Eddy Bismark Nunez-Garrido, A099 115 048 (BIA Feb. 3, 2011)

7/27/2019 Eddy Bismark Nunez-Garrido, A099 115 048 (BIA Feb. 3, 2011)

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Ybarra, Gisel, Esq2320 S.W 57th Avenue, Ste 201Miami, 33155-0000

Department Justice

Executive Oce r Immigation Review

oard of Immigration AppealsOce ofthe Clerk

5/07 eesb1rg Pik, S1it 2000Falls Chrc1 'rgii 2204I

OHS/ICE ice of Chief Counsel KR18201 SW 12th StMiami, FL 33194

Name: NUNEZGARRID, EDDY BISMARK A099115048

Date of this notice 2/3/2011

Enclosed is a copy of th Boad's decisio ad ode in t abov-eenced cas.

Enclosue

Pae Membes:Guendelsberge John

Sinceely,

Donna CarrCie Clk

Cite as: Eddy Bismark Nunez-Garrido, A099 115 048 (BIA Feb. 3, 2011)


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U.S De artment of Justice. Executiv Oc r mmigaon Rvw

Dcso of h Board of Imgaton Appals

Fals Church Virginia 221

File: A099 15 048 Mii, FL

re: EDDY BISMARK Z-GARRDO

IN BOD PROCDNGS

APPAL

Date:

ON BHALF OF RSPONDT: Gsel Ybara, squire

ON BHAF OF DS: Jorge L. PeeiraAssistant Chef Counsel

APPCATION: Autostay

FEB 0 3 21

he Department of omeand Seciy (the "DHS), appeas om the Immiation Juge'sNovembe 9, 200 cstody ode ganting the espondent's eqest a edeteination of econditions of is custody an odeing tat e espondent be eleased upon postng a bond i temount of$50,000. Te reasons e Immition Judge's custody oder are set rt in a bondmemoum dated Decembe 6, 200. he appeal will be dismissed.

e Bod reviews an Immigration Juges nings of ct, including ndings to teceibili of testimony, unde he "clearly eoneous sandd. 8 C.F.R. 003 .1( d)(3)(i); see alo

Matter of S-H, 23 I&N Dec. 462, 46465 (BA 2002). he Boad evews uestions of law,iscetion, and juent and all othe issues in appeals om decisions of mmation Jgesde novo. 8 C.F.R 003.(d)(3)(ii).

ere is no dispute that te instant custody poceeing is govee by he povisions ofsection 236(a) of te Immiation and Nationaliy Act, 8 U.S.C. 1226(a). Une tis section, teesponent bes te buden of ebuing the pesumption tat e is a ger to pope o personso is a igt sk. See Matte of Adeni 22 &N Dec. 102 (BA 1999). he intepeation ofwee an alien has ebued the pesumption against him is a twostep anaysis and unless te aiendemonsates hat e is not a dange to opey or pesons upon consideation of the elevant factos,e should be detained in he custody of the DHS See Matter of Urena,25 &N Dec 40 (BIA 2009)

(olding tat ony if an aen has esablished at e would not pose a danger to poe or personssoul an mmiation Judge decie he amout of bond necessay to esue the aien's esence at

poceedings to emove im om the United Sates). Only whee e lien hs ebue hepresuption tat e is a dge to te commi oes he likeliood hat e will abscond becomeelevt. Id. We undestand te mmiation Jdge to ave deteine tat he esponent rebuedhe pesumption at e is danger to te communiy notwtstanding evidence of e respondent'sin absentia reign conviction mude. In this egd, we ckowledge te conces ased by heDS hat the esponent emains a ange given he undisputed evidence of the mue convictiond elated 20-ye sentence om wic the espondent absconded along wth evience at teespondent is cuently he subject of inteationa aest wart in connection wt at muerconviction

Cite as: Eddy Bismark Nunez-Garrido, A099 115 048 (BIA Feb. 3, 2011)


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A099 5 048

Howee on de oo eiew we aee wit te iation Judges conclusion tat teespondent as eutted te pesuption tat e is a dange paticuly gien te siicant passageo e d te espondents clean ecod since te allege ude couple wit eidence i eecod wic songly suggests at te ictis deat esulted o an accidenta sooting o atwost eckless conduct on te pat of te espondent And wile te iation Juge

acknowledged eidence of an outstanding iteational aest wart in connection wit te udeconiction and elated 20yea sentence o wic the espondent asconded te iationJudge noted te espondents sicant faily d counity ties and potential eans of elieo eoal S Mar ofAndrad 9 &N Dec 488 490 987) ("A espondent wit aeate likeliood of eing ganted elief o depotation as a geate otiation to appea adepotation eaing tan one wo ased o a ciina ecod o otewise as less potential oeing anted suc elie) ligt of te egoing ctos we aee wit te iation Judgeat a $50000 od poides te equisite suance o te espondents appeace at anysusequent eaings S Mar of DJ 23 &N Dec 572 (AG 2003); Mar of Gurra24 &N Dec 37 (BA 2006) (poiding te iation Judge wit wide discetio in consideingctos tat ay e cosideed) Accodingly the llowig ode will e enteed

ORDR: Te DHSs appea is disissed

2Cite as: Eddy Bismark Nunez-Garrido, A099 115 048 (BIA Feb. 3, 2011)


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US Deparment of JusticeExeve Ofice r Immgran Revew

Bard gran Aeals, Oe o he CerkP.O Box 8530

507 Leebg Pe, Se 2000Fal Chrh Vrgna 2204

MEMONDUM TO THE FILE

Name: NUNNEZ-GARRIO, EDDY BISMARK

A 99-115-48

PLASE NOTE

ate: 2n2

The migaton Judge's deciso this case is complete; howeve t spagiated corectly.

The Imgraton Judge's I DD Vsas decisio ths case is mssing page

0 The type of proceedgs idcated on the mgatio Judges decsion soudea "eoval roceedgs

The "A nube s ncorect o the Igation udges decison The corect"A umber s

0 The ame o the mmgation Judges decsion s coect Te corect ae s

O The date of the mmigratio Judge's decso s corect The corect dateis

Nacy A Abbott Act Tea LeaderPogra Sta rascto Uit


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United tates Department of JsticeExecutive Oce r mmiation Review

U. Immiation Cou

THE MER OF

Eddy ismark Nne-Garrido

espondent

FOR REPONDENT:

Grisel Ybaa Attoey at aw30 57 Avenue ite 0Miami Florida 33155

I Procral Backound

Kome Processing FacilityMiami Floida

A099 5 08 N OND PROCEEDING

ond Decision

FOR HE DEPARTMENT OFHOMEAND ECURITY

Jorge L. Pereira Assistant Chief Counsel1801 . treetMiami Forida 33194

Respondent appeared bere the cort with cnse on eptember 7 010 reqesting abond hearing The U. Deparent of Homeand ecurity DH or Deparent argued thatRespondent should not receive a bond aeging that he is a it rsk and that he is dangerous.Aer considering the proers and docments provided by the parties the Cort nd thatRespondent was not dangerous and ven his ties to the commnity and other ctors that abond of$0000 was sucient to assre his appearance at rther hearings

On eptember 8 00 the Deparent of Homeland ecrity issued a "Notice of ICE Intent

to Appeal Cstody Reteination On eptember 9 010 the Department l an"Emergency Motion r Cstody Determination in ight of New vidence Respondent led an"Answer to the Deparent of Homeland ecritys Emergency Motion r CustodyRedeteination in ight o New Evidence in a timey ashion On October 1 010 the Cortissed a decision anting the Deparent's motion r redeteination


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n ovember , 200, he paries again appeared bere the Cou r a bond heng. he

Dpaent again argued tat Responden should not receive a bond, alleng that he is a ighris and ha he is dangerous Aer considerng he proers and docuents proid by hepaies, he Cou und tha Respondent was not dangerous, bu set he bond a$50,000, and

imposd various ondiions reon, ven that Responden as been conicted in absentia andhe cirumsances suounding the conition. However, based upon his ties to the comunityand oher ors, he Cou believes tat a bond with hese conditions is sucient o assure hisappearance a her hearings.

I. taemen of the Law

For persons wo are no iing aiens (8 C.F.. Section 003. l ()(2)(i)(B)}, deportable oncerain cminal ounds as specied under Section 236( c) o the Act, or claied to be subject omadao deenion related to povisions r suspeced eoriss under ecion 236A of the A, 1an mmiation Judge may deteine wheher o hold an alien without bond or se a bond, in the

minimu amount of$1,500. ee ection 236(a} of the At. Under ection 236(a)(2}(A), theminimum bond mus be a least $500 and an Imiation Judge an prescibe "conditions rhe release on bond. Persons shoud not be deained or ruired to pos a bond uness i isdeteind that he or she is a hea to secuity or a poor bai ris. ee e.g. Mater of Pael, 5I&N Dec. 666 (BIA 176). However, alien mus establish hat his or her reease woud notpose a dger to he comiy in order to be considered r a bond. See Matter o Urena, 25I&N Dec. 140 (BA 200).

III. Factors Considered

Responden in this matter is a hiryhree year-old single male, naie and ciizen of theDominican Repubi who was aditted o he United Sates on July 8, 2000 as a visitor. Hispaents are United Saes itiens, and they appeared in Cou to suppo his reques r bond.His aunt and uncle aso appear in Cour in suppor of his applicaion.

he Dominic Rpublic in Augus of 6, urteen years ago, wen Responden waseigheen-yeas-old,he clais he "acidenl sho and ill his bes iend. e moh and

uncle o the vitim appeared in opposition o Responden's bond request. The ictims unclestaed tha while i was aleged hat the shooing was accident, the autopsy repo shows thevictim was sho in the bac of the head. See ond Exhibit 6. The saeents tat appear to havebeen taen in August 6 during the investigaion of the incident do show that Responden andthe victim were iends. See Bond Exibi a 1. appears hat Responden was a PoliceOer. Id.. For he mos pa, e staemens reveal tha Responden was arguing wth thevictimbecause he did no wat he vicim to dre aer he had been dning alcohol o excess.ee ond Exibi a 2, . Several winesses state hat esponden's gun went o accidenly in

he Department has not arged ha Responden was no eligbe r bond since he issubjec o mandao deention.

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a ste ,but one witness said Respondent had been "playn at thrown ocks at thevictim earlier in te evenn and played at pointin his un at people. Id at l 45

Respondent was aested based on tis event and iven a bond in 997. Sometime theeae,

he le the Dominican Republic, oin to Mexico, and hen to the Unted States.

2000, Respondent was "convict n abentaof mude, based on the 996 incident, te Dominic Rpublic. It is unclear whete this will constitute a "convction. S 9 FA40.2(a). At one point, the Depaent attoey indicat that he believ that the DominicanRepublic would seek to retry he Respondent

Snce livin in te United States, Respondent has v an open, pubic listyle and has notbeen "n hidin In 2004, his ten wi led a visa pettion Respondent wt theDepent of Homeland Secuity. e has a gmembesip, is enroled in collee, and hada onstandin cebook account. See Bond Exhibit B2, at tabs J. As noted earlie, he

has close family tie in te Unt States and has iends here.

Respondent ha not been aest r a crme n any coutry since 997.

Te vctims uncle, Pedro Tejada, stated that Respondent is a t sk because he umpbailonce i te Dominica Republc and "hs famly will o to ay lents not to submt to tejuisdiction of the justce system in te Dominica Republic.

I Analsis

First and eost, the Cout must make a deteination of wheter Respondent is a danertothe commun. See Matte of Urena, 25 I& Dec. 40 (BIA 2009). The Cou nds thatRespondent is not daneous.

ile Respondent committed a oible crime, the circumstaces show it is not lkely torecur. Respondent has conceded that n 996, he shot and killed a an From most accounts,this dd not appea to be intentiona; however, by at least one accout it could have been ecklessOne of te wiesses, as noted above, did claim hat Respondent was eckless in payn atthrowin ocks and waivin is un aound. It is also noted, as the ctims uncle stated, at evictim was sot in the back of the head Tain a l is the most seious cme that can becommitted, but te cicumstances hee indicate that it is not likely to recu. The sonest cto

showin that it is not likely to recu is that it has been over a decade almost a decade and onehalf since this event and Respondent has not had a sine aest. addition, the eventhappened wen he was very youn; he has matured and displayed bette judent since hatte he Cou also notes the ctos suestin the unntentional natue of hs crime otnthat alcohol appeared to ave been a ctor in the shootn, in an abundance of caution, and wth

ee Exhbt 2 tabs B throu E. Respondent and his wife have snce dvorced.

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cosent of espodent, the Cour imposed the conditio that he not consume any alcohol oruprescrbed dg upo his reease. he Court beliees, regardess, hat based o thecircst of the crime ad sice it appears to be a abatio i a otheise awl i. Hedid not coit ay cimes bere or aer espodent was i ct a police ocer at the time it

was comitted. He had chose a life in law enrcement, showig soe respect r the aw.Based o al the ctors, espondet has show he is ot dagerous

The Cout must also cosidr wheher espondet is a ight risk. he Cout ds, en euiti that espodet has i the Uit States, a hi bod with coditions will assure thatespondent copies with he requireents under the aw.

espondent has ot bee in hiding ad has made aempts to legaize his status with theDpent of Homeld Secuity. He applied r and receied a bih certicate om his owncoun whie i the Uited States. He maed ad his wi applied r a isa r him. He has

beeopen in all his dealings in the United States He has fily ad has ade a li wih iends

here.

The Depamet contends also hat espondet is a ight isk because "there is a e songpossibility' at he will be exadited aer the remoal procdig. Howeer, Respodetsatoey prored that he ad his fiy recoie the eed to submit to the Domiicaublic's chages ad hae hired a attoey there.

espondet olunteered to be put o a eleconicoitog systm, but the Depaent didnot aee to his request. There is o pubished case law as to whether the Cour ca order thatRespodent be plac o elecoic moitorig as a codition of his release ude Sectio236(a)(2)(A) of the Act, but the Cou declies to issue such a order at this time. The Cou

beliees the high bod d conditios are eou to assue Respondent will not ee, ad notesthat he ct that Respondent olunteered r such monitorig is also eidece hat he is not aight risk.

he bond of $50,000 is a high bod r miatio Court. Wile it was ay yeas ago, theBoad of mmiation Appeals uphed a ower bod under factors much worse than this case. Matter ofSugay, 17 &N Dec. 637 (BA 8), the Board upheld a bod of$30,000 r aindidual who had bee dened relef at an mmgraton hearng, had no stable employmentor ose famy es, ad been onvted of murder n the Phppnes and ed when thease was on appea, ad been arrested r a volent rme n the Unted States, and ed INSapprehenson. Ulike the case i Sugay, espodet has not been deied relief (he will seekcacellation of remoal), he has close famiy ties in the Uit States (US. citizen pents) hehas bee admitt to school here, he has not been aested in the Uited States, ad did ot eeor resist detetion DHS Wile the aw ay hae eoed to the extent that today Suayhiself would not be released because of dagerousness issues (athough the case did otexplicitly address that issue ad has not been directly oeled), the Cout beliees that, as ithat case, settig a hi bond will assure that Respondet is ot a ight sk.

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V. Concluson

lght of the egoing the Cout nds Resondent s not dangeous and that a bond of

$5, wth the condtons that he not consume any alcohol o unpescibed dgs ae sucientto assue he is not a ight isk

Daed this 6 day of Decembe

cc Assstant Chief Counsel

Attoey Respondent

Mailed out1oBy:

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Eddy Bismark Nunez-Garrido, A099 115 048 (BIA Feb. 3, 2011)

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