IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-41274

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.

United States Court of Appeals

Fifth Circuit

F I L E D

May 11, 2011

Lyle W. Cayce

Clerk

Case: 10-41274 Document: 00511474874 Page: 1 Date Filed: 05/11/2011
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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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.” FED. R. CIV. 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.

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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

DHS asserts thatthe bond obligors contractually agreed to what constituted sufficient 1

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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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. We

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See, e.g., Rendon v. Holder, 400 F. App’x 218, 219 (9th Cir. 2010) (unpublished)

2

(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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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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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-file of the bonded immigrant for alternate contact information. We decline

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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

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

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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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