Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018): DUI a Significant Adverse Factor in Bond Hearings

 

Introduction: Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018)

On February 2, 2018, the Board issued a published decision in the Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018) [PDF version]. The Board considered how to weigh whether an alien is a “danger to the community” in bond proceedings. In Matter of Siniauskas, the Board held that an Immigration Judge should consider the nature and circumstances of an alien's criminal activity to determine if he or she is a danger to the community. It added that “family and community ties generally do not mitigate an alien's dangerousness.” The Board also held that driving under the influence “is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.”

In this article, we will examine the factual and procedural history of Matter of Siniauskas, the Board's analysis and conclusions, and what the decision means going forward.

Matter of Siniauskas

Factual and Procedural History: 27 I&N Dec. at 207-08

The respondent, a native and citizen of Lithuania, entered the United States as a nonimmigrant visitor in 2000. He admitted to remaining in the United States longer than permitted. While in the United States, the respondent married a lawful permanent resident, and had a U.S. citizen daughter.

The respondent was detained under section 236(a) of the INA. The respondent requested a change in custody status from an Immigration Judge. On May 15, 2017, the Immigration Judge granted the respondent's request for a change in custody status and ordered him released on bond. The Immigration Judge set the bond amount at $25,000.

The Department of Homeland Security (DHS) appealed from the Immigration Judge's decision to grant bond on the basis that the respondent did not meet his burden of establishing that he was not a danger to the community.

Board's Analysis and Conclusions: 27 I&N Dec. at 207-10

The Board explained that an alien in a custody determination hearing under section 236(a) of the INA has the burden of establishing, to the satisfaction of the Immigration Judge, that he or she:

  • Does not present a danger to persons or property;
  • Is not a threat to national security; and
  • Does not pose a risk of flight.

In Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009) [PDF version], the Board stated that “[d]angerous aliens are properly detained without bound…” Accordingly, the Board held in Matter of Urena that an “Immigration Judge should only set a bond if he first determines that the alien does not present a danger to the community.”

In Matter of Kotliar, 24 I&N Dec. 124, 127 (BIA 2007) [PDF version], the Board held that the purpose of detention for criminal aliens is to (1) ensure their appearance at removal proceedings, and (2) prevent them from engaging in criminal activity.

As we noted, the DHS took the position on appeal that the respondent in the instant case failed to sustain his burden for establishing that he was not a danger to the community. The Board would, for reasons that we will now examine, agree with the DHS's position.

The record in the instant case showed that the respondent had three separate convictions for driving under the influence between 2006 and 2007. He was arrested (not convicted) for a fourth driving under the influence offense in 2017. The Board stated that two of the four incidents, including the 2017 charge, involved accidents. It was based on the 2017 arrest that the respondent was taken into DHS custody.

The respondent made several arguments in an attempt to establish that he was not a danger to the community. First, he noted that driving under the influence is not a crime of violence.1 Second, he noted that it had been 10 years since he had been convicted of driving under the influence, notwithstanding his 2017 arrest. The respondent presented evidence of several steps that he had taken to address his alcohol problem, including his treatment by a certified naturopathic physician and active participation in Alcoholics Anonymous meetings. Regarding his 2017 arrest for driving under the influence, the respondent argued that it was an aberration due to mitigating circumstances, specifically, that the event occurred on the first anniversary of his mother's death.

The Board cited to several court decisions describing the seriousness of driving under the influence. For example, in Begay v. United States, 553 U.S. 137, 141 (2008) [PDF version], abrogated on other grounds, Johnson v. United States, 135 S.Ct 2551 (2015), the Supreme Court of the United States stated that “[d]runk driving is an extremely dangerous crime.” In Birchfield v. North Dakota, 136 S.Ct 2160, 2166 (2015) [PDF version], the Supreme Court stated that drunk driving 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.”

In addition to the nature of the alien's criminal offense, the Board explained that an Immigration Judge should consider the specific circumstances of an alien's conduct in determining whether he or she is a danger to the community. In Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006) [PDF version], the Board held that Immigration Judges should consider how extensive, recent, and serious the alien's criminal activity is. Citing again to Matter of Guerra, 24 I&N Dec. at 40-41, the Board stated that arrests may be considered in addition to convictions.

In a key passage, the Board held the following: “Driving under the influence is a significant adverse consideration in bond proceedings.”

While it was true that the respondent had not been convicted of driving under the influence since 2007, the Board determined that the respondent's 2017 arrest for driving under the influence “undercut[] his argument that he has established rehabilitation and does not pose a danger to the community.” The Board stated that while it was “sympathetic” to the fact that the respondent's 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.”

The respondent asserted that he would not repeat his drinking and driving behavior if granted bond. However, the Board noted that in Matter of Roberts, 20 I&N Dec. 294, 303 (BIA 1991) [PDF version], it held that the “assurances” of an alien are not sufficient in and of themselves to “show genuine rehabilitation.” The Board took the position in the instant case that the respondent's “actions are a better indication of his future conduct than his assurances to the contrary.”

The respondent also appealed to his family ties in support of his argument. His wife was a lawful permanent resident of the United States and his daughter was a U.S. citizen. The respondent's daughter filed an immigrant visa petition on his behalf. The immigrant visa petition was subsequently approved. Although the respondent lacked legal status, he nevertheless had a fixed address and long residence in the United States. The respondent owned a business, had support from his church, and was involved in charitable activities. Regarding all of these equities, the Board concluded that the respondent's family and community ties may be significant in determining whether he posed a flight risk. The Board held that family and community ties may be relevant to determining whether an alien is a flight risk in both Matter of Guerra, 24 I&N Dec. at 40-41, and Matter of Andrade, 19 I&N Dec. 488, 490 (BIA 1987) [PDF version]. Furthermore, the Board noted that the respondent was not found to be a flight risk in his bond proceedings.

In the instant case, however, the issue was not whether the respondent was a flight risk, but instead whether he was a danger to the community. On this point, the Board held that “family and community ties generally do not mitigate an alien's dangerousness.” The Board acknowledged a possible case in which “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…” However, in the instant case, the respondent was an adult. Furthermore, the Board added that the respondent failed to show how his family and community ties would mitigate his history of drinking and driving. The Board noted that all of family and community factors cited to by the respondent existed prior to his 2017 arrest and failed to deter his conduct.

Finally, the Board recognized that the Immigration Judge had set a substantial bond amount of $25,000. However, as we noted, the Board held in Matter of Urena, 25 I&N Dec. at 141 that an Immigration Judge should only set a monetary bond if the respondent establishes that he or she is not a danger to the community. If the respondent cannot sustain this burden, the Immigration Judge should not set a bond of any amount.

Due to the fact that the respondent had multiple convictions for driving under the influence and an arrest for the same conduct that occurred within one year of the Board's decision, the Board concluded that it was not persuaded that the respondent sustained his burden for establishing that he was not a danger to the community. Accordingly, the Board sustained the DHS's appeal, vacated the Immigration Judge's appeal, and ordered that the respondent be detained without bond.

Conclusion

Matter of Siniauskas follows prior Board decisions on bond determinations. The decision has two notable points. First, the Board made clear that family and community ties generally do not mitigate an alien's dangerousness. Second, the Board made clear that driving under the influence is a “significant adverse condition” in determining whether an alien is a danger to the community.

An alien in bond proceedings should always consult with an experienced immigration attorney for case-specific guidance. Whether an alien is able to satisfy his burden for establishing that he or she should receive bond will depend on the facts of the specific case.

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  1. In 2004, the Supreme Court of the United States held exactly this in Leocal v. Ashcroft, 543 U.S. 1 (2004) [PDF version]. Please see our full article on Leocal to learn more [see article].