In re Melo-Pena, Interim Decision No. 3313.

• Decision Date: 20 February 1997
• Docket Number: File A36 557 344.,Interim Decision No. 3313.
• Citation: 21 I&N Dec. 883
• Parties: In re Modesto Adalberto MELO-Pena, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

21 I&N Dec. 883

In re Modesto Adalberto MELO-Pena, Respondent.

Interim Decision No. 3313.

File A36 557 344 - Oakdale.

Board of Immigration Appeals.

Decided February 20, 1997.

(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 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 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 ...