B-127816, JULY 20, 1956, 36 COMP. GEN. 59

B-127816: Jul 20, 1956

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ALIENS - DEPARTURE BONDS - REFUND OF COLLATERAL ON THE BREACH OF A DEPARTURE BOND WHICH WAS POSTED ON BEHALF OF A NONIMMIGRANT ALIEN. SUCH COLLATERAL MAY NOT BE REFUNDED EVEN THOUGH THE ALIEN WAS SUBSEQUENTLY ADMITTED TO PERMANENT RESIDENCE IN THE UNITED STATES RETROACTIVELY TO A DATE PRECEDING THE BREACH OF THE BOND. 1956: REFERENCE IS MADE TO LETTER DATED MAY 3. THE COLLATERAL WAS CONVERTED UPON BREACH OF A CONDITION OF THE BOND THAT THE ALIEN DEPART FROM THE UNITED STATES ON OR BEFORE A CERTAIN DATE. THE ALIEN WAS ADMITTED UNDER SECTION 4 OF THE DISPLACED PERSONS ACT OF 1948. IT IS EXPLAINED IN THE ASSISTANT ATTORNEY GENERAL'S LETTER THAT A CASE IN POINT IS THAT OF SYLWKA GOLDWAG WHO.

B-127816, JULY 20, 1956, 36 COMP. GEN. 59

ALIENS - DEPARTURE BONDS - REFUND OF COLLATERAL ON THE BREACH OF A DEPARTURE BOND WHICH WAS POSTED ON BEHALF OF A NONIMMIGRANT ALIEN, THE SURETY WHO, BY A POWER OF ATTORNEY, AGREED THAT THE UNITED STATES TREASURY BOND FURNISHED AS COLLATERAL COULD BE CONVERTED AND APPLIED BY THE ATTORNEY GENERAL IN SATISFACTION OF ANY DAMAGES IN EFFECT MADE A VOLUNTARY PAYMENT AND, UNDER THE RULE THAT MONEY VOLUNTARILY PAID CANNOT BE RECOVERED, SUCH COLLATERAL MAY NOT BE REFUNDED EVEN THOUGH THE ALIEN WAS SUBSEQUENTLY ADMITTED TO PERMANENT RESIDENCE IN THE UNITED STATES RETROACTIVELY TO A DATE PRECEDING THE BREACH OF THE BOND.

TO THE ATTORNEY GENERAL, JULY 20, 1956:

REFERENCE IS MADE TO LETTER DATED MAY 3, 1956, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, REQUESTING A DECISION WHETHER THE IMMIGRATION AND NATURALIZATION SERVICE MAY REFUND THE AMOUNT OF COLLATERAL POSTED ON BEHALF OF A NONIMMIGRANT ALIEN.

THE COLLATERAL WAS CONVERTED UPON BREACH OF A CONDITION OF THE BOND THAT THE ALIEN DEPART FROM THE UNITED STATES ON OR BEFORE A CERTAIN DATE. HOWEVER, SUBSEQUENT TO THE BREACH, THE ALIEN WAS ADMITTED UNDER SECTION 4 OF THE DISPLACED PERSONS ACT OF 1948, AS AMENDED, 50 U.S.C. APP. 1953, TO PERMANENT RESIDENCE IN THE UNITED STATES RETROACTIVELY AS OF A DATE PRECEDING THE VIOLATION OF THE BOND.

IT IS EXPLAINED IN THE ASSISTANT ATTORNEY GENERAL'S LETTER THAT A CASE IN POINT IS THAT OF SYLWKA GOLDWAG WHO, ON JULY 8, 1948, WAS ADMITTED TO THE UNITED STATES AS A TEMPORARY VISITOR FOR PLEASURE, HER STAY NOT TO EXTEND BEYOND JANUARY 6, 1949, AND WHO POSTED A $500 DEPARTURE BOND SECURED BY A UNITED STATES TREASURY BOND IN THAT AMOUNT. HER RIGHT TO REMAIN AS A TEMPORARY VISITOR WAS LATER EXTENDED WITH THE CONSENT OF THE SURETY TO JULY 6, 1950. ON JULY 31, 1950, SHE APPLIED FOR ADJUSTMENT OF IMMIGRATION STATUS UNDER SECTION 4 OF THE DISPLACED PERSONS ACT OF 1948. IT IS REPORTED THAT, ON OCTOBER 9, 1951, THE BOND WAS DECLARED BREACHED AS OF JULY 6, 1950, BECAUSE THE ALIEN'S TEMPORARY RIGHT TO STAY IN THE UNITED STATES THEN HAD EXPIRED AND A VIOLATION OF THE BOND TERMS HAD OCCURRED PRIOR TO RECEIPT, ON JULY 31, 1950, OF THE APPLICATION FOR ADJUSTMENT OF HER STATUS. THE PROCEEDS OF THE BREACHED BOND WERE DEPOSITED IN THE TREASURY DURING JANUARY 1952 TO THE CREDIT OF THE PROPER MISCELLANEOUS RECEIPT ACCOUNT. THE ALIEN'S APPLICATION FOR ADJUSTMENT OF STATUS WAS APPROVED BY THE CONGRESS IN JOINT RESOLUTION NO. 191 DATED JULY 1, 1952, 66 STAT. B57, AND A RETROACTIVE RECORD OF LAWFUL ENTRY FOR PERMANENT RESIDENCE WAS CREATED AS OF JULY 9, 1948, THE DATE OF THE SUBJECT'S LAST ENTRANCE INTO THE UNITED STATES.

IT IS STATED THAT FOLLOWING THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ON JUNE 16, 1953, IN THE CASE OF UNITED STATES V. MANUFACTURERS CASUALTY COMPANY, 113 F.1SUPP. 402, YOUR DEPARTMENT ADOPTED THE POLICY OF NOT ATTEMPTING TO EFFECT COLLECTIONS ON DEPARTURE BONDS WHERE THE ALIEN HAS BEEN GRANTED THE RIGHT TO PERMANENT RESIDENCE IN A MANNER WHICH RETROACTIVELY MADE HIS STATUS LAWFUL AS OF A DATE PRIOR TO THE VIOLATION OF THE DEPARTURE BOND. IT IS FURTHER REPORTED, HOWEVER, THAT WHERE THE AMOUNT OF THE BOND HAD BEEN PAID BY THE SURETY, YOUR DEPARTMENT RULED THAT NO REIMBURSEMENT BY ADMINISTRATIVE MEANS WAS AUTHORIZED WHEN THE PAYMENTS WERE VOLUNTARILY MADE. HOWEVER, SOME DOUBT IS EXPRESSED AS TO WHETHER THE CONVERSION OF COLLATERAL AS IN THE GOLDWAG CASE PROPERLY MAY BE TERMED VOLUNTARY.

THE DEPARTURE BOND IN THE INSTANT CASE BY ITS TERMS BOUND THE SURETY OF THE ALIEN TO THE PAYMENT OF $500 "AS LIQUIDATED DAMAGES AND NOT AS A PENALTY TO BE PAID TO THE UNITED STATES.' THE BOND RECITES ITS CONDITIONS AS FOLLOWS:

NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT IF THE SAID ALIEN IS ADMITTED TEMPORARILY AS A TOURIST OR VISITOR FOR PLEASURE HE SHALL NOT ENGAGE IN ANY BUSINESS OR OCCUPATION OR EMPLOYMENT FOR HIRE, OR IF ADMITTED TEMPORARILY FOR BUSINESS HE SHALL NOT ENGAGE IN ANY BUSINESS OR OCCUPATION OR EMPLOYMENT OTHER THAN THAT GIVEN AS A REASON FOR HIS REQUEST FOR TEMPORARY ADMISSION, AND SHALL ACTUALLY DEPART PERMANENTLY FROM THE UNITED STATES, WITHOUT EXPENSE TO THE UNITED STATES, ON OR BEFORE JANUARY 6TH, 1949, AND IF THE IMMIGRATION AND NATURALIZATION OFFICER IN CHARGE OF THE PORT OF NEW YORK SHALL RECEIVE FROM THE ABOVE-BOUNDEN OBLIGORS AT LEAST FIVE (5) DAYS PRIOR TO SUCH DEPARTURE INFORMATION AS TO THE DATE THEREOF AND NAME OR DESIGNATION OF THE VESSEL OR OTHER MEANS OF CONVEYANCE BY WHICH THE ALIEN SHALL DEPART, THEN THIS OBLIGATION TO BE VOID; OTHERWISE TO REMAIN IN FULL FORCE AND VIRTUE. * * *

A POWER OF ATTORNEY EXECUTED BY THE SURETY CONFERRED AUTHORITY ON THE ATTORNEY GENERAL AND HIS SUCCESSORS IN OFFICE, TO COLLECT, SELL, ASSIGN, AND TRANSFER THE UNITED STATES TREASURY BOND WHICH IS DESCRIBED IN THE POWER OF ATTORNEY AND WHICH WAS PLEDGED AS SECURITY FOR THE DEPARTURE BOND. THE POWER OF ATTORNEY CONTAINS THE FOLLOWING CONDITION WHICH THE SURETY AGREED TO:

* * * IN CASE OF ANY DEFAULT IN THE PERFORMANCE OF ANY OF THE CONDITIONS AND STIPULATIONS OF SUCH UNDERTAKING, MY SAID ATTORNEY SHALL HAVE FULL POWER TO COLLECT SAID BONDS/NOTES OR ANY PART THEREOF, OR TO SELL, ASSIGN, AND TRANSFER SAID BONDS/NOTES OR ANY PART THEREOF, WITHOUT NOTICE, AT PUBLIC OR PRIVATE SALE, FREE FROM ANY EQUITY OF REDEMPTION AND WITHOUT APPRAISEMENT OR VALUATION, NOTICE AND RIGHT TO REDEEM BEING WAIVED, AND TO APPLY THE PROCEEDS OF SUCH COLLECTION, SALE, ASSIGNMENT, OR TRANSFER, IN WHOLE OR IN PART TO THE SATISFACTION OF ANY DAMAGES, DEMANDS, OR DEFICIENCY ARISING BY REASON OF SUCH DEFAULT, AS MY SAID ATTORNEY MAY DEEM BEST.

THE ABOVE QUOTED PROVISIONS OF THE BOND AND POWER OF ATTORNEY TOGETHER EVIDENCE A CONTRACTUAL AGREEMENT WHEREBY THE SURETY DEPOSITS INTO THE POSSESSION OF THE ATTORNEY GENERAL A UNITED STATES TREASURY BOND AS SECURITY FOR THE FAITHFUL PERFORMANCE BY THE ALIEN OF THE CONDITIONS AND OBLIGATIONS OF THE DEPARTURE BOND AND AGREES IN THE EVENT OF DEFAULT OF CONDITIONS OF SAID BOND THAT THE ATTORNEY GENERAL, AS HIS ATTORNEY IN FACT, MAY CONVERT SUCH BOND AND APPLY THE PROCEEDS, IN SATISFACTION OF ANY DAMAGES SUSTAINED BY THE UNITED STATES BY REASON OF SUCH DEFAULTS. BY THE TERMS OF SUCH AGREEMENT THE SURETY DIVESTS HIMSELF FROM ALL RIGHTS TO AND CONTROL OVER THE COLLATERAL AFTER A VIOLATION OF THE DEPARTURE BOND OBLIGATION HAS OCCURRED.

FURTHERMORE IN THE PARTICULAR CASE HERE INVOLVED THE RECORD, AS ESTABLISHED FROM DOCUMENTS FURNISHED OUR OFFICE INFORMALLY, SHOWS THAT BY A LETTER DATED JANUARY 7, 1952, THE SURETY ON THE ALIEN'S BOND WAS NOTIFIED OF THE BREACH OF THE BOND CONDITIONS AND THAT THE COLLATERAL ON THE BOND WAS BEING COVERED INTO THE UNITED STATES TREASURY. ATTACHED TO THE LETTER WAS A COPY OF THE ORDER OF THE ASSISTANT COMMISSIONER, ADJUDICATION DIVISION, DECLARING THE BOND POSTED ON BEHALF OF SYLWKA GOLDWAG AS BEING BREACHED AS OF JULY 6, 1950. NO PROTEST TO SUCH ACTION APPEARS TO HAVE BEEN MADE BY THE SURETY.

UNDER THE CIRCUMSTANCES, AND CONSIDERING THE CONDITIONS OF THE BOND AGREEMENT AND THE POWER OF ATTORNEY, IT SEEMS PROPER TO REGARD THE SURETY AS HAVING MADE A VOLUNTARY PAYMENT AT THE TIME THE COLLATERAL WAS CONVERTED. HENCE, THERE WOULD BE FOR APPLICATION THE RULING OF THE DEPUTY ATTORNEY GENERAL OF JUNE 14, 1953, SET OUT IN YOUR MEMORANDUM, TO THE EFFECT THAT THERE WAS NO AUTHORITY FOR REIMBURSEMENT BY ADMINISTRATIVE MEANS WHEN PAYMENTS ARE VOLUNTARILY MADE. THIS IS CONSONANT WITH THE RULE THAT MONEY VOLUNTARILY PAID WITHOUT FRAUD, DURESS, OR MISTAKE OF FACT CANNOT BE RECOVERED. UNITED STATES V. EDMONSTON, 181 U.S. 500; PURE OIL COMPANY V. TUCKER, 164 F.2D 945; GULF REFINING COMPANY V. CITY OF PHILADELPHIA, 30 F.1SUPP. 587, AFFIRMED 110 F.2D 661.

ACCORDINGLY, IT IS OUR VIEW THAT NEITHER THE IMMIGRATION AND NATURALIZATION SERVICE NOR THIS OFFICE IS AUTHORIZED TO REFUND THE VALUE OF COLLATERAL CONVERTED.