Introduction: Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020)

On March 18, 2020, the Board of Immigration Appeals (BIA) decided Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020) as a precedential decision [PDF version]. The decision concerns custody redeterminations for aliens with pending asylum applications. The Board held in Matter of R-A-V-P- that the immigration judge had correctly denied the alien respondent’s request for custody redetermination because the alien respondent presented a flight risk because he had no family, employment, or community ties, and no probable path to obtain lawful status.

In this article, we will examine the Matter of R-A-V-P precedent in detail and discuss what it will mean for custody redetermination decisions going forward.

Factual and Procedural History: 27 I&N Dec. at 803

The respondent was a native and citizen of Honduras. He arrived in the United States on February 24, 2019. The respondent entered the United States unlawfully between ports of entry. He was detained subsequent to his illegal entry.

While in detention, the respondent requested a change in his custody status. The immigration judge denied the request for custody re-determination upon finding that the respondent failed to establish that he would not present a significant risk of flight if he was released on monetary bond. The respondent appealed from the denial to the BIA.

On appeal, the respondent argued that the immigration judge erred in not ordering his release on bond. To this effect, the respondent presented two arguments in the alternative.

First, the respondent argued that the immigration judge improperly placed the burden of proof on him to establish that he was not a flight risk. The respondent took the position that it was incumbent on the Department of Homeland Security (DHS) to establish that he was a flight risk.

In the alternative, the respondent argued that even if the immigration judge was correct in saddling him with the burden of proving a negative, the immigration judge had mischaracterized the record in finding that he had not established that he was not a flight risk. This argument was based on two assertions. Firstly, the respondent argued that the immigration judge gave insufficient weight to evidence that he presented in his favor. Secondly, the respondent argued that the immigration judge impermissibly elevated his burden of proof.

Release on Bond Generally: 27 I&N Dec. at 804

The Board explained that an immigration judge may set bond to ensure that the alien will appear for subsequent proceedings. Bond proceedings are distinct from removal proceedings — the question of whether an alien should be released on bond is separate from the question of whether the alien should remain in the United States. The Board described bond hearings as “less formal than removal proceedings…”

Neither the applicable detention statute in the instant matter — INA 236(a) — nor its implementing regulations give any alien a right to be released on bond. Instead, “[a]n alien requesting a redetermination of his or her custody status under section 236(a) ‘must establish to the satisfaction of the Immigration Judge and the 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.” Id. at 804, quoting Matter of Siniauskas, 27 I&N Dec. 207, 207 (BIA 2018) [see article].

BIA Holds that Respondent Bore the Burden of Proof: 27 I&N Dec. at 804

Based on the Board’s position that INA 236(a) places the burden on the alien to establish that he or she does not present a risk of flight, the Board concluded that the respondent’s argument that the DHS bore the burden of establishing that he was a flight risk was without merit.

Factors to Weigh in Determining Whether Alien Presents Flight Risk: 27 I&N Dec. at 804-05

The Board explained that an immigration judge should only consider whether a detained alien presents a flight risk after first concluding that the alien does not present a danger to the community or a threat to national security. See Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009) [PDF version]. Bond determinations are necessarily based on the facts and circumstances of a particular case. Accordingly, the Board has held previously that the immigration judge, being in the best position to consider fact-specific equities, “may choose to give greater weight to one factor over others, as long as the decision is reasonable.” Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006) [PDF version].

In its 2006 decision in Matter of Guerra, the Board listed several factors that immigration judges may consider in determining whether an alien should be released on bond and, if so, to what amount the bond should be set:

1. Whether the alien has a fixed address in the United States;
2. The alien’s length of residence in the United States;
3. The alien’s family ties in the United States, and whether they may entitle the alien to reside permanently in the United States in the future;
4. The alien’s employment history;
5. The alien’s record of appearance in criminal court;
6. The alien’s criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses;
7. The alien’s history of immigration violations;
8. Any attempts by the alien to flee prosecution or otherwise escape from authorities; and
9. The alien’s manner of entry to the United States.
Matter of Guerra, 24 I&N Dec. at 40.
10. In addition to the nine factors listed above, the Board has also held that an immigration judge may weigh the likelihood that the alien would be granted relief from removal. Matter of Andrade, 19 I&N Dec. 488, 490 (BIA 1987) [PDF version].

BIA Holds that the Immigration Judge Properly Weighed Factors: 27 I&N Dec. at 805-07

The Board found that the immigration judge properly weighed the factors presented in the instant case in determining that the respondent posed a flight risk.

The Board noted that the respondent had only recently arrived in the United States. The respondent entered the United States unlawfully. Nothing in the record suggested that the respondent had any path toward lawful status. The record contained no evidence that the respondent had family ties, employment history, community ties, or a record of court appearances in the United States. These factors, the Board concluded, all weighed against granting the respondent release on bond “because they indicate that he is less likely to appear for his removal hearing.”

For his part, the respondent argued that he should be granted release on bond because he had evidence of a fixed address and that he had demonstrated eligibility for relief from removal.

Regarding his “fixed address,” the respondent submitted a signed statement from an individual who indicated that he was willing to support the respondent and provide him with a place to stay in the United States. The respondent also submitted a copy of this individual’s Honduran passport and a copy of his home utility bill. The respondent further explained that the individual was willing to pay for his bus ticket to travel to immigration court.

The Board agreed with the immigration judge that the respondent’s evidence regarding this individual’s willingness to house him and provide for his transportation to immigration court was insufficient to establish that he was not a flight risk. The Board found that the immigration judge correctly observed that the respondent’s friend’s statement provided no independent corroboration of that individual’s own present immigration status. It also provided no independent corroboration of the individual’s ability to support the respondent and ensure his appearance at future hearings. The Board disagreed with the respondent’s position that because these factors were not specifically mentioned in Matter of Guerra, that they were beyond the scope of the judge’s inquiry.

The Board added that the individual’s statement provided no information about how he knew the respondent or the nature of their relationship. Accordingly, the Board agreed with the immigration judge that this significantly undercut the claim that the individual’s letter overcame concerns that the respondent posed a flight risk.

The respondent asserted that he had a strong incentive to appear for removal hearings because he is seeking asylum in the United States. To this effect, he stated that he had demonstrated that he was the victim of past persecution in Honduras based on threats of violence and homophobic harassment.

The Board noted, however, that it is difficult to establish eligibility for asylum. Accordingly, the immigration judge may consider, based on the facts of a particular case, how likely it is that the alien would be granted asylum. This applies even in cases where the alien was found to have a credible fear of persecution because the standard for being granted asylum is higher than the standard for establishing a credible fear.

The Board found no fault with the immigration judge’s conclusion that the respondent did not establish a sufficient likelihood that he would be granted asylum. (It noted that the immigration judge subsequently denied the respondent’s asylum application — and the respondent’s appeal of that denial was pending before the Board in a separate matter.) The Board concluded that the immigration judge’s decision that the respondent had failed to establish that he did not pose a risk of flight was well supported by the respondent’s minimal ties to the United States and the unlikelihood that he would be granted relief from removal.

Conclusion

Matter of R-A-V-P builds upon prior Board precedents in discussing some factors that immigration judges should consider in determining whether a detained alien presents a flight risk. It reaffirms that the immigration judge presiding over a case is in the best position to determine which factors to weigh and how to weigh them. In the instant case, the Board agreed with the immigration judge’s detailed examination of the respondent’s claims that a friend could ensure his subsequent appearances for proceedings and the likelihood of his being granted asylum in the future.

To learn more about bond issues, please see our growing selection of articles on immigration detention [see category].