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Matter of Egidijus SINIAUSKAS, Respondent
Decided February 2, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In deciding whether to set a bond, an Immigration Judge should consider the nature
and circumstances of the alien’s criminal activity, including any arrests and convictions,
to determine if the alien is a danger to the community, but family and community ties
generally do not mitigate an alien’s dangerousness.
(2) Driving under the influence is a significant adverse consideration in determining
whether an alien is a danger to the community in bond proceedings.
FOR RESPONDENT: Felix Velter, Esquire, Southampton, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: Mary Ellen Withrow,
Assistant Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and GREER, Board Members.
MALPHRUS, Board Member:
In a decision dated May 15, 2017, an Immigration Judge granted the
respondent’s request for a change in custody status and ordered him released
on bond in the amount of $25,000. The Department of Homeland Security
(“DHS”) has appealed from that decision. The appeal will be sustained, and
the respondent will be ordered detained without bond.
The respondent is a native and citizen of Lithuania. He entered the United
States as a nonimmigrant visitor in 2000 and has admitted that he remained
longer than permitted. The respondent is married to a lawful permanent
resident, and he has a United States citizen daughter.
An alien in a custody determination under section 236(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2012), must establish
to the satisfaction of the Immigration Judge and the Board that he or she does
not present a danger to persons or property, is not a threat to the national
security, and does not pose a risk of flight. Matter of Fatahi, 26 I&N Dec.
791, 793−94 (BIA 2016); Matter of Adeniji, 22 I&N Dec. 1102, 1112−13
(BIA 1999), modified on other grounds, Matter of Garcia Arreola, 25 I&N
Dec. 267 (BIA 2010). “Dangerous aliens are properly detained without
bond,” so an “Immigration Judge should only set a bond if he first determines
that the alien does not present a danger to the community.” Matter of Urena,
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25 I&N Dec. 140, 141 (BIA 2009). The purpose behind detaining criminal
aliens is to ensure their appearance at removal proceedings and to prevent
them from engaging in further criminal activity. Matter of Kotliar, 24 I&N
Dec. 124, 127 (BIA 2007).
The DHS contends that the respondent did not meet his burden of
establishing that he is not a danger to the community.1 We agree. The record
reflects that the respondent has three convictions for driving under the
influence between 2006 and 2007, and he was arrested for a fourth offense
in 2017. Two of his convictions, as well as the recent charge, involved
accidents. Based on the most recent arrest, the respondent was taken into
DHS custody.
The respondent argues that driving under the influence is not a crime of
violence and that it has been 10 years since he was convicted of that offense.
He presented evidence of treatment by a certified naturopathic physician and
his active participation in Alcoholics Anonymous meetings, which the
Immigration Judge found to be “active steps to address his obvious alcohol
problem.” The respondent argues that his recent arrest for driving under the
influence is an aberration that involved mitigating circumstances because it
occurred on the first anniversary of his mother’s death.
“Drunk driving is an extremely dangerous crime.” Begay v. United
States, 553 U.S. 137, 141 (2008), abrogated on other grounds, Johnson
v. United States, 135 S. Ct. 2551 (2015). It takes “a grisly toll on the Nation’s
roads, claiming thousands of lives, injuring many more victims, and
inflicting billions of dollars in property damage every year.” Birchfield
v. North Dakota, 136 S. Ct. 2160, 2166 (2016). “[T]he very nature of the
crime of [driving while intoxicated] presents a ‘serious risk of physical
injury’ to others . . . .” United States v. DeSantiago-Gonzalez, 207 F.3d 261,
264 (5th Cir. 2000); see also Marmolejo-Campos v. Holder, 558 F.3d 903,
913 (9th Cir. 2009) (noting that “the dangers of drunk driving are well
established”).
In bond proceedings, it is proper for the Immigration Judge to consider
not only the nature of a criminal offense but also the specific circumstances
surrounding the alien’s conduct. See Matter of Guerra, 24 I&N Dec. 37, 40
(BIA 2006) (stating that relevant factors in determining whether an alien
should be released from immigration custody include how extensive, recent,
1 The Immigration Judge initially found that the respondent was a danger to the
community and denied bond on March 13, 2017. The DHS’s appeal relates to a subsequent
hearing on May 15, 2017, where the Immigration Judge accepted additional evidence and
granted bond. Given our decision to sustain the appeal, we need not address whether the
Immigration Judge erred in finding that changed circumstances warranted the subsequent
bond redetermination hearing.
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and serious the alien’s criminal activity is). It is also proper to consider both
arrests and convictions. Id. at 40−41.
Driving under the influence is a significant adverse consideration in bond
proceedings. We recognize that the respondent’s last conviction for driving
under the influence occurred 10 years ago. However, his recent arrest for the
same offense undercuts his argument that he has established rehabilitation
and does not pose a danger to the community. The respondent does not
dispute that he was recently arrested and that the charges are still pending.
While we are sympathetic to the fact that the arrest occurred on the first
anniversary of his mother’s death, this possible reason for his transgression
does not negate the dangerousness of his conduct.2 The respondent asserts
that he will not repeat his dangerous drinking and driving behavior, but his
actions are a better indication of his future conduct than his assurances to the
contrary. See Matter of Roberts, 20 I&N Dec. 294, 303 (BIA 1991) (noting
that an alien’s “assurances” alone are not sufficient to “show genuine
rehabilitation”).
The respondent has significant family ties, including his lawful
permanent resident wife and a United States citizen daughter. His daughter
has filed a visa petition on his behalf, which has been approved. He also has
a fixed address and a long residence in the United States, although he has no
legal status. Moreover, the respondent has a history of employment
including owning a business, has support from his church, and has been
involved in charitable activities. While these family and community ties may
be significant to whether the respondent is a flight risk, he has not shown
how they mitigate his dangerousness because of his drinking and driving.
In Matter of Guerra, 24 I&N Dec. at 40–41, we listed a variety of factors
to consider in bond redeterminations, some of which generally relate to
whether an alien is a flight risk, while others typically concern whether he is
a danger to the community. An alien’s family ties and his possible eligibility
for discretionary relief based on those ties are proper considerations in
deciding whether he is a flight risk. See Matter of Andrade, 19 I&N Dec.
488, 490 (BIA 1987) (stating that a respondent who is likely to be granted
relief has a greater motivation to appear for removal than one who has less
potential to obtain relief). Considerations such as a fixed address, a residence
of long duration, a history of employment, and other community ties may
similarly impact an alien’s risk of flight. However, the respondent was not
found to be a flight risk.
2 The respondent does not dispute that at the time of two of his convictions for driving
under the influence, he was also convicted of driving without a license. These convictions
are not undermined by the fact that he was ineligible for a Pennsylvania driver’s license or
that he may have a valid international driver’s license from Lithuania.
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The issue in this case is whether the respondent is a danger to the
community, and family and community ties generally do not mitigate an
alien’s dangerousness. While there may be a situation where a family
member’s or other’s influence over a young respondent’s conduct could
affect the likelihood that he would engage in future dangerous activity, this
is not such a case. The respondent is an adult and has not shown how his
family circumstances would mitigate his history of drinking and driving,
except to explain that the most recent incident occurred on the anniversary
of his mother’s death. The factors that the respondent claims mitigate or
negate his dangerousness existed prior to his most recent arrest, and they did
not deter his conduct.
We recognize that the Immigration Judge set a significant bond of
$25,000, which he said “reflects the seriousness with which this court views
the respondent’s repeated conduct.” However, an Immigration Judge should
only set a monetary bond if the respondent first establishes that he is not a
danger to the community. Matter of Urena, 25 I&N Dec. at 141.
This is not a case involving a single conviction for driving under the
influence from 10 years ago. The respondent has multiple convictions for
driving under the influence from that period and a recent arrest for the same
conduct, which undermines his claim that he has been rehabilitated. Under
these circumstances, we are unpersuaded that the respondent has met his
burden to show that 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. Accordingly, the DHS’s appeal will be sustained, the Immigration
Judge’s decision will be vacated, and the respondent will be ordered detained
without bond.
ORDER: The appeal of the Department of Homeland Security is
sustained and the Immigration Judge’s May 15, 2017, decision is vacated.
FURTHER ORDER: The respondent is ordered detained without
bond.