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Jeffrey S. Chase, Apr. 6, 2020
"In the words of the Supreme Court, “Freedom from imprisonment - from government custody, detention, or other forms of physical restraint - lies at the heart of the liberty that [the Due Process] Clause protects.”1 While imprisonment usually occurs in the criminal context, courts have allowed detention under our immigration laws, which are civil and (purportedly) non-punitive, only to protect the public from danger or to ensure the noncitizen’s appearance at future hearings.2 Case law thus requires a determination that a detained noncitizen does not present a danger to the public, a risk to national security, or a flight risk in order to be eligible for bond under section 236 of the I&N Act.
The Board of Immigration Appeals has acknowledged the complexity of such determinations. In it’s 2006 decision in Matter of Guerra,3 the Board suggested nine factors that an immigration judge may consider in deciding if bond is warranted. The list included whether the respondent has a fixed U.S. address; the length of residence, employment history, and family ties in this country (and whether such ties might lead to legal status); the respondent’s criminal record, and their record of appearing in court, fleeing prosecution, violating immigration laws, and manner of entry to the U.S. But the Board made clear that an immigration judge has broad discretion in deciding what factors to consider and how much weight to afford each factor. The ultimate test is whether the decision was reasonable.
What makes such a decision reasonable? Given what the Supreme Court has called “an individual’s constitutionally-protected interest in avoiding physical restraint,”4 Guerra’s broad discretion must be interpreted as an acknowledgment of the inadequacy of relying on “one size fits all” presumptions as a basis for overriding such a fundamental constitutional right. In allowing IJs to consider what factors to consider and how to weigh them, Guerra should be read as directing those judges to delve deeply into the question of whether the noncitizen poses a danger or a flight risk. Obviously, all recently-arrived immigrants are not flight risks, and all of those charged with crimes don’t pose a threat to society. As the trier of fact, immigration judges are best able to use their proximity to the respondent, the government, and the evidence and witnesses presented to determine what factors are most indicative of the likelihood that the respondent will see their hearings through to the end and abide by the result, or in the case of criminal history, the likelihood of recidivism.
In considering the continued custody of one with no criminal record, the risk to public safety or national security are generally not factors. And in Matter of R-A-V-P-,5 a case recently decided by the BIA, the immigration judge found that the respondent, an asylum-seeker with no criminal record, presented no risk on either of those counts. However, the immigration judge denied bond on the belief that the respondent was a flight risk, and it was that determination that the BIA was asked to consider on appeal.
How does one determine whether someone detained upon arrival is likely to appear for their hearings? It is obviously more complicated than whether one presents a threat to public safety, in which the nature of the criminal record will often be determinative. In R-A-V-P-, the Board repeated the nine Matter of Guerra factors, and added a tenth: the likelihood that relief will be granted.
As stated above, Guerra made clear that these were suggestions; the immigration judge could consider, ignore, and weigh whatever factors they reasonably found relevant to the inquiry. Furthermore, many of the listed Guerra factors were not applicable to the respondent. Guerra involved a respondent found to pose a danger to others. The nine factors laid out in the decision were not specific to the question of flight risk; clearly, all the listed factors were not meant to apply in all cases. As to the specific case of R-A-V-P-, obviously, someone who was detained since arrival can have no fixed address, length of residence, or employment history in this country. The respondent’s history of appearing for hearings also reveals little where all appearances occurred in detention. And the Guerra factors relating to criminal record and history of fleeing prosecution are inapplicable to a respondent never charged with a crime.
The Board’s decision in R-A-V-P- is very short on details that would provide meaningful context. There is no mention of any evidence presented by DHS to support a flight risk finding. In fact, the absence of any listing of government counsel in the case caption indicates that DHS filed no brief at all on appeal, a point that doesn’t appear to have made a difference in the outcome.6
The few facts that are mentioned in the decision seem to indicate that the respondent sought asylum from Honduras based on his sexual orientation. Not mentioned were the facts that the respondent entered as a youth, and that although he entered the U.S. without inspection, he made no attempt to evade immigration authorities after entry. To the contrary, he immediately sought out such authorities and expressed to them his intention to apply for asylum. These facts would seem quite favorable in considering the Guerra factors of the respondent’s “history of immigration violations,” manner of entry to the U.S., and attempts to “otherwise escape from authorities.”7 And although not mentioned in Guerra, the respondent is also represented by highly competent counsel, a factor that has been demonstrated to significantly increase the likelihood of appearance, and one within the IJ’s broad discretion to consider as weighing in the respondent’s favor.
Regarding the tenth criteria introduced by the Board, i.e., the likelihood of relief being granted, the persecution of LGBTI individuals is well-documented in Honduras, and prominently mentioned in the U.S. Department of State’s country report on human rights practices for that country. The State Department reported an increase in killings of LGBTI persons in Honduras in 2019, and that 92 percent of hate crimes and acts of violence committed against the LGBTI community went unpunished. Such asylum claims are commonly granted by asylum officers, immigration judges, and the BIA.
Yet the Board took a very strange approach to this point. It chose to ignore how such claims actually fare, and instead speak in vague, general terms of how “eligibility for asylum can be difficult to establish,” even for those who were found to have a credible fear of persecution. The Board next noted only that the immigration judge found that the respondent “did not demonstrate a sufficient likelihood that he would be granted asylum,” without itself analyzing whether such conclusion was proper.
In fact, the immigration judge did deny the asylum claim; a separate appeal form that decision remains pending before the BIA. But the Board missed an important point. The question isn’t whether the respondent will be granted asylum; it’s whether his application for asylum will provide enough impetus for him to appear for his hearings relating to such relief. From my experience both as an attorney and an immigration judge, the answer in this case is yes. One with such a claim as the respondent’s who is represented by counsel such as his will almost certainly appear for all his hearings. The author of the Board’s decision, Acting BIA Chair Garry Malphrus, did sit as an immigration judge in a non-detained court for several years before joining the BIA. I’m willing to bet that he had few if any non-appearances on cases such as the respondent’s.
Yet the Board’s was dismissive of the respondent’s asylum claim, which it termed a “limited avenue of relief” not likely to warrant his appearance in court. Its conclusion is strongly at odds with actual experience. Early in my career, I represented asylum seekers who arrived in this country in what was then known as “TRWOV” (transit without visa) status, which meant that the airline they traveled on was responsible for their detention. The airline in question hired private guards to detain the group in a Queens motel. As time passed, the airline calculated that it would be cheaper to let those in their charge escape and pay the fine than to bear the ongoing detention costs. The airline therefore opened the doors and had the guards leave, only to find the asylum seekers waiting in the motel when they returned hours later. None were seeking to abscond; all sought only their day in court. And that was the determinative factor in their rejecting the invitation to flee; none had employment records, community ties, or most of the other factors held out as more important by the BIA in R-A-V-P-. They chose to remain in detention rather than jeopardize their ability to pursue their asylum claims.
My clients in the above example had a good likelihood of being granted asylum. But volunteering in an immigration law clinic three decades later, I see on a weekly basis individuals with much less hope of success nevertheless show up for all of their hearings, because, even in these dark times, they maintain faith that in America, an impartial judge will listen to their claim and provide them with a fair result. In one case, an unrepresented asylum applicant recently released from detention flew across the country for a preliminary master calendar hearing because the immigration judge had not yet ruled on his motion for a change of venue.
So for what reason did the BIA determine that the respondent in R-A-V-P- would behave to the contrary? The Board made much of the fact that an individual who promised to pay for the respondent’s bus ticket and provide him with a place to live (an offer which the Board referred to as “laudable”) was a friend and not a family member of the respondent. But on what basis can it be concluded that living with a cousin rather than a friend increases the chances of his future appearance in court? In the absence of statistics or reports that support such determination, is this fact deserving of such discretionary weight? The Board felt it could rely on this factor simply because it was mentioned in Matter of Guerra. But while that decision requires a finding that the IJ’s conclusion was reasonable, the decision in R-A-V-P- appears to be based more on a hunch than a reasoned conclusion, with the Board referencing seemingly random factors in support of its conclusion without explaining why such factors deserve the weight they were afforded, while ignoring other more relevant factors that would weigh in favor of release.
The respondent has now been detained for well over a year, including the seven months his bond appeal lingered before the Board, a very significant deprivation of liberty. The respondent’s asylum appeal remains to be decided, likely by a different Board Member or panel than that which decided his bond appeal. But now that the majority of the Board has voted to publish the bond denial as a precedent decision, what is the likelihood that any Board member will review that appeal with an unbiased eye?
As a final point, although the drafting of the decision likely began months earlier, the Board nevertheless chose to allow the decision to be published as precedent in the midst of an unprecedented health pandemic that poses a particular threat to those detained in immigration jails. So at a time when health professionals and numerous other groups are pleading for the government to release as many as possible from immigration detention centers, the BIA chose to instead issue a decision that will likely lead to an opposite result.
Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
Ibid; Robert Pauw, Litigating Immigration Cases in Federal Court (4th Ed.) (AILA, 2017) at 418.
24 I&N Dec. 37 (BIA 2006).
Kansas v. Hendricks, 521 U.S. 346, 356 (1997).
27 I&N Dec. 803 (BIA 2020).
Appeals may be summarily dismissed due to the failure to file a brief or to sufficiently state a ground for appeal. However, the BIA does not view an appeal or motion as unopposed where ICE files no brief.
Matter of Guerra, supra at 40."
Copyright 2020 Jeffrey S. Chase. All rights reserved.