Guerra: A Criminal Complaint, No Conviction and No Immigration Bond

Your husband has pleaded not guilty. A criminal court let him out on bond. He has a citizen spouse and a visa petition. Then an immigration judge refuses to release him, because of the same charge no one has proved.

Juan Francisco Guerra faced that sequence in 2006. He argued that an accusation should not keep him locked up without a conviction. The Board of Immigration Appeals disagreed. A judge deciding immigration custody may look at “any evidence in the record that is probative and specific,” meaning evidence that tends to prove the point and gives real detail. A signed federal complaint describing a six-kilogram cocaine deal met that test, and the Board dismissed his bond appeal.

The decision is Matter of Guerra, 24 I&N Dec. 37 (BIA Sept. 28, 2006), Interim Decision #3544. The practical question is how to answer the evidence in the complaint. The burden of proof also depends on where the hearing takes place, as the later First and Ninth Circuit decisions below show.

Six kilograms and a signed complaint

Guerra came from the Dominican Republic and was admitted in 2000 as a visitor. The Department of Homeland Security, or DHS, charged him with staying too long. He conceded that he was removable, meaning subject to being ordered out of the country, but said a relative petition filed by his citizen wife might let him stay. He asked to be released while the case went forward.

The obstacle was a federal drug case. He faced charges of distributing, and possessing with intent to distribute, five kilograms or more of a substance containing cocaine. The criminal complaint was signed by a Drug Enforcement Administration special agent and became part of the bond record. The account in the next paragraph comes from that complaint, and none of it had been proved in court.

A confidential informant, whom the agent had worked with for more than a year on numerous cases, called Guerra a drug dealer. On November 10, 2005, police watched him ride to the Bronx with a man named Vallejo. Vallejo’s wife got in, Vallejo got out, and she and Guerra waited 45 minutes at a gas station until Vallejo arrived in a second car. The two swapped places. Officers later approached the wife at a store, she consented to a search, and they found six kilograms of cocaine in a bag. When the car carrying Guerra and Vallejo was stopped, Vallejo said the cocaine was his and that he and Guerra were supposed to sell it that evening at a place Guerra knew.

The appeal asked one question

On June 7, 2006, an immigration judge denied the request for a change in custody. The judge relied on the large quantity and dangerous nature of the drugs. The complaint, the judge noted, was specific and detailed, and Guerra had “failed to present any evidence or argument that tended to undermine the reliability of the information” in it.

The judge added a second thought, about flight. If a later hearing established “reason to believe” Guerra had been involved in trafficking, he would be inadmissible, meaning barred from admission and generally from a green card, and so might have an incentive to skip court. That phrase comes from section 1182(a)(2)(C) of the immigration statute, which bars a person the government “knows or has reason to believe” is a drug trafficker. It requires no conviction. As we read the judge’s point, a person whose path to a green card is blocked has less reason to keep coming to court. That reasoning was the judge’s. The Board’s result rested on danger.

Guerra’s appeal made a single argument: He had not been convicted, so a complaint that had produced no conviction could not make him a danger. He told the Board he had pleaded not guilty and was awaiting trial. The opinion also records that he had been released from criminal custody on a $500,000 bond.

Why the complaint was enough

The Board started from the breadth of the power involved. His case fell under section 1226(a) of the immigration statute, the general provision that allows release on bond while a removal case is pending. A person in removal proceedings has no constitutional right to bond, the Board said, citing Carlson v. Landon, 342 U.S. 524 (1952), and section 1226(a) lets the Attorney General, whose authority immigration judges exercise here, grant bond as a matter of discretion. The Immigration and Nationality Act does not limit the discretionary factors that may be considered.

From there the answer followed. Immigration judges “are not limited to considering only criminal convictions” when deciding danger. A footnote explains why the comparison to deportation charges fails. Bond is “separate and apart” from the removal hearing. Removal on a criminal ground usually needs a conviction, and “No such requirement exists in bond proceedings.” The regulation Guerra’s footnote cites, 8 C.F.R. § 1003.19(d), also says a custody decision may rest on “any information that is available” to the judge.

The Board then explained why this complaint worked. A DEA agent signed it. It described the source of the information. It set out locations, alleged accomplices and the events leading to the arrest. “For purposes of determining bond,” that was sufficient to find that he posed a risk to others, “even in the absence of a conviction.” A judge may also give one factor more weight than others “as long as the decision is reasonable,” and giving this evidence “considerable weight above other factors, including the respondent’s marriage to a United States citizen,” was reasonable given “the scope and seriousness of the alleged criminal activity.” The Board added that it has “long recognized the dangers associated with the sale and distribution of drugs,” so, as we read it, a signed complaint about a different kind of charge may not carry the same weight.

The Board found that Guerra had not met his burden of showing he was no danger, and held that he should not be released while his removal case continued. It dismissed his appeal. That left the judge’s custody ruling in place.

The ruling grew in later cases. Three years on, the Board described Guerra as allowing a judge to consider “any unfavorable evidence” of conduct, “including arrests that did not ultimately result in conviction,” in Matter of Urena, 25 I&N Dec. 140 (BIA 2009). Guerra itself approved a specific, detailed complaint that went unrebutted. Its “probative and specific” language is still the best place to start when the government offers only a bare entry on an arrest record, in our view, but expect the government to cite Urena in response.

The burden and the nine factors were background

Guerra is cited most often for two passages the Board applied but Guerra did not dispute.

The first is the burden of proof, which decides who loses when the evidence leaves the judge unsure. The Board wrote that a person seeking release must show “to the satisfaction of the Immigration Judge” that he merits it. That rule came from Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999), which read an officer’s standard in 8 C.F.R. § 1236.1(c)(8) into hearings before judges. The First Circuit later told that history as a reversal. Under Matter of Patel, 15 I&N Dec. 666 (BIA 1976), a person generally should not have been detained or made to post bond without a finding that he was a security threat or a poor bail risk.

The second is the list. Judges “may” look to “any or all” of these factors, gathered from earlier Board cases:

1. A fixed address in the United States
2. Length of residence here
3. Family ties here, and whether they may lead to permanent residence
4. Employment history
5. Record of appearing in court
6. Criminal record, including how extensive, recent and serious it is
7. History of immigration violations
8. Attempts to flee prosecution or escape authorities
9. Manner of entry into the United States

The Board did not walk Guerra’s case through these nine. It named one competing fact, his marriage. So the actual holding is about what evidence counts and how much weight it may carry. The burden and the list are restatements that later decisions have adopted, and the distinction matters when a court changes one of them.

Danger comes first, and money answers only flight

Guerra repeats a rule from earlier law: A person who is a danger should not be released. Later decisions made the order explicit. Urena sent a case back because the judge had called the man a “potential” danger and set a $15,000 bond anyway. A “precise finding” on danger was required, and only a person who clears that question reaches the amount of bond. The two-step approach traces to Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994), which applied it under an older statute on aggravated felonies.

The nine factors do not all answer the same question, and Guerra does not sort them. Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018), explained that some generally relate to flight and others typically concern danger. A fixed address, long residence, a job and family ties may matter to whether someone returns to court, but family and community ties “generally do not mitigate” dangerousness. The Board allowed that a family member’s influence on a young respondent might matter in some case. It found no such showing from the adult before it. Our Siniauskas analysis covers that record.

Guerra’s facts show the cost of that structure. Read with Siniauskas, his wife and her petition went mostly to whether he would come to court, and his case turned on danger. On the flight side, a relief application helps because, as Matter of Andrade, 19 I&N Dec. 488 (BIA 1987), put it, a person with a better chance of relief has more reason to appear. The judge’s “reason to believe” remark was that logic run in reverse.

The First Circuit moved the burden

Ana Ruth Hernandez-Lara had no criminal record and a life in Portland, Maine. At her 2018 bond hearing, the government produced an INTERPOL Red Notice, a request that police worldwide locate and arrest someone. It said El Salvador wanted her under an anti-terrorism law and “did not specify a single act of criminal or dangerous conduct.” Because the burden was hers, she lost. After a federal court moved the burden to the government, the same immigration judge released her on a $7,500 bond and called the shift “outcome determinative.”

A divided First Circuit panel then ruled for her in Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. Aug. 19, 2021). It held that due process, the Constitution’s guarantee of fair procedure, required the government to carry the burden. It must prove danger by clear and convincing evidence, a demanding standard, or flight risk by a preponderance, meaning more likely than not. It upheld the district court on danger, reversed on the standard for flight and sent the case back so the government could, if it chose, seek a new hearing on flight under the lower standard. The court expressly did not reach her separate argument that a new hearing was required after six months. Its rule did not turn on a six-month mark, though it treated the potential length of detention as part of what was at stake. Of the procedures the government defended, it wrote: “Loaded dice rolled three times are still loaded dice.”

Here is what that decision changes and what it does not. It replaces the burden rule Guerra restated, for people held under section 1226(a) in the First Circuit, which covers Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. The majority cites Guerra for the burden and for the factor list, and it reprints the nine factors without criticizing them. It does not discuss Guerra’s ruling that unconvicted conduct can count. It says the government still “maintains discretion in each case to grant or deny bond.” As we read it, the question the Board actually decided in 2006 stands even there. The government can still offer a specific complaint, but it has to carry the case.

The Ninth Circuit left it on the detainee

California sits in the Ninth Circuit, and that court went the other way in Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. Nov. 21, 2022). Aroldo Rodriguez Diaz was held under section 1226(a) after a San Mateo County jail term. Two months in, with a lawyer at his side, he had a bond hearing and lost: The judge did not believe his denial of gang membership and found him dangerous. A federal district court later ordered a second hearing with the burden on the government, and he was released on $10,000.

The Ninth Circuit reversed and ordered his petition dismissed, holding that due process did not entitle him to that second hearing with the burden on the government. It said that it found the Third and Fourth Circuits and the First Circuit dissent “most consistent” with governing principles. On the burden specifically, he argued he should not have carried it at his first hearing. The court answered that its earlier burden-shifting case, Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), did not govern people held under section 1226(a) from the start, and that “We are aware of no Supreme Court case placing the burden on the government to justify the continued detention of an alien, much less through an elevated ‘clear and convincing’ showing.” It described the ordinary showing, citing Guerra, as one made “by the preponderance of the evidence,” a measure Guerra’s own words do not state. The procedures, it held, “satisfy due process, both facially and as applied” to him, meaning both in general and in his particular case. Judge Wardlaw dissented, Judge Bumatay concurred, and a request for rehearing by the full court failed in 2023.

The ruling has real limits. Groups filing briefs in his support argued that language barriers, trouble getting evidence and lack of counsel make the burden unfair. The court said those points “bear no relation to the facts of this case,” because Rodriguez Diaz had a lawyer and gathered considerable evidence, and it did so “without deciding” whether such problems could ever rise to a constitutional error. It then said: “we do not foreclose all as-applied challenges to § 1226(a)’s procedures.” And it noted that deficiencies in a particular hearing may be fixable “through means short of major changes to the burden of proof.”

The burden can also differ because of a court order in the particular case. Matter of Dobrotvorskii, 29 I&N Dec. 211 (BIA 2025), describes a hearing held under a permanent injunction, a final court order, from the Central District of California that put a clear-and-convincing burden on DHS. We rely on the Board’s account of that injunction, as of September 2025. The Board added that even then a detainee “is always afforded the opportunity” to present evidence, and a judge may weigh relevant evidence regardless of who filed it. Our Dobrotvorskii analysis shows that gaps in a detainee’s own showing can still decide the case. Read the order setting your hearing before you assume who carries the burden.

What Ninth Circuit law adds in California

Criminal history needs a closer look than a count of arrests. The Ninth Circuit reads Guerra as contemplating “that criminal history alone will not always be sufficient to justify denial of bond on the basis of dangerousness,” because recency and severity must be considered. That sentence comes from Singh, which involved a person who began in mandatory detention, and Rodriguez Diaz left open whether Singh remains good law in any respect. But the court again called the criminal-record factor the one “most pertinent to assessing dangerousness” in Martinez v. Clark, 124 F.4th 775 (9th Cir. Dec. 27, 2024).

A federal judge will not reweigh the evidence. Martinez treated the danger finding as a mixed question of law and fact, meaning a legal standard applied to a particular set of facts. It is reviewable only for abuse of discretion, a deferential standard that asks whether the agency applied the right legal test. The court “cannot reweigh evidence.” That hearing had been ordered by a court under the Due Process Clause, a feature the opinion stressed, so its reach to an ordinary section 1226(a) denial is open to argument. Either way, the record built before the immigration judge is the record that matters.

Release in the criminal case does not settle custody here. Martinez, too, had been released in his criminal case, on his own promise to return, and followed every condition. The immigration judge weighed that and still found danger, based on two drug-trafficking convictions, and the Ninth Circuit upheld the result. Andrade likewise refused to treat early parole from prison as proof of rehabilitation. Guerra’s $500,000 bond fits that pattern.

The amount needs its own analysis. Guerra’s list does not mention ability to pay. Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017), upheld a preliminary injunction, an early court order, requiring consideration of financial circumstances and alternatives to detention when bond is set for people found neither too dangerous nor too likely to flee. While explaining why going back to the Board first would be pointless, it pointed to “Guerra’s failure to require consideration of financial circumstances.”

A hearing must be available at all. Guerra applies to discretionary custody under section 1226(a). A 2025 amendment now requires detention of certain people who are inadmissible for entering without inspection, fraud or lack of documents and who are merely “charged with” or “arrested for” listed offenses, including theft and burglary. For them, a charge does more than weigh against bond. It can remove bond altogether. And Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), says immigration judges lack authority to hear bond requests from people present without admission. The Ninth Circuit described a December 18, 2025 class-certification order and declaratory judgment in Maldonado Bautista v. Noem, No. 25-01873 (C.D. Cal.), when it considered the government’s request to pause that relief. Its March 31, 2026 order paused the judgment outside the Central District of California while leaving it in place within that district. Whether a person is in the class needs checking the day a request is filed.

If a pending charge is the reason for denial

The immigration judge stressed that the complaint stood unanswered, and the Board let the denial stand. A family facing the same problem should start there.

• Get the actual document. Find out whether the government filed a sworn complaint, a police report or only an arrest entry. Then ask what it says about the source of the information, dates, places and this person’s role. Those were the features the Board relied on.
• Answer its reliability, not just its existence. Saying “no conviction” was the argument that failed. Court records showing a dismissal, reduced charges, a contradiction in the police account or a co-defendant’s retraction go to what the judge actually weighed.
• Coordinate before anyone testifies. With a criminal case open, what the person says at a bond hearing may carry risks there. That is our practical caution, and the immigration and criminal lawyers should decide it together.
• Sort the evidence by question. Letters, leases and a spouse’s petition mostly answer flight. Treatment records, the circumstances of the offense and the state of the criminal case speak to danger.
• Watch for changed circumstances. A later request must be in writing and show that circumstances “have changed materially.” A dismissal or acquittal is an obvious candidate, in our view. But the change must reach the reason for denial. Rodriguez Diaz’s drug conviction was vacated, or set aside, and the judge still refused a new hearing because the danger finding rested on gang affiliation.
• Keep the appeal separate. A custody ruling can be appealed to the Board apart from the removal case, and that is the route Guerra used.

Later developments. This article states the law as of June 23, 2026. On July 30, 2026, a divided Ninth Circuit panel rejected the reading adopted in Yajure Hurtado, holding in Rodriguez Vazquez v. Bostock, No. 25-6842, 183 F.4th 1160, that people present without admission who are arrested in the interior are held under section 1226 and not the mandatory provision of section 1225(b)(2)(A). The court described the bond showing for those detainees as proof by a preponderance that the person is neither a flight risk nor a danger, and said they can still be denied bond on either ground. The question is not settled. On October 1, 2026, the Supreme Court agreed to decide it in Rhoney v. Barbosa da Cunha, No. 26-104, and the government reports in its petition in Quinones v. Rodriguez Vazquez, No. 26-568, that the Ninth Circuit stayed its mandate, the order that puts its judgment into effect, until the Supreme Court rules.