Circuit Splits

The Fugitive-Disentitlement Doctrine: Cert Petition Offers Two Splits for the Price of One (Part 2 of 2)

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• 3rd Circuit: Ye v. Attorney Gen., 383 F. App’x 113, 116 (3d Cir. 2010) (unpublished); Arana v. INS, 673 F.2d 75, 77 (3d Cir. 1982) (per curiam).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/].

The Fugitive-Disentitlement Doctrine: Cert Petition Offers Two Splits for the Price of One (Part 1 of 2)

SCOTUSblog’s “Petition of the Day” last Friday, Bright v. Holder, presents the Supreme Court with the unique opportunity to resolve two circuit splits in one case. (I've posted a link to SCOTUSblog's coverage of this petition below). You can read the pending cert petition filed in Bright here, and the Fifth Circuit’s opinion here: Bright v. Holder, 649 F.3d 397 (5th Cir. 2011).

The circuit splits in this case involve the “fugitive-disentitlement doctrine," a mechanism through which an appellate court may dismiss the appeal of a convicted criminal who has fled custody. See Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876). “Under the doctrine, a fugitive is precluded from appellate review ‘as an appropriate sanction’ when he remains at large during ‘the ongoing appellate process.’” Sun v. Mukasey, 555 F.3d 802, 805 (9th Cir. 2009) (quoting Ortega-Rodriguez v. United States, 507 U.S. 234, 242 (1993)).

In the immigration context, the circuits are widely split over the question of whether the fugitive-disentitlement doctrine applies to an alien who fails to voluntarily surrender to a removal order, but whose whereabouts are presently known and who has not fled from custody during the pending appeal. 

The following five circuits, according to Bright's cert petition, do not treat appellants who fail to voluntarily surrender themselves for removal as "fugitives" under the fugitive-disentitlement doctrine unless they have actually fled or are hiding from the court:

• 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).

• 8th Circuit: Nnebedum v. Gonzales, 205 F. App’x 479, 480-81 (8th Cir. 2006).

• 9th Circuit: Sun v. Mukasey, 555 F.3d 802, 805 (9th Cir. 2009) (refusing to apply the fugitive-disentitlement doctrine to dismiss the appellant’s case because her whereabouts were known to the appellant's attorney and her previous failure to report for removal from the U.S. did not coincide with the pending appeal).

• 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).

“In stark contrast,” according to the Petitioner in Bright, “four other circuits—the Second, Fifth, Sixth, and Seventh—define a ‘fugitive’ as ‘anyone who is told to surrender, and does not,’ whether or not his whereabouts are known.” Bright's petition cites the following cases as having adopted this position:

• 2nd Circuit: Gao v. Gonzalez, 481 F.3d 173, 176 (2d Cir. 2007) ((“[F]or an alien to become a fugitive, it is not necessary that anything happen other than a bag-and- baggage letter be issued and the alien not comply with that letter.”). But see Wu v. Holder, 617 F.3d 97, 100 (2d Cir. 2010).

• 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).

• 7th Circuit: Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir. 2004).

Tomorrow we will look at the second circuit split pending before the Supreme Court in Bright v. Holder, which involves the question of whether a petitioner's “fugitive” status changes once they are in custody. In the meantime, you can read SCOTUSblog's coverage of the petition here: Kali Borkoski, Petition of the day, SCOTUSblog (Feb. 17, 2012, 5:00 PM), http://www.scotusblog.com/2012/02/petition-of-the-day-247/.

[*Hat tip to Lee Beck over at http://www.fedregsadvisor.com/].