EDWARD M. CHEN, District Judge.
The Court previously resolved ten out of the twenty bellwether bond summary judgment motions. Subsequently, the parties agreed that, of the remaining ten, only six were in need of further judicial resolution. The six bond matters identified by the parties are as follows:
(1) Fnu Siao Phing (Docket No. 157) (government's motion);
(2) Mumtaz Hassanali Abdullah (Docket No. 162) (government's motion);
(3) Roberto Almeida-Bolanos (Docket No. 178) (G&G's
(4) Vidal Vasquez-Rodas (Docket No. 180) (G&G's motion);
(5) Athos Martins (Docket No. 184) (G&G's motion); and
(6) Winny Suinda (Docket No. 186) (G&G's motion).
The government, however, also argued there were additional issues in need of resolution most of which were related to the first ten bond matters. The government identified five additional issues as part of the parties' joint case management statement of May 21, 2015. See Docket No. 247 (joint case management statement). The additional issues implicate in part bond matters that the Court previously ruled on (e.g., Singh and Lee) — but only as representative matters.
At the case management conference of May 28, 2015, the Court agreed to address both the six motions identified above and the additional issues identified by the government. This order addresses the six motions and the additional issues.
The Court incorporates by reference the "General Principles" section that was part of the Court's order on the first ten bellwether bond summary judgment motions. See Docket No. 244 (Order at 3-8).
In their joint CMC statement, the parties identify two bonds affected by Issue No. 1: Phing and Abdullah. The Court shall use the Phing bond matter as a representative bond matter.
The basic dispute in Issue No. 1 is whether the government was required to send a delivery demand to G&G before G&G had to perform its obligations under a voluntary departure ("VD") bond (as opposed to a delivery bond). According to G&G, the government was required to do so. See Opp'n (Phing) at 6 (contending that the "Phing[] bond required DHS to issue a request to produce to G&G/ASC to trigger G&G/ASC's obligation under the bond"). The government disagrees, asserting that, "[a]lthough [the] bond permitted DHS, in its discretion, to send a delivery demand until [the alien] departed, such a delivery demand was not a condition precedent to G&G's obligations under [the] VD bond." Mot. (Phing) at 4 (emphasis added).
The dispute is one of contract interpretation. The Phing bond at issue — which used the 1997 version of the immigration bond — provided in relevant part as follows:
• "A delivery, exclusion, or voluntary departure bond is breached when the obligor either fails to produce the alien as demanded, or fails to comply with any other term of the bond." Mot. (Phing), Ex. B at 138 (general terms and conditions for the 1997 version of the immigration bond).
• "BOND CONDITIONED FOR VOLUNTARY DEPARTURE OF AN ALIEN[.] In consideration of the granting by the Attorney General of an application of the above alien to depart voluntarily from the United States, provided there is furnished a suitable bond . . ., the obligor hereby furnishes such bond with the following conditions if: (1) the obligor shall cause the alien to be produced or to produce himself/herself to an immigration officer, upon each and every written request until the alien voluntarily departs the United States in a timely manner and provides probative documentation of the departure; or (2) the alien is actually accepted by the INS for detention or deportation/removal, this obligation shall terminate." Mot. (Phing), Ex. B at 141 (1997 version of the immigration bond).
The agency, in its decision below, held that "[t]his language does not require the Agency to issue a demand notice to the Bond obligors. . . . The bond language allows ICE to issue a demand notice to require the alien's surrender, but the obligor is also required to ensure that the alien departs the United States in a timely manner and provide probative evidence of the departure." Mot. (Phing), Ex. A at 8 (agency decision). The agency also noted:
Mot. (Phing), Ex. A at 8 (agency decision).
The agency's interpretation of the bond is neither arbitrary nor capricious. As the agency pointed out, the bond allowed the agency to make delivery demands and provided that, if there were a failure to produce the alien in response to a delivery demand, G&G would be held in breach. However, the bond did not provide that the agency had to make a delivery demand before G&G was required to ensure that the alien voluntarily departed the country. Furthermore, as the agency implicitly noted, it was not impossible for G&G to ensure voluntary departure in the absence of a delivery demand.
G&G's arguments in its brief are unavailing. For example, G&G points out that language used in the 1999 version of the bond is different — i.e., the 1999 version makes no mention of a delivery demand or request to produce in conjunction with a voluntary departure bond. For example:
While G&G is correct that the 1999 bond does not mention a delivery demand, that still does not mean the 1997 bond — which did — makes a delivery demand a condition precedent to G&G's performance under the bond. Under the 1997 bond, the agency was given the option, not a mandate.
G&G suggests that, at the very least, the language of the 1997 bond and/or the language of the 1999 bond create an ambiguity which should be construed against the government. See Opp'n (Phing) at 5 (asserting that "[t]he `contra proferentum' doctrine, which requires ambiguities to be construed against the drafter, should prevail"). There is ambiguity where reasonable people could find a contract term susceptible to more than one interpretation. See Tehama-Colusa Canal Auth. v. United States DOI, 819 F.Supp.2d 956, 988 (E.D. Cal. 2011) (stating that, under federal common law, a contract is ambiguous where reasonable people could find its terms susceptible to more than one interpretation). But under the arbitrary-and-capricious standard of review which applies here, ambiguity actually runs in the government's favor. If the agency's interpretation is a reasonably susceptible one, that is sufficient for the agency to survive arbitrary-and-capricious review.
In their joint CMC statement, the parties identify four bond matters that address Issue No. 2: Vasquez-Rodas, Suinda, Abdullah, and Phing. The Court shall use the Phing bond matter as a representative bond matter.
The basic dispute in Issue No. 2 concerns a change in Ms. Phing's voluntary departure date. G&G contends that, "DHS must cancel a voluntary departure bond once the voluntary departure date is altered during the immigration proceedings." Opp'n (Phing) at 8. The government disagrees.
With respect to Ms. Phing, the immigration judge ("IJ") held a proceeding in March 1999 during which he denied Ms. Phing certain relief but granted her voluntary departure. See Mot. (Phing), Ex. B at 19 (IJ oral decision). The IJ ordered Ms. Phing to voluntarily depart by May 24, 1999. See Mot. (Phing), Ex. B at 4 (IJ order). Shortly thereafter, G&G posted a voluntary departure bond on Ms. Phing's behalf. See Mot. (Phing), Ex. B at 22. Ms. Phing then appealed the IJ decision to the Board of Immigration Appeals ("BIA"). Because of her appeal, the voluntary departure date imposed by the IJ was effectively stayed.
G&G seems to argue that, under the Phing bond, it contracted for a voluntary departure date of May 24, 1999, and once that date "ceased to exist" because of Ms. Phing's appeal, the bond automatically cancelled. See Opp'n (Phing) at 8 (arguing that, "[o]nce the May 24, 1999, date was cancelled, G&G/ASC could not cause Ms. Siao Phing to be produced for departure by that date"). G&G also contends that, under Ninth Circuit case law, "sureties are no longer liable for bonds written under conditions that were subsequently altered by a court," and "[t]his requirement should apply with greater weight and effect where, as happened in this case, DHS never notified G&G/ASC that the underlying [voluntary departure] date had been changed." Opp'n (Phing) at 8.
The agency rejected G&G's argument below, noting that, under the terms of the Phing bond, the government was not required to give notice of any change in voluntary departure date. The Phing bond included the following statement: "Paragraph seven of the settlement in
The agency's decision below was not arbitrary or capricious, nor was it legally erroneous to the extent de novo review might apply. G&G's position is problematic because it is — in essence — predicated on the contention that it contracted for a voluntary departure date of May 24, 1999, and no other. But the face of the Phing bond says nothing about a specific voluntary departure date. The bond simply states:
Mot. (Phing), Ex. B at 141 (1997 version of the immigration bond). And given that there is an immigration regulation that essentially provides for a stay, G&G knew or should have known at the time it entered into the bond agreement that the voluntary departure date of Ms. Phing could (and in likelihood would) change if she were to take an appeal.
As it did during the agency proceedings below, G&G argues here that
Opp'n at 8 (also citing United States v. Galvez-Uriarte, 709 F.2d 1323, 1324-25 (1983)). But G&G has not shown that the May 24, 1999, voluntary departure date — or any specific date — was a condition of the Phing bond, particularly as that date was not specifically referenced on the face of the bond. Compare LePicard, 723 F.2d at 664-65 (taking note that "[t]he bond as originally executed did not include the `break no laws' condition"). In short, there was no bond condition "altered by a court."
In their joint CMC statement, the parties identify two bond matters (both involving voluntary departure bonds) that address Issue No. 3: Phing and Abdullah. Although the facts in each bond matter are different, G&G's basic contention for each matter is the same — i.e., that, because each alien had legal status at the relevant time, they could not be subject to removal or departure and, accordingly, the bonds were automatically canceled. The Court finds G&G's position more persuasive than the government's and further finds the government's position both arbitrary and capricious. At the time of the declared bond breach by the government, Ms. Phing and Ms. Abdullah had legal status (and therefore were not subject to removal or departure), even if that legal status was subsequently revoked or changed. Given that Ms. Phing and Ms. Abdullah each had legal status at the time of the declared bond breach, it is not reasonable to expect either alien to have voluntarily departed. Similarly, it is not reasonable to expect G&G to ensure the voluntary departure of an alien who, at the time of the bond breach, had legal status. Finally, it is not reasonable to put the burden on G&G to determine whether an application for legal status was properly or improperly granted. The Court therefore concludes that the agency's decisions as to Ms. Phing and Ms. Abdullah on Issue No. 3 were both arbitrary and capricious.
In their joint CMC statement, the parties identify only one bond matter that addresses Issue No. 4: Suinda. Thus, the Court shall use the Suinda bond matter as a representative bond matter.
The basic dispute in Issue No. 4 concerns the date that the government notified G&G of the alleged breach of the Suinda bond. The critical facts with respect to this issue are as follows:
• The Suinda bond provides in relevant part that "[a] voluntary departure bond is breached when the obligor fails to present valid proof that the bonded alien departed the United States on or before the date specified in the order granting voluntary departure within 30 days of that date."
• In November 2001, the IJ granted Mr. Suinda voluntary departure to take place within 60 days.
• In December 2001, G&G posted a voluntary departure bond on Mr. Suinda's behalf.
• Mr. Suinda appealed the decision of the IJ to the BIA and then to the Ninth Circuit. In an April 2005 decision, the Ninth Circuit denied Mr. Suinda relief and stated that the stay of voluntary departure would expire upon issuance of the mandate.
• Apparently, by August 29, 2005, G&G failed to provide evidence that Mr. Suinda had voluntarily departed by July 30, 2005. Thus, under the terms of the Suinda bond, G&G was in breach.
• The agency thereafter prepared its notice of bond breach. The notice was delivered to G&G on November 18, 2005
G&G argues that, based on the above, "[a]t a minimum, a correct breach notice should be issued. However, since Mr. Suinda departed the country over six years ago, the bond should instead be cancelled." Mot. (Suinda) at 7. In its decision below, the agency rejected G&G's argument because the July 2001 date was an obvious typographical error. See Opp'n (Suinda), Ex. A at 14 (agency decision) (noting that "the bond was not even posted until December 4, 2001, so by definition it could not have been breached five months before it was issued").
The agency's decision was not arbitrary or capricious. As the agency explained, the error on the notice was obvious. Moreover, even if there were a breach of the Suinda bond because of the incorrect date, G&G must show that there a material breach that warrants cancellation. See Docket No. 244 (Order at 7-8) (noting that, "under traditional contract law, there must first be a material breach before the nonbreaching party is entitled to a remedy and/or an excuse for nonperformance"). Here, G&G has not offered any evidence that the incorrect date affected its ability to ensure Mr. Suinda's voluntary departure. See also Opp'n (Suinda at 7) ("[N]either the age of, nor the typographical error on, the breach determination have any bearing on G&G's failure to comply with the bond.").
In their joint CMC statement, the parties identify only one bond matter that addresses Issue No. 5: Martins. Thus, the Court shall use the Martins bond matter as a representative bond matter.
The basic dispute in Issue No. 5 concerns whether G&G substantially complied with the terms of the bond when Mr. Martins voluntarily departed the country but did so approximately three weeks after the voluntary departure date. Substantial compliance is a principle that comes from the immigration regulations. Title 8 C.F.R. § 103.6(c)(3) provides in relevant part: "Substantial performance of all conditions imposed by the terms of a bond shall release the obligor from liability." 8 C.F.R. § 103.6(c)(3). Section 103.6(e) is the flip side of § 103.6(c)(3); it provides: "A bond is breached when there has been a substantial violation of the stipulated conditions." Id. § 103.6(e).
The concept of substantial performance/substantial violation is also addressed in the two Amwest agreements. Amwest I references the two regulations and then states as follows:
Opp'n (Martins), Ex. B at 36 (Amwest I, Ex. I).
Amwest II also references the two regulations and then states:
Opp'n (Martins), Ex. B at 58 (Amwest II, Ex. A) (field memo).
In its decision below, the agency concluded that compliance with the voluntary departure date is a fundamental requirement that cannot be excused, especially as it is mandated by law. See Opp'n (Martins), Ex. A at 8-9 (agency decision); see also 8 U.S.C. § 1229c(a)(2)(A) (providing that, "[s]ubject to subparagraph (B), permission to depart voluntarily under this subsection shall not be valid for a period exceeding 120 days").
That conclusion cannot be said to be arbitrary or capricious or even legally erroneous to the extent de novo review might apply. As the government contends in its brief:
Opp'n (Martins) at 5.
In its papers, G&G argues that "DHS policy . . . appears to mandate cancellation of a voluntary departure bond if the alien departs within 30 days of the voluntary departure date." Mot. (Martins) at 4 (citing Nye Decl., Ex. 14) (April 8, 2008, memorandum to all deportation field officers re: Immigration Bond Policies and Procedures). But the policy that G&G cites does not state such. It simply provides: "
To the extent G&G makes the point that the government was not prejudiced by the untimely voluntary departure, see Reply (Martins) at 3, because the voluntary departure still happened and in a relatively quick time frame, that may well be true. But any untimely voluntary departure may still fairly be deemed a substantial violation given the hard deadlines provided in the immigration statute. See 8 U.S.C. § 1229(a)(2)(A) (limiting voluntary departure period to 120 days). To the extent G&G makes a mitigation argument, that argument is unavailing because mitigation applies to delivery bonds, and here there is a voluntary departure bond, not a delivery bond. See, e.g., Opp'n, Ex. B at 53 (Amwest II, Ex. A) (field memo) (stating that, "[u]nder this new policy obligors have 30 days from INS's notification of a breach `in which the mitigate the breach by delivery of the alien in the case of a delivery or an exclusion bond'").
In their joint CMC statement, the parties identify only one bond matter that addresses Issue No. 6: Almeida-Bolanos. Thus, the Court shall use the Almeida-Bolanos bond matter as a representative bond matter.
The basic dispute in Issue No. 6 concerns the three-day notice rule — i.e., the rule that the agency was required to send a delivery demand to G&G and then wait at least three days before notifying the alien of the required surrender (usually, through an I-166).
The three-day notice rule is required by both of the Amwest agreements. Amwest I provides: "INS agrees that if INS intends to notify the alien of the date and time of deportation, such notice will not be mailed to the alien before, and not less than three days after, the demand to produce the alien is mailed to the bond obligor." Opp'n (Almeida-Bolanos), Ex. B at 46 (Amwest I ¶ 6). Similarly, Amwest II provides:
Opp'n (Almeida-Bolanos), Ex. B at 84 (Amwest II, Ex. A) (field memo).
According to G&G, the agency violated the three-day notice rule in the Almeida-Bolanos bond matter because it mailed the delivery demand to G&G on August 27, 2003, and then mailed the I-166 to Mr. Almeida-Bolanos only two days later, i.e., on August 29, 2003. G&G admits that the date listed on the delivery demand is August 26, 2003. However, it points out that there is evidence to support an actual mailing date of August 27, 2003 — i.e., the postmark on the envelope containing the delivery demand.
In its decision below, the agency rejected G&G's argument on the following grounds:
Opp'n (Almeida-Bolanos), Ex. A at 8-9 (agency decision).
As a preliminary matter, the Court notes that it shall review the agency's decision here de novo, and not under the arbitrary-and-capricious standard. This is because the resolution of the issue before the Court — i.e., the factual question of when the demand notice and the I-166 were sent — does not turn on any agency expertise.
Turning to the factual question of when the two notices were went, there is undisputed evidence before the Court that the demand notice was sent to G&G on August 27, 2003.
The issue as presented by the government in its supplemental brief is related to two subjects that the Court previously addressed in its first summary judgment order: (1) the requirement that a delivery demand be served on G&G within the ninety-day removal period and (2) the ability of the government to issue a second delivery demand (i.e., after the first delivery demand was rescinded because it was not provided at least three days before notice to the alien). Although the government previously identified the Grama bond matter as a representative bond matter for this issue, see Docket No. 247 (Joint CMC St. at 3-4), it now identifies the Antonio bond matter as a representative bond matter.
With regard to the Antonio bond matter, the critical facts are as follows:
• On or about August 2, 2004, G&G issued a delivery bond on behalf of Mr. Antonio. See Opp'n (Antonio), Ex. B at 4 (immigration bond).
• On or about October 27, 2004, an IJ ordered that Mr. Antonio be removed. See Opp'n (Antonio), Ex. B at 6 (IJ order).
• On or about November 4, 2004, the government issued a delivery demand to G&G to produce Mr. Antonio for deportation. See Opp'n (Antonio), Ex. B at 7 (delivery demand).
• On or about December 20, 2004, the government declared the bond breached based on G&G's failure to deliver Mr. Antonio in compliance with the delivery demand. See Opp'n (Antonio), Ex. B at 11 (notice of immigration bond breach). But approximately five years later, on or about September 23, 2009, the government rescinded the bond breach declaration — implicitly because the delivery demand was not issued in compliance with the three-day advance notice requirement. See Opp'n (Antonio), Ex. B at 13 (notice of decision).
• On or about January 26, 2011, the government issued a new delivery demand and, in compliance with the Amwest Agreements, issued a new I-166 more than three days later. See Opp'n (Antonio), Ex. B at 14 (delivery demand); Opp'n (Antonio), Ex. B at 18 (I-166).
Although the second delivery demand was clearly outside the ninety-day removal period, the government argues that it should still be given effect because (1) the first delivery demand was within the ninety-day removal period and (2) it was defective only because of a technical reason, i.e., a failure to comply with the three-day advance notice rule. According to the government, it should be given "a reasonable time to correct a technical error." Docket No. 251 (Supp. Br. at 1). The government argues:
Docket No. 251 (Supp. Br. at 1) (emphasis in original).
The government's argument is problematic for several reasons. First, the agency never articulated this reasoning in its decision below. The Court cannot affirm an agency decision based on a rationale not actually relied on by the agency. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1946) (noting that a court reviewing agency action "must judge the propriety of such action solely on the grounds invoked by the agency" and, "[i]f those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.")
Second, even if the Court were to entertain the merits, the government's reliance on Amwest II is misplaced. Amwest II provides that "[f]ailure to give the obligor the requisite [three-day] notice will entitle it to rescission of any breach. It will not affect the status of the bond itself, however, and INS may (assuming no intervening event requires cancellation) issue another demand." Opp'n, Ex. B at 59 (Amwest II, Ex. A) (INS field memo) (emphasis added). Here, there was an intervening event requiring cancellation — i.e., the expiration of the ninety-day removal period. Once that period expires, the bond is unenforceable. See Docket No. 244 (Order at 14-15) (holding that it was arbitrary and capricious for the agency to conclude that "it was not required to issue a delivery demand within the ninety-day removal period, i.e., during the period that it had the authority to detain"). Moreover, the government has not provided a good explanation of why it could not issue a second delivery demand within the ninety-day removal period. For example, for the Antonio bond matter, it should have been a fairly obvious mistake that the delivery demand and I-166 were issued on the same day. Even if an error were not that obvious, the fact remains that the government should have full control over the situation — i.e., any error would be solely one of its own making. Finally, the government ignores the fact that G&G runs a risk from ignoring a timely delivery demand, namely, that it could be held in breach. The government also ignores the fact that the three-day notice rule is not an insignificant requirement; it gives G&G the opportunity to locate and deliver the alien before he or she learns of the need to appear and "runs." The failure to comply is not a mere technicality; it affects G&G's risk.
Furthermore, the government's construction would introduce uncertainty into enforcement: what is "a reasonable time to correct a technical error"? Docket No. 251 (Supp. Br. at 1). A bright-line rule (i.e., once the ninety-day removal period has expired, then the bond is invalid) would provide all parties with certainty. Nor has the government identified a legal source for its "reasonable time" theory. In any event, for the Antonio bond matter, the government cannot argue that it corrected its error within a "reasonable time." The agency did not issue a second delivery demand until well outside the ninety-day removal period — in fact, not until over six years later.
The issue as presented in the supplemental briefing was raised in conjunction with the prior bond matters. It concerns when the three-day advance notice rule is triggered. The government points to the Singh bond matter as a representative bond matter.
According to the government, the agency has an obligation to wait three days only when it notifies the alien of a need to surrender for removal — and not, e.g., when it is simply seeking the alien's appearance for an interview or case review. See Docket No. 251 (Supp. Br. at 2); see also Opp'n (Singh), Ex. A at 11 (agency decision) (noting that the delivery demand "did not include a specific date for deportation/removal; rather, it required the Bond Obligors to surrender the alien at a specified date and place for an interview/case review").
The government's position is persuasive. For example, the immigration bond form for Mr. Singh provided: "No demand to produce the bonded alien for deportation/removal shall be sent less than three days prior to sending notice to the bonded alien." Opp'n (Singh), Ex. B at 990 (general terms and conditions for immigration bond). Also, Amwest I provided: "INS agrees that if INS intends to notify the alien of the date and time of deportation, such notice will not be mailed to the alien before, and not less than 3 days after, the demand to produce the alien is mailed to the bond obligor." Opp'n (Singh), Ex. B at 59 (Amwest I ¶ 6) (emphasis added). No mention is made in Amwest I of a notice for interview or case review. Admittedly, G&G's contention — i.e., that, "[o]nce an immigrant knows that he or she must surrender to DHS, even if it is not for removal, the risk of flight increases," Reply (Singh) at 4 — has some merit. See also Docket No. 252 (Supp. Br. at 2) (stating that "[t]he risk of an alien fleeing in response to any demand to surrender, whether for an `interview and case review' or deportation/removal, is very high when the alien is subject to a final order of removal"). Nevertheless, given the plain language of the bond and Amwest agreements, it cannot be said that the agency's interpretation of the agreements is arbitrary and capricious.
The issue as presented in the supplemental briefing concerns the Questionnaire that the agency provides to G&G at the time it issues the delivery demand. As the Court noted in its prior summary judgment order,
Docket No. 244 (Order at 18). According to the government, in a situation in which the agency failed to put any address on the Questionnaire, that cannot be deemed a material breach of the Amwest II agreement so long as the most recent address the agency had for the alien (as reflected in the A-file) was the address listed on the bond form. See Docket No. 251 (Supp. Br. at 3). The government points to the Vasquez-Rodas bond matter as a representative matter. See Opp'n (Vasquez-Rodas), Ex. A at 9 (agency decision) (stating that, "[w]hen the alien's address is still the same as the address on the bond form, ICE is not required to include an address on the Questionnaire and Worksheet because the bond obligors already know the alien's address in that situation"); Opp'n (Vasquez-Rodas) at 3 (stating that "the agency did not include a `new' address on the Questionnaire when it sent G&G the I-340 because there was no `new' address — the most recent address in the A-file for the alien was the one provided on the bond form by G&G").
The government's analysis in its supplemental brief is on point. Even if the agency technically violated the Amwest II agreement by not putting any address on the Questionnaire (and it is debatable whether there was a breach for the reasons stated by the agency), such a violation in of and itself does not automatically give rise to a remedy. Because no remedy is specified in the Amwest II or any other agreement for such a breach, under normal contract principles described in the Court's prior order, G&G should be entitled to a remedy only where the breach was material. Here, the breach was not material because the last known address the government had for Mr. Vasquez-Rodas was the same address as that on the bond form. Moreover, G&G has not provided any evidence to indicate that it was not able to deliver Mr. Vasquez-Rodas to the agency because of the address issue.
The issue here is whether the agency had an obligation to give G&G notice that an alien had been granted voluntary departure where the bond posted by G&G was a delivery bond, and not a voluntary departure bond. The government points to the Lee bond matter as a representative matter.
In Ms. Lee's case, G&G posted a delivery bond which included the following provision:
Mot. (Lee), Ex. B at 962 (1999 version of the immigration bond) (emphasis added). Subsequently, an IJ issued an order granting Ms. Lee's application for voluntary departure. See Mot. (Lee), Ex. B at 8 (IJ order). There does not appear to be any dispute that the government never informed G&G of the grant of voluntary departure.
In its decision below, the agency stated that "DHS is not required to notify the Bond Obligors of the voluntary departure order" because "[n]o provision in the bond form or in the Amwest settlement agreements requires such a notification." Mot. (Lee), Ex. A at 23 n.6 (agency decision). This reasoning was not arbitrary or capricious, particularly in light of the italicized language in the above provision.
The arguments that G&G makes in its supplemental brief are not persuasive. In essence, G&G contends that, because the agency failed to provide Ms. Lee was voluntary departure instructions (as required by the Amwest agreements),
Docket No. 252 (Supp. Br. at 4). But the Court already ruled in its prior summary judgment order that a failure to provide voluntary departure instructions, though required under Amwest I and II, did not provide bases for relief in the absence of a showing by G&G that the failure to do so was material. See Docket No. 244 (Order at 30-31). While it would be ideal to give G&G notice of voluntary departure for a number of reasons, the fact remains that G&G's rights, as obligor under a delivery bond, are protected by the notice provisions pertaining to a delivery demand discussed above. Moreover, as this Court held in its previous order, there is no right of G&G to convert a delivery bond into a voluntary departure bond.
The final issue relates to G&G's pre-litigation offers to pay the principal debt, which ultimately led the Court to conclude that penalties should not be assessed on any day thereafter. The government points to the Almeida-Bolanos bond matter as a representative matter. The relevant facts in the Almeida-Bolanos bond matter are as follows:
• On March 10, 2005, the agency sent a letter to G&G, addressing G&G's proposal that it "pay the government the money due on the breached immigration bonds and then immediately sue the government under the jurisdiction of the Little Tucker Act to create causes of action for money damages." Docket No. 189-3 (Nye Decl., Ex. H) (letter). The agency rejected the proposal, stating that, "[b]ecause it is clear from your proposal that G&G does not believe any money is due on account of the breached bonds, any money tendered by your client would not be in true satisfaction of the bonds. Instead, the money paid to the government would be for the sole purpose of rigging jurisdiction under the Little Tucker Act." Docket No. 189-3 (Nye Decl., Ex. H) (letter). The agency continued: "Judicial review of the breached immigration bonds is available to G&G through appeal of breach declarations to DHS' Administrative Appeals Office (`AAO') and then to United States District Courts under the Administrative Procedures Act (`APA')." Docket No. 189-3 (Nye Decl., Ex. H) (letter).
• Although the government rejected the proposal, G&G nevertheless sent a check to the government on April 6, 2005, on an alleged bond breach (regarding an alien different from Mr. Almeida-Bolanos). See Docket No. 189-3 (Nye Decl., Ex. I) (letter).
• On April 13, 2005, the agency sent a letter to G&G stating that it had received from G&G "eleven `under protest' checks as payment on immigration bonds." Docket No. 189-3 (Nye Decl., Ex. J) (letter). The agency refused to accept the checks because they were not "tendered in good faith satisfaction of any debt, and [were] solely to manipulate jurisdiction under the Little Tucker Act." Docket No. 189-3 (Nye Decl., Ex. J) (letter) (also stating that this was "a calculated attempt to evade the review process set forth under the Administrative Procedures Act (`APA') for appeals from DHS' Administrative Appeals Office (`AAO')").
• In spite of the above history, on August 9, 2007, G&G sent the government a check covering "the penal sum in connection with the alleged bond breach" on some 20 different bonds (none involving Mr. Almeida-Bolanos). Docket No. 189-3 (Nye Decl., Ex. K) (letter).
• The agency responded on September 7, 2007, stating that it was not accepting the payment for the reasons articulated in its letter of April 13, 2005. See Docket No. 189-3 (Nye Decl., Ex. L) (letter).
• On October 25, 2007, G&G sent a letter in reply, stating that it would not accept the government's attempt to return the money. G&G then went on to "offer[] to pay DHS, under protest and with a full reservation of G&G's rights, the full penal sum on all remaining bonds which DHS claims G&G breached.
Based on this basic history, the Court held that penalties should not have been assessed against G&G once it made its offer to pay the principal debt. The Court stated:
Docket No. 244 (Order at 39-40).
In its supplemental brief, the government now questions whether, in October 2007, G&G really made an unconditional offer to pay because, as reflected in the letter, G&G stated that it would expect the government to waive sovereign immunity. The government adds that it "could not have accepted G&G's conditional payment offer because it did not have authority to waive sovereign immunity" — only Congress can. Docket No. 251 (Supp. Br. at 5). At the hearing, the government also tendered for he first time a letter that the agency sent to G&G on November 8, 2007, to which G&G never responded.
The Court rejects the government's argument. First, it is in essence a motion to reconsider but the government has made no real effort to show that it has met the requirements for reconsideration as laid out in Civil Local Rule 7-9(b). See, e.g., Civ. L.R. 7-9(b) (providing that a party must show "[a] manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order") (emphasis added). The government never previously argued to the Court that G&G's offer to pay was not unconditional.
Second, even if the government had, it would be no better off. G&G's reference to waiver of sovereign immunity was simply a reference to an argument that it had made before with respect to the Little Tucker Act. The Little Tucker Act provides for a waiver of sovereign immunity. See Munoz v. Mabus, 630 F.3d 856, 863 n.5 (9th Cir. 2010) (stating that "Congress has effected a limited waiver of sovereign immunity in [damage actions in contract against the United States] pursuant to the Tucker and Little Tucker Acts"). And as the Court indicated in its prior summary judgment order, the reference to the Little Tucker Act should not be viewed as a conditional offer to pay because it simply created a dispute as to which forum the disagreement between the parties would be litigated.
For the foregoing reasons, the Court rules as follows:
(1) Fnu Siao Phing. The government's motion (Docket No. 157) is denied. G&G's motion (Docket No. 208) is granted.
(2) Mumtaz Hassanali Abdullah. The government's motion (Docket No. 162) is denied. G&G's motion (Docket No. 201) is granted.
(3) Roberto Almeida-Bolanos. G&G's motion (Docket No. 178) is granted. The government's motion (Docket No. 196) is denied.
(4) Vidal Vasquez-Rodas. G&G's motion (Docket No. 180) is denied. The government's motion (Docket No. 197) is granted.
(5) Athos Martins. G&G's motion (Docket No. 184) is denied. The government's motion (Docket No. 199) is granted.
(6) Winny Suinda. G&G's motion (Docket No. 186) is denied. The government's motion (Docket No. 200) is granted.
For the supplemental issues discussed above, the Court issues its summary adjudication rulings, for the reasons stated above.
It is the Court's understanding that, because of its summary judgment rulings, either previously or herein, the motions at Docket Nos. 158, 160, 161, and 164 (Chum-Garcia, Grama, Munoz-Piedras, and Villasenor-Ramirez bond matters) are now moot.
This order disposes of Docket Nos. 157, 162, 178, 180, 184, and 186.
A Status Conference is scheduled for October 1, 2015, at 10:30 a.m. to discuss resolution of all outstanding bonds. A Joint Status Conference statement shall be filed by September 24, 2015.
Amwest I contains a similar provision: "INS agrees that no form I-323, Notice — Immigration Bond Breached, shall be sent to the obligor more than 180 days following the date of breach. If the I-323 is not sent to the obligor within 180 days following the date of breach, then the declared breach shall be stale and unenforceable against the obligor. However, the bond shall continue in full force and effect." Opp'n (Suinda), Ex. B at 66-67 (Amwest I ¶ 9).
Mot. (Suinda) at 7. But the bottom line is that the Court has in the administrative record the correct document, and the facts are undisputed — i.e., that the notice of bond breach that was sent to G&G incorrectly stated that the bond was breached in July 2001.
