C ite as 27 I&N Dec. 207 (BIA 201 8 ) Interim Decision #3 9 14

207 

### Matter of Egidijus SINIAUSKAS

, Respondent

Decided February 2, 2018

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration A ppeals

(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 t ies generally do not mitigate an alien’s dangerousness.

(2) D riving 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

, E squire, 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 grant ed the respondent’s request for a change in custody status and order ed him released on bond in the amount of $25,000. The Department of Homeland Security ( “ DHS ” ) has appeal ed from that decision. The appeal will be sustained , and

t he 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 ha s a U nited S tates 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 Jud ge and th e 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 Fat a hi , 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

,C ite as 27 I&N Dec. 207 (BIA 201 8 ) Interim Decision #3 9 14

208 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 Kot liar , 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 arrest ed 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 c ertified n aturopathic p hysician and his active participation in Alcoholics Anonymou s 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 State s , 135 S. Ct. 2551 (201 5 ) . 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 (201 6 ). “ [ T ] he very nature of the

crime of [driving while intoxicated] presents a ‘ serious risk of physical injury ’ to others

. . . . ” United States v. De Santiago

- Gonzale z , 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 al ien’s conduct. See Matter of Guerra , 24 I&N Dec. 37, 40 (BIA 2006) (stating that relevant factors in determinin g whether an alien

should be release d from immigration custody include how extensive

, recen t,

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

grant ed bond. Given our decision to sustain the appeal, we need not address whether the Immigration Judge erred in finding that changed circumstances warrant ed the subsequent bond redetermination hearing.C ite as 27 I&N Dec. 207 (BIA 201 8 ) Interim Decision #3 9 14

209 and serious the alien ’s criminal activity is). It is also proper to consider both

arrests and convictions. Id

. at 40−41.

D riving 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 c harges are still pending.

W hile we are sympathetic to the fact th at 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 T he respondent assert s

t hat 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 “assura nces” alone are not sufficient to “show genuine rehabilitation”). The respondent has significant family ties, including his lawful permanent resident wife and a U nited S tates 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 h e has no legal status. Moreover, the respondent has a history of employment including owning a business, has support from his church

, and has been

involv ed 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 h is dangerous ness because of his drinking and driving.

In Matter of Guerra , 24 I&N Dec. at 40

– 41, w e listed a variety of factors

to consider in bond re determinations, 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 pos sib le 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 likel y 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 impac t 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 t wo of his convictions for driving

under the influence , he was also convict ed 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 internationa l driver’s license from Lithuania.C ite as 27 I&N Dec. 207 (BIA 201 8 ) Interim Decision #3 9 14

210 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. Wh ile t here 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 w ould engage in future dangerous activity , this is not such a case. The respondent is an adult and has not show n 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

. T he factors that the respondent claim s mitigate or negate his dangerousne ss existed prior to his most recent arrest, and they did

not de ter 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 , 2 5 I&N Dec

. at 14 1

. This is not a case involving a single conviction for driving under the

influence from 10 years ago. Th e 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 there fore 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 t he 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.