All Star Bail Bonds, Inc. v. Eighth Judicial Dist. Court of State

• Citation: 130 Nev. 45,326 P.3d 1107
• Decision Date: 05 June 2014
• Docket Number: No. 62866.,62866.
• Parties: ALL STAR BAIL BONDS, INC.; and Safety National Casualty Corp., Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the County of Clark; and the Honorable Jennifer P. Togliatti, District Judge, Respondents, and Clark County, a Political Subdivision of the State of Nevada, Real Party in Interest.
• Court: Supreme Court of Nevada

130 Nev. 45

326 P.3d 1107

ALL STAR BAIL BONDS, INC.; and Safety National Casualty Corp., Petitioners,

v.The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the County of Clark; and the Honorable Jennifer P. Togliatti, District Judge, Respondents,andClark County, a Political Subdivision of the State of Nevada, Real Party in Interest.

No. 62866.

Supreme Court of Nevada.

June 5, 2014.

Mayfield, Gruber & Sheets and Damian R. Sheets, Las Vegas, for Petitioners.

Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Bart Pace, Deputy District Attorney, Clark County, for Real Party in Interest.

BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.

OPINION

By the Court, CHERRY, J.:

NRS 178.509 allows the district court to exonerate a surety's bail bond obligations only in certain enumerated circumstances. One of those circumstances is when the defendant has been deported. NRS 178.509(1)(b)(5). In this original writ proceeding, we consider whether the defendant, who left the country voluntarily but was denied admission when he tried to return, was deported for purposes of NRS 178.509(1)(b)(5). We also consider whether common law contract defenses, such as impossibility, permit the district court to exonerate a bond. On both issues, we decide negatively. The defendant here was excluded, not deported. And the district court may not exonerate a bond without a statutory basis for doing so. Accordingly, we deny the surety's petition for extraordinary relief from the district court's order denying the motion for exoneration.

FACTS

Real Party in Interest Clark County (the State) charged Rodrigo Rascon–Flores with multiple counts relating to fraudulent use of a credit card. He appeared at his arraignment and pleaded guilty in district court. The court continued sentencing for more than six months after the guilty plea. Petitioners All Star Bail Bonds, Inc., and Safety National Casualty Corporation (collectively, the surety) posted a bond for Rascon–Flores's release.¹

Sometime after the arraignment, Rascon–Flores traveled to Mexico. Rascon–Flores attempted to return to Las Vegas just days before his scheduled sentencing. At the border, he was stopped by U.S. Customs and Border Protection because the U.S. Arrival System indicated a “hit,” presumably due to his charges in Las Vegas. Rascon–Flores admitted his arrest and charges, and admitted to behavior consistent with his guilty plea on those charges. Customs and Border Protection detained Rascon–Flores before deciding that he was inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012). Under the INA, federal law prohibits admitting an alien “who admits committing acts which constitute the essential elements of—(I) a crime involving moral turpitude....” 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012). Federal officers then revoked Rascon–Flores's nonimmigrant visa due to his inadmissibility. Officers verified his return to Mexico.

After Rascon–Flores missed his sentencing, the district court sent a notice of intent to forfeit bond to the surety. The surety filed a motion to exonerate the bond. The government opposed the motion and the surety replied. After a hearing, the district court denied the motion but stayed entry of judgment on the forfeiture for 30 days in order to give the surety time to petition for writ relief. The surety could not file for writ relief within 30 days, however, because it did not receive the hearing transcript and written order until after that time period had elapsed. The surety subsequently paid the forfeiture and now seeks relief in this court by extraordinary writ.

DISCUSSION

“[T]he proper mode of review for orders entered in ancillary bail bond proceedings is by an original writ petition.” Int'l Fid. Ins. Co. ex rel. Blackjack Bonding, Inc. v. State, 122 Nev. 39, 41, 126 P.3d 1133, 1133 (2006). “A writ of mandamus is available to compel the performance of an act that the law requires or to control a manifest abuse of discretion.” Id. at 42, 126 P.3d at 1134. Therefore, in an original proceeding such as this one, we ask whether the district court manifestly abused its discretion in deciding whether to exonerate a bail bond. Id. at 43, 126 P.3d at 1135. We “will not disturb a district court's findings of fact unless they are clearly erroneous and not based on substantial evidence.” Id. at 42, 126 P.3d at 1134–35. The district court's conclusions of law, such as its construction of statutes, are reviewed de novo. See, e.g., Emerson v. Eighth Judicial Dist. Court, 127 Nev. ––––, ––––, 263 P.3d 224, 227 (2011).

The surety petitions us to order exoneration of the bond under the terms of NRS 178.509 because it asserts that Flores was deported. The surety also asks for exoneration under common law contract defenses.

Deportation

NRS 178.509(1)(b)(5) permits a court to exonerate a bond upon application of the surety if the defendant has been deported. “ ‘Deportation’ is the removal of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent, or under those of the country to which he is taken.” Fong Yue Ting v. United States, 149 U.S. 698, 709, 13 S.Ct. 1016, 37 L.Ed. 905 (1893). Accordingly, deportation requires not only a legal expulsion from the country, cf. Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100–01, 23 S.Ct. 611, 47 L.Ed. 721 (1903) (holding that due process principles apply to deportation), but also a crossing of the border, United States v. Romo–Romo, 246 F.3d 1272, 1276 (9th Cir.2001) (“[A] person who never set foot outside this country was never deported....”).

A border stop is not a deportation. The U.S. Supreme Court has recognized that immigration law distinguishes between “exclusion” and “deportation.” See Landon v. Plasencia, 459 U.S. 21, 25, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) (“The deportation hearing is the usual means of proceeding against an alien already physically in the United States, and the exclusion hearing is the usual means of proceeding against an alien outside the United States seeking admission.”). Historically, detention at the border has not been considered entry into the country, Leng May Ma v. Barber, 357 U.S. 185, 188, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958), and, thus, someone who is denied entry at the border generally cannot be considered deported. The law treats deportation and exclusion differently: “[T]hose with the status of deportable aliens are constitutionally entitled to rights in the deportation context that are inapplicable to exclusion proceedings.” Jean v. Nelson, 727 F.2d 957, 972 (11th Cir.1984) (en banc), affirmed on other grounds,472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985).

In this case, the federal government prevented Rascon–Flores from entering at the port of entry. He was excluded, not deported.Cf. Landon, 459 U.S. at 25, 28, 103 S.Ct. 321 (exclusion hearings occur at port of entry and apply to people who are entering). Therefore, NRS 178.509(1)(b)(5), permitting exoneration in the case of deportation, does not apply here.

Common law contract defenses

The surety argues that the bond should have been exonerated under common law contract defenses. We disagree.

“ ‘A bail bond is a contract between the State and the surety of the accused.’ ” All Star Bonding v. State, 119 Nev. 47, 49, 62 P.3d 1124, 1125 (2003) (quoting State v. Eighth Judicial Dist. Court, 97 Nev. 34, 35, 623 P.2d 976, 976 (1981)). The statutes governing bail bonds are therefore incorporated into the agreement of the parties. See Gilman v. Gilman, 114 Nev. 416, 426, 956 P.2d 761, 767 (1998) (explaining that “[p]arties are presumed to contract with reference to existing statutes,” and thus, “[a]pplicable statutes will generally be incorporated into the contract”).

Because the statutes governing bail bonds are incorporated into the agreement of the parties, interpreting the language of the bail bond statutes is of utmost importance. NRS 178.509(1) states that “the court shall not exonerate the surety before the date of forfeiture prescribed in NRS 178.508unless ” one of the five conditions listed in the statute is present (emphases added). Use of the words “shall not” “imposes a prohibition against acting.” NRS 0.025(1)(f). “[T]he Legislature's use of ‘shall’ ... demonstrates its intent to prohibit judicial discretion....” Otak Nev.,...