A very disturbing decision came out last week pertaining to the effect of DWIs on immigration custody determinations. The case is Matter of Siniauskas, 27 I & N Dec. 207 (BIA 2018), and it is particularly important and relevant these days given the alarming number of foreign nationals being picked up by ICE agents poaching our municipal court grounds. The gist is this: driving under the influence is “a significant adverse consideration in determining whether an alien is a danger to the community.” [Italics added.] Family ties and community roots are relevant factors, but they do not necessarily mitigate the presumed danger to society implicated by a drunk driving incident.
In the case, the respondent, Egidijus Siniauskas, had three driving while under the influence convictions between 2006-2007 before being arrested ten years later for a fourth offense in 2017. Because he was not a United States Citizen and had overstayed his visa, DHS took him into custody and declined to set bond, which is becoming increasingly common these days. Despite the decade-long gap between the offenses, proof of “active” steps towards rehabilitation, and the mitigating circumstances behind the fourth incident (Mr. Siniauskas was arrested on the one-year anniversary of his mother’s death, which presumably might have played a factor), the Board of Immigration Appeals (BIA) was not persuaded that he had met his burden of proof and sided with the government, resulting in his detention without bond.
What Does An Immigration Judge Consider During A Bond Hearing?
In situations where an individual is not subject to mandatory detention but still being held without bond by DHS, the foreign national must persuade the Immigration Court that he/she
· is not a danger to persons or property
· is not a threat to national security
· and does not pose a risk of flight
Essentially, all three factors must be demonstrated to the satisfaction of the Immigration Judge, and the burden rests with the Non-US Citizen-not the government. In other words, as illustrated by this recent case, it is not enough, for example, to prove that someone qualifies for immigration relief or that he/she is likely to appear for all court hearings because he/she has a family or steady job. One must not neglect or diminish the importance of establishing that he/she will not present a threat to others, especially if one has been arrested for a crime or even quasi-criminal offense, which is what a DWI is technically considered in New Jersey. The Court refers to several factors listed in Matter of Guerra, a case we referenced in an earlier blog, but distinguished them: important considerations such as a fixed address, steady employment, community ties, and other equities reflect on a person’s risk of flight-they do not go towards addressing whether the person is a danger to the community.
It is interesting to note that the BIA overruled the lower court’s bond of $25,000, which it acknowledges is “significant.” Nevertheless–and perhaps this is just another harbinger of the direction things are going-even such a prohibitively high amount was presumably improper because in the BIA’s view, Mr. Siniauskas did not establish that he merited bond in the first place. Keep in mind also that the respondent has not technically been found guilty of the 2017 incident; the charge is still pending. So even the specter of an arrest, combined with previous convictions from more than ten years ago, can trigger troubling consequences for immigrants in this hyper-sensitive climate.
These types of court rulings only underscore how important it is for foreign nationals charged with criminal offenses, misdemeanors, and serious traffic offenses to evaluate their impact with immigration counsel. In some cases, the ramifications can be remarkably severe, such as in Mr. Siniauskas’s case, who is now being held without bond pending his immigration removal proceedings.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.