## Facts

- Juan Francisco Guerra, a native and citizen of the Dominican Republic, was admitted to the United States in 2000 as a nonimmigrant visitor.
- The Department of Homeland Security initiated removal proceedings, charging him as removable for overstaying his authorized period of admission.
- While in immigration custody, Guerra sought release on bond through a custody redetermination under INA § 236(a).
- A federal drug-trafficking criminal matter was pending against Guerra; the criminal complaint contained specific allegations of participation in a heroin trafficking scheme.
- Guerra had not been convicted of the alleged drug offense at the time of the bond hearing and had been released in the criminal case on a $500,000 bond.
- The Immigration Judge denied immigration bond, finding Guerra a danger to the community based largely on the allegations in the pending criminal complaint.
- Guerra appealed, arguing the Immigration Judge improperly relied on allegations without a criminal conviction.

## Issues

1. In a custody redetermination under INA § 236(a), what discretion does an Immigration Judge have to decide which factors and evidence to consider in assessing danger, threat to national security, and flight risk?
2. May an Immigration Judge consider a pending controlled-substance trafficking charge and its supporting complaint allegations to find dangerousness, even absent a conviction?

## Decision

- The Board of Immigration Appeals dismissed the appeal and affirmed the denial of bond.
- The Board held that, in INA § 236(a) bond proceedings, the noncitizen bears the burden to show he is not a danger, not a threat to national security, and not a flight risk.
- The Board held the Immigration Judge acted within his discretion in considering the detailed allegations in the pending drug-trafficking complaint.
- The Board concluded the absence of a criminal conviction did not preclude reliance on the criminal charge and complaint evidence to assess dangerousness for immigration bond purposes.
- The Board found no abuse of discretion in the Immigration Judge’s determination that Guerra failed to meet his burden and therefore did not merit release on bond.

## Legal Principles

- In INA § 236(a) custody redeterminations, the noncitizen must establish to the Immigration Judge’s satisfaction that release is warranted by showing no danger to persons or property, no threat to national security, and no risk of flight.
- Immigration Judges have wide discretion to determine which factors are relevant to bond, and may weigh factors differently so long as the decision is reasonable.
- Bond proceedings are civil; Immigration Judges may consider evidence that is probative and fundamentally fair in deciding danger and flight risk.
- An Immigration Judge may consider evidence that a noncitizen has been criminally charged in an alleged controlled-substance trafficking scheme, even if the charge has not resulted in a conviction, when evaluating dangerousness.

## Conclusion

The Board affirmed that, in INA § 236(a) bond proceedings, Immigration Judges have broad discretion over relevant evidence and may deny bond based on reliable, detailed allegations in pending drug-trafficking charges, even without a conviction, where the noncitizen fails to prove he is not a danger to the community.


Matter of Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006)