STATEWIDE BONDING, INC., ET AL., APPELLANTS v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DHS, ET AL., APPELLEES
No. 19-5178
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2020 Decided November 10, 2020
Consolidated with 19-5342, 19-5364
Appeals from the United States District Court for the District of Columbia
(No. 1:18-cv-02519)
(No. 1:18-cv-02115)
(No. 1:19-cv-02083)
Dallas S. LePierre, pro hac vice, argued the cause for appellants. On the briefs was Mario Williams. John M. Shoreman entered an appearance.
Matthew J. Glover, Counsel to the Assistant Attorney General, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Abby C. Wright, Attorney, and Beth E. Cook, Associate Legal Advisor, U.S. Department of Homeland Security. Alan Burch and Rhonda L. Campbell, Assistant U.S. Attorneys, entered appearances.
Before: HENDERSON and WALKER, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
I. BACKGROUND
A. Statutes and Regulations
ICE, a DHS component, is responsible for overseeing immigration detention and for carrying out removal orders. See
Immigration bonds may be secured by a cash deposit. If an immigrant “cannot pоst the entire amount [of an immigration bond] on [his] own,” he may “rely on a constellation of for-profit entities to obtain release.” Statewide Bonding, Inc. v. DHS, No. 18-cv-2115, 2019 WL 2477407, at *1 (D.D.C. June 13, 2019). Bail-bond companies, like plaintiffs Statewide Bonding, Inc. and Big Marco Insurance and Bonding Services, LLC, partner with sureties (insurance companies certified by the United States Department of the Treasury) to enter into bond agreements with ICE. Statewide II, 422 F. Supp. 3d at 44; see also
Pursuant to DHS regulations, ICE may declare an immigration bond breached if there has been a “substantial violation of the stipulated conditions” of the bond.
If an appeal is not timely filed, ICE‘s breach determination is final. See J.A. 152 (DHS Immigration Bond) (“A declaration of breach shall be administratively final if not timely appealed.“); J.A. 179-80 (ICE Form I-323, Notice – Immigration Bond Breached) (“If no appeal is timely filed, the bond breach becomes an administratively final decision. After a final breach decision, . . . ICE will issue an invoice for the face amount of a surety bond.“). A final determination that a bond has been breached creates a claim in favor of the United States against the obligor(s) on the bond.
B. Facts and Procedure
Statewide filed three lawsuits against DHS, asserting that different aspects of DHS‘s administration of the immigration-bond system violate the APA and Statewide‘s right to due process under the United States Constitution. The district court dismissed Statewide I for failure to state a claim and lack of jurisdiction, Statewide II on DHS‘s motion for judgment on the pleadings and Statewide III for failure to state a claim.
In Statewide I, the plaintiffs sued DHS to prevent its collection on breached immigration bonds before the resolution of Statewide‘s pending untimely appeals. As to Statewide‘s APA claims, the district court concluded that ICE was not obligated to halt collection on breached bonds while Statewide‘s untimely appeals were pending because the collection activities were consistent with the agency‘s regulations. Statewide I, 2019 WL 2076762, at *2-3. Specifically, the district court found that, “even if Plaintiffs’ untimely appeals were deemed motions to reconsider, ‘[t]he filing of a motion to reopen or reconsider . . . does not stay the execution of any decision in a case.‘” Id. at *3 (alterations in original) (quoting
The district court also dismissed Statewide‘s due process claim, concluding that Statewide had been afforded adequate process under Mathews v. Eldridge, 424 U.S. 319 (1976). Id. at *3. Specifically, Stаtewide was “afforded an adequate ‘opportunity to be heard at a meaningful time and in a meaningful manner‘” because it “had an opportunity to file a timely appeal that would have stayed collection“; it simply did not do so. Id. (quoting Mathews, 424 U.S. at 333). And the district court dismissed Statewide‘s mandamus claim for lack of jurisdiction because DHS has no duty to halt the collection of breached bonds that Statewide untimely appealed. Id. at *4. Accordingly, the district court dismissed all of Statewide‘s claims in Statewide I.
In Statewide II, the plaintiffs sued DHS to prevent collection on breached immigration bonds because DHS provided allegedly dеfective NTAs and NPAs before issuing bond breach determinations. Statewide II, 422 F. Supp. 3d at 44-45. As to the due process claim, the district court concluded that Statewide had not established a “risk of an erroneous deprivation” of property under the Mathews test because of the “smorgasbord of procedural safeguards” afforded Statewide. Id. at 49 (citation omitted). Specifically, the district court found that DHS provides multiple means of contesting a final bond breach determination and that Statewide failed to suggest any “plausible alternative procedural safeguards.” Id. The district court further concluded that Statewide‘s APA claims simply echoed the rejected due process arguments. Id. at 50.
Accordingly, the district
In Statewide III, the plaintiffs sued DHS for rejecting appeals of bond breach determinations that Statewide alleges were timely filed. Statewide III, 422 F. Supp. 3d at 37-38. The parties dispute whether an appeal should be deemed submitted on the date it is mailed or on the date DHS receives it. Id. The district court concluded that DHS‘s reading of the regulations is “undoubtedly the correct one” because “[i]n the most unambiguous terms, § 103.2(a)(7)(i) states that a ‘benefit request‘—which includes an appeal—is deemed received ‘as of the actual date of receipt at thе location designated for filing.‘” Id. at 40 (citation omitted). The district court further found that the AAO‘s publicly available Practice Manual and the AAO‘s past rulings are consistent with the unambiguous terms of the regulations. Id. Moreover, to the extent Statewide alleged a due process claim in Statewide III, the district court dismissed the claim for the same reasons detailed in Statewide II, 422 F. Supp. 3d at 47-50. Accordingly, the district court dismissed all of Statewide‘s claims in Statewide III.
II. ANALYSIS
We review de novo the merits of a motion to dismiss for failure to state a claim upon which relief can be granted and assume the truth of the plaintiff‘s well-pleaded factual allegations in the complaint. See Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). We also review de novo а district court‘s dismissal for lack of jurisdiction and a district court‘s grant of a motion for judgment on the pleadings. See Nat‘l Parks Conservation Ass‘n v. Manson, 414 F.3d 1, 4 (D.C. Cir. 2005) (lack of jurisdiction); Jones v. Dufek, 830 F.3d 523, 525 (D.C. Cir. 2016) (judgment on pleadings).
In dismissing Statewide‘s APA claims in Statewide I and Statewide III, the district court concluded that the challenged DHS actions are consistent with the pertinent regulations. We agree and affirm the district court‘s decisions on that basis. In dismissing Statewide‘s due process claims in Statewide I, Statewide II and Statewide III, the district court found that the multiple means DHS provides to contest final bond breach determinations afford Statewide constitutionally sufficient process. Again, we agree and affirm the district court.
A. Statewide I: Statewide‘s Pending Untimely Appeals
In Statewide I, the plaintiffs allege that DHS‘s collection on breached immigration bonds beforе the resolution of their pending untimely appeals contravenes DHS regulations. The district court disagreed. Statewide I, 2019 WL 2076762, at *2-3.
To state a claim under the APA, a plaintiff must challenge a “final agency action for which there is no other adequate remedy in a court.”
and is an action “by which rights or obligations have been determined.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal citations and quotation marks omitted).2
The question, then, is whether DHS regulations permit DHS to collect on breached bonds while an untimely appeal is pending. We conclude they do.
Under the APA, we may set aside agenсy action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The two regulations at issue in Statewide I are
Untimely appeal treated as motion. If an untimely appeal meets the requirements of a motion to reopen as described in
§ 103.5(a)(2) of this part or a motion to reconsider as described in§ 103.5(a)(3) of this part, the appeal must be treated as a motion, and a decision must be made on the merits of the case.
On the other hand, DHS argues that
Effect of motion or subsequent application or petition. Unless the Service directs otherwise, the filing of a motion to reopen or reconsider or of a subsequent application or petition does not stay the execution оf any decision in a case or extend a previously set departure date.
To avoid DHS‘s interpretation of
argument plainly fails. There is no separate category of “accepted” untimely appeals in the regulations. An untimely appeal
The regulations unambiguously state that “the filing of a motion to reopen or reconsider . . . does not stay the execution of any decision in a case.”
In Statewide I, the plaintiffs also argue that they are entitled to a writ of mandamus because the regulations require DHS to cease collections on the bond breach determinations at issue in this case. To establish mandamus jurisdiction under
refrain from collecting on the bоnd breaches Statewide untimely appealed. Statewide I, 2019 WL 2076762, at *4.
B. Statewide III: Appeal Filing Date
In Statewide III, the central dispute is whether Statewide‘s appeals should be deemed filed on the date the appeals are mailed or on the date that AAO receives them. Statewide III, 422 F. Supp. 3d at 37-38. Statewide argues that an administrative appeal is filed on the date the appeal is mailed,4 relying on its interpretation of
Where, as here, an agency‘s regulation is unambiguous, the court must give effect to the regulation‘s plain meaning. See Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). Under
USCIS will consider a benefit request received and will record the receipt date as of the actual date of receipt at the location designated for filing such benefit request whether electronically or in paper format.
request” and so are governed by
Moreover, DHS has consistently interpreted the unambiguous regulations as
Seeking to avoid this conclusion, Statewide argues that
(b) Effect of service by mail. Whenever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Servicе by mail is complete upon mailing.
Statewide further argues that the I-290B Form, Instructions for Notice of Appeal or Motion, incorporates
Timeliness. In most cases, you must file your appeal or motion within 30 calendar days of the date of service of the adverse decision (or within 33 calendar days if we mailed the decision to you). . . .
NOTE: If we sent you the decision by mail, the “date of service” is the date we mailed the decision, not the date you received it. See 8 CFR 103.8(b). Decisions are normally mailed the same day they are issued.
Dep‘t of Homeland Sec., Instructions for Notice of Appeal or Motion, https://www.uscis.gov/sites/default/files/files/form/i-290binstr.pdf (emphasis omitted). Granted, the I-290B Form references
C. Statewide‘s Due Process Claims
In all three cases, Statewide alleges its due process rights have been violated. Because DHS provides multiple means to contest final bond breach determinations, the district court found Statewide‘s due process claims failed in all three cases. We agree.
In examining a proсedural due process claim, courts apply a “familiar two-part inquiry: we must determine whether the plaintiffs were deprived of a protected interest, and, if so, whether they received the process they were due.” UDC Chairs Chapter, Am. Ass‘n of Univ. Professors v. Bd. of Trs. of Univ. of the Dist. of Columbia, 56 F.3d 1469, 1471 (D.C. Cir. 1995) (internal quotation marks omitted). The district court concluded that even assuming arguendo that Statewide possessed a protected interest in the immigration bond agreements, the review procedure for a bond breach determination afforded Statewide “the process ‘due’ under the Fifth Amendment.” Statewide II, 422 F. Supp. 3d at 47 (citing Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189, 196-97 (2001) (declining to address whеther plaintiff alleged constitutionally protected interest because its interest was “fully protected“)).
There is no one-size-fits-all procedure to protect against the unconstitutional deprivation of property. Rather, “due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. at 333 (internal quotation marks omitted). To “evaluate a procedural due process claim, a court must evaluate the ‘risk of an erroneous deprivation of [a property] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.‘” Nat‘l Min. Ass‘n v. U.S. Dep‘t of Interior, 251 F.3d 1007, 1010 (D.C. Cir. 2001) (alteration in original) (quoting Mathews, 424 U.S. at 335).
As to the available process, an obligor has three avenues to seek review of an immigration bond breach determination. First, it has access to an administrative appeal process before collection begins. When DHS determines that a bond has been breached, there is no automatic forfeiture of the obligor‘s property, i.e., the money represented by the bonds. Statewide II, 422 F. Supp. 3d at 47. Instead, DHS notifies the obligor of the bond breach decision, the reasons for the decision and the obligor‘s right to appeal the decision in accordance with the relevant regulations. See
The administrative appeal process guarantees the obligor an independent review, allowing the submission of briefs and evidence and the opportunity to be represented by counsel. Statewide II, 422 F. Supp. 3d at 48; see also
The obligor can also dispute DHS‘s invoice for the breached bond. If a bond breach determination is not timely appealed and becomes final, DHS issues an invoice to each of the co-obligors on the bond. The invoice notifies the obligor of the amount due and informs the obligor that it has the right to “dispute the validity of the debt” via a written request within 30 days of receipt of the invoice. J.A. 164-65 (DHS Invoice); see also
Moreover, because DHS regulations do not require exhaustion of administrative remedies, a bond obligor can skip the administrative appeal process and the invoice dispute resolution process and immediately file suit in federal court for breach of contract. Statewide II, 422 F. Supp. 3d at 48; see, e.g., AAA Bonding Agency Inc. v. DHS, 447 F. App‘x 603, 612 (5th Cir. 2011) (no administrative exhaustion requirement in suit involving surety company‘s challenge to 1,400 immigration bond-breach determinations); United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc., 728 F. Supp. 2d 1077, 1080 (N.D. Cal. 2010) (suit brought by United States against bail-bond company to recover bond amounts where company countеrclaimed bonds were invalid because of failure to issue timely delivery demand).
The three avenues to review a bond breach determination satisfy the requirements of the Due Process Clause. In this respect, the administrative appeal process provides the plaintiffs a meaningful opportunity to present their case before a neutral adjudicator. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (“The Due Process Clause entitles a person to an impartial and disinterested” adjudicator.). Moreover, courts have found that where, as here, a due process property interest derives from contract, the property interest “can be fully protected by an ordinary breach-of-contract suit.” LG Elecs. U.S.A., Inc. v. Dep‘t of Energy, 679 F. Supp. 2d 18, 34 (D.D.C. 2010) (quoting Lujan v. G & G Fire Sprinklers, 532 U.S. 189, 196-97 (2001) (contractor‘s due process claim involving prevailing wage requirements fully protected by availability of ordinary breach-of-contract suit)).
Given the multiple avenues for seeking relief, Statewide cannot demonstrate the available process is inadequate or that it was denied the protections provided. In all three cases, Statewide had 33 days from the date DHS mailed the notice of bond breach determination to file an appeal. Statewide did not dо so. Statewide‘s failure
Statewide‘s due process claims also fail for an independent reason—Statewide has not suggested what plаusible alternative safeguards would be constitutionally adequate. See Doe ex rel. Fein v. Dist. of Columbia, 93 F.3d 861, 870 (D.C. Cir. 1996) (per curiam) (“[A] procedural due process claim requires the plaintiff to identify the process that is due“). Statewide seems to argue for an appellate process devoid of deadlines because it missed the deadline for challenging certain bond breach determinations. See Statewide II, 422 F. Supp. 3d at 50. As the district court appropriately concluded, however, the Due Process Clause “does not require an agency to permit never-ending opportunities to appeal.” Id. Simply put, Statewide “failed to take advantage of all the process due [it].”
Yates v. Dist. of Columbia, 324 F.3d 724, 726 (D.C. Cir. 2003) (per curiam).
Statewide‘s only counterargument on appeal is that it attempted to utilize the process afforded by filing untimely appeals. Specifically, Statewide asserts that it “filed multiple untimely appeals that were accepted by the AAO, thus requiring a decision on the merits, but the DHS‘s continued collections on the . . . bond breach determinations threaten Statewide‘s continued existence, depriving the appeal of any meaning.” Appellants Br. 20. But Statewide had the opportunity to file a timely appeal that would have stayed collection. See
For the foregoing reasons, the district court‘s judgments in Statewide I, Statewide II and Statewide III are affirmed.
So ordered.
Notes
Second, neither of the two exhibits attached to Statewide‘s opposition to defendants’ motion to dismiss demonstrates inconsistent enforcement. Instead, the documents notify Statewide that its appeal was moot, not that the late filed appeal was considered a timely appeal.