RODRIGUEZ PENA

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Cite as 29 I&N Dec. 358 (BIA 2025) 	Interim Decision #4150
Matter of Jose Alejandro RODRIGUEZ PENA, Respondent
Decided by Board November 6, 20251
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The Immigration Judge erred in concluding that the respondent is not a danger to the
community where the respondent threatened to kill someone, reacted negatively to law
enforcement intervention, and used an alias to evade arrest.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Gregory K. Mayer, Assistant
Chief Counsel
BEFORE: Board Panel: HUNSUCKER and VOLKERT, Appellate Immigration Judges;
MCCLOSKEY, Temporary Appellate Immigration Judge.
VOLKERT, Appellate Immigration Judge:
The Department 	of 	Homeland 	Security (“DHS”) appeals 	from 	the
Immigration Judge’s May 1, 2025, order granting the respondent’s release
on a payment of a bond of $7,500.2 The respondent has not written to oppose
the appeal. We will sustain the appeal, vacate the Immigration Judge’s order
granting the respondent’s release on bond, and order the respondent held in
DHS’ custody without bond.
The Immigration Judge concluded that the respondent did not constitute
a danger to the community or a flight risk.3 Upon de novo review, we will
1 	Pursuant to Order No. 6525-2025, dated December 8, 2025, the Attorney General
designated the Board’s decision in Matter of Rodriguez Pena (BIA Nov. 6, 2025), as
precedent in all proceedings involving the same issue or issues. See 8 C.F.R. § 1003.1(g)(3)
(2025). Editorial changes have been made consistent with the designation of the case as a
precedent.
2 	Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), is inapplicable because the
respondent was admitted to the United States on April 19, 1996, as a B2 nonimmigrant,
and charged with removability under section 237(a)(1)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(1)(B) (2024).
3 	The Immigration Judge’s statement that “this respondent does not constitute a flight
risk” is inconsistent with the determination that a $7,500 bond is required to ensure his
presence at future hearings. “Once it is determined that an alien does not present . . . [such

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reverse the Immigration Judge’s determination that the respondent met his
burden to show that he is not a danger to the community. 	See 8 C.F.R.
§§ 1003.1(d)(3)(ii), 1236.1(c)(8) (2025).
For custody determinations under section 236(a) of the Immigration and
Nationality Act (“INA”), 8 U.S.C.A. § 1226(a) (West 2025), it is the alien’s
burden to establish that he is not a danger to the community at large. 	See
Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006); 8 C.F.R. § 1236.1(c)(8)
(2025). An alien who presents a danger to persons or property should not be
released 	from 	immigration 	custody 	during 	the 	pendency 	of 	removal
proceedings. 	See Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009);
Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994). Relevant factors in
determining whether an alien merits release on bond include how extensive,
recent, and serious any criminal activity is. 	See Matter of Guerra, 24 I&N
Dec. at 40.
DHS submitted a background check showing that the respondent has had
many 	encounters 	with 	law 	enforcement, 	including 	an 	arrest 	on 	drug
trafficking related charges in North Carolina in 1997, an unknown encounter
with law enforcement in Alaska in 2010, and a domestic violence related
arrest in New Jersey in 2019 from an alleged incident in 2007. The record
does not contain police reports for, or other information describing the
circumstances of, these arrests. While DHS argues that he was indicted on
drug charges, all charges against him were ultimately dismissed. Therefore,
on this record, we agree with the Immigration Judge that these arrests are not
particularly probative of his dangerousness. See Matter of Arreguin, 21 I&N
Dec. 38, 42 (BIA 1995) (“[W]e are hesitant to give substantial weight to an
arrest report, absent a conviction or corroborating evidence of the allegations
contained therein.”).
However, the record demonstrates that the respondent was recently
arrested for engaging in violent and aggressive conduct directed at people in
his community. 	Specifically, a warrant for the respondent’s arrest, which
DHS submitted into evidence, states that on April 6, 2025, police arrested
him after they heard him threaten to kill his friend by stating, “I am going to
get a gun [and] shoot him.” 	The respondent was charged with “Terroristic
Threats—Threats to Kill” in violation of section 2C:12-3(b) of the New
a] risk, then no bond should be required.” 	Matter of Drysdale, 20 I&N Dec. 815, 817
(BIA 1994).

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Jersey Revised Statutes. 	The respondent does not challenge the warrant’s
contents.
To establish that he is not a danger to the community, the respondent
supplied an affidavit from the victim, who states that the respondent
threatened him after a conversation turned into an argument in which he
pushed the respondent. He states that because the argument occurred near a
police station, he does not think police were called to the scene and that he
did not believe the respondent would harm him. 	The respondent also
provided an email from a prosecutor stating that the victim did not want to
prosecute the case. 	The Immigration Judge found that this evidence
obviated any dangerousness. 	However, the Immigration Judge does not
appear to consider the victim’s further explanation that “[the respondent] was
truly just upset the police officers showed up and became irate at that if
anything,” and that “things escalated” and “became extra heated when the
police came.”
It is unclear at this juncture whether the proceedings are pending or
dismissed. Even so, it is well established that specific, probative, and reliable
evidence of criminal conduct that has not produced a conviction may show
that an individual poses a danger to the community. 	Matter of Guerra,
24 I&N Dec. at 40–41 (explaining that it is proper to consider both arrests
and convictions). We find that the circumstances of the respondent’s arrest
raise rather than mitigate concerns over his erratic and volatile behavior. See
Matter of Siniauskas, 	27 I&N Dec. 207, 	208 (BIA 2018) (“In 	bond
proceedings, it is proper . . . to consider not only the nature of a criminal
offense 	but 	also 	the 	specific 	circumstances 	surrounding 	the 	alien’s
conduct.”). 	Threatening 	to 	kill 	someone 	over 	being 	pushed 	is 	a
disproportionate 	response 	indicative 	of 	dangerousness. 	Further, 	the
respondent’s negative reaction to law enforcement’s attempt to intervene to
ensure the safety of both his friend and the public demonstrates that he is a
danger to the community. We observe that the documentary record does not
contain 	any 	statement, 	rehabilitation 	evidence, 	or 	assurance 	from 	the
respondent about his conduct, and his counsel’s statements below are not
evidence. 	See 	Matter 	of 	J.J. 	Rodriguez, 	27 	I&N 	Dec. 	762, 	765–66
(BIA 2020) (noting that statements by counsel are not evidence and are not
entitled to evidentiary weight (citing INS v. Phinpathya, 464 U.S. 183,
188–89 n. 6 (1984))).
Moreover, there is evidence that the respondent falsely claimed in the past
that he was a United States citizen named “Efrain Vazquez” born in Puerto
Rico. 	His use of an alias to evade arrest and falsely claim citizenship
demonstrates disregard for our nation’s criminal and immigration laws and

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therefore indicates dangerousness. 	See, e.g., Matter of Fatahi, 26 I&N
Dec. 791, 794–95 (BIA 2016) (holding that circumstances surrounding the
alien’s use of a fraudulent passport and his misrepresentations to law
enforcement “raise significant safety and security concerns that justify his
continued detention while removal proceedings are pending”). So, too, does
the fact that his 2025 arrest occurred while he was released from immigration
detention on a $20,000 bond issued in 2019.
While the record contains evidence that the respondent is married to a
United States citizen and has United States citizen children, “family and
community 	ties 	generally 	do 	not 	mitigate 	an 	alien’s 	dangerousness.”
Matter of Siniauskas, 27 I&N Dec. at 210. 	His other character references,
which date back to his prior bond proceedings in 2019 and notably do not
include a letter from his spouse, do not address his present dangerousness.
Under these circumstances, we are unpersuaded that the respondent has met
his burden to show that he is not a danger to the community. See Matter of
Fatahi, 26 I&N Dec. at 793–94. We therefore conclude that he is not eligible
for bond.
ORDER: 	DHS’ appeal is sustained, and the Immigration Judge’s
May 1, 2025, decision is vacated.
FURTHER ORDER: 	The respondent is ordered detained without
bond.