A-9777327
Decided by Central Office January 31, 1950 Decided by Central Office May 1, 1950
Delivery bond — Section 20, Immigration Act of February 5, 1917 — Responsibility of indemnitor or surety to deliver the alien when demanded for deportation — Defense that alien surrendered himself later — Defense that order of deportation was invalid.
1. A delivery bond was declared breached after formal demand had been made on the surety to deliver the alien for deportation, and the alien had not been surrendered; the fact that the alien later surrendered himself (and was deported) is no excuse for the failure to surrender the alien upon demand; nor is a failure to produce the alien on demand excusable merely because the alien may not be deportable under the order issued against him.
2. An alien's recourse to test the validity of an order of deportation is to the administrative authorities and to the courts; he cannot resolve such issue by absconding.
3. An alien deported on December 1, 1949, is considered to have been deported "pursuant to law," though the warrant hearing was not held in conformance with the provisions of the Administrative Procedure Act of 1946. The law of a case is determined or fixed as it was at the time of the deportation and subsequent interpretation of the law cannot be pleaded to vitiate a former order. Sung v. McGrath was decided by the Supreme Court on February 20, 1950. (See 3 IN Dec. 605, 83.)
BEFORE THE CENTRAL OFFICE
Discussion: On May 11, 1948, a delivery bond in the sum of $1,000 was executed in behalf of the alien and he was released pending the outcome of the deportation proceedings which had been instituted against him. The surety on the bond was the National Surety Co. of New York. On Augus 12, 1949, formal demand was made on the surety company to deliver the alien into the custody of the New York office on August 22, 1949, for deportation. The alien was not surrendered. On August 30, 1949, a letter was directed to the surety company advising of the failure to deliver the alien as directed and granting a period of 10 days within which to submit representations as to why the bond should not be declared breached. No response was received to the letter. On October 28, 1949, an order was entered declaring the bond breached and directing that appropriate steps be taken looking to the collection of the penalty thereunder.
Counsel for the indemnitor has requested that the order declaring the bond breached be withdrawn and that the bond be canceled. In connection with this request he has submitted an affidavit of the indemnitor, in which the indemnitor states that during June 1948 he left for Portugal where he remained until July 1949; that upon return to the United States he did not get in touch with the National Surety Corp. because of other pressing matters of a compelling nature which he had to take care of immediately; that the National Surety Co. depended upon him to produce the alien when demand was made upon him by the Immigration Service; and that because of his absence from the United States, the National Surety Co. was unsuccessful in contacting the alien. The indemnitor goes on to say that on November 2, 1949, immigration officers came to his house and sought information concerning some people and that at that time he turned over to them the above-named alien who had contacted in the meantime for the purpose of surrendering him. The indemnitor feels that the penalty of $1,000 which is being exacted is unfair and unwarranted, and that his failure to produce the alien at the designated time was entirely excusable.
It is noted that demand was not made upon the surety company until August 12, 1949, at which time the indemnitor was back in the United States. He then had until August 20, 1949, to produce him and could easily have done so if he knew the alien's location. As the field office points out it was the duty of the indemnitor to keep apprised of the alien's whereabouts and his failure to do so would not relieve him or the surety company from the responsibility of delivering the alien when demanded.
Delivery bonds are exacted to insure that aliens will be produced when required by this Service for hearings or deportation. They are necessary in order that the Service may discharge its functions in an orderly manner. The courts have taken cognizance of the confusion which would result if aliens could be surrended at any time it suited their or surety's convenience. In Picinich v. Miller (1949) Civil Action 10074, a case which arose in the United States District Court for the Eastern District of Pennsylvania, the court had before it a petition for review of an order entered by this Service declaring a delivery bond breached. In that case the alien had been released under a delivery bond in the sum of $500. Surety was notified to have the alien appear for a hearing before the Philadelphia office of this Service. He was not produced. Sometime later the alien voluntarily surrendered himself. In support of the petition for review the alien made a number of contentions as to why the bond should not have been declared breached. The court disposed of the pertinent one in the following language:
The final contention of petitioner is that his failure to appear should be excused on the ground that he subsequently surrendered himself to the Immigration and Naturalization Service and executed another delivery bond. We are not inclined to accept this contention for to do so would upset the administration of the immigration and naturalization laws. Officials of the Bureau could not depend on attendance at hearings of persons charged with the violation of immigration and naturalization laws. Such persons could disregard or ignore notices of hearings with impunity secure in the knowledge that the penalty provided for in their delivery bond could not be forfeited for such action on their part.
The same reasoning would, of course, apply in the case of an alien who had not been produced for deportation. We find that counsel's request has no merit and it should be denied.
Recommendation: It is recommended that no change be made in the outstanding order of October 28, 1949, declaring the delivery bond breached and directing that appropriate steps be taken looking to the collection of the penalty thereunder.
So ordered.
Discussion: On May 11, 1948, a delivery bond in the sum of $1,000 was executed in behalf of L---- and he was released pending the outcome of the deportation proceedings which had been instituted against him. On March 9, 1949, the Board of Immigration Appeals dismissed his appeal from an order of this Service directing that he be deported to Portugal. No question was then raised as to the validity of the order of deportation. On August 12, 1949, formal demand was made on the surety to deliver L---- to the custody of the New York office on August 22, 1949, for deportation. He was not surrendered. On October 28, 1949, an order was entered declaring the bond breached and directing that appropriate steps be taken looking to the collection of the penalty thereunder. L---- was subsequently taken into custody and was deported on December 1, 1949. On January 31, 1950, an order was entered denying counsel's motion that the order declaring the bond breached be withdrawn and that the bond be canceled.
Counsel has again requested reconsideration. On February 27, 1950, he addressed the following letter to this Service:
I have your decision of January 31, 1950, in the above matter. In view of the case of Sung vs. United States, it is obvious that deportation proceedings against the above-named were improperly held.
Upon the basis of these hearings, a warrant of deportation was issued. There is no question but that the warrant had no force and effect.
It is, therefore, contended that the failure to appear for deportation at the designated time could not result in forfeiture of a bond predicated upon an ineffective order.
It is requested, therefore, that your instructions with reference to a forfeiture of the bond be withdrawn and that the indemnitor thereon be released from any liability.
In the case referred to by counsel, the Supreme Court of the United States reversed the United States Court for the District of Columbia and the Court of Appeals in their interpretation of the Administrative Procedure Act of June 11, 1946, by holding that deportation proceedings must conform to its requirements. Until the Supreme Court's decision this Service and a majority of the courts were of the opinion that the Administrative Procedure Act was inapplicable to deportation proceedings. It is conceded that the hearing which led to L----'s deportation was not held in conformance with that act.
Sung v. McGrath, No. 154 — October term 1949; decided Feb. 20, 1950.
Counsel is making a collateral attack on L----'s deportation when he advances, what, in effect, is a contention that the Supreme Court's decision has a retrospective application, and that the entire proceeding which led to the breach of the bond had no validity.
The courts have faced similar situations where after an adverse decision has been reached and accepted in one case, a similar case goes before a higher court on appeal and is reversed because of a change in interpretation by law. One such case is Warring v. Colpoys, 122 Fed. 642 (1949) certiorari denied Nov. 10, 1941). In that case Warring had been convicted on February 24, 1939, of contempt of court, following a plea of guilty in a United States District Court. Thereafter in 1941 in another case ( Nye v. U.S., 61 S. Ct. 810 (1941)) in which the facts were similar, the matter went to the Supreme Court of the United States which held that the acts which were done did not constitute contempt. Warring then applied for writ of habeas corpus on the basis that he had been improperly convicted. The Government, in effect, conceded that if Warring's case had arisen after the Supreme Court's decision he would not have been convicted. The writ was dismissed in the District Court and Warring appealed. The Court of Appeals rhetorically asked the following question:
See also U.S. v. Kunz, 163 F. (2d) 344 and Sunal v. Large, 67 S. Ct. 1588 (1947). In the Kunz case the Court made the following comment:
"After Kunz was subject to a decree of denaturalization he took no appeal. He cannot now employ a bill of review as a substitute for an appeal even on the ground that the Supreme Court in the Baumgartner case had charged what was supposed to be the law. As that court said per Pitney, J., in Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88, 42 S. Ct. 196, 66 L. Ed. 475, "a change in the authoritative rule of law, resulting from a decision by this court announced subsequent to the former decree, neither demonstrates an "error of law" apparent upon the face of that decree nor constitutes new matter in pais justifying a review." See also Scotten v. Littlefield, 235 U.S. 407, 411, 35 S. Ct. 125, 59 L. Ed. 289. In Sunal v. Large, 67 S. Ct. 1588, an attempt was made to use a writ of habeas corpus as a substitute for an appeal. In that situation Mr. Justice Douglas expressed the same view we are taking as to the use of a bill of review. His words seem most pertinent and were as follows: `If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable. Wise judicial administration of the Federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.'"
Is one entitled to a discharge under a writ of habeas corpus where the court had power under the statutory construction to punish his acts in a criminal contempt proceeding at the time the acts were done and the sentence imposed, the court not having such power under a new statutory construction at the time the writ of habeas corpus was filed?
In answer the court pointed out, in effect, that the doctrine of res judicata was applicable, and then went on to say:
We believe that appellant is not entitled to discharge upon the habeas corpus writ. The District Court had the power to sentence him in a criminal proceeding in 1939. The Nye case of 1941 should not be applied so as to sweep away that power as of 1939.
It is true that the decisions of this Service cannot constitute res judicata in a technical sense. However, the same considerations which have impelled the courts to employ a strict rule of res judicata are present in deportation cases. Thus, when aliens have been deported or for other reasons are no longer within the jurisdiction of this Service, the decision in their cases must be considered final and direct or collateral attacks rejected; otherwise there would be no end to such cases. There have been many cases where aliens were deported under certain provisions of the immigration laws and subsequently changes were made in the interpretations to be given those provisions either by the courts or by the administrative authorities, which would have prevented such deportations, but no one has ever successfully contended that such aliens were not deported "in pursuance of law." Indeed, in a recent case where the issue was raised, the Board of Immigration Appeals pointedly remarked:
Pearson v. Williams, 202 U.S. 281 (1906).
Tan v. Phelan, 333 U.S. 6 (1948); Perkins v. U.S. ex rel. Malesevic, 99 F. (2d) 255 (1938); Matter of P----, A-1217330 (1946).
Matter of R----, A-3844720 (1949).
The facts in the * * * case more than satisfy the rules laid down by most of the courts, until the decision in Tan v. Phelan, supra. Respondent had to be deported "in pursuance of the law," and he was so deported. The law of a case is determined or fixed as it was at the time of the deportation. Subsequent laws or interpretation of laws cannot be pleaded to vitiate a former order. As was said in U.S. ex rel. Koehler v. Corsi, 60 F. (2d) 123 (C.C.A. 2d, 1932), "* * * It is now too late to attack that deportation as one not in pursuance of law."
It is, therefore, concluded that L---- was deported in pursuance of law and that the legality of such deportation is not open to direct or collateral attack. The logical corrollary to this is, of course, that the order upon which his deportation was predicated was valid. With this in mind consideration may now be given to the factors involved in the breach of the bond.
Section 20 of the Immigration Act of February 5, 1917, provides, among other things:
Pending the final disposition of the case of any alien * * * taken into custody, he may be released under bond and the penalty of not less than $500 with security approved by the Attorney General, conditioned that such alien shall be produced when required for a hearing or hearings in regard to the charge upon which he has been taken into custody, and for deportation if he shall be found to be unlawfully within the United States. [Italic added.]
The terms of the bond were couched in the language of the statute. It is to be noted that the condition precedent to a demand for production for deportation is a finding that the alien is unlawfully within the United States. At the time demand was made on surety to produce L---- such finding had been made and an order to that effect had been entered. Since such order was valid, the demand based on that order was proper, and the failure of the surety to produce L---- for deportation breached the conditions of the bond.
It might also be pointed out that even if it were to be assumed, as counsel has done, that the order of deportation was ineffective, the bond could still properly have been declared breached. Thus, with respect to bail bonds merely because
While it is realized that the statute governing the release under bond of aliens in deportation proceedings varies widely from those having to do with the release of persons in criminal proceedings, the analogy is apparent.
* * * the indictment or information is defective, or the principal innocent, or the fact that prosecution against the principal is barred by the statute of limitations, have been held to constitute no defense to an action on a bail bond or recognizance as the sureties' undertaking was to answer for their principal's appearance, and these matters have nothing to do with his failure to appear, constituting a breach of the condition. It has also been held that the fact that the indictment was quashed is no defense, where the judgment of forfeiture was entered before the indictment was quashed.
Similarly, because an alien may not be deportable under the order issued against him would not excuse the surety's failure to produce him. The surety is bound by the terms of the bond, cannot determine whether such alien has been legally ordered deported, and must produce him on demand. The alien's recourse thereafter would be to the administrative authorities and the courts. He cannot resolve the issue by absconding.
Upon the basis of the foregoing it is found that the order of October 28, 1949, declaring the outstanding delivery bond breached and directing that appropriate steps be taken looking to the collection of the penalty thereunder was properly entered and no change should be made therein.
Recommendation: It is recommended that no change be made in the outstanding order of October 28, 1949, declaring the delivery bond breached and directing that appropriate steps be taken looking to the collection of the penalty thereunder.
So ordered.