Nyuwa v. Field Office Director et al

Filing 63

Opinion and Order: The Court GRANTS Respondents' Motion for Summary Judgment 47 and DISMISSES this matter with prejudice. See attached 15 page Opinion and Order for full text. Signed on 09/08/2015 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JEREMY A. NYUWA,
Petitioner,

3:13-cv-01275-BR
OPINION AND ORDER

v.
FIELD OFFICE DIRECTOR,
Immigrations and Customs
Enforcement, Portland,
Oregon; ADMINISTRATIVE
APPEALS OFFICE, Washington,
D.C.; LORETTA LYNCH, Attorney
General of the United States;
and JEH JOHNSON, Secretary of
the Department of Homeland
Security, 1
Respondents.

1

Pursuant to Federal Rule of Civil Procedure 25(d), Jeh
Johnson, Secretary of Homeland Security, is substituted for
former Secretary Janet Napolitano and Loretta Lynch, Attorney
General of the United States, is substituted for former Attorney
General Eric Holder, Jr.
1

OPINION AND ORDER

JEREMY A. NYUWA

2137 S.E. 130'" Avenue
Portland, Oregon 97233

Pro Se Petitioner
BILLY J. WILLIAMS
Acting United States Attorney
JAMES E. COX, JR.
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
[phone]
Attorneys for Respondents

.BROWN, Judge.
This matter comes before the Court on Respondents' Motion
(#47)

for Summary Judgment.

On March 24, 2015, the Court sent a

Summary Judgment Advice Notice

(#48) to Petitioner Jeremy Nyuwa

in which the Court informed him of the procedures, deadlines, and
evidentiary requirements that apply to a motion for summary
judgment.
For the reasons that follow the Court GRANTS Respondents'
Motion (#47) for Summary Judgment and DISMISSES this matter with
prejudice.

BACKGROUND
The following facts are undisputed in the record on summary

2

OPINION AND ORDER

judgment: 2
Petitioner is a native and citizen of Nigeria who entered
the United States as a student in 1998.

On November 4, 2004, an

Immigration Judge (IJ) denied Petitioner's petitions for asylum
and other relief.

On March 2, 2006, the Board of Immigration

Appeals (BIA) dismissed Petitioner's appeal of the IJ's decision,
but "reinstated the grant of voluntary departure.•

Petitioner,

however, failed to voluntarily depart the United States, and,
therefore, the order of voluntary departure converted to a
removal order.
Petitioner sought relief from the removal order on various
grounds including ineffective assistance of counsel.

On

January 23, 2013, after the BIA rejected Petitioner's efforts to
obtain relief from removal, Petitioner petitioned for review in
the Ninth Circuit Court of Appeals.

That petition remains

pending, and Petitioner's removal is, therefore, stayed pending
appeal.
On April 5, 2012, the Immigration Court held a bond
redetermination hearing at which the government argued Petitioner

2

Although Petitioner expresses disagreement with some facts
contained herein and makes arguments based on additional facts,
Petitioner has not made any evidentiary showing sufficient to
create a genuine dispute of material fact as to any fact herein
or to support Petitioner's proposed additional facts.
In light
of the fact that the Court advised Petitioner of the evidentiary
requirements on summary judgment in the Summary Judgment Advice
Notice, the Court will not consider Plaintiff's unsupported
factual allegations.
3

OPINION AND ORDER

should be denied bond because he represents a flight risk.

The

Inunigration Court agreed Petitioner represents a flight risk.
The court, however, concluded "$30,000.00 will secure his
appearance if he is required to report for removal or a future
Inunigration Court proceeding."
On September 18, 2012, Jason Sinunonds posted the $30,000.00
bond for Petitioner in Portland, Oregon.

The Inunigration Bond

signed by Sinunonds (Bond Agreement) provided as follows:
(1) BOND CONDITIONED UPON THE DELIVERY OF AN ALIEN.
In
consideration of the granting of the application of the
above alien for release from custody under a warrant of
arrest issued by the Attorney General charging that
he/she is unlawfully in the United States, provided
there is furnished a suitable bond as authorized by
Section 236 and/or Section 241 of the Inunigration and
Nationality Act, the obligor hereby furnishes such bond
with the following conditions if: (1) the alien is
released from custody and if the obligor shall cause
the alien to be produced or to produce himself/herself
to an inunigration officer or an inunigration judge of
the United States, as specified in the appearance
notice, upon each and every written request until
exclusion/deportation/removal proceedings in his/her
case are finally terminated; (2) the said alien is
accepted by the OHS for detention or
deportation/removal; or (3) the bond is otherwise
canceled, this obligation shall terminate.
If,
however, the obligor fails to surrender the alien in
response to a timely demand while the bond remains in
e°ffect, the full amount of the bond (see paragraph C
above) becomes due and payable.
The obligor further
agrees that no order issued by or under the authority
of the Attorney General or Secretary of Homeland
Security by virtue of which issuance or execution of
any order of deportation/removal is or may be deferred,
shall be in any manner construed to impair or render
void this obligation or any part thereof.
Sinunonds also signed a form entitled "Bond Obligor

4

OPINION AND ORDER

Responsibilities" in which Simmonds acknowledged the following
responsibilities:
1. You must be able to present the Subject to an
Officer of this Service each and every time a demand is
made. of you.

* * *
3. The Bond will remain in effect until the case is
resolved.
The case is resolved only when the Subject
is found to be legal in the United States or until a
legal departure is verified.

* * *
7.
If you fail to receive notice and/or fail to
surrender the Subject upon demand, you will forfeit the
Bond.

* * *
10.
If you ever have reason to believe that you are
not going to be able to guarantee the delivery of the
Subject of the DHS/ICE-ERO upon demand, you may have
your bond cancelled by returning the Subject to the
custody of this Service.
Both Petitioner and Simmonds represented Petitioner would reside
at an address on S.E. 71"' Avenue in Portland, Oregon.

In the

event Petitioner moved while he was released on bond, Immigration
and Customs Enforcement (ICE) informed Simmonds that it was very
important that Petitioner submit a Form AR-11 informing ICE of
any change of address.
At some point after Simmonds posted bond for Petitioner the
government became aware that Petitioner was living at an address
in Seattle, Washington.

ICE did not have a Form AR-11 on file

that notified ICE of the change of address.
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OPINION AND ORDER

In addition, at this

time ICE discovered it did not have a valid travel document on
file for Petitioner.
Accordingly, on January 3, 2013, ICE sent to Petitioner and
Simmonds a Notice to Obligor to Deliver Alien to an address in
Portland at lO:DO a.m. on January 24, 2013, to "discuss your
immigration status."
On January 17, 2013, Petitioner called the ICE Seattle Field
Off ice to inform ICE that· he did not believe he was obligated to
come to the appointment.

That same day Simmonds went to the

Portland Field Office with a signed but undated Form AR-11 that
indicated Petitioner's address had changed to an address in
Seattle, Washington, but Simmonds indicated Petitioner was not
required to present himself because of his pending appeal in the
Ninth Circuit Court of Appeals.

An ICE official, Jeffrey Chan,

informed Simmonds that Petitioner had a duty to present himself
at the appointment and that failure to do so could lead to a
breach of the bond.
As noted, on January 23, 2013, the day before Petitioner's
appointment, Petitioner filed his appeal in the Ninth Circuit
Court of Appeals.

As a result, a stay of Petitioner's removal

was issued.
That same day (January 23, 2013) Simmonds called Chan and
informed him that Petitioner had stated he did not need to appear
due to his petition for review.

6

OPINION AND ORDER

Chan advised Simmonds that

Petitioner was required to appear and that the bond would be
forfeited if he failed to do so.

Simmonds also called Chan a

second time on the afternoon of January 23, 2013, and Chan again
insisted Petitioner was required to present himself at the ICE
office and that failure to do so would be a breach of the bond.
Petitioner also called Chan that day and informed him that
he was not required to appear for his appointment.

Chan,

however, informed Petitioner that he was required to appear for
the purpose of completing a change of address card and a traveldocument application.

Petitioner called Chan again later that

afternoon and insisted that ICE had a travel document on file and
that he did not have to appear for the appointment.

Chan

informed Petitioner that he would not be detained at the
appointment, but that Petitioner was required to appear because
the travel document that ICE had on file had expired and
Petitioner needed to complete an application for a new one.
Petitioner called Chan at the time of the scheduled
appointment on January 24, 2013, and asked if it was correct that
he would not be detained if he appeared.

Chan again informed

Petitioner that ICE did not have any intention of detaining him
at the appointment, but Petitioner would be breaching his bond if
he failed to appear for the appointment.

At the conclusion of

this conversation Petitioner stated he would not appear for the
appointment and intended to appeal any finding of breach.

7

OPINION AND ORDER

Approximately 45 minutes later Petitioner called Chan again and
informed him that he had read the terms of the bond and did not
believe he was required to present himself at the appointment.
Petitioner did not appear for the January 24, 2013,
appointment.
On January 29, 2013, the ICE Field Office Director
determined the bond was breached and sent notice of the breach to
Simmonds.
On February 26, 2013, Simmonds filed an appeal of the bond
breach decision in which he contended (1) the bond conditions
were not violated because he was only required to produce
Petitioner (and Petitioner was only required to appear) for
either removal or for formal Immigration Court hearings, and
(2) the record contained a valid travel document and change of
address for Petitioner.
On May 15, 2013,- the United States Citizenship and
Immigration Service's Administrative Appeals Office dismissed the
appeal after determining that neither the terms of the bond nor
the Immigration Judge's order limited Simmonds's duty to present
Petitioner (or Petitioner's duty to appear) to only formal
Immigration Court proceedings or removal.
On July 23, 2013, Petitioner filed this action in which he
seeks review of the ICE Field Director's bond breach
determination under the Administrative Procedure Act (APA).

8

OPINION AND ORDER

STANDARDS

Summary judgment is appropriate when there is not a "genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."

Washington Mut.

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

Ins.

v. United

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

See also Emeldi v. Univ. of

Or., 673 F.3d 1218, 1223 (9th Cir. 2012).

In response to a

properly supported motion for summary judgment, the nonmoving
party must go beyond the pleadings and point to "specific facts
demonstrating the existence of general issues for trial." n re
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
"This burden is not a light one

The non-moving party

must do more than show there is some 'metaphysical doubt' as to
the material facts at issue."

Id.

(citation omitted).

A dispute as to a material fact is genuine ''if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc.,

281 F.3d

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby,
Inc.,

477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc.,

606 F. 3d 584, 587

(9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn

9

OPINION AND ORDER

from the evidence as to material issues."
381 F.3d 948, 957

Easter v. Am. W. Fin.,

(9th Cir. 2004) (citing Sherman Oaks Med. Arts

Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
A "mere disagreement or bald assertion" that a genuine
dispute as to a material fact exists "will not preclude the grant
of summary judgment."

Deering v. Lassen Cmty. Coll. Dist., No.

2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2

(E.D. Cal., Jan. 20,

2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
19.89)).
2010).

See also Moore v. Potter, 701 F. Supp. 2d 1171 (D. Or.
When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citing Blue Ridge

Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
Immigration bond breach determinations by the government are
reviewed under the APA.
10

OPINION AND ORDER

United States v. Gonzalez & Gonzalez

Bonds and Ins. Agen., Inc.,

2010).

728 F. Supp. 2d 1077, 1096 (N.D. Cal.

Accordingly, the court will only set aside the agency's

bond breach determination if it is "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law."
5 U.S.C. § 706(2) (A).
The Immigration and Nationality Act provides the Secretary
of Homeland Security "shall establish such regulations; prescribe
such forms of bond, reports, entries, and other papers; issue
such instructions; and perform such other acts as he deems
necessary for carrying out his authority under the provisions of
this chapter."

8 U.S.C. § 1103(a) (3).

Department of Homeland Security regulations provide:
A bond is breached when there has been a substantial
violation of the stipulated conditions. A final
determination that a bond has been breached creates a
claim in favor of the United States which may not be
released or discharged by a Service officer.
The
district director having custody of the file containing
the immigration bond executed on Form I-352 shall
determine whether the bond shall be declared breached
or cancelled, and shall notify the obligor on Form
I-323 or Form I-391 of the decision, and, if declared
breached, of the reasons therefor, and of the right to
appeal in accordance with the provisions of this part.
8 C.F.R. § 103.6(e).
is substantial,
the breach;

When "evaluating whether a bond violation

[courts] look to four factors:

(1) the extent of

(2) whether it was intentional or accidental on the

part of the alien;

(3) whether it was in good faith; and

(4) whether the alien took steps to make amends or place himself
in compliance."
11

Ruiz-Rivera v. Moyer, 70 F.3d 498, 501 (7th Cir.

OPINION AND ORDER

1995).

Accordingly, this Court must determine whether

Respondents' "decision that the bond conditions were
substantially violated was plainly erroneous or inconsistent with
8 C.F.R. § 103.6(e) ."

Id.

Respondents contend this is a straightforward case:
Respondents made a timely demand that Simmonds ensure
Petitioner's presence at the appointment and that Petitioner
appear at the appointment.

Simmonds failed to do so and

Petitioner failed to appear, both resulting in a substantial
breach of the Bond Agreement.

Respondents contend, therefore,

ICE's breach determination was not arbitrary or capricious.
Petitioner, on the other hand, contends there was not any
substantial violation of the Bond Agreement on the grounds that
(1) the Notice to Deliver Alien was defective because the only
stated reason for requiring the appointment was to "discuss your
immigration status," (2) the requested appointment did not bear
any rational relationship to the purposes for which Petitioner
had submitted a valid Form AR-11 and travel document to
Respondents,

(3) the Immigration Judge limited the purposes for

which Respondents could demand his appearance when he stated
"$30,000.00 will secure his appearance if he is required to
report for removal or a future Immigration Court proceeding," and
(4) Respondents acted in bad faith by falsely representing that
they did not have a valid travel document on file and declining

12

OPINION AND ORDER

to file Petitioner's entire A-file in the record.
The Court finds Petitioner's arguments are not persuasive.
Although the stated reason for the appointment in the Notice to
Deliver Alien could have been more specific, there is not any
provision in the Bond Agreement that requires Respondents to
provide a more specific reason for requiring Petitioner to appear
at an appointment.

Moreover, any lack of specificity in the

initial Notice to Deliver Alien was remedied when Chan informed
Petitioner and Simmonds of the purpose of the appointment on
multiple occasions.
The Court also notes there is not any evidence in the record
that demonstrates Respondents had a valid travel document on
file.

Although Respondents provided Petitioner with a copy of

his A-file during discovery,

Petitioner has not submitted

evidence sufficient for consideration on summary judgment (see

generally Summary Judgment Advice Notice (#48)) that a valid
travel document was in his A-file at the time that Respondents
required Petitioner's presence at the appointment.

Accordingly,

because there is not any evidence in the record to contradict
Respondents' showing that they did not have a valid travel
document on file at the time, there is not a genuine dispute of
material fact on this record as to whether Respondents had a
reasonable basis for requiring Petitioner's presence at the
appointment.

13

OPINION AND ORDER

The Court also is not persuaded by Petitioner's argument
that the Immigration Judge intended to limit the purposes for
which Respondents could require Petitioner to present for an
appointment.

The Bond Agreement itself does not limit

Respondents' ability to require Petitioner to appear for a
meeting, and the Immigration Judge's statement that "$30,000.00
will secure his appearance if he is required to report for
removal or a future Immigration Court proceeding" is most
naturally read to refer to two common reasons for which
Respondents require an alien to appear at the Field Office rather
than to limit the purposes for which Respondents could demand
Petitioner's presence.

Moreover, there is not any evidence in

the record that indicates Respondents were acting in bad faith
when they demanded Petitioner's presence at the meeting or when
they filed in the record only that portion of Petitioner's A-file
most relevant to the bond breach determination.
In addition, each of the factors set out in Ruiz-Rivera
support Respondents' finding that Simmonds's failure to ensure
Petitioner's presence at the appointment and Petitioner's refusal
to appear at the appointment were substantial violations of the
Bond Agreement.

See 70 F.3d at 501.

The extent of the breach

was significant, intentional, and not in good faith.
Petitioner's contention at the time of his refusal that he was
not required to appear under the terms of the Bond Agreement was

14

OPINION AND ORDER

unreasonable because the Bond Agreement unambiguously provides
Simmonds were required to present Petitioner and Petitioner was
required to appear before an immigration official "upon each and
every written request" to do so.

Finally, Petitioner did not

take any steps to make amends or to bring himself into compliance
with the terms of the conditions of his bond.
On this record, therefore, the Court concludes Respondents'
determination that Petitioner substantially violated the terms of
the Bond Agreement was not "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law," and,
therefore, Respondents are entitled to summary judgment.

CONCLUSION

For these reasons, the Court GRANTS Respondents' Motion
(#47). for Summary Judgment and DISMISSES this matter with
prejudice.

IT IS SO ORDERED.
DATED this 8th day of September, 2015.

ANNA J. BROWN
United States District Judge

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OPINION AND ORDER