Buxton R. Bailey, P.C. v. Wolf
| Decision Date | 23 June 2021 |
| Docket Number | Case No. 5:20-cv-00253-M |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | BUXTON R. BAILEY, P.C. and BUXTON REED BAILEY, Plaintiffs, v. CHAD F. WOLF, Acting Secretary, United States Department of Homeland Security; KENNETH T. CUCCINELLI, Senior Official Performing the Duties of the Director of United States Citizenship and Immigration Services; BARBARA Q. VELARDE, Chief, United States Citizenship and Immigration Services Administrative Appeals Office; and MATTHEW T. ALBENCE, Senior Official Performing the Duties of the Director of United States Immigration and Customs Enforcement, Defendants. |
This matter comes before the court on Defendants' motion for summary judgment, filed January 8, 2021. [DE-26] As described fully herein, because the court concludes that the immigration bond at the center of this dispute was properly forfeited upon Plaintiff Buxton Reed Bailey's failure to deliver the alien whose liberty the bond secured, the court GRANTS Defendants' motion.
The complaint alleges [DE-1] and/or the unchallenged administrative record demonstrates [DE-22-11; see DE-23] the following: Bailey represented Jose Candelario Gutierrez Ledesma ("Gutierrez") in administrative proceedings under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., before the United States Department of Homeland Security ("DHS"). [DE-1 ¶¶ 12-13; AR 1, 14] In connection with these proceedings, Bailey individually2 executed a United States Immigration and Customs Enforcement ("ICE") Form I-352 immigration bond (the "Bond") on January 6, 2012 in which DHS3 and Bailey agreedthat: (1) DHS would release Gutierrez from custody; and (2) Bailey would undertake—guaranteed by a pledge of $5,000 security—to "cause [Gutierrez] to be produced or to produce himself[] to an immigration officer or an immigration judge of the United States . . . upon each and every written request until exclusion/deportation/removal proceedings in his[] case are finally terminated[.]" [AR 3-10 ("BOND CONDITIONED UPON THE DELIVERY OF AN ALIEN")] The Bond went on to say that if Bailey "fail[ed] to surrender [Gutierrez] in response to a timely demand while the bond remain[ed] in effect, the full amount of the bond . . . [would] become[] due and payable" to the federal government (the "Government"). [AR 8]
On July 7, 2015, DHS sent Bailey an ICE Form I-340 demanding Gutierrez's delivery to ICE's Charlotte, North Carolina office on August 7, 2015, which also specifically stated that failure to deliver Gutierrez could result in forfeiture of the Bond. [DE-1 ¶ 28; AR 63] Bailey admits that he timely received the Form I-340 and that he failed to deliver Gutierrez as demanded therein. [DE-1 ¶¶ 29-30]
DHS then sent Bailey an ICE Form I-323 breach notice on August 7, 2015 stating that the Bond had been breached by a "substantial violation of the conditions of the bond[,]" namely, "failure to deliver" Gutierrez as demanded (the "Breach Determination"). [AR 66] The Breach Determination stated that the Bond's security would accordingly be forfeited to the Government, but noted that Bailey could appeal the Breach Determination by filing a USCIS Form I-290B notice of appeal within 30 days. [AR 66] After several untimely and otherwise-deficient attempts that were rejected [see AR 84-97], DHS ultimately accepted Bailey's appeal of the Breach Determination as properly filed on March 28, 2016. [AR 162, 167] As relevant here, Bailey argued within his memorandum in support of his appeal that there had been no substantial violation of the Bond's conditions because: (1) Bailey had lodged an appeal in Gutierrez's immigration proceedings before the date that Bailey was required to deliver Gutierrez; and (2) Gutierrez had voluntarily departed the country after that date, on December 2, 2015. [AR 79, 143-45]
On December 14, 2017, DHS rendered its decision on Bailey's appeal of the Breach Determination (the "December 2017 Decision"). [AR 168-171 (Matter of B-R-B-, ID# 377963 (AAO Dec. 14, 2017))] Within the December 2017 Decision, DHS concluded that Bailey had misinterpreted his obligations under the Bond and that he had "violated the bond's terms when he did not produce [Gutierrez] on August 7, 2015." [AR 170] DHS noted that 8 C.F.R. § 103.6(e) sets forth that an immigration bond is breached only when there is a "substantial violation" of the bond's conditions. [AR 170] DHS invoked the Court of Federal Claims's decision in Aguilar v. United States, 124 Fed. Cl. 9 (2015), in which that court said that "[i]n determining whether a breach is a 'substantial' violation, courts have looked to four factors: 1) the extent of the breach; 2) whether the breach was intentional or accidental; 3) whether the breach was in good faith; and 4) whether the obligor took steps to make amends or place himself in compliance." Id. at 16 (citing Ruiz-Rivera v. Moyer, 70 F.3d 498, 501 (7th Cir. 1995)).4 Regarding the substantiality of Bailey's violation of the Bond, DHS held as follows:
Applying the Aguilar factors, the record indicates that the extent of the bond violation was substantial. By not delivering [Gutierrez] as requested, [Bailey] violated the bond's primary condition. The bond violation was not accidental, as the demand notice was received by [Bailey] and [Bailey] provided no evidence that [Gutierrez] could not be delivered. Moreover, [Bailey] has not shown that theviolation was in good faith or that he took steps to comply with the bond's terms, even after the issuance of the breach notice. Thus, the majority of the Aguilar factors indicate a substantial violation of the bond's terms.
[AR 171] Because it determined that Bailey had substantially violated the Bond, DHS determined that the Bond had been breached, declined to reinstate the Bond, and dismissed Bailey's appeal. [AR 171]
The cover letter to the December 2017 Decision stated:
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our decision, reopen the proceeding, or both. The requirements for motions are located at 8 C.F.R. § 103.5. Motions must be filed on a Form 1-290B, Notice of Appeal or Motion, within 33 days of the date of this decision. This time period includes three days added for service by mail.
[AR 168 (emphasis in original)] Bailey mailed a motion asking DHS to reopen or reconsider the December 2017 Decision on another USCIS Form I-290B on January 16, 2018, which was received by DHS on January 17, 2018. [AR 176-80, 82, 223] Tellingly, Bailey first argued within his memorandum in support of his motion to reopen or reconsider that his deadline to file the motion was January 19, 2018. [AR 182] Bailey then argued that his breach of the Bond was not substantial under Aguilar in light of the totality of the circumstances surrounding the breach, which Bailey argued DHS had not "fully assess[ed.]" [AR 183] Bailey's memorandum concluded as follows:
[AR 195]
On March 1, 2018, DHS rendered its decision on Bailey's motion to reopen or reconsider the December 2017 Decision (the "March 2018 Decision"). [AR 228 (Matter of B-R-B-, ID# 1393816 (AAO Mar. 1, 2018))] Within the March 2018 Decision, DHS ruled as follows:
[AR 228]
Bailey filed his complaint in this court on June 10, 2020. [DE-1] Within his complaint, Bailey brings three causes of action against DHS5: (1) a claim that the December 2017 Decision violated the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the "APA"); (2) a claim that the March 2018 Decision violated the APA; and (3) a claim that DHS breached the Bond. [DE-1 ¶¶ 43-93] Bailey's prayer for relief makes clear that all three claims seek to establish a basis whereby this court can determine that Bailey is entitled to get back the $5000 he pledged as security on the Bond.
Following submission of the administrative record [DE-22-1], DHS moved for summary judgment under Federal Rule of Civil Procedure 56 ("Rule 56") on January 8, 2021 [DE-26], and Bailey moved for summary judgment on January 28, 2021 [DE-30]. Both motions are ripe for adjudication.
A party moving for summary judgment on a claim or defense bears the burden of "show[ing] that there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law" on that claim or defense. Fed. R. Civ. P. 56(a). Within the meaning of Rule 56: (...
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