Yesterday we looked at the first of two circuit splits currently pending before the Supreme Court in Bright v. Holder. In case you missed yesterday’s post, you can read Part I here. Today’s post looks at the related split over whether a petitioner’s status as a “fugitive," for purposes of the fugitive-disentitlement doctrine, changes once the petitioner is in custody. According to Bright’s cert petition, a former fugitive, once in the custody of the government, may appeal his conviction in the following circuits:
- 2nd Circuit: Wu v. Holder, 617 F.3d 97, 100 (2d Cir. 2010) (“At a minimum, a court must find that a party either is currently a fugitive from justice or was a fugitive from justice and that a nexus exists between the party's former fugitive status and the appeal.”) (emphasis added). [Editor’s note: Although Bright’s cert petition groups Wu in with the other circuits that permit a former fugitive’s appeal once in custody, the quoted language above appears to permit dismissal even after the appellant is captured or surrenders, so long as "a nexus exists between the former fugitive status and the appeal.The court in Wu goes on to clarify that courts within the Second Circuit may in fact dismiss a former fugitive's appeal after based on factors such as “whether a party provides an explanation for his fugitive status” and “the extent to which a party has truly evaded the law." Id. at 101.]
- 3rd Circuit: Ye v. Attorney Gen., 383 F. App’x 113, 116 (3d Cir. 2010) (unpublished); Arana v. INS, 673 F.2d 75, 77 (3d Cir. 1982) (per curiam).
- 7th Circuit: Sapoundjiev v. Ashcroft, 376 F.3d 727, 729–30 (7th Cir. 2004) (permitting a former fugitive’s petition where he or she is no longer “at large” and no longer has the “option of going underground if the judicial decision is adverse”).
- 8th Circuit: Nnebedum v. Gonzales, 205 F. App’x 479, 480-81 (8th Cir. 2006).
- 9th Circuit: Sun v. Mukasey, 555 F.3d 802, 804 (9th Cir. 2009) (“Regardless of Sun’s [alleged flight] at the time she was ordered to report for removal, she is not now a fugitive from justice, and there is, there- fore, no reason for us to treat her as if she were by refusing to consider her petition for review in this court.”).
- 10th Circuit: Martin v. Mukasey, 517 F.3d 1201, 1204 (10th Cir. 2008).
- 11th Circuit: Zhou v. Attorney General, 290 F. App’x 278, 281 (11th Cir. 2008) (unpublished).
On the other hand, Bright’s cert petition identifies the following Fifth and Sixth Circuit cases as standing for the proposition that “a petitioner’s subsequent arrest is irrelevant to their doctrinal analysis” of the fugitive-disentitlement doctrine:
- 5th Circuit: Bright v. Holder, 649 F.3d 397 (5th Cir. 2011).
- 6th Circuit: Garcia-Flores v. Gonzales, 477 F.3d 439, 442 (6th Cir. 2007).
[*Hat tip to Lee Beck over at http://www.fedregsadvisor.com/].