U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 l.eesb11rg Pike, S11ite 2000 Falls Cl111rcl1, Virginia 2204/

MARTINEZ, LUIS FERNANDO {A089 748 621) C/O ICE, 1115 N. IMPERIAL AVE. EL CENTRO, CA 92243

OHS/ICE Office of Chief Counsel - ELC 1115 N. Imperial Ave. El Centro, CA 92243

Immigrant & Refugee Appellate Center | www.irac.net

Name: MARTINEZ, LUIS FERNANDO

A089-748-621

Date of this notice: 3/25/2011

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: King, Carol

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Luis Fernando Martinez, A089 748 621 (BIA March 25, 2011)

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U.S. Department ofJustice Executive Office for Inunigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A089 748 621 - El Centro, CA

Date:

MAR 2 5 201:

In re: LUIS FERNANDO MARTINEZ IN BOND PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Pro se

Immigrant & Refugee Appellate Center | www.irac.net

David P. Finn Assistant Chief Counsel

APPLICATION:

Redetermination of custody status

The respondent has appealed from the December 14, 2010 decision of an Immigration Judge. The record will be remanded for a new individualized bond hearing. The Board reviews an Immigration Judge,s findings of fact, including findings as to the ,, credibility of testimony, under the "clearly erroneous standard. 8 C.F.R. 1003. l(d)(3)(i); Matter

of S-H-, 23 l&N Dec. 462, 464-65 (BIA 2002) (stating that the Board must defer to the factual
determinations of an Immigration Judge in the absence of clear error). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions oflmmigration Judges

de novo. 8 C.F.R. 1003. l (d)(3)(ii).

The Immigration Judge concluded that the respondent had failed to establish that he was eligible for a custody hearing under section 236(a) of the Immigration and Nationality Act. The respondent argues on appeal that the Immigration Judge retains jurisdiction to redetermine his custody and he seeks a remand for a new individualized bond hearing. We find that the respondenfs case is controlled by the decisions of the United States Court of Appeals for the Ninth Circuit in

Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) and Casas-Castrillon v. Dept. ofHomeland Security, 535 F.3d 942 (9th Cir. 2008). In Prieto-Romero and Casas-Castrillon, the Ninth Circuit
held that an alien detained in immigration custody while an appeal of a final removal order is pending before the Ninth Circuit is entitled to a bond hearing under section 236(a) of the Act. Because the burden of proof has now shifted since the previous decision of the Immigration Judge regarding respondenfs suitability for custody redetermination, the record will be remanded for further proceedings. ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this decision.

Cite as: Luis Fernando Martinez, A089 748 621 (BIA March 25, 2011)

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EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT EL CENTRO/IMPERIAL, CALIFORNIA

FILE NO.

089 748 621

IN THE MATTER OF: Luis Fernando MARTINEZ Respondent

) ) ) CIVIL DETENTION PROCEEDINGS December 14, 2010 ) ) )

Immigrant & Refugee Appellate Center | www.irac.net

On Behalf of Respondent:

On Behalf of the Service

Pro Se

David P. Finn 1115 N. Imperial Ave El Centro, CA 92243

ORDER DENYING MOTION FOR A BOND HEARING

On May 10, 2010, Immigration Judge Ronald Mullins denied the respondent's request for cancellation of removal as a nonlegal resident and ordered the respondent removed. The respondent appealed, and on August 3, 2010, the Board of Immigration Appeals affirmed the order of removal. The respondent appealed that decision to the Circuit Court of Appeals for the Ninth Circuit, which entered a temporary stay of removal on August 12, 2010. On October 19, 2010, the respondent filed a motion for bond under the rule in

Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008) and Casas-Castrillon v. Department of Homeland Sec., 535 F.3d 942 (9th Cir 2008). By an order of November 4, 2010, I granted his
request, and on December 7, 2010, I held the requested bond hearing. However, I find that the respondent was not entitled to bond hearing. He has not been in custody for six months beyond the final administrative order; that date does not arrive until February 3, 2011. Moreover, he has not been subject to mandatory custody without any prior bond hearing. Rather, he had a bond hearing on February 10, 2010, at which time his bond was reduced from 'no bond' to a bond of $20, 000.00. The request for bond must therefore be denied because his case is not within the
v.

rule of Prieto-Romero

Clark, supra or Casas-Castrillon

v.

DHS, supra.

SO ORDERED

ac migration Judge December 14, 2010