Gao v. Gonzales

• Decision Date: 20 March 2007
• Docket Number: Docket No. 05-5013-ag.
• Citation: 481 F.3d 173
• Parties: Qian GAO, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

481 F.3d 173

Qian GAO, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

Docket No. 05-5013-ag.

United States Court of Appeals, Second Circuit.

Argued September 12, 2006.

Decided March 20, 2007.

Aleksander B. Milch, New York, N.Y. (Christophe & Associates, P.C., New York, NY, of counsel), for Petitioner.

Nicole Gueron, Assistant United States Attorney, New York, N.Y. (Michael J. Garcia, United States Attorney, Sarah S. Normand, Assistant United States Attorney, Southern District of New York, New York, NY, of counsel), for Respondent.

Before JACOBS, Chief Judge, CARDAMONE, and MINER, Circuit Judges.

CARDAMONE, Circuit Judge.

This is an appeal from the denial by the Board of Immigration Appeals of petitioner's motion to reopen his proceedings. The petitioner is now a fugitive, and because of that status is subject to having his appeal dismissed under the fugitive disentitlement doctrine. In a number of contexts, it is established that litigants who flee the reach of the courts risk losing the right of access to them. A criminal defendant who fails to appear at trial risks being tried in absentia; a litigant who fails to timely respond to a civil suit risks default judgment; on similar reasoning, an alien who fails to comply with a notice to surrender for deportation risks losing the right to appeal that deportation.

Qian Gao (Gao or petitioner) petitions for review of a September 12, 2005 order of the Board of Immigration Appeals (BIA or Board) denying, as untimely, his motion to reopen his removal proceedings. On May 14, 1996, Immigration Judge Patricia A. Rohan (IJ) denied Gao's application for asylum and withholding of removal based on her finding that he lacked credibility and had failed to provide sufficient corroboration for his claims of persecution. The BIA summarily dismissed the appeal for failure to file a brief on December 30, 1996. Although Gao was granted 30 days from the date of the BIA's order to depart the country voluntarily, he failed to do so, and subsequently he ignored a lawful order issued on December 12, 1997 to surrender for deportation.

For the past ten years, Gao has continued to live in the United States illegally and to this day has failed to comply with the order to surrender to immigration authorities. He now seeks to reopen his asylum application, alleging changed country circumstances and the existence of previously unavailable material evidence. The BIA denied the motion to reopen as untimely under 8 C.F.R. § 1003.2(c)(2), because petitioner had not established changed country circumstances, which would render timeliness immaterial under 8 C.F.R. § 1003.2(c)(3)(ii). Gao now petitions this Court for review of the BIA's order and decision. Using our equitable discretion under the fugitive disentitlement doctrine, we dismiss the petition.

BACKGROUND

The facts in this case are straightforward and largely uncontested. Gao is a 36-year-old male from Fujian province in the People's Republic of China (China). Twelve years ago on November 9, 1994 he entered the United States illegally near Miami, Florida. Shortly after entering the country, Gao filed an application for asylum and withholding of removal in which he claimed he had been repeatedly persecuted in China because of his Buddhist religious beliefs.

Petitioner's application for asylum and withholding of removal was denied by the IJ in her May 14, 1996 oral decision. The IJ found Gao had failed to provide a consistent account of the events leading up to his departure from China and had not provided any corrobative evidence of his claims of persecution. After the BIA dismissed Gao's appeal on December 30, 1996, petitioner was granted 30 days from the date of the BIA order to depart the country voluntarily or else be deported. The BIA's decision was not appealed.

Subsequent to these proceedings, Gao did not depart the country voluntarily. Immigration officials sent him a notice to surrender for deportation (often called a bag-and-baggage letter) dated December 12, 1997, and petitioner signed a domestic return receipt form acknowledging receipt of this notice on January 12, 1998. The notice directed Gao to report for custody and removal on January 22, 1998. Nonetheless, he never reported for custody. For the next seven years, Gao neglected to contact immigration authorities. We now learn that during this time he married and had two children. In other words, petitioner continued to carry on his life in complete disregard of the outstanding bag-and-baggage letter and deportation order against him.

On July 1, 2005 petitioner filed with the BIA the motion that is the subject of his appeal. He asserts the birth of his two children in the United States puts him and his family at risk of persecution under China's family planning policy. Although motions to reopen ordinarily must be filed within 90 days of the entry of the final administrative decision, 8 C.F.R. § 1003.2(c)(2), Gao claims the 90-day time limit does not apply to him because he has produced evidence of changed country circumstances in China and therefore falls under the exception in 8 C.F.R. § 1003.2(c)(3)(ii). The BIA denied the motion to reopen, and Gao has appealed.

DISCUSSION

The Fugitive Disentitlement Doctrine

A. General Principles

The fugitive disentitlement doctrine is an equitable doctrine that provides courts with discretion to dismiss the appeal of a defendant or petitioner who is a fugitive from justice during the pendency of the appeal. First applied by the Supreme Court in the late nineteenth century, Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876), the doctrine is now well established. See, e.g., Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) ("It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal."); Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (per curiam) (noting state disentitlement statute providing for automatic dismissal of appeals by defendants who escape during pendency of appeal and do not return within ten days); Eisler v. United States, 338 U.S. 189, 190, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949) (per curiam) (removing case from docket because petitioner fled country); see also Degen v. United States, 517 U.S. 820, 823, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) ("We have sustained, to be sure, the authority of an appellate court to dismiss an appeal or writ in a criminal matter when the party seeking relief becomes a fugitive.").

While the "paradigmatic object of the doctrine is the convicted criminal who flees while his appeal is pending," Antonio-Martinez v. INS, 317 F.3d 1089, 1092 (9th Cir.2003), we have also long held that the doctrine applies with full force to an alien who fails to comply with a notice to surrender for deportation, see Bar-Levy v. U.S. Dep't of Justice, INS, 990 F.2d 33, 35 (2d Cir.1993). Like the criminal defendant fleeing after his conviction, an alien who fails to comply with an outstanding notice to surrender is a fugitive from justice. See id. (holding that the alien became a fugitive upon failing to comply with a notice to surrender for deportation). We have previously observed that an alien may be a fugitive even if his home address and place of employment are known to authorities. Ofosu v. McElroy, 98 F.3d 694, 700 (2d Cir.1996). This is because "the INS must deploy resources to bring him in. And, of course, he may not be so easy to find once his litigation options are exhausted." Id. Thus, for 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. "Everyone understands that the [government] is overwhelmed with petitioners and procedures, and that it heavily relies on the word and voluntary compliance of numerous aliens within our borders. It is easy to game this system, but we should not treat disregard of [government] directives as a norm. . . ." Id. at 702-03. Applying the fugitive disentitlement doctrine to fugitive aliens accords with the approach taken by every circuit that has considered the issue. See Sapoundjiev v. Ashcroft, 376 F.3d 727, 728-29 (7th Cir. 2004); Antonio-Martinez, 317 F.3d at 1092; Arana v. INS, 673 F.2d 75, 77 (3d Cir.1982) (per curiam).¹

We have articulated several reasons why the inherent power of the court to manage its own affairs should be used to dismiss an appeal of a party who is a fugitive during the pendency of the appeal. See Empire Blue Cross & Blue Shield v. Finkelstein, 111 F.3d 278, 280 (2d Cir.1997). Those reasons include the difficulty of enforcing any judgment rendered against a fugitive; the need for a sanction to redress the fugitive's affront to the dignity of the judicial process; the desire to promote the efficient operation of the courts by deterring escape; and finally, the need to redress any prejudice to the government occasioned by the fugitive's absence. See id. When a litigant becomes a fugitive during the pendency of an appeal to escape the effect of judgment, we have observed that any one of these rationales provides a sufficient basis for us to dismiss the appeal. United States v. Awadalla, 357 F.3d 243, 247 (2d Cir.2004).

The Supreme Court in Degen ruled that two of these rationales — imposing a penalty for flight and deterring future flight — do not support dismissal of a civil litigant's appeal due to his fugitive status in a separate criminal matter. Degen, 517 U.S. at 828-29, 116 S.Ct. 1777. The Court noted that the sanction of disentitlement is "most severe" and, if applied too freely, "could disserve the dignitary purposes for which it is invoked." Id. at 828, 116 S.Ct. 1777. Applying the fugitive disentitlement doctrine too liberally — for example, to bar a criminal fugitive from defending his property in a civil forfeiture...