XAVIER ROSAS, ESQUIRE

Law Ofices of Elsa Marinez, PLC

523 W. 6th Street., Suite 633
Los Angeles, CA 90014
Name: LOMELI-BECERRA, JOSE
U.S. 6g8Itm60tof 05tc6
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
5/07 leesb11rg Pike. S11ite 2000
Falls Ch11rch, Vrinia 22041
OHS/ICE Ofice of Chief Counsel LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
A092-122-323
Date of this notice: 5/20/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Jose Lomeli-Becerra, A092 122 323 (BIA May 20, 2011)
LOMELI-BECERRA, JOSE
501 THE CIT DRIVE SOUTH
A092-122-323
ORANGE, CA 92868
Name: LOMELI-BECERRA, JOSE
U.S. 6g8Itm60tof 05tc6
Executive Ofce fr I igation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leebur Pike, Suite 2000
Fals Church, Vrinia 22041
OHS/ICE Ofce of Chief Counsel LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
A092-122-323
Date of this notice: 5/20/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a couresy. Your attorney or representative has been sered with this
decision pursuant to L.l.. 1292.5(a). If the attached decision orders that you be removed
from the United States or afirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Guendelsberger, John
:nCCrClV.
|ot C t
Donna Carr
Chief Clerk
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Cite as: Jose Lomeli-Becerra, A092 122 323 (BIA May 20, 2011)
p.s. 6g8M6BIof 05Oc6
Executive Ofce rImigation Review
Decision of te Board of Imigaton Appeals
Falls Church. Virginia 1
File: A092 122 323 - Los Angeles, CA
Hre: JOSE LOMELI-BECERA
BOND PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Xavier Rosas, Esquire
APPLICATION: Redeterination of custody status
MAY. Z 0 2011
This case was last befre this Board on Febray 22, 2011, when we remanded the record to the
Immigation Judge fr frther proceedings. The higration Judge reaffred his previous decision
denying the respondent's request fr custody redeterination. The Imigation Judge issued a
minute order and no bond memorandum was issued setting frth the reasons fr his bond decision
since he merely reaffred his previous decision. The record will again be remanded fr a new
individualized bond hearing.
The Boad reviews an Imigration Judge's fndings of fct, including fndings as to the
credibility of testimony, under the "clearly eroneous" standard. 8 C.F .R. 1003.1 ( d)(3)(i); Matter
of S-H-, 23 I&N Dec. 462, 464-65 (BIA 2002) (stating that the Boad must defr to the fctual
deterinations of an Imigration Judge in the absence of clear eror). The Board reviews questions
oflaw, discretion, and judgent ad all other issues in appeals fom decisions ofligation Judges
de novo. 8 C.F.R. 1003.I(d)(3)(ii).
According to the digital audio recording of the bond heaing on March 15, 2011, the Imigation
Judge concluded that he would not consider the respondent's custody redeterination request unless
there was some evidence that the respondent was eligible fr some fr of relief fom removal or
if te respondent was held fr an "egregious" perod of time similar to the respondent in Casas
Castril/on v. Dept. of Homeland Securit, 535 F .3d 942 (9t Cir. 2008). We fnd no such requirement
or standard pursuant to the Cour's decision in Casas-Castril/on, in which the Nint Circuit held that
an alien detaine in immigration custody while an appeal of a fnal removal order is pending befre
te Ninth Circuit is entitled to a bond heaing under section 236(a) of the Act.
Pursuant to the precedent authority of te Ninth Circuit Court of Appeals in Casas-Castril/on,
under whose jursdiction this case ases, the respondent is eligible fr a heang on the issue of the
respondent's suitability fr custody redeterination under section 236(a) of the Act. The Court
concluded in Casas-Castrillon that the goverent bears the burden of proving tat the respondent
is unsuitable fr release because he is either a danger to the community or a fight risk. See, e.g.,
Matter of Guera, 24 I&N Dec. 27 (BIA 2006) (appropriate fctors to consider in deterining the
respondent's suitability fr release fom custody).
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Cite as: Jose Lomeli-Becerra, A092 122 323 (BIA May 20, 2011)
. .
.. . A092122 323
Lb.The record is remanded to the higration Judge to conduct an individualized custody
redeternation heaing under section 236(a) of the Act.
2
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Cite as: Jose Lomeli-Becerra, A092 122 323 (BIA May 20, 2011)

.`
UITE STATES DEPATEN OF JUSTTC8
EXECUIV OFFICE FOR IMIGRTIO REVIE
IMIGRTION COUT
606 SOUK OLIV ST
.
, 15TH FL.
LOS AGELES, C 90014
LW OFFICES OF ELSA MTINEZ, PLC
XVIER ROSAS, SSQ.
523 W. SIXTH STREET, SUITE 633
LOS 1GELES, CA 90014
IN TE MTTER OF
I0mI~B$C$%. JOSE
FILS A 092122323 DATE: Dec 20, 2010
OAL! TO FORWAD - NO ADRSS POVIDE
ATACK8D IS A COPY 0F THE DECISI0N OF TE IMTGRTI0N JGE. TKT$ DEClSION
IS FIN UESS A APPE IS FIL WIT TB BOA OF TMIGRTION PP85
WITHIN 30 CA DAYS OF THE ?AT OF TR8 MILING OF TIS WRITlN DECISION.
SEE TH8 ECLOS8D FORS INSTUCTIONS FOR PROPERY PREPAING YOU APPE.
YOU NOTICE OF APPE, ATACK8D DDCUE$, A P$$ OR $$$ N W5T
MUST BE ML T: B0M OF ZHI0KTI0N APPES
OFFICE OF TE CLERK
P.O. BOX 8530
FALS CHCH, V 22041
ATTACR8 TS A COPY OF T DECISION 0F THE IMIGRTION JGE AS THE RSUT
OF YOU FAILUE TO APPEA AT YOU SCHEUED D8P0RTATIDN Ol lMOV. HEING.
THIS DECISION IS FINA ULESS A MOTIDN TO ROPE IS FIL JB ACCDR0MC8
WITH SECION 242B(c} (3) OF TK$ IMIGRTION A NTIONAITY AC, B U.S.C.
SECTION l252B(c) (3) IN DEPORTATION PROCEEINGS 0R S$CTION 2401c! I6!.
8 U.S.C. SECION I229a1cJ I61 IN REMOVA PROCDINGS. IF YOU FILE A MOTION
T REOPEN. OU MOTION MUST BE Fit WITH TIS COUT:
IMlCRTION COURT
606 S0U OLIV ST., I5TK F.
LOS AGELEC 90014
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CC:
QZO ..
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COUT CLERK
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A092122323 LOMELlBECER, Jose
UNITED STATES DEPATMENT OF JUSTICE
EXCUTIV OFCE FOR IMMIGRTION REVEW
UNITED STATES IMMIGRTION COURT
LOS AGELES, CAIORA
File No.: 092 122 Z
In the Mater of:
LOMELlBECER, Jose
Respondent.
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M BON PROCEEDINGS
>
ON BEHLF OF RESPONDENT:
7V6tRosas, Esquire
LW Ofces of Elsa Marinez
JJ West Sixth Steet, Sute 633
Los Angeles, Califria 90014
ON BEHALF OF THE DEPARTMENT:
Assistat Chief Counsel
Depaent of Homeland Secuit
606 Sout lY Steet, 8th Floor
Los Ageles, Califoria 90014
DECISION A ORER OF THE IMMIGRTON JDGE
.
:
..
Statement of Facts
Respondent is a fr-eight-yea old male, native ad citizen of Mexico. who wa
admited to the United Sttes as a laWuJ peranent rsident on October 20, 1989. Resondent
wa placed into removal proceedings on Febra 2, 2010, at the Iigration Cou in Lacaster,
Califra aer being sered wth a Notice to Appea (hereinaer NTA), chagng h w
being rmovable fom te Unted Sttes pWut to IA 237(a)(2)(8)(i), 8s a aien who, at
ay time aer adssion has been convicted of a crime involving a contrlled subsce a
defned in 21 U.S.C. 802. O Jue 28, 2010, te Iigraton Judge oreed Respondent
remove from the United States. Respondent appeMed the decision to the Boad of Immigtion
Appeals (ereinaer Boad) who upheld te Cou's orer of removal on October 14, 2010, ad
dismissed Respondent's appea.
On OOober 19, 2010, afer te orer of the Board afring te decIson of te
Immigtion Judge, Respondent f6d a 6liton tReview befre the \.b. L0uH0Appeas fr
lD6Ninth Ciruit (hereinafe Winth Circuit). Respondent is curently being held in the custody
of the Deparment of Homeland Secut (hereinafer Depament) 8te Jaes A. Musick
Detention Facilit in Irine, Califra pending te outcome of his petition wit te Ninth
Circuit. He has been in the Dcpaent's custody since Febra 2010.
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A092 122 323 LOMLI-BECER Jose
Respondent's recent encounter with te U.S. immigrtion system has ben on account of
his crminal reor. Respondent ha sufered numerou convicton since immigrting to the
United States. 'rhc Depament $6D$ the fllowing convictions:

On December J, 2002 Possession Contolled SubStC ce fr Sae, in violation of Cal.

H&S Code 3J. fr which he wa sentenced to 365 days in cout jal ad 36 month
of prbation-

On December 2 l p 2005 D_ri:ns uder the Infuence of AlcoholDrgs, in violation of

Cal. Veh. Code 23152, fr_which he was sentenc to one day in cout jail ad 36
months of prbation. ,1.

August 5, 1999 - Assault, in violaton of Cal. Penal Code 240, for which he wa
sentenced to 36 mont of probaton.
See generally, Bond Exhibit #1
On Noveber 8, 2010, Respondentg tug couselg submited a motion for a cutody
reeterination heaing pusuat \0 the Ninth Circuit caes Preto-Romero v. Cla, 534 F.3d
1053 (9t Cir. 2008) ad it compaon cae Casa-Callon v. D.H.S., 535 F.3d 942 (9th Cir.
2008) because Respondent is in the Depaent's cutody while his petition fr review is
pending befr the Ninth Circut.
On November 24, 2010, paies appeed befor te Immigtion Cou i Los
Angeles, Califria. At the heaing Respndent assere his eligbil ity fr bond pusuat to law
under Casa-CastJlon and Prieto-Romer ad tat, additionally, he should b gted bond
becaue he is neither a dager to the commuity nor a fight rsk due to his sng family tes ad
lengthy residence in the United States. The Depaent stpulated to Re"ondcnt' s eligibilit for
custody redeterination in font ofte Cou, but agued tat he is a dage to the cmmuit,
given his crminal rcord ad tat he is a signifcat figt rsk becaue he ha litle, i ay, relief
available to him no mater the outcome of his Nit Ciruit pettion. The Cou denied
Resondent's reques fr a bnd redeterination ai the concluion of the heang.
Analysis and Law
Te Ninth Circuit held in two caes, Cas"Catllon_ ad its compaion caeg Prieto
Romero v. Clak, that if a aien ha fled a ptition fr revew wt a circuit cou of appeals ad
ha received ajudfoial sty of removal, te alien is entitled to a cusody rdetenination heang
in fnt of a immigtion judge. Te I igtion Cous wer gven jusdicton over tee
cutody heaing becaue the Ninth Ciruit fud that dung te prod in which a fnal orer of
rmova h ben issued, but a ptiton for rview is pending acompaed by a stay of remova,
te alien is not in the "removal perod" uder rA 241(a}. Ti mea the alien s cutody is
govered by IA 236(a) and (c). Pdeo-Romero, 534 F.3d at 1058-59. See Ca-Casllon.
535 F.3d at 947. IA 236(c) govers when the Imigtion Cour ha no jurisdiction over
cerain crminal alien, but IA 236(c} does not apply to prolonged detentions in whch a
L80`d
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A092122 323
'+

' *.
.
LOMELI-BECER, 086
aien is awatingjudicial review of his iigaton case. Tis means IA 236(a) applies ad
a aien is etitled to a individuie custody deterintion in fnt of a imigration judge
Casa-Castllon. 535 F.3d at 948-49. At such a cutody heang. it is te goveent 80
te buden ofj1ifing the alien's deention pendig rmovaJ. Dioufv. Mulacy, 542 F.3d
1ZZZ, 1234, 35 (9
t
Cir. 2008).
Jn applying Caa-Catrllon, it is imperative thal the holding is difentiated frm the
dicMs 6 0olding in C3Castillon. allows fr a custody deterination solely to lawl
praent rsi dents, who have been in the Depament's custody fr a extended perod of time,
such a seven yea or more, ad whose underlying proceedings have been gated appeal by te
relevant ciruit cour ad remaded to te Boad fr consideration. Conseuently, te Cou
detenines that a rspondent is entited to a custody reetenination uder CasaCatUon in
ver limted circuces. Tis is not Respondents sitton.
Unlike Caa.Catllon, inwhich te Respondent wa held in detenton fr seven yeas,
Respondent has been in the Depaent's custody for 10 mont. Both te Immigtion Cou
ad the Boad have adjudicated this mater in a expOitiou ad time-sensitve man erg ad
Respondenl's ptition fr reviewoefre te Nint Ciruit ha only been pnding fr less ta one
mont. Te Ninth Circuit ha made no idication that Respondent's apl hold ay mert.
Becuse of tese fctors, the Cour does not believe tat Respondent $entitled to a custody
rdeterimination in accorce wit Cas-Catllon.
Even had the Cou deterined that IA 236(a) applied in Respnden\s proceedig,
the Cou fnds his release inapproprate a he poses a substatial figt risk. In raching this
conclusion, the Cour ha balaced whether or not it believes Respondent is a sigicant enough
fight risk to justif his continued detention, keeping in mind the signifcat value place on
peonal liber. IflA 236(a) were to apply, the Depaent has te buen of justifing to
the Cour Respondent's continued detention pnding his pelition fr rmoval. Tis Cou fnds
the Depaent hs justifed Respondent's detetion because the Cour fnds Respondent's
criminl rcor rnders him ineligible fr ay fr of relief, ad te lack of rlief available to
him rgadless of 06 outcome ofhis ptition for rview -maes him a sigfcat figt risk.
U Mater of Guer1 24 l&N Dec 27 (BIA 2006), the Boad made clea tat, unde INA
236(a), a Im igation Judge "lIexmely brad discrtion i decidng wheter or not to
rleae a alien on bond." Mater of Guera at 39. Relying on Calson v. Ladon, 342 U.S. 524
(1952) (holding that denia of bail to a alien with be overrled only where it is show to be
"without a rasonable fudation''}, the Boad sated there is no limittion on the discretiona
factor that may bconsiderd by a Imigaton Judge when rling on cutody ad bond $W08
and the Boa prvided a extenive, 0Vl not exhauive, list of factor to whch a Immigrtion
Judge may look when deterining wheter a Respndent has met his sttuor buen. Mater of
Guer at 39, 40. Se also_ Matter of Saelle, 22 l&N Deco 1258 (BI 2000); Mater of'dals,
20 I&N De. 01 (BIA 1994). Tese factor include:

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60'd 1+
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V77J . LOMELI-BECER, 0$6
(I) if te alien ha a fxed addrss;
(2) te aJien s length of Msiance in the United Sttes,
I t*1, ,
I
(3) faily ties ad whcteftey could give penaent residency to the aien i
te fte;
(4) employent histor;
(S) the alien s rcord of appearce i cou;
(6) the aien's cra rcord, including extensiveness, rency. ad
serouness of 06 Mm actvt;
(7 histor of immigtion violatons;
(8) ay attempts by te alien
'
to fee prosecution; ad
(9) ma er of entr to the United Sttes." m0ROof Guerra at 40.
Additionally. "[t]he Imigrtion udge may choose to give geat wight to one factor over
oters, a long as tht decision is reaonable." Matter of Guera at 40, emphis added.
Te Imigtion Judge consider severa fctors in Respndents cse when deciding V
deny bond. Specifcally te Imigtion Judge considere te exteIiveness of Respondent's
crminal rcord befr te Superior cou 9f Califria. Te Cour also consideed Respondent's
faily ties, fxed adress ad employmet histor .
...
Aer exaining these fact9r. th Cou deterines, a a mater of discrtion tat
Respondent poses a substtial fi'risk. Respondent s nwerous convctions. including one
fr trfcking a contolled substce as defned in 21 U.S.C. 802, me Respondent l
almost no fon of relief available to him. Te lack of available rlief convinces te Cou that
Resondent is a signfcat fight risk ad the Depaent, terefre, ha a stong iterst in
keing him in custody. In fact the Cou believes that Respondent ha litle to no incentve to
app fr ay futue heangs or execution ofa removal order given te seveit of te
immigation implications of his udelying convictions.
Accordingly, te flJowing order will be entered:
Respondent's request fr releae from the Depaents custody is DENIED.
Dated:
...
CRTlF|CAIEOF 8ERVlCtt
THl.OCUMENT W8 8ERvED BY ''I
MAIL {M} I J PERSONAL 8RV)
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DAT ^ SY COUR STMF
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[ ] LegaI 50N|8 Ul
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