 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                          NO. 28,146

10 MANUEL RODRIGUEZ-RIVERA,

11          Defendant,

12 and

13 A-AFFORDABLE BAIL BONDS, LLC,

14          Surety-Appellant.

15 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
16 Kenneth H. Martinez, District Judge

17   Gary K. King, Attorney General
18   Santa Fe, NM
19   Max Shepherd, Assistant Attorney General
20   Albuquerque, NM

21 for Appellee

22 Law Offices of Mel B. O’Reilly
23 Mel B. O’Reilly
24 Albuquerque, NM

25 for Surety-Appellant
 1                            MEMORANDUM OPINION

 2 BUSTAMANTE, Judge.

 3        Surety A-Affordable Bail Bonds (A-Affordable) appeals from the district

 4 court’s judgment entering forfeiture of a bond it posted on behalf of Defendant

 5 Manuel Rodriguez-Rivera. Defendant failed to appear after he was taken into the

 6 custody of Immigration and Customs Enforcement (ICE) and deported. The district

 7 court denied relief from forfeiture on the basis that it was reasonably foreseeable to

 8 A-Affordable that Defendant would be deported on posting bond. We hold that

 9 because the State never released Defendant on the bond and instead surrendered him

10 to federal agents to be deported, the district court abused its discretion in ordering

11 forfeiture of the bond. We therefore reverse.

12 I.     FACTUAL AND PROCEDURAL HISTORY

13        Defendant is a Mexican national. On July 12, 2006, Defendant was arrested

14 and charged with two counts of trafficking heroin by distribution and one count of

15 tampering with evidence. When he was booked into the Bernalillo County Detention

16 Center, Defendant listed his place of birth as Mexico and gave an address in Nayarit,

17 Mexico. At Defendant’s arraignment, the district court set bond in the amount of

18 $10,000 cash or surety and imposed standard conditions of release. On September 14,

19 2006, A-Affordable posted bond on Defendant’s behalf. The bonding paperwork


                                             2
 1 revealed A-Affordable’s address and telephone number as Defendant’s address and

 2 phone number.

 3        The State did not release Defendant from custody on posting of the bond.

 4 Instead, the State transferred Defendant from the Regional Correctional Facility to the

 5 Metropolitan Detention Center (MDC). On September 15, 2006, MDC officials

 6 surrendered Defendant to the custody of ICE agents. Defendant was subsequently

 7 deported to Mexico. At that time, the State apparently did not inform A-Affordable

 8 that Defendant had not been released on the bond and had been handed over to ICE

 9 agents.

10        On January 17, 2007, Defendant failed to appear at a hearing on the State’s

11 motion to review conditions of release. The district court issued a bench warrant and

12 declared the $10,000 bond forfeited, and issued an order to show cause to A-

13 Affordable why judgment of forfeiture should not be entered. Between February and

14 August 2007, A-Affordable appeared before the district court multiple times seeking

15 extensions of time to produce Defendant, asserting that it was making good faith

16 attempts to locate him. During this time, both the prosecutor and A-Affordable were

17 apparently unaware that Defendant had been surrendered to ICE agents upon posting

18 bond and subsequently deported.




                                              3
 1        On August 10, 2007, A-Affordable appeared and informed the district court that

 2 it had information that Defendant had been deported. On September 25, 2007, A-

 3 Affordable filed a motion to exonerate the bond. The district court denied the motion

 4 and entered judgment of forfeiture.          A-Affordable then filed a motion for

 5 reconsideration. At the hearing on the motion for reconsideration, A-Affordable

 6 argued that, because Defendant was deported by federal authorities prior to the time

 7 of trial, it should be relieved from its obligations under the bond under NMSA 1978,

 8 Section 31-3-4(E)(3) (1972) (stating that the district court shall discharge a surety

 9 from its obligations under the bond where “circumstances have arisen which the

10 surety could not have foreseen at the time it became a paid surety for the accused”).

11 The district court denied the motion. In its written findings, the court determined that

12 under the circumstances, it was reasonably foreseeable to A-Affordable that

13 Defendant would be removed from the country upon posting of the bond. A-

14 Affordable appeals.

15 II.    ANALYSIS

16        When a defendant fails to appear, the district court has discretion to order

17 forfeiture of a bail bond pursuant to NMSA 1978, Section 31-3-2(B)(2) (1993). See

18 § 31-3-2(B)(2) (stating that the district court “may declare a forfeiture of the bail” on

19 a defendant’s failure to appear); § 31-3-2(C) (providing that the district court may set


                                               4
 1 aside forfeiture “if it appears that justice does not require the enforcement of the

 2 forfeiture”); § 31-3-2(E) (providing that at the hearing on the order to show cause why

 3 judgment should not be entered on the forfeiture, “[i]f good cause is not shown, the

 4 court may then enter judgment against the [bondsmen] for such sum as it sees fit, not

 5 exceeding the penalty fixed by the bail bond or recognizance”); see also State v.

 6 Pacheco, 2008-NMCA-055, ¶ 25, 143 N.M. 851, 182 P.3d 834 (noting that “the

 7 district court has discretion, but is not required, to declare . . . forfeiture” of a bail

 8 bond when the defendant fails to appear).

 9        We review the district court’s decision to forfeit a bond for abuse of discretion.

10 See id. “A trial court abuses its discretion when a ruling is clearly against the logic

11 and effect of the facts and circumstances, or when the ruling is contrary to the

12 reasonable, probable, and actual deductions that may be drawn from the facts and

13 circumstances.” State v. Soto, 2007-NMCA-077, ¶ 10, 142 N.M. 32, 162 P.3d 187

14 (internal quotation marks and citation omitted). In considering whether a district court

15 abuses its discretion in ordering forfeiture of a bail bond or in denying a motion to set

16 aside forfeiture, we consider the nature and purpose of a bail bond as well as the

17 actions of the surety in the present case. See Pacheco, 2008-NMCA-055, ¶ 26; State

18 v. Amador, 98 N.M. 270, 273, 648 P.2d 309, 312 (1982).




                                               5
 1         A bail bond is a type of contract in which the State agrees to release the

 2 defendant from custody and the surety guarantees the defendant’s appearance before

 3 the court. See State v. Valles, 2004-NMCA-118, ¶ 10, 140 N.M. 458, 143 P.3d 496

 4 (“When a bondsman posts bond for a defendant, he enters into a contract with the state

 5 under which he guarantees that the defendant will appear as directed by the court.”);

 6 see also State v. Ericksons, 106 N.M. 567, 567-68, 746 P.2d 1099, 1099-100 (1987)

 7 (stating that a bail bond is a type of contract between the state on the one hand and the

 8 principal and his surety on the other and is subject to the rules of contract law);

 9 Amador, 98 N.M. at 271, 648 P.2d at 310.

10         “The release of a defendant on a bail bond serves important interests. It gives

11 effect to the presumption of innocence by not subjecting an accused to imprisonment

12 until his guilt is prove[d] beyond a reasonable doubt, and it advances the sound

13 administration of justice because the surety insures the defendant’s presence before

14 the court in accordance with its orders and directives.” Valles, 2004-NMCA-118,

15 ¶ 10.    The purpose of a bail bond is to obtain the defendant’s release from

16 imprisonment and to secure his appearance before the court. Id. “Bail is not a source

17 of revenue for the [S]tate.” Amador, 98 N.M. at 273, 648 P.2d at 312. New Mexico

18 recognizes a public policy to encourage bondsmen to enter into bail contracts. See id.

19 (“In order to promote the purpose of bail, it is desirable that bondsmen be encouraged


                                               6
 1 to enter into bail contracts.”); Valles, 2004-NMCA-118, ¶ 12 (stating that it is public

 2 policy to encourage bail contracts and strict application of bond forfeiture statutes

 3 discourages bondsmen from entering into bail contracts).

 4        Applying these principles to the circumstances of this case, we believe that the

 5 district court abused its discretion in ordering forfeiture of the bond. The key fact is

 6 that the State never released Defendant on the bond and instead surrendered him to

 7 federal ICE agents for deportation. In Amador, the Supreme Court held that the

 8 district court abused its discretion in ordering forfeiture of the bond where the

 9 defendant was incarcerated in Texas when he failed to appear at trial. 98 N.M. at 273-

10 74, 648 P.2d at 312-13. The Court held that justice did not require forfeiture of the

11 entire amount of the bond, noting that the bondsman had not connived with the

12 defendant to avoid justice, the bondsman made appropriate efforts to recover the

13 defendant, and the State was not unduly prejudiced by the defendant’s failure to

14 appear. Id. at 274, 648 P.2d at 313. The Court stated that “it is unjust to enrich the

15 state treasury when a bondsman has been diligent in his efforts to apprehend and bring

16 back for trial a defendant but has been thwarted by the actions of another sovereign

17 jurisdiction.” Id.

18        The same reasoning applies here where the State never released Defendant on

19 the bond and instead transferred him to federal authorities for deportation. When the


                                              7
 1 State transferred Defendant to federal authorities, it thwarted A-Affordable’s ability

 2 to ensure Defendant’s appearance before the court. Additionally, Defendant was

 3 never at large before he was deported. Cf. State v. United Bonding Ins. Co., 81 N.M.

 4 154, 158, 464 P.2d 884, 888 (1970) (holding that the district court did not abuse its

 5 discretion in denying relief from forfeiture on the basis of the principal’s incarceration

 6 in a foreign jurisdiction where the defendant had escaped and was at large and subject

 7 to apprehension by the bondsman for a portion of the relevant time). Finally, any

 8 prejudice suffered by the State occasioned by Defendant’s failure to appear was

 9 minimal and of the State’s own making. We note that Defendant failed to appear at

10 a hearing on the State’s motion to review conditions of release. As the State never in

11 fact released Defendant, we do not believe that the State has suffered undue prejudice

12 from Defendant’s absence at that hearing. See Amador, 98 N.M. at 274, 648 P.2d at

13 313 (considering whether the State suffers undue prejudice from a defendant’s failure

14 to appear in reviewing the district court’s order forfeiting bond).         The State

15 attempts to distinguish Amador, arguing that in cases involving defendants who are

16 present in this country without authorization, there is a known risk of deportation that

17 does not exist with citizens. The State argues that, if A-Affordable knew or should

18 have known that Defendant was deportable when it wrote the bond, then forfeiture of

19 the bond is warranted. The State relies on Castaneda v. State, 55 S.W.3d 729, 732


                                               8
 1 (Tex. App. 2001), aff’d in part and rev’d in part, 138 S.W.3d 304 (Tex. Crim. App.

 2 2003) (en banc), in which the court denied relief from bond forfeiture on the basis that

 3 the bondsman voluntarily assumed the risk that the principals would be deported. But

 4 see In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d 199, 205 (Tenn. Crim. App.

 5 2002) (“The surety does not assume the risk that the State will encourage the

 6 deportation of a defendant or otherwise refuse to cooperate in a defendant’s or

 7 surety’s efforts to stay deportation proceedings pending trial.”). On this point, the

 8 district court found that it was reasonably foreseeable to A-Affordable that Defendant

 9 would be deported on posting of the bond stating “when a [c]riminal [d]efendant is a

10 foreign national and is arrested for certain enumerated offenses they are subject to

11 removal . . . by agencies of the [f]ederal [g]overnment and are returned to their

12 countries of origin.”

13        We first disagree that A-Affordable could have known that Defendant was

14 subject to deportation based on his status as a foreign national and his pending charges

15 for trafficking heroin and evidence tampering. Under federal law, “[a]ny alien . . . in

16 and admitted to the United States shall, upon the order of the Attorney General, be

17 removed” if the alien is within a statutorily defined class of deportable aliens. 8

18 U.S.C. § 1227(a) (2008). One class of deportable aliens includes those who are

19 convicted of an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added).


                                              9
 1 Trafficking heroin is an “aggravated felony”as that term is used in § 1227. See 8

 2 U.S.C. § 1101(a)(43)(B) (2009) (listing “illicit trafficking in a controlled substance”

 3 as within the definition of “aggravated felony”); see also § 1227(a)(2)(A)(i)(II)

 4 (providing that aliens convicted of offenses for which a sentence of a year or longer

 5 may be imposed are deportable); § 1227(a)(2)(B)(i) (providing that aliens who are

 6 convicted of violating a state law relating to controlled substances are deportable).

 7 However, an arrest for illicit trafficking in a controlled substance does not render an

 8 alien immediately deportable under § 1227(a).

 9        Additionally, we find nothing in the record or the district court’s factual

10 findings to indicate that A-Affordable should have known that Defendant was present

11 in this country illegally and thus deportable as the State argues. See § 1227(a)(1)(B)

12 (designating aliens present in violation of the law as deportable aliens). The record

13 indicates that Defendant was born in Mexico and that he listed an address in Mexico

14 when he was booked. However, the record does not disclose Defendant’s immigration

15 status. We do not believe that this is sufficient to alert a bondsman that a defendant

16 is present in the country without authorization.

17        We do not think it is necessary to engage in any analysis in this case as to

18 whether the bondsman should have foreseen that Defendant might have been deported

19 at some point in time. Under the particular circumstances in this case, we do not think


                                             10
 1 that A-Affordable should be penalized for Defendant’s failure to appear. In this case

 2 the record does not indicate that A-Affordable should have foreseen that the State

 3 would not only have failed to release Defendant but also would have actively aided

 4 in Defendant’s deportation by choosing almost immediately to transfer custody to

 5 federal authorities. See In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d at 205

 6 (stating that a surety does not assume the risk that the State will encourage a

 7 defendant’s deportation). The State interfered with A-Affordable’s ability to ensure

 8 Defendant’s appearance when it transferred Defendant to ICE for deportation. It

 9 cannot now benefit from Defendant’s failure to appear. See Amador, 98 N.M. at 274,

10 648 P.2d at 313 (stating that it is unjust to enrich the state treasury through a bond

11 forfeiture when a bondsman has been diligent in efforts to secure the defendant’s

12 appearance but has been thwarted by the actions of a sovereign jurisdiction); see also

13 Nat’l Old Line Ins. Co. v. Brown, 107 N.M. 482, 487, 760 P.2d 775, 780 (1988)

14 (stating that a party to a contract, who prevents performance by the adverse party,

15 cannot rely on such condition to defeat his liability, and the nonperforming party is

16 to be treated as if he had performed his obligations under the contract).




                                             11
1 III.   CONCLUSION

2        For these reasons, we hold that justice does not require forfeiture of the bond,

3 and the district court abused its discretion in ordering forfeiture. We therefore reverse

4 and remand this case to the district court.

5        IT IS SO ORDERED.



6
7                                          MICHAEL D. BUSTAMANTE, Judge

8 WE CONCUR:


 9
10 JONATHAN B. SUTIN, Judge


11
12 TIMOTHY L. GARCIA, Judge




                                             12
