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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.