Where the Immigration Judge determined that the respondent presents a potential danger to the community based on his criminal history, which includes a conviction and several arrests for offenses with the potential for violent harm to persons, and where the respondent failed to establish on appeal that the Immigration Judge’s conclusion is without a reasonable foundation, the Board finds that there is no error in the Immigration Judge’s determination that the respondent presents a potential danger to the community.
An Immigration Judge may properly consider any unfavorable evidence of an alien’s conduct, including arrests that did not ultimately result in conviction in determining whether the respondent presents a potential risk to the community. On the other hand, arguments and assertions of fact made by the respondent concerning the hardship of his detention are not relevant to the custody determination hearing.
However, the Board finds it necessary to remand the record to the Immigration Judge for clarification of his finding that the respondent presents a “potential” danger. Dangerous aliens are properly detained without bond. In this regard, dangerous aliens have no constitutional right to be at liberty in the United States pending the completion of proceedings to remove them from the country. An Immigration Judge should only set a bond if he first determines that the alien does not present a danger to the community. The alien bears the burden of proving that his release would not pose a danger to property or persons. Only if an alien demonstrates that he does not pose a danger to the community should an Immigration Judge continue to a determination regarding the extent of flight risk posed by the alien. In this regard, the setting of bond is designed to ensure an alien’s presence at proceedings and is not properly utilized where an alien presents a danger to the community.
If an Immigration Judge concluded that the respondent presented a “potential” danger to the community, the respondent would be required, pursuant to that determination, to remain in custody without bond. Conversely, if the Immigration Judge found that despite the potential of danger, the respondent has met his burden of proving that his release would not pose a danger to property or persons, then it would be appropriate to consider the other factors relevant to determining the amount of bond necessary to ensure the respondent’s presence at further proceedings, including his criminal record as it relates to the likelihood that he will appear at future hearings.
Accordingly, the Board will remand the record for the Immigration Judge to clarify his determination that the respondent presents a potential danger to the community. A precise finding whether the respondent has demonstrated that he would not pose a danger to property or persons is required, and if the respondent has failed to meet his burden of proof in that regard, then any release on bond is inappropriate. Only if the respondent has established that he would not pose a danger to property or persons should the Immigration Judge decide the amount of bond necessary to ensure the respondent’s presence at proceedings to remove him from the United States. The record is remanded to the Immigration Judge for further proceedings and for the entry of a new decision.
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