of Iraq and Syria (commonly called IS, ISIS or ISIL).
In adjudicating the respondent's request for release on bond, the Immigration Judge relied upon the Form I-213, Record of Deportable/Inadmissible Alien, in finding that the respondent had known that his passport had been obtained through unofficial channels and that he had knowingly made misrepresentations to the DHS about the passport. Based on these findings, the Immigration Judge denied the respondent's bond request and held that the respondent should be held without bond under section 236(a) of the Immigration and Nationality Act (INA), because he posed a danger to the community and was a flight risk.
The respondent appealed the Immigration Judge's decision to deny bond to the BIA. Specifically, the respondent argued that the information that the Immigration Judge relied on in denying his bond request was inadequate to support denial under section 236(a).
Citing to the Matter of Guerra, 24 I&N Dec. 37, 39 (BIA 2006) [PDF version], the Board explained that section 236(a) gives the Attorney General the discretion to grant bond to an alien in removal proceedings as an exercise of discretion, and that the Attorney General's authority to grant bond has been delegated to Immigration Judges and the BIA. Still citing to the Matter of Guerra, the Board explained that, in order for an alien in immigration custody to be granted bond, he or she must establish to the satisfaction of the Immigration Judge and/or the BIA that he or she is not:
- A threat to national security;
- A danger to the community at large;
- Likely to abscond; or
- Otherwise a poor bail risk.
The Board explained that the Supreme Court has held that national security concerns are a “fundamental consideration” in immigration bond proceedings (see e.g., Demore v. Kim, 538 U.S. 510, 523-24 (2003) [PDF version]). In the Matter of Patel, 15 I&N Dec. 666 (BIA 1976) [PDF version], the Board held that, in general, an alien should not be detained unless he or she presents a threat to national security or is a flight risk. In the Matter of Andrade, 19 I&N Dec. 488, 490 (BIA 1987) [PDF version], the Board explained that “national security” includes an alien's dangerousness in the criminal context.
Subsequent to the codifying of the new and current section 236(a) of the INA and the corresponding regulations found in 8 C.F.R. 236.1(c)(8) (1999), the Board issued a series of precedent decisions applying the new rules. In the Matter of Adeniji, 22 I&N Dec. 1101, 112-13 (BIA 1999) [PDF version] and the Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010) [PDF version], the Board held that, in order to be granted bond, an alien must establish that he “does not pose a danger to persons or property and is not a flight risk.” In the Matter of D-J-, 23 I&N Dec. 572, 579 (AG 2003) [PDF version], the Attorney General held that national security considerations provide a reasonable basis for the denial of a bond request under section 236(a). In the Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009) [PDF version], the Board held that an immigration judge should only set bond if he or she determines that an alien does not present a “danger to the community.” The Board held in Guerra that an analysis of whether the alien presents a “danger to the community” is “interrelated with considerations of whether he [or she] poses a threat to national security” (quoting from the Matter of Fatahi).
The Board in Matter of Fatahi held that the Immigration Judge was justified, given the circumstances surrounding the respondent's passport, to deny his request for bond. The Board listed the following considerations regarding the circumstances of the case that supported the Immigration Judge's decision:
- The respondent knowingly obtained the falsified passport;
- The issuance of the passport by a non-governmental entity raised questions about the respondent's identity;
- The respondent's explanations for how he obtained the passport were inconsistent;
- The falsified passport passed through the hands of a terrorist organization, raising concerns that the respondent posed a risk to national security.
The respondent argued both that he had not been charged with any crime and that there existed no evidence that he supported a terrorist organization. Furthermore, the respondent presented evidence that he believed weighed in his favor, including his marriage to a U.S. citizen, his steady employment, and letters of support from members of his community.
However, citing to the Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006), the Board held that the burden is on the respondent to demonstrate that he does not present a danger to national security. The Board concurred with the Immigration Judge that the evidence presented by the respondent was insufficient to overcome the evidence regarding his falsified passport that suggested that he did present a danger to national security. Citing to the Second Circuit decision in Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991) [PDF version], the Board held that the record need not contain specific acts of past violence or direct evidence of an inclination toward violence to sustain a finding that an alien presents a danger to the community. The Second Circuit explicitly held that, where the evidence indicates that an alien does not pose a direct threat to individual citizens, the evidence may still indicate that he or she poses a “more general threat to national security, which is also a proper basis for detention.”
The Board held that the circumstantial evidence and the respondent's own misrepresentations raised “significant” safety and national security concerns. Accordingly, the Board held that the Immigration Judge was justified in denying bond on the basis of the respondent's raising national security concerns. The Board found that it was unnecessary to reach the issue of whether the respondent posed a flight risk because he was not entitled to bond on the basis of the national security concerns that he presented. Accordingly, the Board dismissed the respondent's bond appeal.
The Board's decision makes it clear that an immigration judge may rely on circumstantial evidence that an alien poses a danger the community in denying a bond request made in the course of removal proceedings. The decision makes explicit that this principle applies as well when determining whether an alien specifically presents a danger to national security. Because the facts of each case are unique, there is no specific formula for determining whether an alien about whom the facts indicate that there may be “danger to the community” concerns will be able to demonstrate eligibility for release on bond. An alien who is in removal proceedings and is subject to immigration detention should consult immediately with an experienced immigration attorney. An experienced immigration attorney will be able to assess the unique facts of the specific case and determine whether there is evidence that may satisfy the immigration judge or the BIA that the alien does not pose a danger to the community or a danger to national security.