This presumption was repeatedly affirmed by the Board of Immigration Appeals ("BIA"). See Matter of Patel , 15 I. & N. Dec. 666, 666 (B.I.A. 1976) ("An alien generally is not and should not be detained or required to post bond except on a finding that he is a threat to national security or that he is a poor bail risk."); see also Matter of Andrade , 19 I. & N. Dec. 488, 489 (B.I.A. 1987). In 1996, Congress, concerned with, among other things, the number of aliens in removal proceedings who did not appear for their hearings, amended the INA by passing the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA").

Silva objects that, at her initial bond hearing in 1993, IJ Josephson commented that she could "apply for Section 212(c) relief but her chances of attaining the same are not great assuming the above-stated facts are true and counsel for her did not question them at the bond hearing." Although we are doubtful that this statement constituted a due process violation, see Matter of Andrade, 19 I. & N. Dec. 488, 490 (BIA 1987), and that such a violation could trigger equitable tolling, Silva is not entitled to relief because she cannot demonstrate that the IJ's statement prejudiced her, see Dent v. Holder, 627 F.3d 365, 373 (9th Cir. 2010). Despite IJ Josephson's statement, Silva continued to seek 212(c) relief in her subsequent proceedings, and only accepted deportation after additional advisements by her attorney and IJ Warren.

And a noncitizen with a greater likelihood of being granted relief to stay in the United States has a strong motivation to appear for a hearing. In re Andrade , 19 I. & N. Dec. 488, 490 (BIA 1987). Instead, Petitioner's status is more akin to that of the petitioner in Billeke-Tolosa . SeeBilleke-Tolosa , 385 F.3d at 708.

The IJ found Petitioner's chances of being able to stay in the United States were "not that great," Transcript, Track 07 at 0:19, which indicated increased flight risk. See Matter of Andrade, 19 I&N Dec. 488, 490 (BIA 1987). Further, in his bond memorandum, the IJ concluded Petitioner was an extreme flight risk because "his criminal history indicates a lack of respect for authority" and because, despite Petitioner's stay in the Ninth Circuit, Petitioner "will apparently be removed from the United States" and the IJ "has no confidence [the Ninth Circuit petition for review] will be successful."

No deportable alien should be deprived of his liberty pending execution of the deportation order unless there are compelling reasons and every effort should be made to keep the period of any necessary detention at a minimum."); In re Andrade, 19 I. & N. Dec. 488, 489 (BIA 1987); Matter of Spiliopoulos, 16 I. & N. Dec. 561, 563 (BIA 1978). The BIA reversed this longstanding interpretation in the case In Re Adeniji, 22 I. & N. Dec. 1102, 1116 (BIA 1999), where it shifted the burden to the noncitizen to prove that "his release would not pose a danger to property or persons, and that he is likely to appear for any future proceedings."

The BIA has explained that a detainee "with a greater likelihood of being granted relief from deportation has a greater motivation to appear for a deportation hearing than one who, based on a criminal record or otherwise, has less potential of being granted such relief." Matter of Andrade, 19 I. & N. Dec. 488, 490 (BIA 1987). If the BIA makes "an unambiguous misstatement of law" in describing the petitioner's prospects of avoiding removal, this legal error may fatally infect a flight risk determination. Zabaleta v. Decker, No. 18-CV-1802 (JGK), 2018 WL 4473340, at *4 (S.D.N.Y. Sept. 17, 2018).

The BIA has explained that a detainee "with a greater likelihood of being granted relief from deportation has a greater motivation to appear for a deportation hearing than one who, based on a criminal record or otherwise, has less potential of being granted such relief." Matter of Andrade, 19 I. & N. Dec. 488, 490 (BIA 1987). If the BIA makes "an unambiguous misstatement of law" in describing the petitioner's prospects of avoiding removal, this legal error may fatally infect a flight risk determination. Zabaleta v. Decker, No. 18-CV-1802 (JGK), 2018 WL 4473340, at *4 (S.D.N.Y. Sept. 17, 2018).

See also Matter of Patel, 15 I. & N. Dec. 666, 666 (B.I.A.1976) (A non-citizen “generally is not and should not be detained or required to post bond except on a finding that he is a threat to the national security, ... or that he is a poor bail risk.”) (citations omitted). To determine if a non-citizen poses a danger to the community or a flight risk, an IJ may consider the non-citizen's “stable employment history, the length of residence in the community, the existence of family ties,” Matter of Andrade, 19 I. & N. Dec. 488, 489 (B.I.A.1987), and any “criminal record, including ... the recency of such activity.” In re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A.2006).

The Patel factors, although not expressly stated in the INA or regulations, arose from the agency's own interpretation of the statute and regulations and have continued to govern the federal courts' and the BIA's review of bond redetermination decisions. See Haddam v. Reno, 54 F. Supp.2d 602, 610 (E.D.Va. 1999) (finding that excludable alien who posed national security threat and risk of flight was properly detained during asylum proceedings); Kamara v. Farquharson, 2 F. Supp.2d 81, 88 (D.Mass. 1998) (finding deportable alien properly detained on basis of Patel factors); Moskalev v. District Director, No. 95-11218-RGS, 1996 WL 622475 at *3 (D.Mass., Jan.24, 1996) (finding deportable alien properly detained on basis of Patel factors); Matter of Andrade, 19 I N Dec. 488 (1987) (citing Patel factors). Thus, while a deportable alien may not have a right to release on bond or other conditions during his deportation proceedings, see Carlson, 342 U.S. at 540, 72 S.Ct. 525, the circumscriptions on the Attorney General's authority to continue to detain an alien establish a constitutionally protected interest in applying for redetermination and distinguish the type of discretion involved here from situations in which the Attorney General's discretion is "unfettered" or a "matter of grace."

Shin v. INS, 750 F.2d 122, 125 (D.C. Cir. 1984) (citations omitted.) In determining the necessity for and the amount of bond, the BIA has found it appropriate to consider such factors as a stable employment history, the length of residence in the community, the existence of family ties, a record of nonappearance at court proceedings, and previous criminal or immigration law violations. see Matter of Patel, 15 I N Dec. 666 (BIA 1976); Matter of Shaw, 17 I N Dec. 177 (BIA 1979); Matter of Sugay, 17 I N Dec. 637 (BIA 1981); Matter of San Martin, 15 I N Dec. 167 (BIA 1974); Matter of Andrade, 19 I N Dec. 488 (BIA 1987). An alien who is more likely to be awarded relief from deportation is considered more likely to appear for deportation proceedings than one who is unlikely to be awarded relief. see Matter of Andrade, supra.