Cite as 24 I&N Dec. 762 (BIA 2009) Interim Decision #3636
Matter of M-A-S-, Respondent
Decided March 19, 2009
U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
An Immigration Judge may order an alien detained until departure as a condition of a grant
of voluntary departure.
FOR RESPONDENT: Erich C. Straub, Esquire, Milwaukee, Wisconsin
FOR THE DEPARTMENT OF HOMELAND SECURITY: Seth B. Fitter, Senior Attorney
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated April 14, 2008, an Immigration Judge found that the
respondent failed to meet the requirements for reopening proceedings, that his
asylum application was time barred, and that, in any event, he had not
established eligibility for asylum, withholding of removal, and protection
under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N.
Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the
United States Apr. 18, 1988) (“Convention Against Torture”). The
Immigration Judge also granted voluntary departure with the condition that the
respondent was not to be released from custody until his departure. The
respondent has appealed from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Qatar, entered the United States with
an F-1 student visa on or about July 22, 2002. He ultimately failed to carry a
full course load, and the Department of Homeland Security (“DHS”) initiated
removal proceedings against him. On January 26, 2007, the Immigration
Judge found that the respondent was removable for failing to maintain the
conditions of his status. During the hearing, the respondent indicated that he
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did not fear returning to Qatar and that he did not have the means to depart.
The Immigration Judge therefore concluded that the respondent was ineligible
for any relief from removal.
The respondent appealed that decision, and on May 18, 2007, we
dismissed the appeal, affirming the Immigration Judge’s removability
finding and holding that the respondent had not established eligibility for
voluntary departure because he did not have the means to depart the
United States. The respondent appealed our decision to the United States
Court of Appeals for the Seventh Circuit, which issued a stay of the
respondent’s removal on June 7, 2007, pending the outcome of the appeal. On
September 28, 2007, the DHS filed a motion to reopen removal proceedings,
requesting that we give the respondent another opportunity to apply for
voluntary departure. On October 15, 2007, we granted the motion and
remanded the record to the Immigration Judge.
On remand, in addition to applying for voluntary departure, the respondent
applied for asylum, withholding of removal, and protection under the
Convention Against Torture. On April 14, 2008, the Immigration Judge found
the respondent ineligible for each of those forms of relief, but he granted
voluntary departure with the condition that the respondent not be released from
custody until his departure. It is from this decision that the respondent appeals.
Concurrent with the removal proceedings, the respondent attempted to
secure release from custody. The DHS initially ordered that no bond be set,
but the Immigration Judge reviewed this decision and on, January 26, 2007,
ordered the respondent released on $15,000 bond. The DHS subsequently
revoked the respondent’s bond. The respondent appealed the revocation to the
Immigration Judge and filed a petition for a writ of habeas corpus in district
court. On May 16, 2007, the Immigration Judge held another bond hearing,
considered the DHS’s arguments that the respondent was a threat to national
security, and again ordered the respondent released, but he increased the
amount of the bond to $60,000. The district court denied the respondent’s
habeas corpus petition. The respondent filed an appeal with the Seventh
Circuit, which dismissed the appeal, relying on the Immigration Judge’s
April 14, 2008, decision ordering the respondent detained during his voluntary
departure period. Al-Siddiqi v. Achim, 531 F.3d 490 (7th Cir. 2008).
II. ISSUE
The issue on appeal is whether an Immigration Judge may order an alien
detained until departure as a condition of a grant of voluntary departure.
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III. ANALYSIS
A. Asylum, Withholding of Removal, and Protection Under
the Convention Against Torture
Before we consider the voluntary departure issue, we review the
Immigration Judge’s decision regarding the respondent’s eligibility for asylum,
withholding of removal, and protection under the Convention Against Torture.
Although the DHS argues that the Immigration Judge should not have
considered the respondent’s application for these forms of relief, we conclude
that the Immigration Judge properly found that he was not foreclosed from
considering the respondent’s claims. Matter of M-D-, 24 I&N Dec. 138 (BIA
2007).
In this case, the respondent submitted an affidavit asserting that he fears
harm in Qatar because the United States Federal Bureau of Investigation
interviewed him on April 24, 2007, and suggested that he has ties to terrorist
groups. This evidence is material, was not previously available, and could not
have been discovered at the former hearing. Therefore, we conclude that the
respondent has met the requirements for consideration of his applications for
relief.
Turning to the merits of the respondent’s applications and assuming
arguendo that he timely filed his asylum application within a reasonable period
of changed circumstances, we agree with the Immigration Judge’s denial of
relief. The respondent does not claim that he was persecuted in the past, but
he contends that he will be persecuted in Qatar in the future because the
Government will suspect him of being a member of a terrorist organization.
Even assuming the truth of this assertion, we conclude that the record does not
support a finding that he has a well-founded fear of persecution.
First, investigation of terrorism is not harm perpetrated on account of a
protected ground. See Dinu v. Ashcroft, 372 F.3d 1041 (9th Cir. 2004).
Moreover, Amnesty International’s 2006 report for the country of Qatar
indicates that the Government had detained at least 17 persons for
extended periods as suspected terrorists, but the report for the following
year indicates that 17 persons had been released and one other was tried and
convicted. See Amnesty International USA, 2007 Annual Report for Qatar,
http://www.amnestyusa.org/annualreport.php?id=ar&yr=2007&c=QAT;
Amnesty International USA, 2006 Annual Report for Qatar,
http://www.amnestyusa.org/annualreport.php?id=ar&yr=2006&c=QAT.
Although other evidence indicates that Qatar has passed an antiterrorism law,
it does not establish that persons suspected of terrorism are persecuted.
Similarly, the Department of State 2006 country reports on human rights
practices in Qatar references an Amnesty International report regarding the
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detention of 18 persons in 2005 under the laws for the “protection of society”
and “combating terrorism,” but it does not indicate that terrorism suspects are
persecuted. See Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t
of State, Qatar Country Reports on Human Rights Practices for 2006 (Mar. 6,
2007), available at http://www.state.gov/g/drl/rls/hrrpt/2006/78861.htm,
reprinted in Committees on Foreign Relations and Foreign Affairs,
110th Cong., 2d Sess., Country Reports on Human Rights Practices for
2006 2125, 2127 (Joint Comm. Print 2007). We therefore conclude that the
respondent has not established that he has a well-founded fear of persecution
in Qatar on account of a protected ground.
Since the respondent failed to meet the lower burden of proof required for
asylum, it follows that he also failed to satisfy the clear probability standard
to establish eligibility for withholding of removal. See INS v. Stevic, 467 U.S.
407 (1984); see also 8 C.F.R. §§ 1208.13, 1208.16(b) (2008). Furthermore,
he failed to prove that it is more likely than not that he will be tortured if he is
returned to Qatar. See 8 C.F.R. § 1208.16(c)(2). The respondent has not
provided evidence that he was tortured in Qatar or that a Government official
either seeks to torture him or will acquiesce in his torture if he is returned to
that country. See 8 C.F.R. § 1208.18(a)(1) (2008); see also Matter of S-V-,
22 I&N Dec. 1306 (BIA 2000). Although the evidence he submitted identifies
isolated incidents of torture in Qatar, it does not establish that he would be
more likely than not to face such treatment. We therefore agree with the
Immigration Judge that the respondent has not established eligibility for
asylum, withholding of removal, or protection under the Convention Against
Torture.
B. Voluntary Departure
The Immigration Judge granted the respondent’s voluntary departure
request, indicating that voluntary departure would be “granted under
safeguards and the Respondent is not to be released pending departure.” The
respondent challenges the Immigration Judge’s continued detention order and
his failure to set a voluntary departure bond.
The terms “continued detention” and “safeguards” are explicitly used in the
regulations that establish the parameters under which DHS officials are
authorized to grant voluntary departure: “The Service may attach to the
granting of voluntary departure any conditions it deems necessary to ensure the
alien’s timely departure from the United States, including the posting of a
bond, continued detention pending departure, and removal under safeguards.”
8 C.F.R. § 240.25(b) (2008) (emphasis added); see also Matter of Arguelles,
22 I&N Dec. 811, 814-15 (BIA 1999). In this case, we understand the
Immigration Judge’s use of the term “under safeguards” solely to mean
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continued detention, because the Immigration Judge did not reference or
impose any other limitations on the respondent’s voluntary departure.1
Moreover, the term “voluntary departure with safeguards” is commonly
used to characterize the requirement that an alien remain in custody
until he or she departs from the United States. See Immigration and Customs
Enforcement, Office of Detention and Removal, Department of
Homeland Security Border and Transportation Security Directorate,
Detention and Deportation Officers’ Field Manual Ch. 11.10 (2002),
available at https://www.westlaw.com (follow “FIM-DDOFMN Ch. 11.10 ”
hyperlink); Immigration Trial Handbook § 2:7 (2008), available at
https://www.westlaw.com (follow “IMTRIAL § 2:7” hyperlink).
The respondent argues that the regulations that govern the setting of
voluntary departure by Immigration Judges differ from the regulations
governing the DHS, because the regulations relating to Immigration Judges do
not contain the express power to detain an alien without bond. Compare
8 C.F.R. § 1240.26(c)(3) (2008) and 8 C.F.R. § 240.25(b). The respondent
also reads 8 C.F.R. § 1240.26(c)(3) to require the mandatory setting of a
voluntary departure bond. According to the respondent, the purpose of setting
such a bond is to allow the respondent to be released, so Immigration Judges
do not have the authority to order continued detention in the voluntary
departure context. The Seventh Circuit considered this precise issue when it
reviewed the respondent’s habeas corpus petition and interpreted 8 C.F.R.
§ 1240.26(c)(3) to empower Immigration Judges to grant voluntary departure
with the condition that the alien remain in custody. Al-Siddiqi v. Achim, supra,
at 495.
Although 8 C.F.R. § 1240.26(c)(3) does not explicitly use the term
“continued detention” in discussing the authority of Immigration Judges to
grant voluntary departure, it does authorize an Immigration Judge to set “such
conditions as he or she deems necessary to ensure the alien’s timely departure
from the United States.” See also Matter of Ocampo, 22 I&N Dec. 1301,
1303-04 (BIA 2000). We concur with the Seventh Circuit that 8 C.F.R.
§ 1240.26(c)(3) gives Immigration Judges broad discretion to set conditions
for voluntary departure, including the continued detention of the alien until his
or her departure from the United States.
The respondent argues that the second sentence of 8 C.F.R. § 1240.26(c)(3)
requires Immigration Judges to set a voluntary departure bond in all cases. We
understand his argument to imply that the setting and payment of such a bond
Because we determine that the Immigration Judge’s order in this case involved only
continued detention, we do not reach the issue whether Immigration Judges have the same
authority as the DHS to impose other safeguards, such as electronic monitoring devices,
sedation, or an escort to the alien’s departure destination.
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would also entitle him to release. Because we have determined that the
Immigration Judge has the authority to order the continued detention of an
alien as a condition of voluntary departure, however, requiring the
Immigration Judge to also set a bond would still not entitle the respondent to
release by payment of the bond. Under such circumstances, a bond would
merely be an additional onerous requirement. We therefore do not consider
the respondent’s argument to be that a bond should have been imposed in
addition to detention, but rather only that it should have been imposed in lieu
thereof.2
Furthermore, where continued detention is ordered, it makes no sense
to require a bond, because the purpose of the bond—to assure that the
respondent will appear for departure—is already fully served by the continued
detention. We are therefore unpersuaded by the respondent’s arguments in this
regard. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
2 The argument that the Immigration Judge should have placed additional conditions on the
voluntary departure order would normally come from the DHS, and the DHS has not
advanced such an argument on appeal. See Greenlaw v. United States, 128 S. Ct. 2559
(2008) (upholding the party presentation rule).
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