          In the United States Court of Federal Claims
                                             No. 13-581C
                                     (Filed: September 12, 2014)

                                               )
OSVALDO AGUILAR and RENE                       )
GOMEZ-CAZARES,                                 )
                                               )       Immigration Bond;
                       Plaintiffs,             )       8 C.F.R. § 103.6(c)(3); Bond Breach;
                                               )       Substantial Performance; Remand
v.                                             )
                                               )
THE UNITED STATES,                             )
                                               )
                       Defendant.              )
                                               )
                                               )

                                               ORDER

       This case is before the Court on cross motions for judgment on the administrative record.

The plaintiff, Osvaldo Aguilar, seeks return of a $15,000 deposit on an immigration bond which

the Department of Homeland Security, U.S. Immigration and Customs Enforcement (“ICE”) has

withheld, based on its determination that plaintiff breached the terms of the relevant bond

agreement by failing to deliver a bonded alien (Rene Gomez) to ICE’s Chicago District Office at

a date and time specified by ICE. Administrative Record (“AR”) at 16.

       The applicable regulation—8 C.F.R. § 103.6(c)(3)—provides that an obligor of a bond

shall be released from liability when there has been “substantial” performance of all conditions

imposed by the terms of the bond. Similarly, 8 C.F.R. § 103.6(e) provides that a bond shall be

considered breached whenever there has been a “substantial violation” of the stipulated

conditions. As the Seventh Circuit has held, the inclusion of a substantiality criterion in the

regulation “requires some evaluation of such factors as 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 to place himself in compliance.” Bahramizadeh v. U.S.

Immigration and Naturalization Service, 717 F.2d 1170, 1173 (7th Cir. 1983).

       Aguilar contends that ICE’s decision that he substantially violated the immigration bond

was arbitrary, capricious, and not in accordance with law. See Amended Petition for Declaratory

Relief (Am. Pet.) at ¶¶ 19-23; Pl.’s Mot. for J. on AR (Pl.’s MJAR) at 9. In his complaint and

motion for judgment on the administrative record, Aguilar makes a series of factual allegations

which he alleges demonstrate that any breach of the bond agreement “was accidental, was in

good faith, and was quickly remedied.” Id. at ¶ 28; Pl.’s MJAR at 9. Specifically, he contends

that he did, in fact, appear with Mr. Gomez at the time and location specified in the ICE notice;

that they presented the notice to appear to a security guard; that the security guard then escorted

them to the basement and directed them to ring an intercom buzzer; and that, when they did so,

there was no response. Am. Pet. at ¶ 26. While the government argues that these allegations,

even if true, would not have changed the agency’s determination regarding whether a breach

occurred (Def.’s MJAR at 9-10), it acknowledges that information about these circumstances

was apparently not before the agency when it found plaintiff in substantial violation of the bond

agreement. Def.’s MJAR at 12.

       Further, the administrative record provided to this Court is unclear as to the nature and

result of communications between plaintiff’s prior counsel and ICE after the breach

determination was made. It appears from the record that ICE agreed to re-examine Mr. Aguilar’s

file upon the request of plaintiff’s counsel. See AR at 21 (July 20, 2011 letter from plaintiff’s

counsel requesting information regarding whether the bond could be recovered) and AR 22

(undated ICE notes of interview of Rene Gomez regarding “Bond Breach,” noting that ICE




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officer “ordered file to look at bond breach”). But the administrative record does not indicate the

disposition of the plaintiff’s request for re-examination.

       Given the uncertain state of the record and the allegations that plaintiff raises here for the

first time, the Court has concluded (and the parties have agreed) that the appropriate action

would be to remand this matter back to ICE to permit plaintiff to supplement the record and to

allow ICE to issue a new determination based on a complete record. See Albino v. United

States, 93 Fed. Cl. 405, 409 (2010) (“To the extent that evidence may not have been—or, in fact,

was not—considered below by the [administrative agency], the ‘proper course ... is to remand to

the agency for additional investigation or explanation.’”) (quoting Fla. Power & Light Co. v.

Lorion, 470 U.S. 729, 744 (1985)); Riser v. United States, 93 Fed. Cl. 212, 217 (2010) (noting

that it is “not appropriate for this court now to supplement the record with materials that were not

available to the [administrative agency]”); 28 U.S.C. 1491(a)(2) (authorizing the court to

“remand appropriate matters to any administrative or executive body or official with such

direction as it may deem proper and just”).

       Accordingly, the case is REMANDED to ICE for further proceedings consistent with

this opinion. The following schedule shall govern the remand proceedings:

   1. Within 60 days of this order, on or before November 12, 2014, the plaintiff shall submit

       to ICE such evidence as he considers relevant concerning his entitlement to recover the

       $15,000 immigration bond .

   2. ICE shall render a decision on remand on or before January 12, 2015, setting forth its

       findings and explaining its determination regarding plaintiff’s entitlement to recover the

       immigration bond.




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   3. The parties shall file a joint status report on or before January 26, 2015, proposing a plan

       for further proceedings in this matter.

In the meantime, the cross motions for judgment on the administrative record are DENIED as

moot, and proceedings in this Court are STAYED pending the remand.



       IT IS SO ORDERED.



                                                      /s/ Elaine D. Kaplan
                                                     ELAINE D. KAPLAN
                                                     Judge




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