News & Insights

The Background

Jose Luis Salas Pena, originally from Ecuador, was in immigration detention. He asked the Immigration Judge to release him on bond (essentially bail in the immigration context), which would allow him to be out of custody while his immigration case continued.

• In 2007, he had minor arrests (open container, speeding, driving without a license).
• In 2022, he was arrested for trafficking in approximately 2,077 grams of cocaine (over 2 kilos).

The Immigration Judge granted bond, setting it at $5,000, finding that the government’s evidence about the drug case wasn’t reliable enough to show he was dangerous.

The Department of Homeland Security (DHS) appealed that decision, arguing he was too much of a danger to be released.

The Evidence

According to the police report:

• A FedEx package containing cocaine was shipped using someone else’s address.
• Salas Pena allegedly coordinated with the recipient to pick up the package.
• When arrested, he had:
  • A fake South Carolina driver’s license
  • Thirty-five $100 bills that tested positive for cocaine residue
  • A notebook that looked like a drug ledger
  • Small baggies typically used for packaging drugs

A search of his home found:

• A handgun in a safe
• Cash in a bank envelope
• A bag of unidentified white powder where a K-9 unit alerted for drugs

The BIA’s Ruling

The BIA reversed the Immigration Judge’s decision and ordered Salas Pena detained without bond. Here’s why:

1. Bond is discretionary.
   • Immigrants in custody don’t have an automatic right to bond.
   • They must prove they’re not a danger to the community and won’t flee.
2. Criminal charges—even without conviction—matter.
   • The BIA emphasized that judges can look at arrests, police reports, and other evidence, not just convictions.
   • The serious nature of drug trafficking creates a strong presumption of danger.
3. The police report had “indicia of reliability.”
   • While the Immigration Judge downplayed the report, the BIA found it credible and persuasive.
   • The combination of drugs, cash, fake ID, gun, and drug paraphernalia pointed to serious trafficking activity.
4. Drug trafficking = danger to the community.
   • The BIA stressed that drug crimes pose a unique and serious harm to society, justifying continued detention.

Outcome

• DHS’ appeal sustained.
• Immigration Judge’s bond grant vacated.
• Respondent ordered detained without bond.

Salas Pena will remain in immigration custody while his removal case continues.

Why This Case Matters

• For immigrants: Even if you haven’t been convicted, serious pending criminal charges—especially drug trafficking—can prevent release on bond.
• For lawyers: Police reports and circumstantial evidence carry significant weight in immigration bond hearings.
• For the system: This decision sets a precedent: serious drug charges alone can be enough to justify detention without bond.

Bottom line

Bottom line: In Matter of Salas Pena, the BIA made clear that serious drug trafficking allegations show danger to the community, and in such cases, bond will not be granted—even if the criminal case is still pending.