130 Nev., Advance Opinion if 5
IN THE SUPREME COURT OF THE STATE OF NEVADA
ALL STAR BAIL BONDS, INC.; AND No, 62866
SAFETY NATIONAL CASUALTY
CORP.,
Petitioners, FILED
vs.
THE EIGHTH JUDICIAL DISTRICT JUN 0 5 2014
COURT OF THE STATE OF NEVADA, TRAC K. . a
iitiE MA:j
1;
CL
IN AND FOR THE COUNTY OF BY
CHIEF DEPU RIK
CLARK; AND THE HONORABLE
JENNIFER P. TOGLIATTI, DISTRICT
JUDGE,
Respondents,
and
CLARK COUNTY, A POLITICAL
SUBDIVISION OF THE STATE OF
NEVADA,
Real Party in Interest.
Original petition for a writ of mandamus challenging a district
court order that denied a motion to exonerate a bail bond and entered
judgment against the surety.
Petition denied.
Mayfield, Gruber & Sheets and Damian R. Sheets, Las Vegas,
for Petitioners.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and Bart Pace, Deputy District Attorney, Clark County,
for Real Party in Interest.
BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.
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OPINION
By the Court, CHERRY, J.:
NRS 178.509 allows the district court to exonerate a surety's
bail bond obligations only in certain enumerated circumstances. One of
those circumstances is when the defendant has been deported. NRS
178.509(1)(b)(5). In this original writ proceeding, we consider whether the
defendant, who left the country voluntarily but was denied admission
when he tried to return, was deported for purposes of NRS
178.509(1)(b)(5). We also consider whether common law contract defenses,
such as impossibility, permit the district court to exonerate a bond. On
both issues, we decide negatively. The defendant here was excluded, not
deported. And the district court may not exonerate a bond without a
statutory basis for doing so. Accordingly, we deny the surety's petition for
extraordinary relief from the district court's order denying the motion for
exoneration.
FACTS
Real Party in Interest Clark County (the State) charged
Rodrigo Rascon-Flores with multiple counts relating to fraudulent use of a
credit card. He appeared at his arraignment and pleaded guilty in district
court. The court continued sentencing for more than six months after the
guilty plea. Petitioners All Star Bail Bonds, Inc., and Safety National
Casualty Corporation (collectively, the surety) posted a bond for Rascon-
Flores's release.'
"All Star Bail Bonds, Inc., posted the bond as an agent for Safety
National Casualty Corp.
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Sometime after the arraignment, Rascon-Flores traveled to
Mexico. Rascon-Flores attempted to return to Las Vegas just days before
his scheduled sentencing. At the border, he was stopped by U.S. Customs
and Border Protection because the U.S. Arrival System indicated a "hit,"
presumably due to his charges in Las Vegas. Rascon-Flores admitted his
arrest and charges, and admitted to behavior consistent with his guilty
plea on those charges. Customs and Border Protection detained Rascon-
Flores before deciding that he was inadmissible under section
212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA), codified at
8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012). Under the INA, federal law prohibits
admitting an alien "who admits committing acts which constitute the
essential elements of—(I) a crime involving moral turpitude . . . ." 8
U.S.C. § 1182(a)(2)(A)(i)(I) (2012). Federal officers then revoked Rascon-
Flores's nonimmigrant visa due to his inadmissibility. Officers verified his
return to Mexico.
After Rascon-Flores missed his sentencing, the district court
sent a notice of intent to forfeit bond to the surety. The surety filed a
motion to exonerate the bond. The government opposed the motion and
the surety replied. After a hearing, the district court denied the motion
but stayed entry of judgment on the forfeiture for 30 days in order to give
the surety time to petition for writ relief. The surety could not file for writ
relief within 30 days, however, because it did not receive the hearing
transcript and written order until after that time period had elapsed. The
surety subsequently paid the forfeiture and now seeks relief in this court
by extraordinary writ.
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DISCUSSION
"[T]he proper mode of review for orders entered in ancillary
bail bond proceedings is by an original writ petition." Int'l Fid. Ins. Co. ex
rel. Blackjack Bonding, Inc. v. State, 122 Nev. 39, 41, 126 P.3d 1133, 1133
(2006). "A writ of mandamus is available to compel the performance of an
act that the law requires or to control a manifest abuse of discretion." Id.
at 42, 126 P.3d at 1134. Therefore, in an original proceeding such as this
one, we ask whether the district court manifestly abused its discretion in
deciding whether to exonerate a bail bond. Id. at 43, 126 P.3d at 1135.
We "will not disturb a district court's findings of fact unless they are
clearly erroneous and not based on substantial evidence." Id. at 42, 126
P.3d at 1134-35. The district court's conclusions of law, such as its
construction of statutes, are reviewed de novo. See, e.g., Emerson v.
Eighth Judicial Dist. Court, 127 Nev. , 263 P.3d 224, 227 (2011).
The surety petitions us to order exoneration of the bond under
the terms of NRS 178.509 because it asserts that Flores was deported.
The surety also asks for exoneration under common law contract defenses.
Deportation
NRS 178.509(1)(b)(5) permits a court to exonerate a bond upon
application of the surety if the defendant has been deported.
"Deportation' is the removal of an alien out of the country, simply because
his presence is deemed inconsistent with the public welfare, and without
any punishment being imposed or contemplated, either under the laws of
the country out of which he is sent, or under those of the country to which
he is taken." Fong Yue Ting v. United States, 149 U.S. 698, 709 (1893).
Accordingly, deportation requires not only a legal expulsion from the
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country, cf. Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S.
86, 100-01 (1903) (holding that due process principles apply to
deportation), but also a crossing of the border, United States v. Romo-
Ramo, 246 F.3d 1272, 1276 (9th Cir. 2001) ("[A] person who never set foot
outside this country was never deported . . . .").
A border stop is not a deportation. The U.S. Supreme Court
has recognized that immigration law distinguishes between "exclusion"
and "deportation." See Landon v. Plasencia, 459 U.S. 21, 25 (1982) ("The
deportation hearing is the usual means of proceeding against an alien
already physically in the United States, and the exclusion hearing is the
usual means of proceeding against an alien outside the United States
seeking admission."). Historically, detention at the border has not been
considered entry into the country, Leng May Ma v. Barber, 357 U.S. 185,
188 (1958), and, thus, someone who is denied entry at the border generally
cannot be considered deported. The law treats deportation and exclusion
differently: "[T]hose with the status of deportable aliens are
constitutionally entitled to rights in the deportation context that are
inapplicable to exclusion proceedings." Jean v. Nelson, 727 F.2d 957, 972
(11th Cir. 1984) (en banc), affirmed on other grounds, 472 U.S. 846 (1985).
In this case, the federal government prevented Rascon-Flores
from entering at the port of entry. He was excluded, not deported. CI
Landon, 459 U.S. at 25, 28 (exclusion hearings occur at port of entry and
apply to people who are entering). Therefore, NRS 178.509(1)(b)(5),
permitting exoneration in the case of deportation, does not apply here.
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Common law contract defenses
The surety argues that the bond should have been exonerated
under common law contract defenses. We disagree.
"A bail bond is a contract between the State and the surety of
the accused:" All Star Bonding v. State, 119 Nev. 47, 49, 62 P.3d 1124,
1125 (2003) (quoting State v. Eighth Judicial Dist. Court, 97 Nev. 34, 35,
623 P.2d 976, 976 (1981)). The statutes governing bail bonds are therefore
incorporated into the agreement of the parties. See Gilman v. Gilman, 114
Nev. 416, 426, 956 P.2d 761, 767 (1998) (explaining that "[p]arties are
presumed to contract with reference to existing statutes," and thus,
"ia]pplicable statutes will generally be incorporated into the contract").
Because the statutes governing bail bonds are incorporated
into the agreement of the parties, interpreting the language of the bail
bond statutes is of utmost importance. NRS 178.509(1) states that "the
court shall not exonerate the surety before the date of forfeiture prescribed
in NRS 178.508 unless" one of the five conditions listed in the statute is
present (emphases added). Use of the words "shall not" "imposes a
prohibition against acting." NRS 0.025(1)(f). "[T]he Legislature's use of
'shall'. . demonstrates its intent to prohibit judicial discretion. . .." Otak
Nev., L.L.C. v. Eighth Judicial Dist. Court, 127 Nev. „ 260 P.3d
408, 411 (2011). Thus, under a plain reading of the text, NRS 178,509(1)
prohibits courts from exonerating a bond for any other reasons.
The legislative history shows that the original understanding
of the "shall not" language was that it prevented courts from considering
other reasons for exoneration. The "shall not" language was added by
amendment in 1979. See 1979 Nev. Stat., ch. 649, §§ 2-3, at 1400-02. At a
committee hearing on that amendment, Joe Reynolds, a representative of
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four surety companies, opposed the bill. He indicated that the bill would
not allow the court to exonerate a bond unless certain very strict criteria
were met. Hearing on A.B. 808 Before the Assembly Commerce Comm,
60th Leg. (Nev., May 4, 1979). Jay MacIntosh, an insurance agent who
worked with bail bonds, stated that the bill would make it more difficult to
underwrite these kinds of policies because of the inability of the courts to
set aside forfeiture in the event of just cause and other reasons. Id.
Proponents of the bill understood the language as intended to remove
courts' discretion because some bailbondsmen had made deals with some
judges and not all bondsmen were being treated equally and fairly. Id.
Proponents understood the proposed law as tightening up the present law
because bail should be forfeited unless there are exonerating
circumstances. Id.
Furthermore, our decision in State v. Stu's Bail Bonds, 115
Nev. 436, 440, 991 P.2d 469, 471 (1999), though not directly addressing a
contract defense argument, supports the principle that the district court
did not have discretion to exonerate without a statutory ground. In that
case, it was argued that NRS 178.509(2), which states that "MI' the
requirements of subsection 1 are met, the court may exonerate the surety
upon such terms as may be just," supported the notion that equitable
grounds may be applied by a court. We held that a court has no discretion
to consider equity before the statutory grounds in NRS 178.509(1) are met.
Stu's Bail Bonds, 115 Nev. at 440, 991 P.2d at 471.
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Here, the surety is not entitled to exoneration based on
common law contract defenses because there is no such statutory ground
for exoneration, Accordingly, we deny the petition.
, J.
Cherry
We concur:
J.
Hardesty
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