Impact Of DWI Conviction on Non-Citizens in Deportation

Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2-2-18)
Analysis & Suggestions for the Criminal Defense Bar

The Board of Immigration Appeals (BIA) hears appeals from the U.S. Immigration Courts. A non-citizen may appeal from an Immigration Judge’s (IJ’s) order of deportation; other times the government may appeal an IJ’s order finding the person is not in fact deportable; or they may appeal an order granting discretionary relief from deportation. The BIA also hears appeals of IJ’s bond decisions. Precedent decisions, such as that in Siniauskas, must be followed by all IJ’s, unless there is contrary, controlling, precedent from the Circuit Court of Appeals with jurisdiction over where the deportation proceedings take place.

Matter of Siniauskas, decided earlier this month, involves an appeal by the government from an IJ’s decision granting Siniauskas release from custody while his deportation proceedings were pending, upon posting a $25,000.00 bond. While Siniaukas was in fact undocumented, he was eligible for relief from deportation in the form of adjustment of status based on an approved visa petition that his U.S. citizen daughter had filed on his behalf. In addition to his daughter, he had his lawful permanent resident wife and other longstanding and deep ties to his community.

The government appealed the IJ’s bond decision. They argued Siniauskas’s three (3) DWI convictions from approximately ten years prior to his detention by ICE, combined with his pending DWI charge, demonstrated he presented a danger to the community and should have been denied bond while his removal proceedings were pending. In reversing the IJ’s decision, the BIA ruled his history of prior convictions for DWI, coupled with his pending DWI prosecution, indicated he presented a danger to the community; undercut his claims of rehabilitation; and warranted detention during his deportation proceedings.

This decision is part of a trend toward increasingly harsh treatment by immigration authorities of individuals convicted of, or in some instances, simply charged with, driving while intoxicated. While Siniauskas may not present as the most sympathetic figure, it is anticipated IJ’s will use the decision to justify denying release to other non-citizens with a pending DWI prosecution, or with prior DWI convictions, despite what may be stronger equities than those presented by Siniauskas. The decision is also notable because, under the immigration laws, a conviction for DWI, in and of itself, does not render a lawful permanent resident subject to deportation, nor does it render inadmissible someone who is otherwise eligible to gain status as a lawful permanent resident. In fact, a conviction for DWI is not even one of the criminal offenses enumerated at §236(c) of the Immigration and Nationality Act (“INA”), which details the convictions that subject non-citizens to mandatory detention during their deportation proceedings.

Release under bond during deportation proceedings is of critical importance if the client is to have the best chance of winning his case.  For those otherwise eligible for some form of discretionary relief, a charge or conviction for DWI is considered a substantial negative factor and weighs heavily against an IJ exercising his discretion in favor of permitting the person to remain in the U.S.. Deportation proceedings for detained individuals are customarily concluded within months, whereas those involving individuals released under bond routinely take years. A client at liberty under bond has the opportunity to seek, and complete, treatment, and thereby demonstrate genuine rehabilitation. This will provide the client’s deportation defense1 attorney a far better chance of convincing the Immigration Judge his client merits a favorable exercise of discretion.

If defense counsel understands his client will eventually be placed into deportation proceedings – either at the conclusion of his prosecution for his DWI case, or while on probation – he can work from the outset of his representation to prepare his client for his future deportation proceedings. This is of critical importance whether the client is undocumented, or, a lawful permanent resident with a previous conviction that renders him deportable. By ensuring the client enrolls in, and if possible completes, counseling while the DWI charge is pending, defense counsel increases the likelihood that if placed into deportation proceedings, the IJ will find the client has demonstrated sufficient rehabilitation that he should not be considered a danger to the community and should be granted release under bond.

Release under bond not only affords the client the ability to remain with his family, and to work to fund the defense of his deportation proceedings, but in addition, it affords the client additional time within which to demonstrate rehabilitation, and to accrue favorable equities. The greater the time between the non-citizen’s last arrest, and the time when the IJ must decide whether to permit the person to remain in this country, the greater the chance the judge will find rehabilitation.

In order to demonstrate rehabilitation, the client should promptly enroll in a recognized treatment program. If held in custody during his criminal prosecution, determine whether the jail has any type of alcohol counseling program, and if so, have the client enroll. If it appears he must serve time in jail – try to negotiate a period of in-patient treatment in lieu of extended incarceration. If that is not possible, ask that he be placed in the DWI dorm, or be afforded treatment while in custody.

If the person is at liberty but will ultimately plead guilty and receive a sentence of incarceration or of probation, delay taking the plea in order to afford the client the chance to complete treatment. In the alternative, negotiate a plea where the client will remain at liberty after pleading guilty, so he can complete his treatment prior to sentencing. A sentence to a conditional discharge, as opposed to one of incarceration or probation, will often forestall the client being placed into deportation, and so provide additional time for the client to demonstrate rehabilitation. Ideally the program should include random screening for alcohol and controlled substances; test results and counseling updates should be saved, as these will provide corroboration for the client’s later claims of abstinence.

While this advisory is geared toward DWI cases, the importance of demonstrating rehabilitation holds true irrespective of whether the client’s underlying problem is with alcohol, drugs, or domestic violence. While counseling is generally helpful for most of our clients, when the client is a non-citizen, it becomes imperative. The recalcitrant client needs to understand that completing counseling will not only help him in his life, and with his criminal case, but it may also enable him to gain release under bond if he is detained by ICE.  Ultimately, by demonstrating rehabilitation, the client may avoid the life altering hardship which follows detention and deportation.

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[1] Although Congress, in true Orwellian form, renamed it “removal” proceedings in 1996, it remains what is historically known as “deportation” proceedings. We should not strip these proceedings of the historical context surrounding the word “deportation”; we should call it what it is, because deportation may result in: “the loss of both property and life, or of all that makes life worth living.” We should never forget that.  Justice Brandeis, Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).