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RUIZ-RIVERA v. MOYER

January 10, 1995

NILSA M. RUIZ-RIVERA, Petitioner,
v.
A.D. MOYER, District Director, Immigration and Naturalization Service, Respondent.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 I. Background2

 Plaintiff's husband Jesus Antonio Rivera-Aristizabal was admitted to the United States as a permanent resident alien on June 4, 1977. Ten years later, on September 25, 1987, he was convicted in the United States District Court for the District of New Mexico of possessing cocaine with the intent to deliver, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. Rivera-Aristizabal was sentenced to a term of seven years incarceration and three years supervised release.

 On July 14, 1988, the INS issued an order to show cause and notice of hearing against Rivera-Aristizabal, charging that he was subject to deportation pursuant to 8 U.S.C. § 1251. Although in custody at the Federal Correctional Institution in Sandstone, Minnesota at the time, he was subsequently transferred to the Federal Detention Center in Oakdale, Louisiana. On February 11, 1991, an immigration judge rejected Rivera-Aristizabal's request for waiver of deportation under Section 212(c) of the Immigration and Nationality Act, and ordered him deported from the United States. On that same date, Rivera-Aristizabal appealed this decision and was released from federal custody on a $ 10,000 bond posted by plaintiff with INS in Chicago, Illinois. As part of the terms of the bond agreement, plaintiff was required to "cause the said alien to be produced . . . to an immigration officer of the United States upon each and every request by such officer . . . ." Defendant's Administrative Record, at 14. Upon his release, Rivera-Aristizabal went to Chicago and remained there until his final deportation.

 The Board of Immigration Appeals affirmed the decision of the immigration judge on June 10, 1991, and a letter was issued to plaintiff on June 21, 1991 requiring her to produce Rivera-Aristizabal to the INS in Oakdale on July 15, 1991 at 9:00 a.m. for deportation. Rivera-Aristizabal was also notified in a letter dated of June 24, 1991, to report to the Oakdale INS facility on July 15 for final deportation.

 On July 2, 1991, Rivera-Aristizabal filed a notice of appeal to the Seventh Circuit challenging the Board of Immigration Appeals ruling. His counsel sent a letter to the INS in Oakdale notifying the agency of his appeal and informing them that such notification created an automatic stay of deportation. Notice of the appeal was also faxed to the INS Oakdale office on July 10, 1991. An INS officer phoned Rivera-Aristizabal's attorney, and informed him that the agency did not consider his filing of a petition for review to stay the deportation, since Rivera-Aristizabal had been convicted of an "aggravated felony" and that a stay could only be obtained by explicit order from the Court of Appeals. See 8 U.S.C. § 1105(a)(3). Rivera-Aristizabal's attorney argued that the "aggravated felony" provision did not apply to his client because it was passed after he was convicted of the narcotic offense. The INS officer informed the attorney of its position that Rivera-Aristizabal was required to appear in Oakdale on July 15 at 9:00 a.m., and that failure to appear would be a breach of his bond agreement.

 On July 11, 1991, Rivera-Aristizabal filed an Emergency Motion for Stay of Deportation before the Seventh Circuit, but this motion was denied the following day because it did not include a copy of the order on review and failed to discuss the requirements for obtaining a stay of deportation. On July 15, 1991, Rivera-Aristizabal filed another Emergency Motion before the Court of Appeals. However, the Seventh Circuit denied this petition because Rivera-Aristizabal did not report to INS at Oakdale until July 16, and was therefore a fugitive and not entitled to any relief.

 On July 16, 1991, INS determined that plaintiff Ruiz-Rivera had substantially violated the stipulated conditions of the bond obligation. See 8 C.F.R. § 103.6(e). The INS Associate Commissioner of Examinations for the Administrative Appeals Unit dismissed plaintiff's appeal of this decision on October 12, 1993, and denied a motion to reopen the appeal on May 23, 1994. Plaintiff filed the instant lawsuit on July 29, 1994, arguing that because Rivera-Aristizabal's failure to appear was not a substantial violation of the bond conditions, the INS's decision was arbitrary and capricious.

 II. Discussion

 A motion for summary judgment will be granted if "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). Once the moving party has met this burden, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c); see Maxwell v. City of Indianapolis, 998 F.2d 431, 433 (7th Cir. 1993). In deciding a motion for summary judgment, the facts must be read in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Defendant contends that Ruiz-Rivera breached her bond agreement because she failed to present Rivera-Aristizabal to the INS on July 15, 1991 as required. Plaintiff does not dispute any material facts, but rather, asserts that the INS decision to consider her bond breached was unlawful, arbitrary and capricious. Although this INS decision is accorded great deference, see Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965), "an administrative interpretation will be given controlling weight only so long as it is not inconsistent with the plain meaning of the regulation or is not clearly erroneous." Bahramizadeh v. INS, 717 F.2d 1170, 1173 (7th Cir. 1983). We must therefore ascertain whether the INS finding of breach was contrary to the plain meaning of the regulation or clearly erroneous.

 Bonds that are posted to ensure the production of aliens upon INS request are "breached when there has been a substantial violation of the stipulated conditions." 8 C.F.R. § 103.6(e). However, where there has been substantial performance of all the conditions of the bond obligation, the obligor will not be held liable. 8 C.F.R. § 103.6(c)(3). The determination of whether a violation was substantial turns on "the extent of the breach, whether it was intentional or accidental on the part of the alien, whether it was in good faith and whether the alien took steps to make amends or ...


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