Aguilar v. United States, 13-581C

• Decision Date: 26 October 2015
• Docket Number: No. 13-581C,13-581C
• Parties: OSVALDO AGUILAR, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

OSVALDO AGUILAR, Plaintiff, v. THE UNITED STATES, Defendant.

No. 13-581C

United States Court of Federal Claims

October 26, 2015

Keywords: Immigration Bond; Contract Interpretation; Substantial Violation; 8 C.F.R. § 103.6.

Matthew Scott Kriezelman, Kriezelman, Burton & Associates, LLC, Chicago, IL, for Plaintiff.

Benjamin Mark Moss, Trial Attorney, with whom were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert E. Kirschman, Director, and Steven J. Gillingham, Assistant Director, Civil Division, U.S. Department of Justice, Washington, DC, and Jody M. Prescott, Associate Legal Advisor, U.S. Department of Homeland Security, Williston, VT, for Defendant.

OPINION AND ORDER

KAPLAN, Judge.

In this case, the plaintiff, Osvaldo Aguilar, challenges a determination by U.S. Customs and Immigration Enforcement (ICE) that he substantially violated the terms of an immigration bond when he failed to deliver a bonded alien to ICE as directed. Currently before the Court are the parties' cross motions for judgment on the administrative record. Oral argument was held on the cross motions on October 21, 2015.

As explained below, the Court holds that ICE's decision was not arbitrary, capricious, or contrary to law. Accordingly, the government's motion for judgment on the administrative record is GRANTED, and Mr. Aguilar's motion is DENIED.

BACKGROUND

I. Regulatory Scheme

Like a bail bond, an immigration bond is a surety arrangement designed to ensure compliance with a government mandate to appear. See United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc. (Gonzales II), No. 3:09-09-cv-04029, 2015 WL 2090395, at *5 (N.D. Cal. May 5, 2015) (citing Decision, United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc., at 1-2 (U.S. Immigrations and Customs Enforcement: Jan. 2, 2014), ECF No. 156-1); 8 C.F.R. § 103.6. This case involves a type of immigration bond known as a delivery bond, under which the surety (or "obligor") promises to cause the alien to appear upon the government's demand. See Gonzales II, 2015 WL 2090395, at *5; DHS Form I-352, http://www.ice.gov/forms (standard form used to execute delivery bonds).

ICE, the agency that executes these bonds, is part of the Department of Homeland Security (DHS). See 8 U.S.C. § 1103(a); 8 C.F.R. § 236.1.¹ Within DHS, ICE manages (among other things) the apprehension, detention, and removal of aliens who are not lawfully present in the United States. See 8 U.S.C. § 1103(a); 8 C.F.R. § 236.1; Enforcement and Removal Operations, U.S. Immigrations and Customs Enforcement, http://www.ice.gov/ero (last visited Oct. 23, 2015). To that end, ICE is empowered to file charging documents and initiate removal proceedings—that is, proceedings to determine whether an alien who has been detained is removable. See 8 U.S.C. §§ 1225-31; 8 C.F.R. §§ 235.6, 236.1, 239.1-.3.

While ICE may initiate the proceedings that determine whether an alien will be deported or instead permitted to remain in the United States, the proceedings themselves are conducted by the Department of Justice (DOJ) through the Executive Office for Immigration Review (EOIR). See Homeland Security Act §§ 1101-03; 8 U.S.C. §§ 1103(g), 1229a; 8 C.F.R. §§ 1003.0, 1240.1-.16. ICE initiates the proceedings by serving the alien with a Notice to Appear (DHS Form I-862) and filing the notice with the immigration court. See 8 C.F.R. §§ 1003.13-.14. Because of the backlog of cases, removal proceedings may remain pending for several years. See The 2014 Humanitarian Crisis at Our Border: A Review of the Government's Response to Unaccompanied Minors One Year Later: Hearing Before the S. Comm. on Homeland Security and Governmental Affairs, 114th Cong. 1-2 (2015) (statement of Juan P. Osuna, Director, EOIR) (stating that EOIR had 449,569 cases pending as of May 26, 2015, and that certain non-priority hearings will not be held until November 2019).

The upshot of the division of responsibilities between ICE and EOIR is that aliens may have contact with two separate agencies while removal proceedings are pending. On the one hand, they may interact with ICE in connection with the bond and release process. On the other, they are subject to the jurisdiction of DOJ (through EOIR) for purposes of the administrative proceedings that determine whether they will be removed or allowed to stay in the United States.

II. Factual and Procedural Background

In October 2007, ICE detained an alien named Rene Gomez-Cazares and charged him with being removable from the United States under 8 U.S.C. § 1182(a)(5)(A)(i) for being present in the United States without permission. Decision, Aguilar v. United States, at 3 (U.S. Immigrations and Customs Enforcement Feb. 24, 2015) [hereinafter "ICE Decision"], ECF No. 33-1; Supplemental Administrative Record (SAR)² at 28, ECF Nos. 33-3 to 33-8. A few weeks later, on November 7, Mr. Aguilar went to ICE's offices in Chicago to secure Mr. Gomez-Cazares's release from detention, pending immigration proceedings. ICE Decision at 3; SAR at 31. Mr. Aguilar executed a $15,000 cash bond, becoming the bond's obligor. ICE Decision at 3, 5; SAR at 31-37; see also SAR at 80 (declaration of ICE Assistant Field Office Director Sylvia Bonaccorsi-Manno describing ICE's process for executing cash bonds). ICE's Chicago offices are located on the fourth floor of the federal building at 101 West Congress Parkway. ICE Decision at 3, 5. Several other agencies also use the building, including EOIR, which holds hearings for detained aliens in the building's basement. See SAR at 77-78.

Under paragraph C of the bond Mr. Aguilar executed, the full sum of $15,000 was "to be paid to the United States immediately upon the failure to comply with the terms set forth" in paragraph G(1) of the bond. SAR at 34 ¶ C. In turn, paragraph G(1) specified that "the full amount of the bond . . . becomes due and payable" if the obligor "fails to surrender the alien in response to a timely demand while the bond remains in effect." SAR at 35 ¶ G(1). Conversely, the bond would "terminate" if the obligor

cause[d] the alien to be produced or to produce himself/herself to an immigration officer or an immigration judge . . . as specified in the appearance notice, upon each and every written request untilexclusion/deportation/removal proceedings in his/her case are finally terminated.

Id.³

According to Mr. Aguilar, he believed that after executing the bond, the next communication he would receive from ICE would require him to produce Mr. Gomez-Cazares for a hearing in front of an immigration judge. SAR at 73; Pl.'s Mot. for J. on the Admin. R. ("Pl.'s Mot.") at 10. This belief was mistaken; for, as described above, removal proceedings are managed and conducted by EOIR. Thus, any notice of Mr. Gomez-Cazares's hearing would come from EOIR, not ICE.⁴ But when EOIR attempted to notify Mr. Gomez-Cazares about his upcoming hearing in November 2007, it unfortunately mailed the notice to the wrong address. ICE Decision at 3-4; SAR at 28. Mr. Gomez-Cazares thus failed to appear, and, in a decision issued on December 21, 2007, the immigration judge found him removable in absentia. ICE Decision at 4; SAR at 38.

As a result of this ruling, on January 24, 2008, ICE issued a delivery demand to Mr. Aguilar. ICE Decision at 4; SAR at 39. The demand, which was printed on ICE letterhead, stated: "[u]nder the terms of the Delivery Bond you posted for the above alien(s), Immigration and Customs Enforcement (ICE) is making demand upon you to deliver or cause to appear the above alien[]." SAR at 39. The notice instructed Mr. Aguilar to deliver Mr. Gomez-Cazares to "101 W. Congress Pkwy, Chicago, Illinois 60605" at 9 A.M. on February 28, 2008. Id. It did not specify an office number or floor to which he should be delivered. Id. Nor did it indicate explicitly whether he should be delivered to an immigration official or an immigration judge. See id.

According to Mr. Aguilar, he and Mr. Gomez-Cazares travelled to the federal building at 101 West Congress Parkway on February 28. Am. Compl. ¶¶ 25-26; SAR at 73. All visitors to the building must pass through a security screening at the entrance. SAR at 73. Notably, because EOIR uses the building only for hearings involving detained aliens, building visitors do not have free access to the EOIR courtrooms on the basement level. Id. Instead, they must be escorted to the basement by a security guard. Id. at 78. By contrast, ICE's offices on the fourth floor are open to the public. Id. at 77-78. A sign in the first-floor lobby directs visitors looking for ICE to an elevator, which they can take to the fourth floor. Id. The elevator does not go to the basement. Id.

Upon their arrival, Mr. Aguilar showed the delivery demand to a security guard, who then escorted Mr. Aguilar and Mr. Gomez-Cazares to the EOIR courtrooms in thebasement. Am. Compl. ¶ 26; SAR at 73. In his statement to ICE, Mr. Aguilar claimed that the two waited in the basement for some time before flagging an immigration court employee, who examined the delivery demand and advised them that it was in their best interests to leave immediately, as Mr. Gomez-Cazares was set to be detained and possibly deported. ICE Decision at 9-10; SAR at 73.⁵ Unsettled by this news, Mr. Aguilar and Mr. Gomez-Cazares left and sought legal advice soon thereafter. Am. Compl. ¶ 27; SAR at 73. Mr. Gomez-Cazares then retained an attorney to represent him. SAR at 73.⁶

With the assistance of counsel, Mr. Gomez-Cazares learned that he had inadvertently missed his December 2007 EOIR hearing. Am. Compl. ¶ 13. Therefore, on March 28, 2008, Mr. Gomez-Cazares petitioned the immigration judge to re-open the removal proceedings. Id. In the meantime, however, ICE declared Mr. Aguilar's bond breached.⁷ Mr. Aguilar received notice of the breach on March 18, 2008. ICE Decision at 4; SAR at 42, 44.

On April 4, the immigration judge granted Mr. Gomez-Cazares's motion to re-open the removal proceedings. SAR at 46. At...