Interim Decision #2840 

MATTER OF SAN MARTIN 

In Bond Proceedings 

A-19041533 

Decided by Board December 26, 1974 

Respondent was in custody pursuant to the revocation of ball by the immigration judge at 

a bond redetermination hearing under 8 GFR 242.2(b) at which respondent was seeking 

redetermination of the $15,000 bond set by the district director. Respondent then 

appealed to the Board from the judge's decision. The immigration judge took into 

consideration the respondent's prior conviction for possession of marijuana; his prior 

deportation; his reentry after deportation without permission; his prior failure to appear 

on a charge of possession of cocaine, when under $5,000 bond; that he was then under a 

$15,000 appearance bond on a criminal charge; and the lack of family ties in the United 

States. The Board noted that bail had been awarded him in the pending criminal 

proceedings, and all factors considered held that a $15,000 immigration bond was 

sufficient to assure his appearance in the deportation proceedings. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Shaya Estrumsa, Esquire Paul C. Vincent, Esquire 

200 S.E. 1st Street, Suite 200 Appellate Trial Attorney 

Miami, Florida 33131 

The respondent appeals from the November 15, 1974 decision of the 

immigration judge, who ordered that the respondent be held without 

bail. We shall order his release from custody upon the posting of a bond 

in the amount of $15,000. 

The respondent is a married male alien, 32 years of age, a native and 

citizen of Colombia. His wife and children reside in Colombia, of which 

country they are citizens. He was previously ordered deported from the 

United States during 1969 on the charge of overstaying his visa. Prior to 

deportation the respondent was convicted, by a court in Texas, of the 

offense of illegal possession of marijuana. The Immigration Service has 

no record of his readmission to the United States since his deportation in 

1969, and has no knowledge of how or when he returned. He was 

arrested in New York during 1972 and charged with illegal possession of 

cocaine. The sum of $5,000 was set as ball, by the United States District 

Court for the Southern District of New York, to assure appearance at 

those proceedings. The respondent was scheduled to appear in court on 

December 18, 1972, but failed to appear, and a bench warrant was 

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issued for his arrest. He was apprehended in Miami, Florida during 

November 1974, and was released upon the posting of $15,000 bail. 

The respondent was thereafter arrested by the Immigration and 

Naturalization Service and charged with deportability for having reentered the United States after deportation without permission. Bond was 

set at $15,000 by the district director to assure appearance at the 

immigration proceedings. The respondent sought a redetermination of 

his custody status pursuant to 8 CFR 242.2(b), moving for release upon 

his own recognizance, or in the alternative, for reduction of bond. The 

Government opposed any reduction in the amount of bond. The immigration judge sua sponte decided to deny bail entirely. We have decided 

to reinstate the order to release the respondent from custody upon the 

posting of tend in the amount of $15,000, as set by the district director. 

The immigration judge determined that the factors involved were of 

sufficient gravity to warrant the respondent's detention without bail, 

because of the potential threat posed by the respondent to society. The 

immigration judge considered the gravity of the criminal offense with 

which the respondent is charged and the lack of ties to bind the respondent to answer to lawful process as factors in his decision. We believe 

that, notwithstanding the pending criminal charges, the respondent 

should be released under bond. We are concerned, primarily, with 

assuring his appearance in the immigration proceedings. Bail has been 

awarded him in the criminal proceedings. 

Counsel .:ontends that when an alien in deportation proceedings must 

first appear in criminal proceedings, for which bail has been set, the 

alien should be released on nominal bail, at most, in the immigration 

proceeding;. Counsel cites Application of Maringolo, 303 F. Supp. 1389 

(S.D.N.Y. 1969), and the Bail Reform Act, 18 U.S.C. 3146, as support 

for this proposition. The Maringolo case, otherwise somewhat similar 

on the facts, did not involve aliens, • such as the respondent, with a 

deportation record and with a history of nonappearance at proceedings, 

flight to another jurisdiction, and forfeiture of bond previously posted. 

With reference to the Bail Reform Act, it provides that various factors 

should be taken into account, which were taken into account in this case, 

and of which we shall take account. 1• ' 

We shall deny the respondent's motion for release on his own recognizance and for reduction of bond. There are a number of factors present 

in this case which require setting substantial bail. The amount of $5,000 

bail was insufficient to assure appearance at court proceedings; He has a 

z "In determining which conditions of release will reasonably assure appearance, the 

judicial offi.xer shall, on the basis of available information, take into account [among 

other items] . . . family ties . . . his record of convictions, and his record of appearance 

at court proceedings or of flight to avoid prosecution or failure to appear at court 

proceedings." 18 U.S.C. 3146. 

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record of nonapp earance at court proceedings; in fact, he left the jurisdiction in which criminal proceedings have been pending. He has a criminal 

conviction record. He has a history of violation of immigration law. He 

utilized a surreptitious method to return to the United States after 

deportation. These facts all evidence disrespect for lawful process. In 

addition, his lack of close family ties in this country is an important factor_ 

After giving careful consideration to all the above factors, we have 

concluded that the respondent should be released upon the posting of a 

$15,000 bond to assure his appearance at immigration proceedings. 

ORDER: The appeal from the denial of release under bond is sustained. 

Further order: The motion for release on own recognizance is denied. 

Further order: The motion for reduction of the amount of bond to 

$2,500 is denied. 

Further order: The respondent shall be released from custody upon 

posting of a bond in the amount of $15,000. 

Louisa Wilson, Board Member, Concurring: 

I concur in the opinion of the majority which reverses the order of the 

immigration judge denying bond and authorizes his release on bond. 

However, I do not agree with the decision of the majority requiring 

bnnd in the amount of $15,000.00. It is my opinion that considering all 

circumstances of this case, a bond in the amount of $5,000.00 is adequate 

to assure the respondent's appearance in immigration proceedings. 

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