In re Modesto Adalberto MELO-Pena, Respondent

File A36 557 344 - Oakdale

Decided February 20, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In bond proceedings under the Transition Period Custody Rules, the standards set forth in

Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994), apply to the determinations of whether

the alien’s release pending deportation proceedings will pose a danger to the safety of persons or of property and whether he or she is likely to appear for any scheduled proceeding.

(2) The “is deportable” language as used in the Transition Period Custody Rules does not

require that an alien have been charged and found deportable on that deportation ground.

Matter of Ching, 12 I&N Dec. 710 (BIA 1968); and Matter of T-, 5 I&N Dec. 459 (BIA

1953), distinguished.

(3) The Transition Period Custody Rules do not limit “danger to the safety of persons or of

property” to the threat of direct physical violence; the risk of continued narcotics trafficking

also constitutes a danger to the safety of persons.

FOR THE RESPONDENT1: Kerry William Bretz, Esquire, New York, New York

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Harris Lee Leatherwood,

Assistant District Counsel

BEFORE: Board Panel: HOLMES, FILPPU, and GUENDELSBERGER, Board Members.

HOLMES, Board Member:

This is a timely appeal from an Immigration Judge’s February 14, 1996,

bond redetermination decision denying the respondent’s request for a change

in custody status and ordering him detained without bond. The appeal will be

dismissed.

The respondent, a 29-year-old native and citizen of the Dominican Republic, was admitted to the United States as a lawful permanent resident on July

22, 1978, when he was 11 years old. In this country, the respondent has accumulated a criminal history including convictions for two drug-trafficking

offenses in 1987 and 1989. The respondent’s convictions are substantiated by

conviction documents in the file. He was charged with deportability for his

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1 Attorney Bretz’s February 18, 1997, request to withdraw as counsel is granted.
1987 drug-trafficking offense as having been convicted of a controlled substance violation under section 241(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B) (1994). In denying the respondent’s request

for a change in custody status, the Immigration Judge concluded that, while

there were some equities presented, he was “not convinced that the respondent would refrain from any further criminal activity if he were released on

bond.” The record reflects that the respondent is currently detained in immigration custody.

In accordance with Matter of Noble, 21 I&N Dec. 672 (BIA 1997), the

respondent’s bond redetermination is now governed by the Transition Period

Custody Rules (“transition rules”) enacted during the pendency of the appeal

by section 303(b)(3) of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546, 3009-586 (enacted Sept. 30, 1996) (“IIRIRA”). See also Matter of

Valdez, 21 I&N Dec. 703 (BIA 1997).

As a lawfully admitted alien, the respondent is eligible for release from

immigration custody under the transition rules, provided he can satisfy the

statutory dangerousness and flight risk requirements similar to those which

were applied by the Immigration Judge below. Matter of Noble, supra; see

also Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994). Given that the inquiries are essentially the same, in reviewing the Immigration Judge’s findings

on flight risk and dangerousness to the community, we apply our aggravated

felony bond case law as reflected in Matter of Drysdale, supra. See Matter of

Noble, supra, at 687.

On appeal, the respondent makes three general arguments relating to the

Immigration Judge’s determination that he failed to rebut the statutory presumption of dangerousness to the community.

First, the respondent asserts that because he was not charged with deportation as an aggravated felon, he should not be required to rebut any presumption of dangerousness to the community as a prerequisite to a bond

determination.

Second, the respondent argues that, even if it is presumed that he poses a

danger to the community, the Immigration Judge erred in determining that

this presumption had not been rebutted in this case. In this regard, the respondent indicates that the Immigration Judge gave the “overwhelming favorable

factors” and supporting documentation only superficial consideration at best.

As for the equities weighing in his favor, the respondent points to his long

residence in this country, strong family and community ties as confirmed by

documentation, and responsibility to support and care for his minor child

who is ill.

Third, the respondent submits that the Immigration Judge gave undue

weight in the bond analysis to his prior “three” drug convictions. As evidence

that he is presently not a danger to the community, the respondent states that

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he has never been convicted of a “violent” crime and has made rehabilitation

efforts since committing the drug-trafficking crimes over 8 years ago.

We address in turn each of the respondent’s arguments. First, it was the

respondent’s 1989 conviction for the drug-trafficking offense which brought

him within the ambit of former section 242(a)(2) of the Act, 8 U.S.C.

§ 1252(a)(2) (1994), not the deportation ground under which he was actually

charged. The respondent does not dispute that he was convicted of the 1989

drug-trafficking offense and therefore qualified as an aggravated felon as that

term was defined in the Act. See section 101(a)(43) of the Act, 8 U.S.C.

§ 1101(a)(43) (1994); see also 8 C.F.R. §§ 242.2(c), (h) (1996). Nor does he

dispute that the Immigration Judge advised him at the bond redetermination

hearing that he faced the presumptions of dangerousness to the community

and risk of flight.

The respondent is subject to similar presumptions of dangerousness and

flight risk under the transition rules, even though he was never charged with

deportability as an aggravated felon. The respondent’s controlled substance

deportation charge is one of the deportation grounds covered in the transition

rules.2 See section 303(b)(3)(A)(iii) of the IIRIRA. At a minimum, we find

that evidence of the respondent’s 1987 and 1989 drug-trafficking convictions

is sufficient to bring him within the controlled substance deportation ground

covered in the transition rules. Id.; see also section 101(a)(43) of the Act, as

amended by IIRIRA § 321, 110 Stat. at 3009-627. In sum, we find that the

Immigration Judge correctly found applicable the presumptions of former

section 242(a)(2)(B) of the Act, and we find that these presumptions apply to

the respondent’s bond redetermination under the now governing transition

rules.

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2 We are not satisfied that the meaning of the “is deportable” language in section

303(b)(3)(A)(iii) of the IIRIRA, a bond provision, is controlled by Matter of Ching, 12 I&N

Dec. 710 (BIA 1968) (finding “is deportable” language for suspension of deportation purposes

to require a charge and finding of deportability on that ground); or Matter of T-, 5 I&N Dec. 459

(BIA 1953). Cf. Kimm v. Rosenberg, 363 U.S. 405 (1960) (implicitly finding that “is

deportable” language in section 19 of the 1917 Immigration Act does not require a charge of

deportability); see also Mullen-Cofee v. INS, 976 F.2d 1375 (11th Cir. 1992). These prior

Board decisions analyzed provisions involving eligibility for relief from deportation, issues

which arise after a finding of deportation has already been made, in contrast to bond

determinations which are normally rendered before any finding of deportability. Moreover, we

note that it would be a Pyrrhic victory for the respondent (and lead to an absurd result) if we

were to adopt a construction of the “is deportable” language in section 303(b)(3)(A)(iii) as

requiring that the alien be charged with and found deportable as an aggravated felon. That is to

say, if the respondent’s aggravated felony convictions did not bring him within the scope of

section 303(b)(3)(A)(iii), then they would render him subject to mandatory detention under

section 303(b)(3)(A)(i) of the IIRIRA (covering aliens “convicted” of an aggravated felony for

which there is no explicit authority to release under the transition rules). Cf. Matter of Noble,

supra, at 682-85. It would be nonsensical to construe the law so as to bar the release of an alien

convicted of an aggravated felony until he or she was charged and found deportable as an

aggravated felon, but thereafter to allow for release on bond.
Second, the record reflects that the Immigration Judge considered the

favorable factors presented by the respondent, including those substantiated

by documentation. The respondent’s family ties, long residence, and responsibility for his minor child have some relevance to the question of danger to

the community, although this evidence is primarily relevant to the issue of

flight risk. Despite the contention to the contrary, we find that the Immigration Judge gave proper weight to the favorable equities presented by the

respondent in assessing whether he overcame the presumption that he posed

a danger to the community if released pending deportation.

Third, the Immigration Judge gave appropriate weight in the bond analysis to the respondent’s prior criminal record, including his 1987 and 1989

drug-trafficking convictions. We note that the transition rules do not limit

“danger to the safety of other persons or of property” to the threat of violence.

Distribution of drugs is also a danger to the safety of persons. The scourge on

society of illegal drug trafficking and the associated criminal activity it generates is at this point beyond dispute. The record reflects that the respondent

has served over 8 years in criminal incarceration for his 1987 and 1989

drug-trafficking offenses. He acknowledged at the bond redetermination

hearing that he sold cocaine for 2 years. As the Immigration Judge noted, the

respondent returned to drug-trafficking activities only shortly after being

released from criminal incarceration for the 1987 offense. Particularly in

view of his past history, the respondent’s rehabilitation efforts during his last

7 years of criminal incarceration are not sufficient to overcome the statutory

presumption of dangerousness to the community in this case. We agree with

the Immigration Judge that, particularly given the respondent’s recidivist

criminal background, he has not rebutted the presumption that his release

would pose a danger to the community by virtue of future narcotics

trafficking.

ORDER: The appeal is dismissed.

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