     Case: 10-41274 Document: 00511474874 Page: 1 Date Filed: 05/11/2011




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                                   May 11, 2011

                                  No. 10-41274                 Lyle W. Cayce
                                                                    Clerk

ADRIANA ECHAVARRIA, in their own name and right, and on behalf of all
others similarly situated; JUAN LARIN-ULLOA,


                                          Plaintiffs - Appellees

v.

MICHAEL J. PITTS, District Director for Interior Enforcement, Department of
Homeland Security; JANET NAPOLITANO, SECRETARY, DEPARTMENT OF
HOMELAND SECURITY,


                                          Defendants - Appellants




                Appeal from the United States District Court
                     for the Southern District of Texas


Before SMITH, DeMOSS, and OWEN, Circuit Judges.
Harold R. DeMoss, Jr., Circuit Judge:
      This appeal asks us to consider whether, in order to satisfy due process,
the government must take additional reasonable steps to notify a bond obligor
that the bond has been breached when the government has knowledge that the
initial attempt at notice failed. We hold that in such circumstances additional
reasonable steps must be taken.
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                                   No. 10-41274

                                         I.
      When an alien has been detained by the Department of Homeland Security
(DHS), an obligor may post a $1,500 cash bond to secure the alien’s release. The
obligor signs an agreement with DHS, agreeing to be responsible for informing
DHS of the alien’s whereabouts and to ensure the alien’s appearance at
subsequent interviews, hearings, and, if necessary, for deportation. The obligor
further agrees that DHS may send notice to the obligor at the address specified
in the bond agreement. DHS notifies the bond obligor of a demand on the bond
by mailing notice to the obligor at the address listed in the bond agreement by
certified mail return receipt requested. If the notice is returned as undeliverable
for any reason, DHS immediately declares the bond breached. DHS sends notice
of the breach to the same address. DHS does not attempt to resend notice of the
bond demand to the obligor by any other means. The bonded alien eventually
receives notice of the bond demand directly from DHS.
      Appellees filed suit, asserting that their due process rights were violated
when DHS failed to make additional attempts at service after it had knowledge
that the initial attempt at notice failed. The district court certified four classes,
two of which are parties on appeal: the Obligor Cash Bond Class (the Obligor
Class) and the Immigration Cash Bond Class (the Immigration Class). The
Obligor Class seeks reinstatement or reinstatement and cancellation of bonds
already breached. Each member of the Obligor Class received notice of all
demands sent prior to the undelivered demand. Adriana Echavarria, class
representative of the Obligor Class, admits that she did not notify DHS of her
new address, resulting in the bond demand being returned to DHS as
undeliverable. The members of the Immigration Class are bond obligors for
aliens currently out on cash bonds and seek prospective relief requiring DHS to
take additional reasonable steps to notify an obligor on future bond demands
that are returned as undeliverable. The parties filed cross motions for summary

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                                       No. 10-41274

judgment. The district court granted Appellees’ motion, finding that Appellants
violated Appellees’ due process rights by failing to take additional reasonable
steps to notify the obligors of the bond demand. Appellants timely appealed.
                                             II.
       We review a district court’s determination on a motion for summary
judgment de novo, applying the same legal standards as the district court. See
Maverick Recording Co. v. Harper, 598 F.3d 193, 195 (5th Cir. 2010). Summary
judgment must be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” F ED. R. C IV. P. 56(a).
       Due process requires that the government provide “notice and opportunity
for hearing appropriate to the nature of the case” before depriving persons of
their property. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950). To satisfy the requirements of due process, notice must be “reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.” Id. at 314. Generally, notice of a bond demand may be satisfied by
sending the notice certified mail return receipt requested. See 8 C.F.R.
§ 103.5a(a)(2)(iv). This case requires us to determine whether such notice is
sufficient when the sender knows that the notice was not received.1
       The Supreme Court addressed this issue in Jones v. Flowers, 547 U.S. 220
(2006). In Jones, the Court was tasked with determining whether the State of

       1
        DHS asserts that the bond obligors contractually agreed to what constituted sufficient
notice and as such this matter should be analyzed under general contract principles. However,
the bond obligors were deprived of a constitutionally protected property interest by action of
the government, which requires that notice of the deprivation meet due process requirements
unless the obligors waived their due process rights. See Davis Oil Co. v. Mills, 873 F.2d 774,
787 (5th Cir. 1989). “[A] waiver of constitutional rights is not effective unless the right is
intentionally and knowingly relinquished.” Id. The bond obligor’s agreement to receive notice
at the address provided in the bond agreement does not clearly establish that the obligors
intentionally and knowingly waived their due process rights.

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                                      No. 10-41274

Arkansas provided constitutionally sufficient notice to deprive a taxpayer of his
home when notices of a tax deficiency and forfeiture of the property were mailed
to the taxpayer by certified mail but were returned to the State as “unclaimed.”
547 U.S. at 223-24. The State asserted that mailing the letters was sufficient to
satisfy due process notice requirements. Id. at 226. The Court noted that in
cases where courts had found that mailing a letter via certified mail was
sufficient notice, the sender had no reason to know that “anything had gone
awry.” Id. Those cases did not answer “whether due process entails further
responsibility when the government becomes aware prior to the taking that its
attempt at notice has failed.” Id. at 227. Because notice varies with the
circumstances and conditions presented, the Court looked to whether knowledge
of unsuccessful service was a “circumstance and condition that varies the notice
required.” Id. (quotations omitted). The Court did not “think that a person who
actually desired to inform a real property owner of an impending tax sale of a
house he owns would do nothing when a certified letter sent to the owner is
returned unclaimed.” Id. at 229; see also Mullane, 339 U.S. at 315 (“[W]hen
notice is a person’s due . . . [t]he means employed must be such as one desirous
of actually informing the absentee.”). When the government has knowledge that
notice was not effected, it cannot “simply ignore” that information. Jones, 547
U.S. at 237. The Court held that, under such circumstances, the State “should
have taken additional reasonable steps to notify [the taxpayer], if practicable to
do so.” Id. at 234.
       Appellants argue that Jones should not apply in the immigration bond
context. Although Jones has not previously been applied in this context, other
courts have applied Jones outside the real property forfeiture context.2 We


       2
         See, e.g., Rendon v. Holder, 400 F. App’x 218, 219 (9th Cir. 2010) (unpublished)
(finding that the INS took “additional reasonable steps” to notify alien of the denial of his
application for legalization); Peralta-Cabrera v. Gonzales, 501 F.3d 837, 845 (7th Cir. 2007)

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                                       No. 10-41274

recognize that an irreversible loss of a person’s home is a more significant
deprivation than the loss of $1,500. We also note that the bond obligors made no
attempt to inform the DHS of their new addresses. Appellants offer no
persuasive reason that the general principle of requiring additional reasonable
steps when the sender knows that notice was not received should be rejected in
these circumstances. See Jones, 547 U.S. at 232 (finding that the taxpayer did
not forfeit his right to constitutionally sufficient notice when he failed to update
his address with the State as was required by statute). As such, we find that
when Appellants knew that the bond demands were returned as undeliverable,
due process required that Appellants take additional reasonable steps to notify
the bond obligors of the bond demands.
                                             III.
       Having found that Jones requires DHS to take additional reasonable steps
to notify the Appellees, Appellants argue that the district court ordered it to take
steps that exceed the holding of Jones. The Court did not set forth a standard for
what constitutes “additional reasonable steps.” Jones, 547 U.S. at 234. Rather,
it limited its discussion to steps the State could have taken under the facts
before it. Id. at 234-37. Jones held that “reasonable followup measures” would




(noting in denial of alien’s motion to reopen deportation proceedings that “it is the
government’s responsibility to ensure that notice by mail is successfully delivered”); Crum v.
Vincent, 493 F.3d 988, 992-93 (8th Cir. 2007) (finding that Jones did not apply when defendant
admitted to receiving notice of the revocation of his medical license); Rodriguez v. Drug
Enforcement Admin., 219 F. App’x 22, 23 (1st Cir. 2007) (unpublished) (finding that notice of
forfeiture of $1,905 was inadequate if government knew notice did not reach appellant); Yi Tu
v. Nat’l Transp. Safety Bd., 470 F.3d 941, 945-46 (9th Cir. 2006) (finding that notice was
insufficient when government had knowledge that notice of suspension pilot license would not
reach petitioner); United States v. One Star Class Sloop Sailboat, 458 F.3d 16, 23 n.7 & 25 (1st
Cir. 2006) (finding that government should have taken additional steps to locate and notify
joint owner of sailboat of pending civil forfeiture); cf. In re Seizure of $143,265.78 FROM
CHECKING ACCOUNT NO. 1851349546, 384 F. App’x 471, 474-75 (6th Cir. 2010) (declining
to apply Jones where there was no evidence that the government was aware that its attempts
at notice had failed).

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                                        No. 10-41274

include resending the notice by regular mail, posting notice on the front door, or
addressing the notice to “occupant.” Id. at 235.
      In the present matter, the district court held that “[t]he relief requested
by Obligor Plaintiffs does not require the Court to pronounce the steps
Defendants should have taken. It is enough to find that additional reasonable
steps were in fact available, and were not used, and in this case Defendants have
provided no evidence to suggest that these steps did not exist.” With respect to
the Immigration Bond Class, the district court held that the I-352 form “requires
the obligor to provide his or her name, address, telephone number, and taxpayer
identification number. Therefore, additional information that could be used to
locate the obligor is readily available to DHS.” To the extent the district court
held that DHS should search a government database using the taxpayer
identification number, such finding would exceed the import of Jones. Under
these circumstances, searching government records for updated contact
information is neither practicable nor constitutionally required. See Jones, 547
U.S. at 235-36 (holding that the State was not required to search the phone book
or other government records in order to find taxpayer’s new address because
such searches impose “burdens on the State significantly greater than the
several relatively easy options” otherwise available).
      With respect to the Obligor Bond Class, the district court found that the
reasonable steps available to DHS included reference to the bond contract and
the A-file3 of the bonded immigrant for alternate contact information. We decline
to establish any specific finding as to what constitutes additional reasonable
steps and we find no error with the district court’s holding in these
circumstances. “Although the Government is not required to undertake ‘heroic
efforts,’ it must fulfill Mullane’s command that the effort be ‘reasonably



      3
          An “A-file” is the file DHS keeps on the bonded alien.

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                                  No. 10-41274

calculated’ to provide notice.” Taylor v. United States, 483 F.3d 385, 388 (5th Cir.
2007) (quoting Dusenbery v. United States, 534 U.S. 161, 170 (2002)). The A-file
is readily accessible to DHS. When the government can attempt to ascertain the
necessary information through such minimal effort, it is incumbent on the
government to do so.
                                        IV.
      For the foregoing reasons, we find that DHS violated the bond obligor’s
due process rights when it failed to take additional reasonable steps to notify the
obligors of the bond demand after the initial notice was returned as
undeliverable before it collected on the bond. The district court’s order granting
summary judgment is affirmed.
AFFIRMED.




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