DE L CRUZ-PALENCIA, HELIA

A 074-374-352
ICE, 1705 E. HANNA RD
ELOY, A 85131
Name: DE LA CRUZ-PALENCIA, HELIA
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pike. Suite 2000
Falls Church, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - EA
P B0B Box 25158
Phoenix, A 85002
A07 4-37 4-352
Date of this notice: 5/13/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Pael Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Holmes, David B.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Helia De La Cruz-Palencia, A074 374 352 (BIA May 13, 2011)
U.S. Deparment of Justice
Exetve Ofce for Immigon Reiew
8 .
Falls Church Virga 22041
File: A074 374 352 - Eloy, A
I re: HLIA DE LA CRU-P A.CIA
I BON PROCEEIGS
APEAL
ON BEHF OF RESPONET: Pro se
ON BEF OF DHS: Ryan I. Gldstein
Assisnt Chief Counsel
Deision of the Boad of Im igation Appeals
Date:
MAY 13 Z011
The respondent h appeale the decision of the Immigaion Judge dae Febr 3, 2011. The
Immigation Judge's decision is suppore by a bond memorandum date Mch 15, 2011. The
Immigaton Judge concluded that the respondent's "sigcat histor of pror immigaton
violations," indicate that a substantal bond of $10, 000 was reuired to ensure the respondent's
appece at fture procegs. The appeal wlbe sustaine.
This Boad reviews an Imigration Judge's fdings of fact, including fndings as to the creibility
onestimony, unde the "clely eroneous" stdad. 8 C.F.R 1003.l(d)(3)(i). See alo Mater
of S-H-, 23 I&N Dec. 462, 464-65 (IA 2002). The Boad reviews questions of law, discretion ad
judgement ad all other issues in appeals fom decisions of Immigaton Judges de novo. 8 C.F.R
1003 .1 ( d)(3 )(ii).
The deterinaton of whether a alien that is not subject to the madatoc detenton provisions
of seon 236(c) of the Im gaon ad Naonalit Act ("Act"); 8 U.S.C. 1226(c), should be
detaine or reuire to post bond is a two step process. First, a determinaton must be made a to
whether the alien poses a dage to the saey of pesons or propy in h cmuny. Mat er of
Drsle, 20 I&N Dec. 815 (BIA 1994) (deterinaton of dagerousness ay). I the alien does
not pose a dage to the cmunty, a deeron must be made as to whether a alien is a fight
risk unikely to appea fr fture proceedings. See e.g., Mater of Patel, 15 I&N Dec. 666 (1976)
(fctors unique to each alien must be evauated in deterg suitailit fr releae fom custody).
Until the alien satisfies these two fcors, there is a presumption fr detenton.
The record reveas that the respondet frst entered the United States in 1996 wthout having
been admitted or paoled, ad she was subsequently ordered removed in absentia in 1996. However,
she h submite evidence that she is marie to a lawfl peent rsiden, that she h thre
Unted States citen children that she h reeived work athoration in the past, ad that she h
fled sme t re. The reponden h also submitte evidence fom the Pastor of her chrch
attestng to her cher. Ba on these fctors, some of which were not presented to the
Imigon Judge, we fd t a mmum aount of bond is requir to ee her appecs
at fture immigaton procegs. Accordingly, the appel wlbe ssne ad the respondent is
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Cite as: Helia De La Cruz-Palencia, A074 374 352 (BIA May 13, 2011)
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A074 374 352
ordee reled upon te postg of a bond i the aount of $3,500. See e.g., Matr of Pael, 15
I&N De. 666 (1976) (fors unique to eh alien must be evaluated i deterg stit fr
rele fom cstody).
ORE: Te appe wlbe susaine ad the respondent is ordere relea upon the posng
of a bnd i the amount of $3,500.
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Cite as: Helia De La Cruz-Palencia, A074 374 352 (BIA May 13, 2011)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1705 EAST HANNA ROAD, SUITE 366
ELOY, AZ 85131
IN THE MATTER OF:
DE LA CRUZ-PALENCIA, Helia
RESPONDENT
ON BEHALF OF THE RESPONDENT:
Helia De La Cruz-Palencia, pro se
Eloy Detention Center
1705 East Hanna Road
Eloy, AZ 85131
)
)
)
)
)
IN BOND PROCEEDINGS
FILE NO.: A074-374-352
DATE: March 15, 2011
ON BEHALF OF THE DEPARTMENT:
Assistant Chief Counsel
Department of Homeland Security
1705 East Hanna Road
Eloy, AZ 85131
MEMORANDUM DECISION AND ORDER OF THE IMMIGRATION COURT
I. PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala. (Exh. 1, Form 1-862, I.) "On
December 31, 1996, [she was] ordered removed fom the Untied States under section
24l (a)(l )(B) of the Act." (Id) She "entered or attempted to reenter the United States without
being admitted on November 26, 20 IO" and was "not then admitted or paroled afer inspection
by an Immigration Ofcer." (Id)
On January 4, 20 J 1, the Department of Homeland Security ("OHS" or "the Department")
issued a Notice to Appear ("NT A"), charging the respondent as removable fom the United
States pursuant to Section 2 l 2(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or "the
Act"), "as amended, in that [she is] an alien present in the United States without being admitted
or paroled, or who arrived in the United States at any time or place other than as designated by
the Attorey General." (Id.) The Department frther charged the respondent as removable
pursuant to Section 2 l 2(a)(9)(C)(i)(II) of the Act, "as amended, as an alien who has been ordered
removed under section 235(b)(l), section 240, or any other provision of law, and who enters or
atempts to reenter the United States without being admitted." (Id)
On January 5, 2011, the respondent was detained in the custody of the Department.
(Bond Exh. 1, Form 1-286.) The respondent requested a redetermination of her custody status
pursuant to 8 C.F.R. 1236.l(d), and a hearing was convened to consider her request on
February 3, 2011.
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DE. LA CUZ-PALENCIA
A074-374-352
It STATEMENT OF LAW
When applying the general provisions of Section 236(a) of the Act, the Court undertakes
a two-step analysis in reviewing the conditions of an alien's custody status. First, a criminal
alien must establish to the satisfction of the Immigration Judge that he or she does not present a
danger to property or persons in the community and is not a threat to national security. Matter of
Guerra, 24 l&N Dec. 37, 38 (BIA 2006); Matter of Adenii, 22 l&N Dec. 1102, 1115 (BIA
1999); Matter of Patel, 15 l&N Dec. 666, 667 (BIA 1976). An alien who presents a danger to
persons or property should not be released during the pendency of removal proceedings. Matter
of Guerra, 24 l&N Dec. at 38 (citing Matter of Drsdale, 20 I&N Dec. 815 (BIA 1994)).
Second, if the alien does not pose a danger to the community, a determination must be
made as to whether an alien poses a fight risk or is likely to abscond and unlikely to appear fr
fture proceedings. Matter of Adenii, 22 l&N Dec. at 1115; Matter of Patel, 15 I&N Dec. at
667. Matter of Guerra, 24 l&N Dec. at 40. When determining whether an alien should be
released fom custody, as well as the amount of bond that is appropriate, the Court may look at
any or all of the fllowing fctors:
(1) whether the alien has a fxed address in the United States; (2) the alien's
length of residence in the United States; (3) the alien's fmily ties in the United
States, and whether they may entitle the alien to reside permanently in the United
States in the fture; (4) the alien's employment history; (5) the alien's record of
appearance in court; (6) the alien's criminal record, including the extensiveness of
criminal activity, the recency of such activity, and the seriousness of the ofenses;
(7) the alien's history of immigation violations; (8) any attempts by the alien to
fee prosecution or otherwise escape fom authorities; and (9) the alien's manner
of entry to the United States.
Id; see also Matter of Saelee, 22 l&N Dec. 1258 (BIA 2000); Matter of Drysdale, 20 l&N Dec.
at 817; Maller of Andrade, 19 l&N Dec. 488 (BIA 1987); Matter of Patel, 15 I&N Dec. at 667;
Matter ofSuga, 17 I&N Dec. 637, 638-39 (BIA 1981); Matter of San Martin, 15 I&N Dec. 167,
168-69 (BIA 1974); Matter of S-Y-L-, 9 l&N Dec. 575, 577 (BIA 1962).
The Court has broad discretion in deciding the fctors that it may consider in custody
redeterminations and it may choose to give greater weight to one fctor over others, as long as
the decision is reasonable. Matter of Guerra, 24 I&N Dec. at 40. "The determination of the
Immigration Judge as to the custody status or bond may be based upon any infrmation that is
available to the Immigration Judge or that is presented to him or her by the alien or the
[Department]." 8 C.F.R. 1003.19(d).
III. ANALYSIS AND FINDINGS
The respondent has established to the satisfction of this Court that she does not pose a
danger to the persons or property of the United States. The bond record does not refect that the
respondent possesses a criminal history, nor is there other indication that she represents a threat
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DE LA CEUZ-PALENCIA
A074-374-352
to. the community. Nevertheless, the Court fnds that the respondent poses a considerable fight
risk should she be released.
The respondent is a married 36-year-old fmale, who frst entered the United States in
1996, but last arived in November of 2010. (Bond Exh. 4.) The respondent has signifcant
fmily ties; she is maried to a United States citizen, and has three United States citizen children.
The respondent has submitted to the Cour a letter stating that she wishes to care fr her children,
and lef the United States only to care fr her fther who was ill at the time. (Bond Exh. 6.)
However, the respondent does not have a history of employment; she neither owns
property, nor has fxed assets in the United States. She has a signifcant history of prior
immigration violations. The respondent frst entered the United States in 1996, without having
then been admitted or paroled afer inspection by an immigration ofcer. (Bond Exh. 4.)
Subsequently, that same year, the respondent was ordered removed in absentia but continued to
remain in the United States until she voluntarily retured to Guatemala in 2006. (Bond Exh. 2
and 4.) She again unlawflly reentered to the United States in 2010. (Bond Exh. 6.) As such, the
Cour believes the risk of non-appearance at fture proceedings may only be mitigated by the
setting of an appropriate bond.
IV. CONCLUSION
Accordingly, the Court will enter the following Order:
ORDER: IT IS HEREBY ORDERED THAT the respondent's request fr a
change in custody status be GRANTED and that the respondent be
released upon the posting of a bond in the amount of$10,000.00.
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Irene C. Feldman
. *

Unites States Immigration Judge
CERTIFICATE OF SERVICE
THIS DOCUMENT
1
WAS SERVED BY: MAIL (M)
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PERSONAL SERVICE (P)
TO: ( ) AL
_
N ( )ALIEN c/o Custodial Ofcer ( ATT/REP C( OHS
DATE: '1 ' ' BYCOURT STAFF:----------
Attachments. ( ) EOIR-33 ( ) EOIR-28 ( ) Legal eryices List ( ) Other
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