In Deciding Whether To Set A Bond, An Immigration Judge Must Consider The Nature And Circumstances Of A Respondent’s Criminal Activity, Such As Arrests And Convictions, To Determine If He Or She Is A Danger To The Community, But Family And Community Ties Will Generally Not Mitigate One’s Dangerousness. Driving Under The Influence Is A Significant Adverse Consideration In Determining If A Respondent Is A Danger To The Community In Bond Proceedings.

On February 2, 2018, the Board of Immigration Appeals (BIA or Board) sustained a Department of Homeland Security (DHS) appeal and ordered a respondent held without bond.  In previous bond proceedings, an Immigration Judge (IJ) had ordered respondent released on $25,000.00 bond; DHS appealed, arguing that he had not met his burden of establishing that he is not a danger to the community.  The record shows the applicant was convicted of driving under the influence (DUI) three times between 2006 – 2007 and had been arrested for a fourth offense in 2017. The BIA’s opinion pointed out that two of the convictions, and the recent charge, involved accidents.

Respondent contended that DUI is not a crime of violence, that it had been a decade since his last conviction, and that he was now receiving treatment for his alcohol problem by a certified naturopathic physician and is actively participating in Alcoholic Anonymous, steps that convinced the IJ to release him on bond.  He also argued that his 2017 DUI arrest is “an aberration that involved mitigating circumstances”, as it happened on the first anniversary of his mother’s death.

Citing to U.S. Supreme Court case law labelling DUI as an “extremely dangerous crime” claiming thousands of lives, injuring many more, and causing billions of dollars in property damage annually, the Board’s opinion pointed out the long-held belief that such crimes present a serious risk of physical injury for others, such that “the dangers of drunk driving are well established.”  The BIA thus held that in bond proceedings, it is proper for the IJ to consider not only the nature of the criminal offense but “the specific circumstances surrounding the [respondent’s] conduct” as well; relevant factors include the extent, recency and seriousness of the applicant’s criminal history. As such, a DUI conviction “is a significant adverse consideration in bond proceedings” and respondent’s recent arrest therefore undercuts his argument that he is rehabilitated and no longer a danger to the community.  Similarly, found the Board, the anniversary of his mother’s death, while a source of sympathy, does not negate the dangerousness of his conduct.

Despite his “significant family ties, including his lawful permanent wife and a United States citizen daughter” – who has filed a visa petition (now approved) on his behalf – and the fact of his “fixed address” and long residence in the U.S., respondent has no legal status and, concluded the decision, was unable to show his history of business ownership, support from his church and involvement in charitable activities mitigate his dangerousness due to his history of drinking and driving.  The Board would merely concede that his family and community ties “may be significant (sic) to whether the respondent is a flight risk”; the BIA concluded that the issue here is whether respondent is a danger to the community and such ties “generally do not mitigate” one’s dangerousness. Thus, under the circumstances, the Board was ultimately not persuaded respondent had not met his burden of proof. The appeal was sustained, the IJ’s order vacated, and respondent ordered held without bond.  Matter of Siniauskas, 27 I&N Dec 207 (BIA 2018).