Ruiz-Rivera v. Moyer

• Decision Date: 20 November 1995
• Docket Number: RUIZ-RIVER,No. 95-1275,P,95-1275
• Citation: 70 F.3d 498
• Parties: Nilsa M.laintiff-Appellant, v. A.D. MOYER, District Director, Immigration and Naturalization Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 498

70 F.3d 498

Nilsa M. RUIZ-RIVERA, Plaintiff-Appellant, v. A.D. MOYER, District Director, Immigration and Naturalization Service, Defendant-Appellee.

No. 95-1275.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 14, 1995.

Decided Nov. 20, 1995.

Ralph M. Schelly, (argued) Chicago, IL, for Nilsa M. Ruiz-Rivera.

Janet Reno, U.S. Atty. Gen. Office of the United States Attorney General, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, James B. Burns, Office of the United States Attorney, Chicago, IL, James G. Hoofnagle, Jr., Asst. U.S. Atty. (argued), Office of the United States Attorney Civil Division, Chicago, IL, William J. Howard, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for A.D. Moyer.

Before CUMMINGS, FLAUM and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

The plaintiff, Nilsa M. Ruiz-Rivera, filed suit in district court against A.D. Moyer, District Director of the Immigration and Naturalization Service ("INS"), challenging an INS decision that her immigration bond had been breached. The plaintiff argued that the INS's determination that she forfeited the bond was unlawful, arbitrary, and capricious. The district court granted the defendant's motion for summary judgment and the plaintiff appealed. We now affirm the district court's decision.

I.

The plaintiff's husband, Jesus Antonio Rivera-Aristizabal, became a lawful permanent resident of the United States in 1977. On September 25, 1987, he was convicted in federal court for possession with the intent to distribute cocaine. Rivera-Aristizabal was sentenced to seven years incarceration followed by three years of supervised release.

On February 11, 1991, while Rivera-Aristizabal was in INS custody in Oakdale, Louisiana, an immigration judge ordered him deported pursuant to 8 U.S.C. Sec. 1251(a)(1) based on his 1987 conviction. Rivera-Aristizabal immediately appealed the order of deportation to the Board of Immigration Appeals ("BIA"). On the same day, Nilsa Ruiz-Rivera posted a $10,000 cash immigration bond with the Chicago office of the INS to secure the release of her husband pending his appeal. After his release, Rivera-Aristizabal went to Chicago, where he remained until his deportation.

The delivery bond required Ruiz-Rivera to produce her husband "to an immigration officer of the United States upon each and every request by such officer...." The BIA affirmed the deportation order on June 10, 1991. The Oakdale INS office notified Ruiz-Rivera by certified letter, dated June 21 1991, that she was required to produce her husband to the INS in Oakdale, Louisiana at 9:00 a.m. on July 15, 1991 for deportation. The Oakdale INS office similarly notified Rivera-Aristizabal in a June 24, 1991 letter that he needed to report to the Oakdale INS at 9 a.m. on July 15, 1991. Rivera-Aristizabal signed return receipts for both letters on June 29, 1991.

On July 2, 1991, Rivera-Aristizabal filed a petition for review of the BIA's decision in this court. In a letter dated July 5, 1991, his counsel ¹ informed the INS office in Oakdale of Rivera-Aristizabal's appeal and claimed that the filing of the petition for review automatically stayed the deportation order. Rivera-Aristizabal's attorney faxed a copy of the petition for review to the Oakdale INS office on July 10, 1991. Upon receipt of the facsimile, an INS officer telephoned Rivera-Aristizabal's counsel and advised him that the petition for review did not create an automatic stay because Rivera-Aristizabal had been convicted of an "aggravated felony." Counsel for Rivera-Aristizabal argued that the "aggravated felony" provision did not apply because it was enacted after his client had been convicted. However, the INS officer replied that unless the Seventh Circuit explicitly ordered a stay of deportation, Rivera-Aristizabal was required to surrender to the INS in Oakdale at 9:00 a.m. on July, 15, 1991. The INS officer informed the attorney that if Rivera-Aristizabal failed to appear, Ruiz-Rivera would breach her bond obligations.

On July 11, 1991, Rivera-Aristizabal filed an emergency motion for a stay of deportation with this court. We denied this motion the next day because it did not include a copy of the order of deportation, nor a discussion of the factors necessary to receive a stay. Rivera-Aristizabal failed to appear in Oakdale on July 15, 1991. Instead, on this date he filed a second emergency motion with this court. We denied the second motion on July 17, 1991 because, by failing to report to Oakdale on July 15, Rivera-Aristizabal became a fugitive and was therefore not entitled to the resources of the court. ²

On July 16, 1991, the INS declared the bond breached because Rivera-Aristizabal's failure to report to Oakdale on July 15 constituted a "substantial violation" of the bond conditions. Ruiz-Rivera appealed the initial decision to forfeit the bond to the INS Administrative Appeals Unit. On October 12, 1993, the Administrative Appeals Unit found a substantial violation of the conditions of the bond agreement and therefore dismissed Ruiz-Rivera's appeal. The Administrative Appeals Unit subsequently denied Ruiz-Rivera's motion to reopen the decision.

Ruiz-Rivera filed the current lawsuit in district court on July 29, 1994, alleging that the INS's decision to forfeit the bond was unlawful, arbitrary, and capricious. Ruiz-Rivera argued that the INS's determination that the bond was breached was inconsistent with INS regulations, which require a substantial violation of the bond conditions. The district court granted the INS's motion for summary judgment. In its opinion, the district court discussed the factors this court has prescribed for evaluating whether a violation is substantial. Ruiz-Rivera v. Moyer, 874 F.Supp. 870, 872 (N.D.Ill.1995). The district court concluded that the INS's determination that the bond was breached was neither contrary to the regulations nor clearly erroneous. Id. at 873. On appeal, Ruiz-Rivera once again contends that she substantially complied with the bond conditions. The plaintiff argues that the district court erred by affirming an INS decision that is inconsistent with INS regulations.

II.

We review the district court's grant of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir.1995). Summary judgment should be granted if the pleadings and supporting documents "show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Where the party opposing a motion for summary judgment bears the burden of proof on an issue, she must go beyond the pleadings and affirmatively demonstrate a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

According to INS regulations, bonds that are posted to ensure the delivery of aliens are "breached when there has been a substantial violation of the stipulated conditions." 8 C.F.R. Sec. 103.6(e) (1995). Thus, "[s]ubstantial performance of all conditions imposed by ... a bond shall release the obligor from liability." 8 C.F.R. Sec. 103.6(c)(3) (1995). The INS determined that the conditions of the delivery bond were substantially violated and therefore declared the bond breached under 8 C.F.R. Sec. 103.6(e). On appeal, the plaintiff does not present a factual dispute. Instead, Ruiz-Rivera argues that the uncontested facts demonstrate that she substantially complied with the bond conditions. In effect, the plaintiff contends that the INS acted unlawfully by interpreting "substantial violation" to encompass the facts of this case.

It is well established that "[w]e must give substantial deference to an agency's interpretation of its own regulations." Thomas Jefferson Univ. v. Shalala, --- U.S. ----, ----, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994). We are bound by an agency's interpretation "unless it is plainly erroneous or inconsistent with the regulation." Id.; accord Bahramizadeh v. INS, 717 F.2d 1170, 1173 (7th Cir.1983). Thus, we must determine whether the INS's decision that the bond conditions were substantially violated was plainly erroneous or inconsistent with 8 C.F.R. Sec. 103.6(e). In evaluating whether a bond violation is substantial, we look to four factors:

(1) the extent of the breach;

(2) whether it was intentional or accidental on the part of the alien;

(3) whether it was in good faith; and

(4) whether the alien took steps to make amends or place himself in compliance.

Bahramizadeh, 717 F.2d at 1173; see also International Fidelity Ins. Co. v. Crosland, 490 F.Supp. 446, 448 (S.D.N.Y.1980). We will examine each of these factors in turn.

The extent of the breach in this case was not trivial. The bond that Ruiz-Rivera posted required her to produce her husband upon each and every request made by the INS. The bond stated that Ruiz-Rivera would forfeit the $10,000 security if she failed to satisfy the conditions of the bond. On June 29, 1991, the plaintiff received a demand to surrender her husband to the Oakdale INS at 9:00 a.m. on July 15, 1991. Rivera-Aristizabal also received notice on June 29 that he was required to report to the Oakdale INS at 9:00 a.m. on July 15. Despite the adequate notice, Rivera-Aristizabal did not surrender to the Oakdale INS until July 16. The primary obligation of the delivery bond...