                                                  130 Nev., Advance Opinion if 5
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                ALL STAR BAIL BONDS, INC.; AND                        No, 62866
                SAFETY NATIONAL CASUALTY
                CORP.,
                Petitioners,                                                FILED
                vs.
                THE EIGHTH JUDICIAL DISTRICT                                 JUN 0 5 2014
                COURT OF THE STATE OF NEVADA,                               TRAC K.        . a
                                                                                      iitiE MA:j
                                                                                      1;
                                                                       CL
                IN AND FOR THE COUNTY OF                              BY
                                                                            CHIEF DEPU     RIK
                CLARK; AND THE HONORABLE
                JENNIFER P. TOGLIATTI, DISTRICT
                JUDGE,
                Respondents,
                   and
                CLARK COUNTY, A POLITICAL
                SUBDIVISION OF THE STATE OF
                NEVADA,
                Real Party in Interest.



                            Original petition for a writ of mandamus challenging a district
                court order that denied a motion to exonerate a bail bond and entered
                judgment against the surety.
                           Petition denied.

                Mayfield, Gruber & Sheets and Damian R. Sheets, Las Vegas,
                for Petitioners.

                Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
                Attorney, and Bart Pace, Deputy District Attorney, Clark County,
                for Real Party in Interest.




                BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.
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                                                 OPINION
                By the Court, CHERRY, J.:

                             NRS 178.509 allows the district court to exonerate a surety's
                bail bond obligations only in certain enumerated circumstances. One of
                those circumstances is when the defendant has been deported. NRS
                178.509(1)(b)(5). In this original writ proceeding, we consider whether the
                defendant, who left the country voluntarily but was denied admission
                when he tried to return, was deported for purposes of NRS
                178.509(1)(b)(5). We also consider whether common law contract defenses,
                such as impossibility, permit the district court to exonerate a bond. On
                both issues, we decide negatively. The defendant here was excluded, not
                deported. And the district court may not exonerate a bond without a
                statutory basis for doing so. Accordingly, we deny the surety's petition for
                extraordinary relief from the district court's order denying the motion for
                exoneration.

                                                  FACTS
                             Real Party in Interest Clark County (the State) charged
                Rodrigo Rascon-Flores with multiple counts relating to fraudulent use of a
                credit card. He appeared at his arraignment and pleaded guilty in district
                court. The court continued sentencing for more than six months after the
                guilty plea. Petitioners All Star Bail Bonds, Inc., and Safety National
                Casualty Corporation (collectively, the surety) posted a bond for Rascon-
                Flores's release.'


                      "All Star Bail Bonds, Inc., posted the bond as an agent for Safety
                National Casualty Corp.


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                            Sometime after the arraignment, Rascon-Flores traveled to
                Mexico. Rascon-Flores attempted to return to Las Vegas just days before
                his scheduled sentencing. At the border, he was stopped by U.S. Customs
                and Border Protection because the U.S. Arrival System indicated a "hit,"
                presumably due to his charges in Las Vegas. Rascon-Flores admitted his
                arrest and charges, and admitted to behavior consistent with his guilty
                plea on those charges. Customs and Border Protection detained Rascon-
                Flores before deciding that he was inadmissible under section
                212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA), codified at
                8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012). Under the INA, federal law prohibits
                admitting an alien "who admits committing acts which constitute the
                essential elements of—(I) a crime involving moral turpitude . . . ." 8
                U.S.C. § 1182(a)(2)(A)(i)(I) (2012). Federal officers then revoked Rascon-
                Flores's nonimmigrant visa due to his inadmissibility. Officers verified his
                return to Mexico.
                            After Rascon-Flores missed his sentencing, the district court
                sent a notice of intent to forfeit bond to the surety. The surety filed a
                motion to exonerate the bond. The government opposed the motion and
                the surety replied. After a hearing, the district court denied the motion
                but stayed entry of judgment on the forfeiture for 30 days in order to give
                the surety time to petition for writ relief. The surety could not file for writ
                relief within 30 days, however, because it did not receive the hearing
                transcript and written order until after that time period had elapsed. The
                surety subsequently paid the forfeiture and now seeks relief in this court
                by extraordinary writ.




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                                                 DISCUSSION
                               "[T]he proper mode of review for orders entered in ancillary
                 bail bond proceedings is by an original writ petition." Int'l Fid. Ins. Co. ex
                 rel. Blackjack Bonding, Inc. v. State, 122 Nev. 39, 41, 126 P.3d 1133, 1133
                 (2006). "A writ of mandamus is available to compel the performance of an
                 act that the law requires or to control a manifest abuse of discretion." Id.
                 at 42, 126 P.3d at 1134. Therefore, in an original proceeding such as this
                 one, we ask whether the district court manifestly abused its discretion in
                 deciding whether to exonerate a bail bond.     Id. at 43, 126 P.3d at 1135.
                 We "will not disturb a district court's findings of fact unless they are
                 clearly erroneous and not based on substantial evidence."      Id. at 42, 126
                 P.3d at 1134-35. The district court's conclusions of law, such as its
                 construction of statutes, are reviewed de novo.       See, e.g., Emerson v.
                 Eighth Judicial Dist. Court, 127 Nev. , 263 P.3d 224, 227 (2011).
                               The surety petitions us to order exoneration of the bond under
                 the terms of NRS 178.509 because it asserts that Flores was deported.
                 The surety also asks for exoneration under common law contract defenses.

                 Deportation
                               NRS 178.509(1)(b)(5) permits a court to exonerate a bond upon
                 application of the surety if the defendant has been deported.
                 "Deportation' is the removal of an alien out of the country, simply because
                 his presence is deemed inconsistent with the public welfare, and without
                 any punishment being imposed or contemplated, either under the laws of
                 the country out of which he is sent, or under those of the country to which
                 he is taken." Fong Yue Ting v. United States, 149 U.S. 698, 709 (1893).
                 Accordingly, deportation requires not only a legal expulsion from the


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                  country, cf. Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S.
                  86, 100-01 (1903) (holding that due process principles apply to
                  deportation), but also a crossing of the border, United States v. Romo-
                  Ramo, 246 F.3d 1272, 1276 (9th Cir. 2001) ("[A] person who never set foot
                  outside this country was never deported . . . .").
                              A border stop is not a deportation. The U.S. Supreme Court
                  has recognized that immigration law distinguishes between "exclusion"
                  and "deportation." See Landon v. Plasencia, 459 U.S. 21, 25 (1982) ("The
                  deportation hearing is the usual means of proceeding against an alien
                  already physically in the United States, and the exclusion hearing is the
                  usual means of proceeding against an alien outside the United States
                  seeking admission."). Historically, detention at the border has not been
                  considered entry into the country, Leng May Ma v. Barber, 357 U.S. 185,
                  188 (1958), and, thus, someone who is denied entry at the border generally
                  cannot be considered deported. The law treats deportation and exclusion
                  differently: "[T]hose with the status of deportable aliens are
                  constitutionally entitled to rights in the deportation context that are
                  inapplicable to exclusion proceedings." Jean v. Nelson, 727 F.2d 957, 972
                  (11th Cir. 1984) (en banc), affirmed on other grounds, 472 U.S. 846 (1985).
                              In this case, the federal government prevented Rascon-Flores
                  from entering at the port of entry. He was excluded, not deported.        CI
                  Landon, 459 U.S. at 25, 28 (exclusion hearings occur at port of entry and
                  apply to people who are entering). Therefore, NRS 178.509(1)(b)(5),
                  permitting exoneration in the case of deportation, does not apply here.




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                 Common law contract defenses
                             The surety argues that the bond should have been exonerated
                 under common law contract defenses. We disagree.
                             "A bail bond is a contract between the State and the surety of
                 the accused:" All Star Bonding v. State, 119 Nev. 47, 49, 62 P.3d 1124,
                 1125 (2003) (quoting State v. Eighth Judicial Dist. Court, 97 Nev. 34, 35,
                 623 P.2d 976, 976 (1981)). The statutes governing bail bonds are therefore
                 incorporated into the agreement of the parties. See Gilman v. Gilman, 114
                 Nev. 416, 426, 956 P.2d 761, 767 (1998) (explaining that "[p]arties are
                 presumed to contract with reference to existing statutes," and thus,
                 "ia]pplicable statutes will generally be incorporated into the contract").
                             Because the statutes governing bail bonds are incorporated
                 into the agreement of the parties, interpreting the language of the bail
                 bond statutes is of utmost importance. NRS 178.509(1) states that "the
                 court shall not exonerate the surety before the date of forfeiture prescribed
                 in NRS 178.508 unless" one of the five conditions listed in the statute is
                 present (emphases added). Use of the words "shall not" "imposes a
                 prohibition against acting." NRS 0.025(1)(f). "[T]he Legislature's use of
                 'shall'. . demonstrates its intent to prohibit judicial discretion. . .." Otak
                 Nev., L.L.C. v. Eighth Judicial Dist. Court, 127 Nev. „ 260 P.3d
                 408, 411 (2011). Thus, under a plain reading of the text, NRS 178,509(1)
                 prohibits courts from exonerating a bond for any other reasons.
                             The legislative history shows that the original understanding
                 of the "shall not" language was that it prevented courts from considering
                 other reasons for exoneration. The "shall not" language was added by
                 amendment in 1979. See 1979 Nev. Stat., ch. 649, §§ 2-3, at 1400-02. At a
                 committee hearing on that amendment, Joe Reynolds, a representative of

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                four surety companies, opposed the bill. He indicated that the bill would
                not allow the court to exonerate a bond unless certain very strict criteria
                were met. Hearing on A.B. 808 Before the Assembly Commerce Comm,
                60th Leg. (Nev., May 4, 1979). Jay MacIntosh, an insurance agent who
                worked with bail bonds, stated that the bill would make it more difficult to
                underwrite these kinds of policies because of the inability of the courts to
                set aside forfeiture in the event of just cause and other reasons.       Id.
                Proponents of the bill understood the language as intended to remove
                courts' discretion because some bailbondsmen had made deals with some
                judges and not all bondsmen were being treated equally and fairly.       Id.
                Proponents understood the proposed law as tightening up the present law
                because bail should be forfeited unless there are exonerating
                circumstances. Id.
                            Furthermore, our decision in State v. Stu's Bail Bonds, 115
                Nev. 436, 440, 991 P.2d 469, 471 (1999), though not directly addressing a
                contract defense argument, supports the principle that the district court
                did not have discretion to exonerate without a statutory ground. In that
                case, it was argued that NRS 178.509(2), which states that "MI' the
                requirements of subsection 1 are met, the court may exonerate the surety
                upon such terms as may be just," supported the notion that equitable
                grounds may be applied by a court. We held that a court has no discretion
                to consider equity before the statutory grounds in NRS 178.509(1) are met.
                Stu's Bail Bonds, 115 Nev. at 440, 991 P.2d at 471.




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                                  Here, the surety is not entitled to exoneration based on
                     common law contract defenses because there is no such statutory ground
                     for exoneration, Accordingly, we deny the petition.




                                                                                ,   J.
                                                         Cherry

                     We concur:


                                                    J.
                     Hardesty




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