[00:00:04] Speaker 01: Case number 19-5178 et al. [00:00:07] Speaker 01: Statewide Bonding Inc. [00:00:09] Speaker 01: et al. [00:00:09] Speaker 01: at balance versus United States Department of Homeland Security, DHS et al. [00:00:15] Speaker 01: Mr. LaPierre for the balance, Mr. Glover for the appellates. [00:00:25] Speaker 00: Mr. LaPierre, good morning. [00:00:29] Speaker 04: Good morning, Your Honors. [00:00:29] Speaker 04: Mr. LaPierre on behalf of the appellates collectively statewide. [00:00:35] Speaker 04: Your Honor, we have in front of us today a set of interrelated cases with a series of issues that kind of build off of each other as we go through. [00:00:44] Speaker 04: They were all decided as a matter of law below and are being reviewed to no vote here today. [00:00:49] Speaker 04: Your Honor's asked that we be prepared to address initially the issue of whether or not the agency action at issue collection of these determination that have an untimely but accepted appeal to the AO is final. [00:01:03] Speaker 04: And that is an issue, Your Honor, that is very related to many of the other issues within this particular case. [00:01:10] Speaker 04: It is axiomatic that the APA permits only review of agency actions that are final. [00:01:16] Speaker 04: And an agency action is final if it is a confirmation of the agency's decision-making process and it is an action for which rights or obligations have been decided or legal consequences flow. [00:01:31] Speaker 04: If a task is simply ministerial and not missionary, then it is obviously not part of the decision process. [00:01:39] Speaker 04: Generally speaking, Your Honor, it is true that collection actions are not collected by the agency because they are simply the execution of the agency's decision-making process. [00:01:49] Speaker 04: The collection of the decision has been made. [00:01:53] Speaker 04: The facts of this case, however, your honor, are very specific and which do render that agencies action DHS actions in collecting on these boundaries terminations, the final agency action. [00:02:06] Speaker 04: The issue is, as it has been held before that an agency's actions final when it is subject to no further review within the agency. [00:02:14] Speaker 04: Here, Your Honors, there is a determination that a bond has been breached, and there is a process by which appeals are permitted within 33 days. [00:02:25] Speaker 04: And under the statutes in question, there is a final breach determination if there is no appeal within that 33 days. [00:02:35] Speaker 04: However, Your Honors, afterwards, there is a provision for the submission of the filing of an untimely appeal. [00:02:42] Speaker 04: And the regulations are very clear that the filing of motions to reopen reconsider do not render the decision non-final. [00:02:49] Speaker 04: So at that point, we still have a final agency decision. [00:02:52] Speaker 04: However, once the AAO has determined that the untimely appeal meets certain requirements and they have accepted it, the regulations require that there be a decision on the merits of that particular appeal. [00:03:06] Speaker 04: And it is our position that once there is [00:03:10] Speaker 04: a accepted appeal, untimely appeal, and a decision on the merits has to be made, the agency action is no longer final. [00:03:19] Speaker 04: Thus, when the DHS goes behind the AAO and determines that they're going to collect on bond breaches with untimely appeals that they determined are going to be ultimately rejected, and collect on them mooting out the appeal [00:03:34] Speaker 04: That becomes the final agency action because there's no further review at that point. [00:03:38] Speaker 04: The money is collected. [00:03:39] Speaker 04: The property is lost. [00:03:40] Speaker 04: The legal consequences have flown from that decision. [00:03:43] Speaker 04: And there is no further agency review. [00:03:46] Speaker 04: The defendants have asserted in this case, DHS has asserted in this case, that that is subject to court review in district court cases. [00:03:55] Speaker 04: And that's a matter for the determination of whether or not due process has been violated. [00:03:59] Speaker 04: It does not alter that there's no further agency review and that this particular [00:04:04] Speaker 04: an action of collecting breach bonds that have an untimely but accepted appeal to the AAO is fine. [00:04:10] Speaker 00: What is your evidence that this has been accepted? [00:04:15] Speaker 00: We've gone back and looked at these different forms that have been put in the record, and not one indicates that DHS has done anything with your untimely appeals [00:04:31] Speaker 00: except to tell you that they've received the appeal and that it's pending. [00:04:36] Speaker 00: And I think there was before the district judge a notice of transfer, but I see nothing that supports your saying there's some category called accepted appeals, accepted late appeals. [00:04:53] Speaker 04: Yes, Your Honor. [00:04:54] Speaker 04: There's actually no direct evidence in the record of these particular three cases. [00:04:58] Speaker 04: That was an issue raised more fully, I believe, in one of the other two cases that's currently still in the district court. [00:05:03] Speaker 04: But the cases have been limited to only those that have been accepted by the AAO. [00:05:09] Speaker 04: And it was something that was simply accepted within the underlying cases. [00:05:12] Speaker 04: No evidence was presented into that matter. [00:05:19] Speaker 04: And Your Honor, moving to the issues directly [00:05:22] Speaker 04: on appeal here, there is a concern that, or I'm sorry, the District Court erred in finding that DHS acted in accordance with their regulations in collecting these bond breach determinations. [00:05:34] Speaker 04: And that is part of the core underlying issues in this case. [00:05:39] Speaker 05: Mr. LePierre, before I go on, I'm sorry, I want to take you back a moment. [00:05:43] Speaker ?: Of course. [00:05:43] Speaker 05: So there's no evidence on the record that any of the cases that your late filings were [00:05:51] Speaker 05: were reopened essentially, correct? [00:05:54] Speaker 04: Yes, Your Honor. [00:05:55] Speaker 04: That was not a litigated issue. [00:05:57] Speaker 05: So, finality apart, what's your basis for standing here? [00:06:04] Speaker 04: Again, Your Honor, it was simply accepted that there was accepted appeals and that was what we were doing. [00:06:09] Speaker 04: There was no evidence presented. [00:06:11] Speaker 05: What do you mean, it was simply accepted by whom? [00:06:14] Speaker 04: That's actually just the status from which the case flowed. [00:06:17] Speaker 04: It was assumed that we were discussing only those appeals that had been accepted, and there was no evidence on that issue, Your Honor, because it was not litigated. [00:06:24] Speaker 03: Who did the assuming? [00:06:27] Speaker 03: Who did the assuming? [00:06:28] Speaker 04: All parties. [00:06:28] Speaker 04: To my knowledge, all parties in the court, Your Honor. [00:06:30] Speaker 04: That was simply what was addressed. [00:06:32] Speaker 04: Did they say so? [00:06:34] Speaker 04: Again, I don't believe, Your Honor, it was directly litigated, so I don't believe that issue was raised. [00:06:41] Speaker 03: Can I ask maybe kind of a [00:06:43] Speaker 03: 10,000 foot question, putting aside the mailbox rule issue. [00:06:51] Speaker 03: You're a sophisticated company. [00:06:55] Speaker 03: You've got a staff. [00:06:58] Speaker 03: If you had filed your appeals on time, would we be here? [00:07:05] Speaker 04: Your Honor, there's actually a couple of underlying issues here that lead to that. [00:07:08] Speaker 04: Part of that is obviously the mailbox rule, which we are setting aside. [00:07:11] Speaker 04: Another part of that, Your Honor, is that the reason these appeals were filed late was there was an actually an intervening change in law that rendered the underlying notices to produce the alien notices to produce the bond of immigrant that rendered them ineffective or in our position legally inoperative. [00:07:32] Speaker 04: And that's the Perrier case, the United States Perrier case that said that bond notices to produce [00:07:39] Speaker 04: of a notice to appear, I apologize, given to bonded immigrants that do not have a date and time or place to appear, were not statutorily sufficient. [00:07:48] Speaker 04: And that has been subject to some continuing and evolving case law after that, Your Honor. [00:07:53] Speaker 04: That was the reason they were untimely. [00:07:55] Speaker 04: is that the bond breach determination has occurred, that change of law occurred, and these appeals subsequently were filed based on that change of law, new facts that were argued. [00:08:05] Speaker 04: So no, Your Honor, there was no way for them to be timely appealed. [00:08:08] Speaker 04: That's the first set of those. [00:08:10] Speaker 04: And then there's some obviously concerns related to some later appeals that were filed in the mailbox rule issue. [00:08:16] Speaker 03: That sounds like a retroactivity argument in terms of how to interpret that intervening case. [00:08:25] Speaker 04: It does sound like that, Your Honor. [00:08:27] Speaker 04: However, they were stating that they were never appropriate. [00:08:31] Speaker 04: They were never complete. [00:08:32] Speaker 04: And that was the issue that we were going with. [00:08:35] Speaker 04: And it did apply, in a sense, to all outstanding bond breach determinations. [00:08:40] Speaker 04: That was raised on the appeal and raised that question before bond breaches that then were accepted and were going to be rendered in decision on the merits of that particular argument. [00:08:55] Speaker 04: Your Honors, looking at the process by which DHS or the AAO operates, there is a series of related CFRs, federal regulations, that actually apply. [00:09:08] Speaker 04: CFR, I'm sorry, 8 CFR section 103.6E states that a final determination that a bond has been breached creates a claim in favor of the United States. [00:09:18] Speaker 04: And that, Your Honors, is a central issue here. [00:09:20] Speaker 04: As I stated earlier, that when there is no [00:09:23] Speaker 04: appeal within 33 days, a bond review becomes final. [00:09:28] Speaker 04: That's ACFR 103.3A2I. [00:09:29] Speaker 04: The regulations permit [00:09:34] Speaker 04: that a party may file an untimely appeal that if it meets certain requirements will be accepted and once accepted decision on the merits is required. [00:09:42] Speaker 04: And it is our position that a final decision is not final unless it ends the litigation, leaves the agency with nothing left to do. [00:09:51] Speaker 04: When there is an outstanding decision to be made on the merits of an untimely appeal, it is our contention that there is no final determination that a bond has been breached and there is no [00:10:02] Speaker 04: claim created within the United States for the DHS to collect part of. [00:10:07] Speaker 04: And it is in our opinion, in our position, that the district court can rule that DHS take a part of this regulation, collecting on untimely but accepted but accepted appeal. [00:10:25] Speaker 04: And that leads to rent. [00:10:27] Speaker 00: But again, you have no evidence that they've been accepted. [00:10:32] Speaker 04: No, Your Honor. [00:10:33] Speaker 04: That was not something we had put evidence with the Director on. [00:10:38] Speaker 00: So your description of your status is incorrect. [00:10:44] Speaker 00: And we have the provision that says an appeal doesn't delay the execution of any decision. [00:10:53] Speaker 04: Yes, Your Honor. [00:10:53] Speaker 04: However, the alternative is simply that if they do not meet the requirements, they are not accepted. [00:10:58] Speaker 04: They are dismissed for lack of jurisdiction. [00:11:00] Speaker 04: That has not occurred. [00:11:01] Speaker 04: at any point. [00:11:04] Speaker 04: And I believe that was actually the only thing we had in the record, Your Honor, was that they were not currently, they had not been dismissed or fed to meet the requirements. [00:11:13] Speaker 04: They had simply been accepted into the AEO's Court of Appeals. [00:11:17] Speaker 04: I'm sorry, into the AEO's agents. [00:11:20] Speaker 05: This policy may not affect you ever because you may never have a case reopened. [00:11:29] Speaker 04: There is some evidence that we have had some, again, that's not directly in these cases, Your Honor. [00:11:35] Speaker 04: And it may be true that the courts decide to reject all of these appeals, but that would be a decision on the merits, Your Honor, that the appellate statewide is entitled to under the statutes and being denied when the collection occurs and the cases or the appeals are moved. [00:11:52] Speaker 05: Wait a minute. [00:11:53] Speaker 05: You will get a decision on the merits only if they reopen the case, right? [00:11:59] Speaker 05: Yes, Your Honor. [00:12:00] Speaker 05: Have they reopened any of these three cases? [00:12:02] Speaker 05: Have they reopened any other of your cases? [00:12:06] Speaker 04: There is no evidence on the record. [00:12:08] Speaker 04: I can say, Your Honor, yes, they have reopened some cases. [00:12:11] Speaker 04: I can't say the specific cases that we're discussing here have been reopened. [00:12:14] Speaker 04: I don't have that evidence in front of me since it was not placed in the record of the case. [00:12:19] Speaker 00: So on the record, there are no accepted late appeals. [00:12:23] Speaker 04: There is no evidence that these cases have been accepted on the record, Your Honor. [00:12:27] Speaker 04: However, that was [00:12:28] Speaker 04: again, not a raised issue, simply not litigated from the cases below. [00:12:34] Speaker 05: I can see some reason nonetheless to entertain your case if the agency can keep these motions of yours perpetually unresolved, neither accepted nor, neither accepted and resolved on the merits [00:12:58] Speaker 05: nor rejected. [00:13:01] Speaker 05: They're just pending. [00:13:02] Speaker 05: And you have some pending? [00:13:04] Speaker 04: You honor, the appeals on issue in this case are still pending. [00:13:09] Speaker 04: And they have obviously been filed for quite a while, more than a year. [00:13:13] Speaker 04: So our understanding is that they would have been rejected if they were not going to be accepted. [00:13:19] Speaker 04: But if, however, they are keeping them not accepted and yet not rejected them as improper, [00:13:24] Speaker 04: I would say, Your Honor, that we are stuck in limbo. [00:13:27] Speaker 04: Exactly as you said, we should have a decision on these issues going forward. [00:13:34] Speaker 00: Well, is it your position that the language that says that any appeal or review or whatever doesn't affect the execution of a decision [00:13:49] Speaker 00: that I don't understand how you can ignore that. [00:13:55] Speaker 00: That's what DHS is saying gives them the authority to collect on these bonds. [00:14:03] Speaker 04: Yes, Your Honor. [00:14:03] Speaker 04: And we are not ignoring that particular statute. [00:14:06] Speaker 04: We believe it has a purpose and obligation to respect it. [00:14:12] Speaker 04: However, we believe in a category of cases that falls within the spectrum. [00:14:19] Speaker 04: that there is final determination, the filing of an untimely appeal, which treat as emotional reconsideration, does not render it non-final. [00:14:28] Speaker 04: Collection can continue, but once accepted and a decision on the merits is due, then the [00:14:35] Speaker 04: decision is no longer final. [00:14:38] Speaker 04: And then that section does not apply anymore because we have an accepted untimely appeal that is required to receive a decision on the merits and therefore we don't have a final determination. [00:14:49] Speaker 00: But that's not your case. [00:14:51] Speaker 00: You don't have an untimely appeal on this record. [00:14:57] Speaker 04: Your Honor, it was not a litigated issue. [00:14:59] Speaker 04: It was accepted that we did have untimely appeals that had been accepted at least [00:15:03] Speaker 04: to my knowledge, and so I believe that is what the record shows. [00:15:06] Speaker 05: Well, was it assumed, as you said earlier, or was it assumed subsilentia, or is there some indication on the record that that was the premise on which the court- To my, I apologize, Your Honor. [00:15:20] Speaker 04: Under my understanding, it was assumed subsilentia. [00:15:22] Speaker 04: There was no direct litigation on this particular issue. [00:15:25] Speaker 04: There was the argument that the [00:15:31] Speaker 04: DHS was making was that there was simply no difference because there was no termination of the statute that permitted them to continue to collect. [00:15:41] Speaker 04: Their position was that this was simply, once the appeal had not been filed, they were free to collect until there had been a decision that overturned it, and then they could return the funds or not. [00:15:53] Speaker 04: The position that the plaintiff is taking is that once they're entitled to a termination of the merits, [00:15:58] Speaker 04: They are no longer entitled to collect. [00:16:02] Speaker 04: I believe that kind of runs to the issue here, Your Honors, which is that if you interpreted the statutes the plaintiffs way, then we have accepted untimely appeals that currently do a decision on the merits. [00:16:15] Speaker 04: If you accept the defendant's DHS's arguments that they are entitled to collect, irrespective of whether an untimely appeal is filed, accepted or not, then quite frankly, it becomes an irrelevant issue. [00:16:27] Speaker 04: And that's maybe the underlying reason why it was never fully litigated. [00:16:30] Speaker 05: Have you referred us to any situation, or are you aware of any situation in which an agency order is final, the time for appeal has run, and it then becomes non-final? [00:16:47] Speaker 04: Your Honor, I'm unaware of any other regulation with a specific factual situation. [00:16:51] Speaker 04: I understand that the regulation, HCFR 103.6E, [00:16:56] Speaker 04: states that a final determination creates the claim in favor of the US. [00:17:01] Speaker 04: And once there is a determination on the merits that is due, I do not believe there is a final determination of bond breach. [00:17:08] Speaker 04: Therefore, there is no claim. [00:17:10] Speaker 04: And so the right to collect evaporates at that point. [00:17:13] Speaker 04: That appears to be a fairly unique situation. [00:17:16] Speaker 04: I was unable to find any opposite case law on. [00:17:21] Speaker 03: I want to look to ask a quick question. [00:17:24] Speaker 03: Sorry, Judge Gensler. [00:17:25] Speaker 05: I just want to look at the complaint for a moment, paragraph 17 of JA 19. [00:17:31] Speaker 05: Plaintiffs appealed multiple declared bond breaches and these appeals have been treated as a motion to reopen. [00:17:39] Speaker 05: Yet the defense have refused to cease enforcement regarding these decision, these declared bond breaches that are under appeal, the appeal process. [00:17:52] Speaker 05: Okay, so [00:17:54] Speaker 05: That's all you've it's all you've alleged. [00:17:59] Speaker 04: I'm sorry, I did not hear you. [00:18:01] Speaker 05: That's all you've alleged that you've got in paragraph 17 here on page 19. [00:18:07] Speaker 05: You alleged that you have multiple declared bond breaches appealed. [00:18:14] Speaker 05: And the appeals have been treated as a motion to reopen within the legal process. [00:18:22] Speaker 05: Nothing [00:18:23] Speaker 05: mean you didn't plead that or in any way suggest that there had been or were pending or were at the time any cases that had been real subject to reconsideration or had been real. [00:18:43] Speaker 04: Your honor under the statute a [00:18:47] Speaker 04: an untimely appeal that meets the requirements is then treated as a motion for reconsideration reopened and a decision on the merits is due. [00:18:57] Speaker 04: The allegation within the record that they have been treated as motions for reconsideration or re-hearing actually is the allegation that they have been accepted for review and a decision on the merits is due. [00:19:10] Speaker 05: But there is yet an actual acceptance yet to come, correct? [00:19:14] Speaker 04: Again, Your Honor, they're either rejected as untimely or they are accepted and they become treated as a motion to review. [00:19:24] Speaker 04: It's either one or the other. [00:19:25] Speaker 05: Neither has happened. [00:19:27] Speaker 04: Our understanding, Your Honor, is that and the allegation is that they have been accepted implicitly within the state that they have been treated as a motion for reconsideration. [00:19:37] Speaker 05: Where is that allegation? [00:19:38] Speaker 04: It's the allegation that we have multiple appeals in paragraph 17 that have been treated as [00:19:44] Speaker 04: motions to reconsider a decision on the merits is therefore due. [00:19:49] Speaker 04: If they had not been accepted, had not been treated as motions to be open reconsidered, there would be no decision on the merits that is due. [00:19:56] Speaker 04: So that allegation itself is implicit that we have been accepting appeals that are at issue, Your Honor. [00:20:02] Speaker 04: And under the procedural post that we're at, our motions dismiss the motions for [00:20:08] Speaker 04: The pleadings themselves are accepted as true. [00:20:13] Speaker 04: And all logical inferences they're from are accepted. [00:20:17] Speaker 04: And I believe, in that specifically state, we have accepted appeals. [00:20:21] Speaker 04: It does state we have appeals that are treated as motions to reconsider any decisions due on the merits. [00:20:28] Speaker 04: So therefore, that is the allegation of the inferences that they have been accepted and are due their decision on the merits you're on. [00:20:39] Speaker 03: With regard to your due process argument, I just have one quick fact question on that. [00:20:45] Speaker 03: You talked about the effect on your fail rate. [00:20:49] Speaker 03: And I'm wondering if, is your fail rate affected when, let's see, there's a breach determination that you timely appeal. [00:21:10] Speaker 03: In that situation, let's say the appeal hasn't been decided yet. [00:21:13] Speaker 03: Is your fail rate affected? [00:21:19] Speaker 04: No, Your Honor. [00:21:20] Speaker 04: At that point, we have no final determination that a breach has occurred. [00:21:23] Speaker 04: And therefore, the fail rate is not affected. [00:21:26] Speaker 04: Obviously, once the appeal is decided one way or the other, the fail rate follows the decision. [00:21:32] Speaker 00: Thanks. [00:21:32] Speaker 00: That's all for me. [00:21:34] Speaker 00: All right. [00:21:34] Speaker 00: And we'll hear from Mr. Gruber. [00:21:37] Speaker 05: Thank you, Your Honor. [00:21:43] Speaker 02: Good morning, and may it please the court. [00:21:45] Speaker 02: I'm Matthew Glover, and I represent the government. [00:21:49] Speaker 02: Unless the court would like to start somewhere else, I'll start with the final agency action question that was raised by the court. [00:21:55] Speaker 02: The government's position, which is longstanding by the Department of Homeland Security, is that a final bond breach determination is final agency action, because under 8 CFR 103.6, it creates a claim in favor of the United States. [00:22:08] Speaker 02: That claim can then produce an invoice. [00:22:12] Speaker 02: has legal consequences, you have a certain period of time in which to pay that invoice. [00:22:16] Speaker 02: And so under the traditional Bennett versus Spear test, the final bond breach determination, which comes after a ruling on a timely appeal or after the time to appeal expires, is the agency's final determination that the bond has been breached and it has legal consequences because it allows for collection and it has created a claim right then in favor of the United States. [00:22:36] Speaker 02: Judge Henderson, I guess I can expand on the final agency action point, or I'd also like to respond to a few questions that were asked to plaintiff. [00:22:43] Speaker 00: Certainly. [00:22:44] Speaker 02: Judge Henderson, you pointed out that there is no evidence of an accepted bond late-filed appeal. [00:22:53] Speaker 02: And I think that's clear from the record. [00:22:55] Speaker 02: And I would point the court to, I believe, JA 113 to 114. [00:23:00] Speaker 02: Which was attached to a declaration we submitted it listed the I believe 391 then pending bond bond breaches that they had allegedly filed a late filed appeal on it notes that I believe it's 91 or sorry 72 [00:23:16] Speaker 02: we have responded to, I guess the declaration at 110 paragraph four gives the total number and the 72 that we've responded to. [00:23:24] Speaker 02: And then at page JA 115, it gives our response to one of them. [00:23:28] Speaker 02: What happens is if you file a late-filed appeal, the agency gets it, and when the agency acts on it, it's going to either give you notice like at JA 115 that your late-filed appeal is dismissed because it was late-filed, or if it's treated as a motion to reopen or reconsider, [00:23:44] Speaker 02: you would get a ruling if that's a meritorious motion to reopen or reconsider that reopens or reconsiders the case, or you would get a notice that your motion to reopen or reconsider has been rejected. [00:23:55] Speaker 02: But as the regulations make clear, the filing of a motion to reopen or reconsider doesn't stay collection, and it doesn't stay any activities or the finality here. [00:24:06] Speaker 02: And so the other thing I would note on JA-115, just for some factual context, if you'll note there, that bond was appealed, I think, over 100 days after the final determination, but the appeal was filed September 28, 2018. [00:24:20] Speaker 02: And the notice that the appeal was late and it was being dismissed for not being late didn't come till January 28, 2019. [00:24:27] Speaker 02: So there's a four-month gap. [00:24:28] Speaker 02: During that four month period that late filed appeal was not accepted as a motion to reopen reconsider it was just lag in the agency getting to that appeal and ruling that that appeal was untimely and giving notice. [00:24:42] Speaker 02: I'm not aware of the agency and I checked with agency council before argument. [00:24:46] Speaker 02: Ever sending a notice, as I believe, Judge Henderson and perhaps Judge Ginsburg, you as well pointed out in the record, there are notices that we've received your appeal. [00:24:54] Speaker 02: I'm not aware of the agency sending something and my client councils weren't aware of the agency sending something saying, we've received your appeal and we've decided to treat it as a motion to reopen or reconsider. [00:25:04] Speaker 02: Instead, it's treated as your filing of a motion to reopen or reconsider. [00:25:08] Speaker 02: If you merely filed one under 305A2 or A3, we would acknowledge the receipt on the same form that we send for the filing of a late filed appeal and we would rule on it and you would receive a ruling on the merits that explains our reasoning, why we have rejected or accepted it and gives you notice of sort of the further proceedings that might be available because you can appeal the denial of a motion to reopen or reconsider. [00:25:34] Speaker 02: Judge Ginsburg, you're correct that there's no evidence in the record of any reopening. [00:25:43] Speaker 02: That potentially creates a standing problem, although I think the district court, after some initial arguments in these cases, [00:25:49] Speaker 02: came to the government's view that this is essentially a breach of contract that they would be asserting. [00:25:54] Speaker 02: And so they have a contract with the United States. [00:25:56] Speaker 02: We've declared it breached. [00:25:57] Speaker 02: They're saying that we failed to follow our regulations in how we declared it breached. [00:26:01] Speaker 02: I think it's plain from the district court's rulings from the face of the regulatory provisions and as explained in our brief that we followed all of the regulations. [00:26:10] Speaker 02: But that's about all I would say on that. [00:26:15] Speaker 02: I'm happy to address the merits of some of our arguments if the court has [00:26:19] Speaker 02: Further questions? [00:26:22] Speaker 03: Can you, Mr. Glover, can you talk about the case that Mr. Lapierre mentioned, whose name escapes me right now? [00:26:33] Speaker 03: And I had asked him whether that case was supposed to have retroactive effect on claims that were final and closed and [00:26:46] Speaker 03: I guess I have the same question for you. [00:26:50] Speaker 02: So, Your Honor, I believe he's referring to Pereira versus Sessions. [00:26:53] Speaker 02: And below the government made clear that Pereira versus Sessions, which pertains to defective notices to appear, has no bearing on this case because a notice to appear is issued directly to the alien. [00:27:05] Speaker 02: It's not part of the bond contract. [00:27:07] Speaker 02: In the bond contract at provision G1, the notice to produce an alien is given to the obligor, so to statewide or to the surety to the other obligor saying, please produce this alien at this date and in this place. [00:27:25] Speaker 02: And it's only when they fail to produce them [00:27:28] Speaker 02: then that we would have a breach of the bond. [00:27:30] Speaker 02: So the notice to appear pertains to immigration court proceedings, which are conducted by the Executive Office of Immigration Review or EOR, which is a part of the Department of Justice. [00:27:40] Speaker 02: The bond is a contractual agreement between the United States on behalf of ICE and the obligor. [00:27:46] Speaker 02: And so a defective notice to appear simply has no bearing on this. [00:27:50] Speaker 02: I would also point out, you know, just to get into the merits a little bit of Pereira, every court of appeals to have addressed the issue since Pereira has held that the initial effective notice to appear because it didn't give date and time does not strip the immigration court of jurisdiction. [00:28:05] Speaker 02: You just aren't allowed to apply the stop time rule because the immigration court didn't let you know then when your hearing would be. [00:28:12] Speaker 02: And I have some circuit citations on that issue. [00:28:14] Speaker 02: Again, that issue doesn't pertain here because notices to appear don't have any impact, but I'm happy to give the court some sister circuit citations on that. [00:28:22] Speaker 02: The first one I would point to is Ortiz Santiago versus Barr. [00:28:25] Speaker 02: It's 924 F3rd, 956 at 958. [00:28:28] Speaker 02: It's a seventh circuit case from 2019. [00:28:30] Speaker 02: I believe it lists a handful of others and I won't overwhelm you with citations. [00:28:37] Speaker 02: So yeah, the notice to appear will be issued well before the breach determination we made because typically when the government is issuing a notice to produce, it's because there's a final order of removal and they issue the notice to produce to have the person come to an ICE location to be removed. [00:28:57] Speaker 02: I'm happy to address any other questions that the court has, but I'm also happy to rest on our brief on the merits. [00:29:05] Speaker 05: I want to ask you to go back and [00:29:07] Speaker 05: to make sure I understand what in your view is the final action. [00:29:13] Speaker 05: If I look at the notice of rejection at page 115, is that it? [00:29:22] Speaker 02: Your honor, this notice of rejection at page 115 is the rejection of a late filed appeal. [00:29:28] Speaker 02: And so in this case, the final agency action is the bond breach determination. [00:29:34] Speaker 02: And when they failed to appeal, [00:29:37] Speaker 02: I think it says you had 33 calendar days within when she was mailed. [00:29:42] Speaker 02: On March 15th, we mailed it to you. [00:29:44] Speaker 02: So 33 days or 34 days from March 15th, this particular bond, which ends in 598, this particular bond, the breach determination that was mailed on March 15th, that's the initial determination, it becomes final when no appeal is received. [00:30:00] Speaker 02: within 33 days of March 15th. [00:30:02] Speaker 02: So if my math's right, I think that would be April 18th or April 19th, somewhere in there. [00:30:09] Speaker 02: The failure to timely appeal makes the initial determination our final determination, and that creates a claim on that date in April in favor of the United States. [00:30:18] Speaker 05: All right, now that's the final determination from which, which serves as final agency action. [00:30:26] Speaker 02: Yes, Your Honor. [00:30:29] Speaker 05: does how is that a predicate for someone to come in here and complain that if they made a timely filing and were there not pardon me if they persuaded the board to reopen the case, which hasn't happened and may never happen. [00:30:55] Speaker 05: They would be [00:30:57] Speaker 05: pardon me, that something here should stay the collection process, right? [00:31:07] Speaker 05: And because of something else that may happen or may not happen, [00:31:14] Speaker 02: Your Honor, I think you're drawing a distinction between their theory, which is that the late filed appeal states collection and what the regulations make clear. [00:31:22] Speaker 02: And this is where the regulation concerning motions to reopen or reconsider. [00:31:26] Speaker 02: I think it's 306 E or might be 305 103.6 or 105.6 E. [00:31:35] Speaker 02: That makes clear that the filing of a motion to reopen or reconsider does not stay enforcement of the order, which includes collection and it also includes in some cases the notice of departure for an alien. [00:31:48] Speaker 02: The best analogy I could think of in preparing for argument, I guess, two analogies. [00:31:54] Speaker 02: One would be a district court ruling. [00:31:57] Speaker 02: So the district court issues an order, a memorandum opinion, and an order. [00:32:00] Speaker 02: In this circuit, they can be in the same document. [00:32:02] Speaker 02: In the Seventh Circuit, they have to be separate. [00:32:03] Speaker 02: But from the issuance of that order, you have a final decision. [00:32:07] Speaker 02: If it's a money damages claim, [00:32:09] Speaker 02: the prevailing party can collect their money damages from the issuance of that order. [00:32:13] Speaker 02: If you were to file a motion to reopen or reconsider Rule 59E or Rule 60B motion, the district court would need to rule on those motions, but absent the district court granting you a stay or you seeking a stay from the appellate court if the district court denies it, [00:32:26] Speaker 02: The collection continues. [00:32:28] Speaker 02: And so that's the situation we have here. [00:32:30] Speaker 02: We have a final claim in favor of the United States. [00:32:32] Speaker 02: If they were to just directly file a motion to reopen or reconsider rather than a late filed appeal, that wouldn't stay our ability to collect. [00:32:39] Speaker 02: It wouldn't alter the claim in favor of the United States. [00:32:42] Speaker 02: And the other example I would give is in the Board of Immigration Appeals, which, you know, hearings appeals from immigration judges on asylum withholding cat, you can appeal one of those under a USC 1225 directly to a court of appeals. [00:32:58] Speaker 02: Now I know this circuit. [00:33:00] Speaker 02: tend to have those cases. [00:33:01] Speaker 02: I'm not aware of any in the circuit, but other regional circuits get a lot of these petitions for review. [00:33:06] Speaker 02: Well, your petition for review is pending in a court of appeals. [00:33:10] Speaker 02: You can also file a motion to reopen or reconsider with the BIA or with the IJ. [00:33:14] Speaker 02: And the Supreme Court was clear in, sorry, let me grab the citations for you. [00:33:24] Speaker 02: I believe the case is called Stone. [00:33:26] Speaker 02: It might be a 1998 Supreme Court case that the filing of that motion to reopen or reconsider doesn't stay the Court of Appeals jurisdiction. [00:33:34] Speaker 02: And in fact, yeah, it's Stone versus INS 514 US 386. [00:33:39] Speaker 02: It's a 1995 case. [00:33:41] Speaker 02: And in fact, courts of appeals have further recognized that if the motion to reopen is granted and they reopen the case, [00:33:49] Speaker 02: the Court of Appeals loses jurisdiction because you'd be appealing from your removal order that's no longer final because they've reopened your case. [00:33:56] Speaker 02: But the Court of Appeals are split on whether the grant of a motion for reconsideration by the Board of Immigration Appeals would actually stay the case or would merely moot it, given that the reconsideration may reaffirm your final removal order. [00:34:11] Speaker 02: I realize it's not a perfect analogy, but it is a situation in which you can file a motion to reopen or reconsider while the case is pending in another court, [00:34:19] Speaker 02: and it doesn't impact it until there's actual reopening or reconsideration that gives you some sort of relief that would make that prior determination non-final. [00:34:30] Speaker 02: Similar to, I think, a 60B motion that was granted that altered the judgment or amended the judgment and it erased the money damages, the collection would have continued, but there would no longer be, once the 60B was ruled on, that prior judgment's not the final judgment. [00:34:47] Speaker 02: If the court has no further questions, we think for the reasons stated in our brief and in the thoughtful opinions of Judge Boasberg that you should affirm. [00:34:56] Speaker 02: And before I sit down, I would just like to extend my condolences to the court on the passing of Judge Williams. [00:35:01] Speaker 02: This is the first time I've been in the court since he passed. [00:35:03] Speaker 02: And I had the pleasure to argue in front of him and meet him many times. [00:35:06] Speaker 02: And it's truly a loss both to the court and to the legal community. [00:35:09] Speaker 02: So thank you. [00:35:11] Speaker 00: Thank you, Mr. Grover. [00:35:16] Speaker 00: Mr. Lepierre, I'm not sure you have any time left, but do you want to take a couple minutes? [00:35:23] Speaker 04: If I may take a minute or two, Your Honor, yes. [00:35:27] Speaker 04: Your Honor, this case was decided on the summary judgment. [00:35:30] Speaker 04: I'm sorry, on the motion to dismiss and motion for judgment on the pleadings. [00:35:33] Speaker 04: So the facts with the complaint are assumed to be correct. [00:35:36] Speaker 04: It is our position that the complaint states that there were some pending appeals that would do a final decision on the merits. [00:35:42] Speaker 04: And at heart, Your Honor, that is the issue. [00:35:45] Speaker 04: The plaintiff state-wise in this case was due a decision on the merits, and that renders a non-finance determination that created no claim in the United States. [00:35:54] Speaker 04: And at the very least, there may be some delay, there may be some time out there, but there should not be collections on bond breach determinations that are due some decision on the merits of a review of untimely appeal. [00:36:06] Speaker 04: And that is the plaintiff's position in this case. [00:36:11] Speaker 04: The Department of Homeland Security, the DHS, disagrees with that. [00:36:15] Speaker 04: And that interpretation, I think, runs at the heart of this case. [00:36:19] Speaker 04: There were some underlying concerns about the Pereira case, the Mary V. Sessions, I apologize, Sessions being one of it. [00:36:27] Speaker 04: And that did not apply to this case because it was only related to notices to appear for the bonded immigrants. [00:36:36] Speaker 04: There's a couple of concerns with that. [00:36:37] Speaker 04: That is one set of issues, and it's actually from one of the first cases. [00:36:40] Speaker 04: But there's also raised some concerns in these appeals about notices to produce that will be served on the plaintiffs themselves untimely, and that became part of the basis for some of these appeals as well. [00:36:54] Speaker 04: And there's a series of underlying issues that I think are irrelevant to whether or not the plaintiff is entitled to a decision on the merits of [00:37:04] Speaker 04: they're untimely but accepted appeals or they're untimely appeals at all. [00:37:07] Speaker 04: And therefore, whether or not collections actions should cease pending into the rejection of those appeals or the approval of those appeals and the overturning of that decision. [00:37:18] Speaker 00: All right. [00:37:19] Speaker 00: Thank you. [00:37:19] Speaker 00: Your case is submitted. [00:37:21] Speaker 04: Thank you very much, Your Honor.