Statewide Bonding, Inc. v. DHS

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2020 Decided November 10, 2020
No. 19-5178
STATEWIDE BONDING, INC., ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DHS,
ET AL.,
APPELLEES
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,
2
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.
KAREN LECRAFT HENDERSON, Circuit Judge: In late 2018,
the plaintiffs—two bail-bond companies, a corporation
guaranteeing immigration applicants’ compliance with
immigration bonds and that corporation’s CEO (collectively,
Statewide)—filed three separate lawsuits against the United
States Department of Homeland Security (DHS) and other
government entities.1 They assert that certain aspects of DHS’s
current administration of the immigration-bond system violate
the Administrative Procedure Act (APA) and Statewide’s right
to due process under the United States Constitution. See
Statewide Bonding, Inc. v. DHS, No. 18-cv-2519, 2019 WL
2076762 (D.D.C. May 10, 2019) (Statewide I) (challenge to
DHS’s collection activities on bonds as to which Statewide has
filed untimely appeals); Statewide Bonding, Inc. v. DHS, 422
F. Supp. 3d 42 (D.D.C. 2019) (Statewide II) (challenge to
DHS’s alleged policy or practice of determining bond breach
following issuance of purportedly defective Notices To Appear
(NTAs) and Notices to Produce Alien (NPAs)); Statewide
Bonding, Inc. v. DHS, 422 F. Supp. 3d 35 (D.D.C. 2019)
1
The defendants in this consolidated appeal are: DHS; United
States Immigration and Customs Enforcement (ICE); the United
States of America; U.S. Citizen and Immigration Services (USCIS);
Acting Secretary of DHS, Chad F. Wolf; Attorney General William
P. Barr; Acting Director of ICE, Matthew T. Albence; Associate
Legal Advisor, Office of the Principal Legal Advisor of ICE, Jody
M. Prescott; and former DHS Secretary, Kirstjen M. Nielsen.
3
(Statewide III) (challenge to DHS’s rejection of bond breach
determination appeals as untimely when mailed before, but
received after, appeal deadline). In three separate decisions, the
district court dismissed all of Statewide’s claims primarily
because DHS has afforded Statewide constitutionally sufficient
process and because the challenged DHS actions are consistent
with the applicable regulations. We affirm all three district
court dismissals in this consolidated appeal.
I. BACKGROUND
A. Statutes and Regulations
ICE, a DHS component, is responsible for overseeing
immigration detention and for carrying out removal orders. See
8 U.S.C. §§ 1226, 1357. ICE may release certain immigrant
applicants from detention while removal proceedings are
ongoing. 8 C.F.R. § 236.1(c). In exercising this authority, ICE
may require the posting of an immigration bond as a condition
of release. See 8 U.S.C. § 1226(a)(2)(A); 8 C.F.R.
§ 236.1(c)(10). The dispute here focuses on DHS’s
administration of the immigration bond system.
Immigration bonds may be secured by a cash deposit. If an
immigrant “cannot post 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 8 C.F.R. § 103.6 (governing surety bonds). To enter
into a bond agreement, a bail-bond company generally requires
that the bond applicant provide collateral as security in the
4
event he fails to appear. Statewide II, 422 F. Supp. 3d at 44. If
the applicant does not have sufficient collateral on hand, he can
contract with a third company, like plaintiff Nexus Services,
Inc., to provide the necessary collateral. Id. at 44–45. Nexus
then contracts with the bail-bond company to provide collateral
and guarantee the applicant’s appearance when required by
ICE; in exchange, the applicant makes monthly payments to
Nexus and agrees to GPS monitoring. Id. at 45.
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. 8 C.F.R.
§ 103.6(e). When ICE declares a bond breached, it notifies the
bond obligor(s) of the breach and the reasons therefor on a
Form I-323 (Notice – Immigration Bond Breached). The
obligor(s) may appeal the bond breach determination to the
USCIS Administrative Appeals Office (AAO) within 33 days
of service of the breach determination. Id. at §§ 103.3(a)(2)(i),
103.8(b). The 33-day appeal period starts when ICE places the
bond breach notice in the mail. Id. at § 103.8(b); see also
USCIS, AAO Practice Manual, § 3.7(c)(1)
(rev. Mar. 11, 2019),
https://www.uscis.gov/sites/default/files/document/aao-
decisions/AAO_DHS_Precedent_Decision_Process_Print_Ve
rsion.pdf [hereinafter AAO Practice Manual].
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
5
bond has been breached creates a claim in favor of the United
States against the obligor(s) on the bond. 8 C.F.R. § 103.6(e).
An obligor that misses the appeal deadline may
nevertheless be entitled to more limited review. Although DHS
regulations require the rejection of “[a]n appeal which is not
filed within the time allowed,” 8 C.F.R. § 103.3(a)(2)(v)(B)(1),
they allow a late-filed appeal to be treated as a motion to reopen
or reconsider if the filing meets the requirements for either
motion, id. at § 103.3(a)(2)(v)(B)(2). In such a case, “the
appeal must be treated as a motion, and a decision must be
made on the merits of the case.” Id. Unlike with a timely
appeal, however, “the filing of a motion to reopen or
reconsider . . . does not stay the execution of any decision in a
case.” Id. at § 103.5(a)(1)(iv); see infra Part II.A.
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
6
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 8 C.F.R. § 103.5(a)(1)(iv)). And because a
final bond breach determination had been made as to the bonds
at issue, DHS was permitted to continue collecting on those
bonds. Id.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.Specifically, Statewide 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 defective 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.
7
Accordingly, the district court granted DHS’s motion for
judgment on the pleadings in Statewide II.
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 the 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 a 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).
8
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 before 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.” 5 U.S.C. § 704. “While the requirement of
finality is not jurisdictional, without final agency action, ‘there
is no doubt that appellant would lack a cause of action under
the APA.’” Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d
1261, 1267 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 1544(2019) (quoting Reliable Automatic Sprinkler Co. v. Consumer
Prod. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003)).
Under DHS regulations, a notice of bond breach must be
appealed to the AAO within 33 calendar days of the date the
notice was mailed. See 8 C.F.R. §§ 103.8(b), 103.3(a)(2)(i).
Thus, final agency action occurs 34 days after DHS mails the
notice of bond breach where, as here, the bond breach
determination is not timely appealed. A notice of bond breach
that has not been timely appealed is final because it “mark[s]
the consummation of the agency’s decisionmaking process”
9
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 agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A); see Nat’l Envtl.
Dev. Assoc.’s Clean Air Project v. E.P.A., 752 F.3d 999, 1009
(D.C. Cir. 2014) (“[A]n agency action may be set aside as
arbitrary and capricious if the agency fails to comply with its
own regulations.”) (internal quotation marks omitted).
The two regulations at issue in Statewide I are 8 C.F.R.
§ 103.3(a)(2)(v)(B)(2) and 8 C.F.R. § 103.5(a)(1)(iv). Section
103.3(a)(2)(v)(B)(2) provides:
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.
2
Statewide relies on Cunningham v. Hamilton Cty., Ohio, 527
U.S. 198 (1999), for the proposition that an untimely appeal renders
the bond breach determination non-final. But Cunningham involved
“whether an order imposing sanctions on an attorney . . . is a final
decision” appealable under 28 U.S.C. § 1291, id. at 200, and is
therefore inapposite.
10
8 C.F.R. § 103.3(a)(2)(v)(B)(2). Statewide asserts that the
untimely appeals at issue meet the requirements of a motion to
reopen or a motion to reconsider. Statewide I, 2019 WL
2076762, at *3. Accordingly, Statewide claims that it is entitled
to a DHS decision on the merits. If Statewide is correct, it
asserts, the bond breach determinations are no longer final and,
thus, DHS cannot collect on the breached bonds while the
untimely appeals remain pending.
On the other hand, DHS argues that 8 C.F.R.
§ 103.5(a)(1)(iv) controls here. Section 103.5(a)(1)(iv)
provides:
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 of any decision in a case or
extend a previously set departure date.
8 C.F.R. § 103.5(a)(1)(iv). DHS is correct. Its regulations make
abundantly clear that an administrative appeal submitted after
the bond breach determination has become administratively
final does not stop collection activity because “the filing of a
motion to reopen or reconsider . . . does not stay the execution
of any decision in a case.” Id.To avoid DHS’s interpretation of § 103.5(a)(1)(iv),
Statewide argues that there is a difference between untimely
“filed” appeals and untimely “accepted” appeals. Utilizing this
distinction, Statewide claims that the act of filing an untimely
appeal does not halt collection of breached bonds unless the
untimely appeal is “accepted” by the AAO.3 Statewide’s
3
Notably, Statewide concedes that there is no evidence in the
record that its untimely appeals have been “accepted.” Nor does
11
argument plainly fails. There is no separate category of
“accepted” untimely appeals in the regulations. An untimely
appeal is filed until disposed of—whether rejected as untimely
or decided on the merits as a motion to reopen or reconsider.
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.” 8 C.F.R. § 103.5(a)(1)(iv). Here, the
bond breach determinations became final because the
determinations were not appealed within the 33-day timeframe
provided. Although § 103.3(a)(2)(v)(B)(2) entitles Statewide
to a decision “on the merits of the case” if the untimely appeals
meet the requirements of a motion to reopen or reconsider,
DHS’s collection on the breached bond does nothing to prevent
Statewide from obtaining such decision. Moreover, if
Statewide prevails on the merits, ICE will refund any payments
it has collected. Statewide I, 2019 WL 2076762, at *3.
Accordingly, DHS’s collection activities on breached bonds
with pending untimely appeals is entirely consistent with DHS
regulations.
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 28
U.S.C. § 1361, a plaintiff must demonstrate that (1) it has “a
clear right to relief,” (2) the agency has “a clear duty to act,”
and (3) it has “no other adequate remedy available.” Power v.
Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (citations
omitted). As the district court correctly concluded, mandamus
jurisdiction of Statewide’s claim is lacking because DHS has
no duty to take the action Statewide requests—namely, to
Statewide’s complaint allege that the untimely appeals have been
“accepted.”
12
refrain from collecting on the bond 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 8 C.F.R. § 103.8(b) and the I-
290B Form Instructions. DHS argues that an administrative
appeal is filed on the date the appeal is received, relying on 8
C.F.R. § 103.2(a)(7)(i). The district court agreed with DHS’s
reading and dismissed Statewide’s claims. Id. at 40. We affirm.
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 8 C.F.R.
§ 103.2(a)(7)(i):
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.
8 C.F.R. § 103.2(a)(7)(i) (emphasis added). The term “benefit
request” is defined as “any application, petition, motion,
appeal, or other request relating to an immigration or
naturalization benefit.” Id. at § 1.2 (emphasis added).
Statewide’s appeals plainly fall within the definition of “benefit
4
The appeals at issue were mailed before the 33-day appeal
deadline but DHS did not receive them until after the 33-day appeal
deadline.
13
request” and so are governed by § 103.2(a)(7)(i). Thus, the
appeals are filed when received for determining timeliness.
Statewide III, 422 F. Supp. 3d at 40.
Moreover, DHS has consistently interpreted the
unambiguous regulations as directing that the filing date for an
appeal is the date the appeal is received. 5 See AAO Practice
Manual § 3.7(c)(2) (“The filing date for an appeal is the day the
USCIS location designated for filing the appeal receives it, not
the date the appellant mailed the appeal.”); Matter of L-I-S-C,
2015 WL 7687020, at *2 (AAO Nov. 4, 2015) (“The date of
filing is not the date of mailing, but the actual date of receipt at
the designated filing location.”) (citing 8 C.F.R.
5
Statewide attempts to argue that DHS has inconsistently
applied the filing deadline without explanation. Statewide’s
argument fails for two reasons. First, Statewide’s complaint contains
no allegation of inconsistent enforcement and therefore the claim is
not properly before us. The “purpose of a motion to dismiss is to
assess the validity of the pleadings.” Henthorn v. Dep’t of Navy, 29
F.3d 682, 688 (D.C. Cir. 1994). Statewide attempted to make the
inconsistent enforcement argument for the first time in its opposition
brief to defendants’ motion to dismiss. And it “is axiomatic that a
complaint may not be amended by the briefs in opposition to a
motion to dismiss.” Coleman v. Pension Benefit Guar. Corp., 94 F.
Supp. 2d 18, 24 n.8 (D.D.C. 2000) (quoting Morgan Distrib. Co.,
Inc., v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989)). To
hold otherwise would mean that a party could unilaterally amend a
complaint at will. See Unidynamic Corp., 868 F.2d at 995.
Accordingly, the inconsistent enforcement claim is not properly
before us.
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.
14
§ 103.2(a)(7)(i)). Accordingly, the AAO’s rejection of
Statewide’s untimely appeals was neither arbitrary nor
capricious.
Seeking to avoid this conclusion, Statewide argues that 8
C.F.R. § 103.8(b) governs the filing of an administrative appeal
and provides that “[s]ervice by mail is complete upon mailing.”
8 C.F.R. § 103.8(b). But the text of § 103.8(b) makes clear that
it speaks to the length of time a party has to respond to a notice
from DHS, not to when an appeal is considered filed.
Specifically, 8 C.F.R. § 103.8(b) provides:
(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. Service by mail is complete upon
mailing.
8 C.F.R. § 103.8(b). A basic principle of statutory and
regulatory interpretation is that the statute or regulation should
be read in context. See PDK Labs. Inc. v. U.S. D.E.A., 362 F.3d
786, 796 (D.C. Cir. 2004). That principle, applied here, leads
to the inescapable conclusion that the statement “[s]ervice by
mail is complete upon mailing” in § 103.8(b) applies only to
service of a notice from DHS, not to an individual’s filing of an
appeal. Statewide’s interpretation would also require us to read
“appeal” out of the definition of “benefit request,” § 1.2.
Accordingly, § 103.8(b) has no bearing on when an
administrative appeal is considered filed; it applies only to
determine when service of a DHS notice occurs.
Statewide further argues that the I-290B Form,
Instructions for Notice of Appeal or Motion, incorporates
15
§ 103.8(b). This argument also plainly fails. The I-290B Form
instructions read, in relevant part:
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 § 103.8(b) but only in the context of “the date of
service of the adverse decision,” not the date of filing an appeal.
Id. The I-290B Form’s citation to § 103.8(b) is therefore
entirely consistent with § 103.8(b)’s application to the service
of government notices only.
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 procedural 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
16
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 whether 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
17
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 8 C.F.R. § 103.6.
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 8 C.F.R. § 103.3(outlining administrative appeals system); AAO Practice
Manual § 3.4 (de novo review), § 3.6 (preponderance of
evidence standard), § 2.5 (ability to hire counsel), § 3.8 (right
to file supplemental brief or additional evidence). Although the
AAO typically bases its decision on the record, it may grant a
written request for oral argument. AAO Practice Manual
§§ 3.8(f), 4.10. The AAO issues a written decision on the
appeal and any party can then move to reopen or reconsider the
decision. Id. § 3.14. If a bond breach determination is timely
appealed, DHS does not collect on the bond until the AAO
issues its written decision on the appeal.
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 31 C.F.R. § 901.2(b) (agency collection action must
inform debtor of any right to seek agency review). If a timely
written request is received, the debt is reviewed and collection
on the debt ceases until a written summary of the review is
provided. J.A. 165 (DHS Invoice). This pre-deprivation review
may result in a finding that the debt is valid, partially invalid or
invalid in its entirety. Statewide II, 422 F. Supp. 3d at 48.
Although less formal than the administrative appeal process,
18
the invoice dispute resolution process affords a bond obligor
another opportunity to obtain pre-deprivation agency review.
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
counterclaimed 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)).
19
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
do so. Statewide’s failure to appeal within the pertinent
deadline does not vitiate Statewide’s due process right. Cf.
Holder v. Gonzales, 499 F.3d 825, 829–30 (8th Cir. 2007)
(Board of Immigration Appeal’s (BIA) dismissal of appeal
filed one day late did not violate petitioner’s due process right);
Malak v. Gonzales, 419 F.3d 533, 535 (6th Cir. 2005) (no error
in BIA’s dismissal of appeal as untimely filed based on
regulations providing notice of appeal is considered filed when
BIA receives it). Accordingly, we affirm the district court’s
dismissals of Statewide’s due process claims in Statewide I,
Statewide II and Statewide III.6
Statewide’s due process claims also fail for an independent
reason—Statewide has not suggested what plausible
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].”
6
Statewide’s APA claim in Statewide II is derivative of its due
process claim. See Statewide II, 422 F. Supp. 3d at 50. Accordingly,
that claim cannot survive for the same reason that Statewide’s due
process claim fails, namely that Statewide has been afforded
sufficient process.
20
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 8 C.F.R. § 103.3(a)(2)(i). It failed to do so.
Moreover, as noted, if Statewide prevails on its untimely
appeals, DHS will refund any payments it has collected.
Statewide I, 2019 WL 2076762, at *3; see also Defs.’ Mem.
Supp. Mot. to Dismiss at 11, Statewide I, No. 18-cv-2519
(D.D.C. May 10, 2019) (“If the AAO considered any of
Plaintiffs’ appeals to be properly-filed motions to reopen and
issued a decision invalidating the bond breach determinations,
ICE would refund any payments for overturned bond
breaches.”). And the post-deprivation remedy available here—
if Statewide were to succeed on the merits of its untimely
appeals—does not violate due process. See, e.g., Dewees v.
United States, 767 F. App’x 4, 7 (D.C. Cir. 2019) (per curiam),
cert. denied, 140 S. Ct. 48 (2019) (per curiam) (post-payment
right to challenge payment of tax penalty in federal court does
not violate due process where plaintiff had two pre-payment
administrative avenues for review).
For the foregoing reasons, the district court’s judgments in
Statewide I, Statewide II and Statewide III are affirmed.
So ordered.