Response to RPNA comment to 30 day notice

Response to Comment

ICE received one substantive, in-scope response to its notices published in the Federal
Register that it intended to submit an Information Collection Request (ICR) to the Office of
Management and Budget (OMB) for review and clearance of revisions to its immigration bond
form (Form I-352). 84 Fed. Reg. 18431 (Aug. 27, 2019); 84 Fed. Reg. 58403 (Oct. 31, 2019).
The commenter strongly opposed the revisions to the bond form, arguing that ICE should engage
in notice-and-comment rulemaking before issuing the revised form and that the proposed
revisions were unlawful. After carefully reviewing the commenter’s arguments, ICE has
concluded that no additional administrative procedures are necessary before review and approval
of the ICR by OMB and that the proposed revisions comply with applicable legal requirements.
ICE’s Federal Register Notices Were Adequate for the ICR
The commenter contended that the proposed changes and additions to the bond form
constituted new rules and regulations, stating that ICE must engage in rulemaking pursuant to 5
U.S.C. § 553(b) before issuing the revised bond form. The commenter also incorrectly claimed
that the notice of ICR was not published in the Federal Register. In addition, the commenter
asserted that ICE should have published a “redline” version of the revised bond form to facilitate
comparison of the revised bond form to the previous version of the form.
The issuance of the new bond form is not subject to the rulemaking requirements of 5
U.S.C. § 553(b) because the new bond form makes no changes to the Agency’s regulations.
ICE’s immigration bonds are governed by 8 C.F.R. § 103.6 which provides the applicable
regulatory framework for issuing, cancelling, and breaching immigration bonds. The conditions
for cancelling a bond are described in 8 C.F.R. § 103.6(c), which lists the grounds for cancelling

a maintenance of status and departure bond and explains that other types of immigration bonds
issued by ICE are cancelled when the obligor has substantially performed all conditions imposed
by the terms of the bond. 8 C.F.R. § 103.6(c)(2)-(3). To determine whether a bond is breached,
the applicable regulation provides that “a bond is breached when there has been a substantial
violation of the stipulated conditions of the bond.” 8 C.F.R. § 103.6(e). The issuance of the new
bond form does not change these or any other regulatory provisions; instead, the new bond form
is being promulgated pursuant to the existing regulations.
Once executed, an immigration bond is a contract between the bond obligor(s) and the
government. Safety Nat’l Cas. Corp. v. Dep’t of Homeland Sec., 711 F. Supp. 2d 697, 716 (S.D.
Tex. 2008) (“The I-352 is a contract, and the instructions on the form have been incorporated
into the section of the regulations requiring its submission.”) (internal quotation marks omitted);
United States v. Gonzales & Gonzales Bonds and Ins. Agency, Inc., 103 F. Supp. 3d 1121, 1130
(N.D. Cal. 2015) (explaining that immigration bonds are contracts). Courts have applied general
contract principles to the interpretation of the bond form. Safety Nat’l, 711 F. Supp. 2d at 717.
As a contract, the bond form is specifically exempted from rulemaking procedures of the
Administrative Procedure Act (APA). 5 U.S.C. § 553(a)(2) (exempting contracts from
rulemaking requirement); see Humana of S.C., Inc. v. Califano, 590 F.2d 1070, 1082 (D.C. Cir.
1978) (ruling that, to the extent that any one of the categories listed in 5 U.S.C. § 553(a)(2) is
clearly and directly involved in the regulatory effort at issue, the APA’s procedural compulsions
are suspended); Peterson v. Nat’l Telecomm. & Info. Admin., 505 F. Supp. 2d 313, 319 (E.D. Va.
2006) (holding that the APA’s notice, comment, and rulemaking requirements do not apply to
agency action related to government contracts or benefits).

2

Moreover, even if the exemption for government contracts were not applicable, the bond
form is properly considered a collection of information, governed by the requirements of the
Paperwork Reduction Act (PRA), 44 U.S.C. § 3501, et seq., rather than the APA. The PRA
defines a “collection of information,” such that it includes answers to identical questions or
identical reporting requirements. 44 U.S.C. § 3502(3)(A). “Typical information collection
requests include tax forms, Medicare forms, financial loan applications, job applications,
questionnaires, compliance reports, and tax or business records.” Dole v. United Steelworkers of
Am., 494 U.S. 26, 33 (1990).
The bond form is an information collection request subject to the requirements of the
PRA because it requires persons or entities seeking to post a bond to provide the information
requested on the form before the bond is accepted by ICE. See AAA Bonding Agency Inc. v.
Dep’t of Homeland Sec., 2013 WL 5424972, at *4 (S.D. Tex. filed Sep. 26, 2013) (ruling that the
bond form “is undoubtedly an information collection request”), rev’d on other grounds, 596 F.
App’x 294 (5th Cir. 2015). When an agency’s action is an information collection, it is not subject
to APA notice-and comment-procedures and instead falls under the ambit of the PRA. Nat’l
Fair Hous. All. v. Carson, 330 F. Supp. 3d 14, 54 (D.D.C. 2018).
As to the commenter’s statement that a “redline” version of the bond form should have
been included with the notice, an agency is not required to provide a redline version when
promulgating a new form. Moreover, a redline version is unnecessary given the brevity of the
form and the fact that the commenter was able to ascertain the substantive changes to the form.
The Revised Bond Form Complies with Applicable Law
In addition to arguing that ICE should have undertaken notice and comment rulemaking,
the commenter asserted that many of the changes to the bond form violate existing law and two
settlement agreements entered into in 1995 and 1997 between the commenter and the former
3

Immigration & Naturalization Service known as the Amwest Agreements.1 As explained below,
each of the substantive changes challenged by the commenter is legally valid.
1. Ability to re-bond an alien
The commenter noted that ICE has removed a provision in the General Terms and
Conditions of the bond form that stated, “Provided it has the concurrence of the government and
it does not change the amount of the bond, an obligor may re-bond the alien at any time and at no
expense to the government.” The commenter argued that obligors have always been permitted to
re-bond an alien and that the Amwest agreements authorize it to issue a new delivery bond in
place of a previously issued delivery bond.
The removal of the re-bonding provision does not change the terms and conditions of the
bond because an obligor may continue to re-bond an alien with the concurrence of the
government and at no expense to the agency. An obligor’s ability to enter into a new agreement
with the Agency’s concurrence is based on fundamental contract principles and restating those
principles in the bond form is unnecessary and made the General Terms and Conditions more
difficult for an unsophisticated obligor, such as a family member of an alien, to comprehend.
Therefore, a statement of an obligor’s ability to re-bond an alien with the concurrence of the
government was not included in the revised form.
2. Bond continues in effect when alien is detained by other law enforcement authorities
The commenter also opposed a change to the terms and conditions of the bond that
allows for a bond to continue in effect when an alien is detained by local, state, or federal

1

The Amwest agreements apply only to signatories of those agreements; they are inapplicable to
other bond obligors. Safety Nat’l Cas. Corp. v. Dep’t of Homeland Sec., 711 F. Supp. 697, 715
(S.D. Tex. 2008). Currently, the Amwest agreements only apply when an immigration bond is
underwritten by American Surety Company with Gonzales & Gonzales Immigration Bonds as
the agent.
4

authorities for 30 or more days. The commenter claimed that the revision was contrary to the
Amwest agreements and that the revision may result in an immigration bond remaining open “for
decades.” In arguing that the revision violates the Amwest agreements, the commenter relied on
a portion of the agreements whereby ICE agreed that it was required to place a detainer on an
alien within 30 days of notice of the alien’s detention by another law enforcement agency, and if
ICE failed to place a detainer, the bond would be cancelled.
Under the previous version of the bond form, a bond was cancelled automatically if the
alien was detained by law enforcement authorities for 30 or more days. The revised bond form
removes this condition for cancellation of the bond because certain law enforcement entities
disregard ICE detainers, and continuation of the bond is necessary so that ICE may request that
the obligor deliver an alien once the alien has been released from the custody of the other law
enforcement agency.
This change to the bond form conforms with the Amwest agreements. The Amwest
agreements require cancellation of a bond where ICE does not place a detainer, but they do not
require cancellation of a bond where ICE properly places a detainer and the detainer is
disregarded by other law enforcement authorities. In addition, the proposed revision does not
change the possibility that a bond may remain open for many years. Because immigration court
proceedings may continue for years before an administratively final order of removal is issued, it
is not uncommon under the terms of the previous version of the bond form for an immigration
bond to remain open for an extended period while immigration court proceedings are ongoing.
Because the commenter is a signatory of the Amwest agreements, those agreements provide the
applicable period that a bond posted by the commenter may remain open after issuance of a final
order of removal, and that time period remains unchanged after the revisions to the bond form.

5

3. Bond cancellation upon voluntary departure as shown by probative documentation
The revised bond form provides that the bond is cancelled upon “voluntary departure by
the bonded alien pursuant to a grant of voluntary departure by the immigration court or Board of
Immigration Appeals as evidenced by probative documentation (valid proof) thereof[.]” The
commenter stated that this revision may conflict with the Amwest agreements and that it may
result in a bond remaining open even though the alien has departed the United States. The
commenter also expressed concern about the requirement that the alien’s departure be shown by
probative documentation.
The language in the revised bond form does not change the situations where a bond will
be cancelled based on an alien’s voluntary departure but instead clarifies terms that were set
forth in the prior version of the form. More specifically, the previous version of the bond form
contained language that an obligor might have misunderstood to mean that an alien’s temporary
departure from the United States resulted in the cancellation of a bond. Bonded aliens
sometimes leave the United States temporarily while immigration court proceedings are pending.
The revised language clarifies that if an alien temporarily departs the United States and returns,
the bond is not subject to cancellation because the alien did not depart the United States
permanently. If an alien permanently departs the United States, as evidenced by the alien
remaining outside of the United States for an extended period of time, DHS may cancel the bond
in its discretion because the bond would no longer serve any useful purpose.
The requirement of probative documentation is also not new; the previous version of the
bond form required “valid proof” of the alien’s departure. If ICE is unable to determine that an
alien has voluntary departed based on information in its systems, a bond obligor may submit a
Notification of Departure of Alien (Bonded) (Form I-392) to show that the alien has departed the

6

United States. The Form I-392 has been in use in its current form since December 2007. Thus,
the revisions to the current bond form do not represent a change from ICE’s existing requirement
for appropriate, probative documentation before cancellation of a bond based on an alien’s
voluntary departure.
4. Notification to surety and to agent
Previous versions the bond form included checkboxes that an entity posting a surety bond
could use to indicate whether the agent, the surety, or both should receive bond-related notices.
The revised bond form eliminates those checkboxes. The commenter claims that this revision
violates the Amwest agreements because they require notices to be sent to both the agent and
surety.
ICE removed the checkboxes from the revised form because they were unnecessary.
Most surety bond obligors used the checkboxes on the previous version of the form to indicate
that notice should be mailed to both the surety and the agent. When an obligor indicates its
preference that notice should be issued to both the surety and the agent, the legal effect was that
if ICE provided notice to only one obligor, the notice triggered that obligor’s duty to act, but it
did not trigger the co-obligor’s duty to act. AAA Bonding Agency, Inc. v. Dep’t of Homeland
Sec., 447 F. App’x 603, 609-10 (5th Cir. 2011). For example, if ICE issued a notice only to the
agent and the alien was not delivered to ICE as requested, any subsequent bond breach could be
enforced against the agent only. Under the revised bond form, ICE will send notices to both coobligors assuming both are still in business.

If ICE sends a notice to one obligor, ICE will seek

to enforce any resulting breach determination only against that obligor.

7

5. Indemnitor information
The commenter noted that the revised bond form that was published by ICE omitted the
information line for the “name and address of the person who executed a written instrument with
the surety company requesting it to post bond,” also known as the indemnitor. This information
line did not appear on the published version of the bond form based on an inadvertent error
because it was “hidden” in the word-processing version of the document. This information about
the indemnitor was requested on the previous version of the bond form, and the information line
will be included in the final version of the revised form.
6. Immediately liable
The commenter expressed uncertainty about the reason that the revised bond form states
that an obligor is “immediately liable” upon execution of the bond. The commenter did not
provide any specific reason that the revision was objectionable. This revision is being made to
clarify that liability for the bond attaches immediately when a bond is posted. The liability can
be discharged if the obligor substantially complies with the conditions of the bond and the bond
is cancelled.
7. Administratively final breach determination
The commenter questioned the use of the phrase “administratively final breach
determination” in the revised form, claiming that the phrase is undefined. However, the general
terms and conditions of the bond form explain when a breach determination becomes
administratively final. “DHS regulations provide that, upon notification of a breach, the obligor
has 30 days in which to file an administrative appeal or motion for reconsideration of the breach.
Any obligor who contests a declaration of breach shall file an administrative appeal seeking
review of the declaration of breach. A declaration of breach shall be administratively final if not

8

timely appealed.” This definition is consistent with the definition of administrative finality for
previous versions of the form. Moreover, the concept of an administratively final decision is a
fundamental principle of administrative law and should be generally understood by any attorney
advising clients about immigration bonds.
8. Notice by mail
The commenter noted that ICE removed a reference to notices being issued by mail from
the bond form. The commenter stated it was unclear whether ICE will mail notices in
connection with immigration bonds. Certain obligors participating in ICE’s eBonds program
have agreed to receive electronic notices instead of notices sent by mail. For other obligors,
notices will continue to be issued by ICE in the same manner as they were issued under the
previous version of the bond form.
9. Riders
The commenter asserted that ICE added a provision referring to “any attached rider or
riders specified above” in paragraph C of the bond form. The references to riders were also
included in the previous version of the bond form, and the new bond form contains no
substantive changes relevant to riders. The commenter claimed to have “often” not received
riders. Riders are rarely used with immigration bonds, but if an obligor has a bond that includes
a rider, the obligor may contact ICE to request a copy of the applicable rider if necessary.
10. Authority to issue bond
The commenter questioned the removal of references to Section 236 and Section 241 of
the Immigration and Nationality Act (INA) in paragraph G.(1) of the bond form, without
providing any specific reason why the change was objectionable. ICE removed the references to
sections of the INA to eliminate unnecessary surplusage from the terms of the bond and to clarify

9

that a delivery bond may be used under any applicable authority, including but not limited to
Sections 236 and 241 of the INA.
11. Breach upon failure to surrender alien in response to demand
The commenter noted that ICE has removed the qualifier of a “timely” demand before a
bond can be breached. Under the revised version of the bond form, a bond is breached upon
failure “to surrender the alien in response to a demand while the bond remains in effect.” The
commenter argues that the removal of the word “timely” defies prior court rulings that were
applicable to signatories of the Amwest agreements.
The deletion of the word “timely” has no effect on bonds posted by obligors who are
signatories of the Amwest agreements. Under the Amwest agreements, a delivery bond is
cancelled if the demand notice is not issued within the 90-day removal period after a final order
of removal. This requirement, which is applicable only to Amwest signatories, remains effective
and unchanged by issuance of the revised bond form.
12. Removal of reference to authority to accept voluntary departure bonds
Without stating any specific objection, the commenter stated that ICE has removed a
citation to 8 U.S.C. § 1229c in paragraph G.(2) of the revised bond form. ICE removed the
citation to eliminate unnecessary surplusage from the terms of the bond. This revision has no
substantive effect.
13. Maintenance of status and departure bonds
The commenter observed that the revised bond form includes provisions for maintenance
of status and departure (MS&D) bonds. The commenter does not list any specific objection to
the section addressing MS&D bonds, stating that it is difficult to determine if this new type of
bond complies with applicable law.

10

MS&D bonds were previously issued by the former Immigration and Naturalization
Service using earlier versions of the bond form. Because ICE discontinued issuing MS&D
bonds, the provision for that type of bond had been removed from more recent versions of the
bond form. However, DHS is considering the issuance of new MS&D bonds. To allow for those
types of bonds to be posted using the bond form, the terms applicable to MS&D bonds were
added to the bond form.

11