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IMMACULA MOHOMED v. VICIAN

May 28, 1980

IMMACULA MOHOMED, as obligor, Plaintiff, against GEORGE VICIAN, JR., District Director, Immigration and Naturalization Service, Defendant.


The opinion of the court was delivered by: CARTER

I

On November 24, 1975, Sante Rose Azard, a Haitian national, was admitted to the United States as a temporary visitor for pleasure on a visitor's visa which allowed her to stay until May 23, 1976. *fn1" As a condition of her admission, the Immigration and Naturalization Service ("INS" or "the Service") required that a maintenance of status and departure bond ("bond") in the amount of $ 1,000 be furnished, pursuant to § 214(a) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1184(a). *fn2" This statutory provision states that the purpose of the bond is to insure that the alien will depart the United States upon expiration of her authorized stay and will maintain her nonimmigrant status. The bond was posted by plaintiff Immacula Mohomed, Azard's granddaughter, as surety.

 On May 17, 1976, Azard requested an extension of her departure date to enable her daughter, Antonia Bonheur, to file an immigrant visa on her behalf. According to plaintiff, an immigration officer granted Azard 29 days extension for this purpose. *fn3"

 At an interview on May 25, 1976, relating to Azard's visa petition and Bonheur's citizenship application, an INS investigator apparently informed Azard that the bond was not breached because she had received, before the departure date required by her visa, an extension of time to depart.

 The extension received by Azard on May 17, expired on or about June 21, 1976, but Azard did not leave the country. Instead, she remained and pursued her petition for an immigrant visa, requesting that the Service grant her indefinite voluntary departure. On August 18, 1976, Azard was granted permission to remain in the United States from August 16, 1976 to August 17, 1977. *fn4"

 On May 23, 1977, Azard applied for adjustment of her status to that of permanent resident pursuant to § 245 of the Act, 8 U.S.C. § 1255. This application was approved on November 8, 1977.

 Soon thereafter, plaintiff requested the defendant INS District Director to cancel the bond and return the money to her. The request was denied by notice of December 20, 1977, informing plaintiff that the bond had been breached on May 24, 1976, because Azard had failed to either depart from the United States or to apply for an extension of her stay by that date.

 Plaintiff's appeal of this determination was denied by the Regional Commissioner of INS on May 17, 1978. He found that even if Azard had been granted a 29 day extension on May 17, 1976, she had overstayed that extension by remaining without authorization until August 18, 1976, and, therefore, had substantially violated the terms of the bond. Plaintiff then instituted this suit for an order compelling the return to her of the money posted for the bond. The complaint contains two allegations of INS error:

 (1) that defendant erred in determining that the bond was breached on May 24, 1976, because Azard had requested voluntary departure prior to the expiration of her visa and continued her presence in the United States with the approval of the INS; (2) that because plaintiff was not afforded notice and an opportunity to be heard prior to the determination of breach, she was deprived of property without due process of law in violation of the fifth amendment to the Constitution.

 Defendant maintains that Azard breached the bond by remaining in the United States without INS authorization from June 21, 1976, to August 18, 1976, and that no hearing is constitutionally required before a determination of breach.

 Both parties have moved for summary judgment, agreeing that no dispute exists as to a material fact. For the reasons discussed below, defendant's motion is granted.

 II

 The regulations promulgated by the Attorney General pursuant to § 103(a) of the Act, 8 U.S.C. § 1103(a), to effectuate the bond requirements contained in § 214(a) of the Act, 8 U.S.C. 1184(a), provide that the obligor of a bond shall be released upon the substantial performance of all its conditions, 8 C.F.R. § 103.6(c)(3), and that a ...


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