Gutierrez-Almazan v. Gonzales

• Decision Date: 17 July 2006
• Docket Number: No. 05-4494.,05-4494.
• Parties: Telesforo GUTIERREZ-ALMAZAN, Petitioner, v. Alberto GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 956

453 F.3d 956

Telesforo GUTIERREZ-ALMAZAN, Petitioner, v. Alberto GONZALES, Respondent.

No. 05-4494.

United States Court of Appeals, Seventh Circuit.

Submitted May 26, 2006.

Decided July 17, 2006.

Courtney M. Oliva, Latham & Watkins, Geoffrey Heeren, Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Jennifer A. Levings, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before KANNE, ROVNER, and WOOD, Circuit Judges.

PER CURIAM.

Telesforo Gutierrez-Almazan was ordered removed after immigration authorities determined that his 1994 conviction for sexual abuse of a minor was an aggravated felony. Gutierrez filed a petition for review in this court, challenging the determination of the Board of Immigration Appeals that he is ineligible for relief under former section 212(c) of the Immigration and Nationality Act. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). After he filed his opening brief in this court, however, the government moved to dismiss the petition under the fugitive disentitlement doctrine. We deny the motion to dismiss for the reasons set out below.

The facts needed to understand this matter are few. On February 8, 2006, the Department of Homeland Security (DHS) sent Gutierrez a notice (commonly referred to as a "bag and baggage" letter) ordering him to surrender for removal on March 9. Presumably in response to the notice, Gutierrez filed in this court on February 14 a motion for a stay of removal pending his appeal. Two days later a motions judge ordered a temporary stay and directed the government to respond to the motion by March 1. The government filed its response on March 6, stating that it did not oppose a stay of removal, and on March 22 this motions panel granted Gutierrez's motion for a stay. But in the meantime, March 9 came and went and he did not surrender. His counsel now states that he advised Gutierrez that he didn't need to report because of the temporary stay; that advice was unfounded. See Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir.2004).

Then on May 26, 2006, the government filed its motion to dismiss. Gutierrez's counsel immediately called DHS and stated that Gutierrez was willing to surrender to immigration authorities at any time and place the government requested. A DHS official told Gutierrez to report on May 30, which he did. He remains in custody.

The fugitive disentitlement doctrine is a discretionary device by which courts may dismiss criminal appeals or civil actions by or against individuals who are fugitives from justice. Sarlund v. Anderson, 205 F.3d 973, 974 (7th Cir.2000). Courts have consistently held that it applies in the immigration context. See, e.g., Sapoundjiev, 376 F.3d at 728; Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir. 2003). But it is not at all clear that it should be invoked in a case like this, where the party in question is no longer a fugitive. Gutierrez is not at large; he is in custody. In cases where escaped fugitives have been recaptured, courts have been reluctant to impose the severe sanction of disentitling them to access to the federal courts. See Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993); Hanson v. Phillips, 442 F.3d 789 (2d Cir.2006); Katz v. United States, 920 F.2d 610 (9th Cir.1990), abrogated on other grounds by Lozada v. Deeds, 964 F.2d 956 (9th Cir.1992); cf. Walsh v. Walsh, 221 F.3d 204, 214-15 (1st Cir.2000) (noting that courts have generally dismissed cases...