BIA Reverses IJ Grant of Bond to Alien Child Sex Offender

On August 28, the Board of Immigration Appeals (BIA) — an administrative DOJ tribunal that considers appeals filed from immigration judge (IJ) decisions — reversed an IJ order releasing an alien “recently convicted of two felonies and a misdemeanor involving unlawful sexual intercourse and oral copulation with a 14-year-old girl” on a $6,500 bond. It’s hard to believe the IJ ordered the respondent released, and apparently the attorney general thought so, too. The takeaway is that when they are deciding whether to release criminal aliens on bond, IJs must consider facts they’re forced to ignore when determining whether the same aliens are removable.

Warning: this is a case involving sex offenses against a child. But the alien’s state criminal violations are key to understanding the BIA’s opinion.

Matter of Cotrufo

The case is Matter of Cotrufo, and it’s unclear from the BIA’s opinion where the alien (the “respondent” in immigration proceedings) is from or what the underlying charges of removal are.

What is clear, however, is that the respondent has three criminal convictions, one for violating section 261.5(c) of the California Penal Code and two for violations of section 287(b)(1) of the California Penal Code.

Here’s the text of section 261.5:

A person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

And here’s how section 287(b)(1) reads:

Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.

The section 261.5 conviction was a felony as was one of the 287(b)(1) convictions, the second being a misdemeanor. For those convictions, Cotrufo was sentenced to 180 days in jail, given 24 months of probation, and ordered to pay restitution.

The Facts

The respondent claimed that the 14-year-old victim initially told him that she was 16, but even after he found out the truth, he “continued to engage in unlawful sexual relations with her”.

In opposing the alien’s release, the DHS attorney handed up to the IJ a copy of a probation officer’s July 2024 report that was prepared for the state court in connection with respondent’s convictions.

In preparing that report, the probation officer “conducted two objective tests, the Ohio Risk Assessment and the Static 99, which indicated that the respondent is at a low or average risk of reoffending”.

As the BIA noted, however:

The record also reflects … that the probation officer’s report characterized the respondent’s conduct as manipulative of a “particularly vulnerable” 14-year-old girl, that the respondent displayed “criminal sophistication or professionalism” in that he was aware of the girl’s past sexual abuse trauma and used it to satisfy his own sexual gratification, and that the respondent had caused physical or emotional injury and did not appear to be remorseful.

The respondent objected to the IJ’s consideration of that report on the ground it included “hearsay”, that is, “an out-of-court statement offered to prove the truth of whatever it asserts, which is then offered in evidence to prove the truth of the matter”.

In apparent response, the IJ limited his review of that report to only the “undisputed facts and objective data” therein.

Ultimately, the IJ concluded Cotrufo did not pose a danger to the community and ordered him released on a $6,500 bond. DHS appealed that decision to the BIA.

Alien Release Standards

The regulation governing custody redeterminations, 8 C.F.R. § 1003.19, permits aliens in DHS custody to seek release on bond from the immigration court.

“Bond proceedings” are separate and apart from underlying removal proceedings (at which the alien’s removability and eligibility for immigration “relief” from deportation are at issue), but precedent makes clear that neither the Immigration and Nationality Act (INA) nor the regulations give respondents a “right” to release on bond.

Respondents seeking release bear the burden of proving they are eligible for bond, and thus “must establish to the satisfaction of” the IJ and BIA they don’t “present a danger to persons or property”, aren’t “a threat to the national security”, and don’t “pose a risk of flight”.

A Necessary Detour into Mandatory Detention under Section 236(c) of the INA

Note, however, that under section 236(c) of the INA, certain aliens are not eligible for release on bond, including aliens removable because they have been convicted of “aggravated felonies” as that term is defined in section 101(a)(43) of the INA.

Inasmuch as “sexual abuse of a minor” is among the crimes in section 101(a)(43) of the INA, you might conclude Cotrufo’s conviction for violating section 261.5(c) of the California Penal Code would be an aggravated felony.

The “Categorical Approach”

But it isn’t an aggravated felony that would have subjected Cotrufo to mandatory detention because the Supreme Court concluded in its May 2017 opinion in Esquivel-Quintana v. Sessions that a violation of section 261.5(c) of the California Penal Code, “unlawful sexual intercourse with a minor”, isn’t “sexual abuse of a minor” for purposes of section 101(a)(43) of the INA.

Key to that determination was its finding that:

In the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of “sexual abuse of a minor” requires the age of the victim to be less than 16.

“But wait”, you may argue, “this must be an aggravated felony because we know the victim in this case was 14, and that’s ‘less than 16’”.

In the real world that’s true. The real world, however, isn’t necessarily the same as “immigration world”, where facts often get sidelined. Which brings me to a complex legal concept known as the “categorical approach”.

In Moncrieffe v. Holder, a 2013 opinion authored by Justice Sotomayor, the majority held adjudicators must apply that categorical approach in determining whether criminal convictions are aggravated felonies for purposes of section 101(a)(43) of the INA.

Most criminal convictions, like Cotrufo’s, are violations of state, not federal, law but the aggravated felony definition at section 101(a)(43)(A) of the INA doesn’t refer to specific state statutes.

Instead, Congress defined “aggravated felony” using the generalized terms “murder”, “rape”, and “sexual abuse of a minor”, and left it to the executive and judicial branches to define those terms.

In applying the categorical approach, the adjudicator must first identify a “generic federal definition” for one of those offenses and then compare that definition to the “least of the acts criminalized by the state statute”.

I’ll skip the lengthy analysis that went into the Court’s formulation of the generic federal definition for “sexual abuse of a minor” above to get to its conclusion that “the least of the acts criminalized” under section 261.5(c) of the California Penal Code “would be consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21”.

The same, plainly, would be true of section 287(b)(1) of the California Penal Code, which requires only that the victim be “under 18 years of age”.

Back to the Release Determination

Unlike when making removal determinations, IJs are expected to exercise common sense in deciding whether to release respondents in immigration detention.

Therefore, even if a conviction doesn’t trigger mandatory detention under section 236(c) of the INA, it can still be relevant in weighing whether an alien poses a danger to the community if released.

But in Matter of Cotrufo, the IJ concluded that neither the respondent’s convictions nor any of the other facts in his case were indicative of dangerousness, and therefore the only issue was the appropriate bond to ensure his appearance.

The BIA, to put it gently, disagreed, concluding:

The respondent intentionally engaged in unlawful sexual behavior with a girl who, due to her young age, and the fact that she had experienced prior sexual abuse, was especially vulnerable to the respondent’s unlawful sexual behavior. The respondent’s behavior reflects a willingness and ability to manipulate vulnerable persons into engaging in unlawful conduct to meet his own desires and to do so at great harm to them.

Thus, the respondent has not met his burden of proving that his release would not pose a danger to the community.

In response to the alien’s argument that the probation officer’s report should be rejected because it contained hearsay, the BIA noted it’s “well settled that hearsay rules are not binding in immigration proceedings”, where “the ‘sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair’”.

That’s black letter immigration law, and the probation officer’s analysis was plainly probative, as it went to danger, and consideration of that report was fundamentally fair because the respondent was free to contradict it with his own evidence.

“In fact”, the BIA noted, “on appeal, the respondent does not object to inclusion of the probation officer’s report in the record, and instead cites to it in support of his claim that he is not a danger”.

On these grounds, the Board sustained DHS’s appeal and ordered Cotrufo detained without bond.

The Attorney General Weighs In

Keep in mind that the BIA never mentioned “section 101(a)(43)(A) of the INA”, never used the term “aggravated felony”, and never cited to Esquivel-Quintana. I had to read between the lines and fill in those facts.

In fact, as noted, many of the salient details in this case, including the alien’s nationality and the removal charge, aren’t in the BIA’s opinion, because the Board never meant for Matter of Cotrufo to be published and the parties already knew those facts.

As the BIA explained in a footnote, however, it published Matter of Cotrufo after Attorney General (AG) Pam Bondi, “designated the Board’s decision … as precedent in all proceedings involving the same issue or issues” on September 23.

She designated it as precedent in other bond cases for good reason.

The IJ issued his bond decision in November 2024, under the Biden administration, which took a very liberal approach to criminal alien releases.

The Trump II DOJ, however, is taking a much different tack, and AG Bondi is plainly sending notice to IJs that release decisions that would have been acceptable before aren’t acceptable now.

When deciding whether criminal aliens are removable, IJs are often required by law to ignore evident facts. But the opposite is true when those same IJs are deciding whether to release criminal aliens, and if they need proof, they can find it in the Board of Immigration Appeal’s opinion in Matter of Cotrufo.