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Matter of Hussam FATAHI, Respondent
Decided August 3, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In determining whether an alien presents a danger to the community at large and thus
should not be released on bond pending removal proceedings, an Immigration Judge
should consider both direct and circumstantial evidence of dangerousness, including
whether the facts and circumstances present national security considerations.
FOR RESPONDENT: Sehla Ashai, Esquire, Richardson, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Goulding, Senior
Attorney
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; MALPHRUS, Board
Member; GELLER, Temporary Board Member.
MALPHRUS, Board Member:
In a decision dated February 29, 2016, an Immigration Judge denied the
respondent’s request for release on bond. The reasons for the Immigration
Judge’s custody order are set forth in an April 5, 2016, bond memorandum.
The respondent has appealed from the Immigration Judge’s decision. The
Department of Homeland Security (“DHS”) has submitted a brief in
support of the Immigration Judge’s bond determination. The respondent’s
appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native of Iraq and citizen of Syria, who entered the
United States as a K-1 nonimmigrant on January 26, 2014, with a Syrian
passport. He adjusted his status to that of conditional permanent resident
on July 25, 2014, based on his marriage to a United States citizen. In
January 2016, after receiving information that the respondent’s passport
may have been fraudulent, DHS agents questioned him about the validity
and origin of his passport. The respondent informed the DHS officials that
he obtained his passport through his father, who lives in Turkey, rather than
by applying at his local consulate. The respondent voluntarily surrendered
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his passport to the DHS officials for inspection. He was permitted to depart
the United States on a previously scheduled trip to Turkey.
When the respondent returned to the United States on February 6, 2016,
he was detained and further questioned about the origins of his passport.
He admitted to the DHS that he obtained the passport in an improper
manner through unofficial channels. He also changed his explanation as to
why he obtained his passport through his father. When initially questioned
in January, he said he obtained the passport through his father because he
thought it would be easier and quicker to do so through family members.
However, upon his return, he told the DHS that he thought the consulate
would not issue him a passport because he had not fulfilled his required
military service with the Syrian Government. In addition, although the
respondent had initially stated that he did not complete any application or
paperwork for his passport, he later indicated that he had filled out a form.
On February 8, 2016, the DHS issued a notice to appear, charging that
the respondent is removable under section 237(a)(1)(A) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2012), as an alien who
was inadmissible at the time of his adjustment of status under
sections 212(a)(6)(C)(i), (7)(A)(i)(I), and (B)(i)(I) of the Act, 8 U.S.C.
§§ 1182(a)(6)(C)(i), (7)(A)(i)(I), and (B)(i)(I) (2012), because he procured
a visa by fraud or willful misrepresentation of a material fact, was an
immigrant who did not present a valid passport, and was a nonimmigrant
who was not in possession of a valid passport. The respondent requested a
bond hearing before the Immigration Judge.
Based on DHS forensic laboratory evidence, the Immigration Judge
found that the respondent had entered the United States using a fraudulent
“stolen blank” passport, meaning that the passport book was issued
legitimately by the issuing government, but the respondent’s identity
information was entered without the government’s approval by an
unauthorized person. Based on documents from Interpol and the Embassy
of Greece in Ankara, the Immigration Judge found that the respondent’s
passport was within a series of blank passports that had been stolen from
the Syrian Government by operatives of the Islamic State in Iraq and Syria,
a terrorist organization. Finally, the Immigration Judge relied on the
evidence proffered by the respondent during his bond hearing and the
Record of Deportable/Inadmissible Alien (Form I-213) to find that the
respondent knew his passport was obtained through unofficial channels and
that he made misrepresentations to DHS agents when questioned about his
passport. 1 Accordingly, the Immigration Judge determined that the
1 To the extent the respondent alleges that the Immigration Judge should not have relied
on the Form I-213 and that his finding that the respondent made misrepresentations is
(continued . . .)
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respondent should be held without bond under section 236(a) of the Act,
8 U.S.C. § 1226(a) (2012), because he is a danger to the community and a
flight risk. On appeal, the respondent argues that the information on which
the Immigration Judge relied is inadequate to support the denial of bond.2
II. ANALYSIS
Under section 236(a) of the Act, the Attorney General has the authority
to grant bond in the exercise of discretion, which has been delegated to the
Immigration Judges and the Board. Matter of Guerra, 24 I&N Dec. 37, 39
(BIA 2006). An alien who seeks a change in custody status must establish
to the satisfaction of the Immigration Judge and the Board that he is not “a
threat to national security, a danger to the community at large, likely to
abscond, or otherwise a poor bail risk.” Id. at 40.
The Supreme Court has long recognized national security concerns as a
fundamental consideration in immigration bond proceedings. Demore
v. Kim, 538 U.S. 510, 523−24, (2003) (discussing Carlson v. Landon,
342 U.S. 524 (1952)); Reno v. Flores, 507 U.S. 292, 295 (1993). In Matter
of Patel, 15 I&N Dec. 666, 666 (BIA 1976), we held that under the general
bond provisions of former section 242(a) of the Act, 8 U.S.C. § 1252(a)
(1976), an alien should not be detained unless he presents a threat to
national security or a risk of flight. We later expanded the national security
aspect of custody determinations to include a consideration of the alien’s
dangerousness in the criminal context. See Matter of Andrade, 19 I&N
Dec. 488, 490 (BIA 1987) (holding that the alien’s extensive and recent
criminal record should be considered when determining bond); see also
Matter of Drysdale, 20 I&N Dec. 815, 816−18 (BIA 1994).
After the general bond authority provisions were recodified at section
236(a) of the Act, we applied those provisions and the regulation at
8 C.F.R. § 236.1(c)(8) (1999), to hold that an alien who seeks a change in
custody status must establish that he does not pose a danger to persons or
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unfounded, we do not agree. The respondent has presented no evidence to show that the
Form I-213 is inaccurate or otherwise unreliable or that the Immigration Judge clearly
erred in making certain findings, some of which are based, in part, on information in the
form. See Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) (explaining that a
Form I-213 is generally considered admissible and inherently reliable, absent any
indication that it contains information that is incorrect or was obtained by coercion or
force); Matter of Mejia, 16 I&N Dec. 6, 8 (BIA 1976) (same).
2 We review the Immigration Judge’s findings of fact, including those relating to
credibility, to determine if they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i)
(2016). We review de novo all questions of law, discretion, and judgment. 8 C.F.R.
§ 1003.1(d)(3)(ii).
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property and that he is not a flight risk. See Matter of Adeniji, 22 I&N Dec.
1102, 1112−13 (BIA 1999), modified on other grounds, Matter of Garcia
Arreola, 25 I&N Dec. 267 (BIA 2010); see also Inspection and Expedited
Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 450 (Jan. 3, 1997)
(explaining that the new general bond provisions “essentially preserve[] the
status quo”). In that decision, we continued to recognize the pertinence of
an alien’s threat to national security under section 236(a) of the Act.
Matter of Adeniji, 22 I&N Dec. at 1116 n.4. The Attorney General also has
stated that “national security considerations” provide a reasonable basis
to deny release on bond under section 236(a). Matter of D-J-, 23 I&N Dec.
572, 579 (A.G. 2003).
“Dangerous aliens are properly detained without bond” so an
“Immigration Judge should only set a bond if he first determines that the
alien does not present a danger to the community.” Matter of Urena,
25 I&N Dec. 140, 141 (BIA 2009). In determining whether to release an
alien on bond, “[a]ny evidence in the record that is probative and specific
can be considered.” Matter of Guerra, 24 I&N Dec. at 40−41. An alien’s
dangerousness to the community at large is interrelated with considerations
of whether he poses a threat to national security.
The Immigration Judge ordered that the respondent remain detained
without bond after determining that he is a danger to the community based
on how he obtained his passport and the misrepresentations he made to the
DHS in that regard. The respondent argues that the evidence is insufficient
to support this determination, emphasizing that there is no evidence that he
knew the passport was stolen by terrorists before he received it and that no
direct link has been established between him and any terrorist organization.
He asserts that without such proof, the way he obtained his passport bears
little relevance to his eligibility for bond. We do not agree.
The circumstances surrounding the respondent’s use of this particular
passport gave the Immigration Judge ample reason to deny his request for
bond. The passport is a falsified document that the respondent knowingly
obtained. The fact that it was not issued by a proper governmental entity
raises questions as to his identity. His explanations for how he obtained the
passport were inconsistent. Moreover, even if these circumstances were
deemed insufficient to deny bond, there is the added dimension of the
document passing through the hands of a terrorist organization, which
raises the question whether the respondent poses a national security risk.
In support of his request for bond, the respondent notes that he has not
been charged with or convicted of any crime and there is no evidence that
he supports any terrorist organization. He also presented evidence that he
is married to a United States citizen and has steady employment, as well as
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letters of support from members of his community. He emphasizes that
after his initial questioning by the DHS, he returned to the United States
after his recent trip to Turkey.
However, we agree with the Immigration Judge that the respondent’s
evidence is insufficient to show that, based on the totality of the facts and
circumstances presented, he does not present a danger to the community.
See Matter of Guerra, 24 I&N Dec. at 40 (stating that an alien has the
burden to demonstrate that he is not a danger to the community at large);
see also Matter of D-R-, 25 I&N Dec. 445, 454−55 (BIA 2011) (stating that
Immigration Judges may make reasonable inferences from direct and
circumstantial evidence in the record and are not required to interpret the
evidence in the manner advocated by the respondent). 3 The question
whether an alien poses a danger to the community is broader than
determining if the record contains proof of specific acts of past violence
or direct evidence of an inclination toward violence. See Doherty
v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991) (“Although [the alien]
does not appear to pose any direct threat to individual citizens, . . . he may
constitute a more general threat to national security, which is also a proper
basis for detention.” (citation omitted)). In this case, the circumstantial
evidence and the respondent’s misrepresentations raise significant safety
and security concerns that justify his continued detention while removal
proceedings are pending. See Matter of Luis, 22 I&N Dec. 747, 759−60
(BIA 1999) (noting that circumstantial evidence can be as persuasive as
direct evidence (citing Michalic v. Cleveland Tankers, Inc., 364 U.S. 325,
330 (1960))).
For these reasons, we affirm the Immigration Judge’s determination that
the respondent poses a danger to the community at large and should be held
without bond. Therefore we need not reach the question whether he is a
flight risk. See Matter of Guerra, 24 I&N Dec. at 38. Accordingly, the
respondent’s bond appeal will be dismissed.
ORDER: The appeal is dismissed.
3 The respondent is a conditional permanent resident, but his immigration status does
not affect his burden of proof in bond proceedings. Although section 236(a) of the Act
does not specifically address the burden of proof, it provides that the Attorney General
has broad discretion to detain an alien “pending a decision on whether the alien is to be
removed from the United States” and “may continue to detain” or “may release the alien”
during that time. We have consistently held that aliens have the burden to establish
eligibility for bond while proceedings are pending. See Matter of Urena, 25 I&N Dec. at
141; Matter of Guerra, 24 I&N Dec. at 40; Matter of Adeniji, 22 I&N Dec. at 1111−13
(applying 8 C.F.R. § 236.1(c)(8)).
Full PDF here: Matter of FATAHI, 26 I&N Dec. 791 (BIA 2016)