Interim Decision #3221 

MATTER OF DRYSDALE 

In Bond Proceedings Pursuant to 8 C.F.R. § 242.2(d) 

A-41454.629 

Decided by Board May 25, 1994 

(1) In bond proceedings under section 242(a)(2)(B) of the Immigration and Nationality 

Act, 8 U.S.C. § 1252(a)(2)(B) (Supp. IV 1992), there is a presumption against the 

release from the Immigration and Naturalization Service's custody of any alien 

convicted of an aggravated felony unless the alien demonstrates that he was lawfully 

admitted to the United States, is not a threat to the community, and is likely to appear 

for any scheduled hearings. 

(2) If a lawfully admitted alien convicted of an aggravated felony cannot rebut the 

statutory presumption that ho is a danger to the community, he should be detained in 

the custody of the Service. 

(3) Once a lawfully admitted alien convicted of an aggravated felony rebuts the 

presumption that he is a danger to the community, the likelihood that he will appear 

for future proceedings becomes relevant in assoaiug tho amount of bond needed to 

motivate the respondent to appear. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Leo Jerome Lahey, Esquire Richard J. Averwater 

P.O. Box 51778 General Attorney 

Lafayette, Louisiana 70505-1778 

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members 

The respondent has appealed from a decision, dated November 29. 

1993, in which the immigration judge ordered that a bond be set for 

the respondent in the amount of $20,000. The appeal will be 

dismissed. 

The respondent is a native and citizen of Jamaica, who entered the 

United States as a lawful permanent resident on June 24, 1988, when 

he was 17 years of age. The respondent attended high school in the 

United States. However, he left school without graduating and 

continued to reside with his mother and five brothers in Los Angeles, 

California, for 1 year. He then traveled to Oregon to live with a cousin. 

This cousin was engaged in drug trafficking, with which the respondent 

also became involved. The respondent was subsequently convicted on 

May 14, 1991, in the United States District Court for the District of 

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Oregon, of the offense of distribution of cocaine. While the respondent's criminal trial was pending, he remained in a halfway house. 

The respondent's mother and three of his brothers are lawful 

permanent residents. The respondent's other two brothers are United 

States citizens. The respondent's employment history consists of an 

unspecified period of part-time employment in a grocery store while he 

was living with his family in Los Angeles. Also, after leaving high 

school, the respondent completed coursework in typing, computer use, 

and word processing with the Los Angeles Urban League Youth 

Services. The record contains a letter which states that the respondent 

has an employment prospect with a cleaning company in Los Angeles. 

On July 15, 1991, the Immigration and Naturalization Service 

issued an Order to Show Cause and Notice of Hearing (Form I-221) 

against the respondent, charging him with deportability under section 

241(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1251(a)(2)(A)(iii) (Supp. III 1991), because the drug trafficking 

crime of which he was convicted constitutes an aggravated felony 

pursuant to section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) 

(Supp. HI 1991). The district director of the Service determined that 

the respondent should remain detained in the Service's custody, The 

respondent requested a custody redetermination. The immigration 

judge determined that bond should be set in the amount of $20,000. 

This appeal followed. 

On appeal, the respondent requests that bond be set at $5,000 or 

less. He claims that the immigration judge set bond in an excessive 

amount because he failed to give sufficient weight to the evidence that 

was presented to show that the respondent is neither a threat to the 

community nor a bail risk. 

Since the respondent was convicted of an aggravated felony, his 

request for a bond redetermination is governed by section 242(a)(2) of 

the Act, 8 U.S.C. § 1252(a)(2) (Supp. IV 1992). Matter ofEllts, 20 I&N 

Dec. 641 (BIA 1993). Section 242(a)(2)(A) of the Act states that the 

Attorney General "shall take into custody" any alien convicted of an 

aggravated felony and, subject to section 242(a)(2)(B), "shall not 

release" such felon from custody. Section 242(a)(2)(B) of the Act 

provides: 

The Attorney General may not release from custody any lawfully admitted alien who 

has been convicted of an aggravated felony, either before or after a determination of 

deportability, unless the alien demonstrates to the satisfaction of the Attorney 

General that such alien is not a threat to the community and that the alien is likely to 

appear before any scheduled hearings. 

We have held that the statutory scheme and the language of section 

242(a)(2)(B) create a presumption against the release from Service 

custody of any alien convicted of an aggravated felony unless the alien 

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demonstrates that he was lawfully admitted to the United States, is not 

a threat to the community, and is likely to appear for any scheduled 

hearings. Matter of De La Cruz, 20 I&N Dec. 346 (BIA 1991), 

modified, Matter of Ellis, supra. 

Here, the immigration judge found that the respondent had 

rebutted the statutory presumption because his successful completion 

of a term in a halfway house, as well as his exemplary behavior as a 

prisoner, demonstrated that he was not a danger to the community or a 

bail risk. Specifically, the immigration judge stated that the respondent 

"is not a flight risk or a danger to the community." However, he added 

that "a significant bond is still needed to insure his presence at future 

hearings." 

Upon our review of the record, we find, contrary to the respondent's 

allegation on appeal, that the immigration judge did consider the 

factors relevant to a bond determination in rendering his decision. See 

Matter of Andrade, 19 I&N Dec. 488, 489 (BIA 1987); 8 C.F.R. 

§ 242.2(h)(1) (1993). However, the immigration judge's statement that 

the respondent is "not a flight risk or a danger to the community" is 

inconsistent with his determination that a $20,000 bond is required to 

ensure the respondent's presence at future hearings. Once it is 

determined that an alien does not present a danger to the community 

or any bail risk, then no bond should be required. See generally Matter 

of Patel, 15 I&N Dec. 666 (BIA 1976); Matter of Kwun, 13 I&N Dec. 

457 (BIA 1969, 1970). 

We interpret the statutory framework under section 242(a)(2)(B) of 

the Act, in terms of evaluating whether the alien has rebutted the 

statutory presumption against him, to involve a two-step analysis. 

First, if the alien cannot demonstrate that he is not a danger to the 

community upon consideration of the relevant factors, he should be 

detained in the custody of the Service. We reach this conclusion by 

reference to the plain words of section 242(a)(2)03) of the Act, which 

requires an alien convicted of an aggravated felony to demonstrate 

that he "is not a threat to the community." See also Carlson v. Landon, 

342 U.S. 524, 537-42 (1952) (stating that potentially dangerous 

resident aliens may be detained without bail during pendency of 

deportation proceedings); cf. United States v. Salerno, 481 U.S. 739, 

746-52 (1 987) (upholding authorization of pretrial detention on the 

basis of future dangerousness as a permissible form of regulation under 

the Bail Reform Act of 1984). However, if an alien rebuts the 

presumption that he is a danger to the community, then the likelihood 

that he will abscond becomes relevant. 

Section 242(a)(2)(B) of the Act requires an alien convicted of an 

aggravated felony to show that he is "likely to appear for any 

scheduled hearing," as opposed to mandating a showing that he will 

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appear. Unlike the standard for determining if there is a danger to the 

community, this language allows for flexibility. The likelihood, or 

probability, of appearance could vary from none to great. This enables 

the immigration judge to set a bond according to his assessment of the 

amount needed to motivate the respondent to appear in light of the 

considerations deemed relevant to bond determinations. This bond 

constitutes an appearance bond, as contemplated by the regulation at 8 

C.F.R. § 242.2(h)(2) (1993), which deals with release procedures for 

aliens convicted of an aggravated felony. 

Here, the immigration judge, for the reasons stated in his decision, 

found that the respondent does not present a danger to the community. However, it was his assessment that a significant bond was 

required. The purpose of the bond is to ensure the respondent's 

presence at future proceedings. Under the circumstances presented 

here, where the respondent left his parental home and moved to 

another area, committed a serious drug trafficking crime soon after 

entering the United States, and was ineligible for any form of relief 

from deportation, we agree with the immigration Judge's bond 

determination. This assessment is reinforced by the fact that the 

respondent is now subject to an administratively final order of 

deportation.' See Matter of Andrade, supra; 8 C.F.R. § 242.2(h)(1) 

(1993). Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

I The respondent's appeal front an immigration judge's order of deportation was 

dismissed by this Board on February 24, 1994. 

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