Martin v. Mukasey

• Decision Date: 26 February 2008
• Docket Number: No. 06-9572.,06-9572.
• Citation: 517 F.3d 1201
• Parties: Lee MARTIN, Petitioner, v. Michael B. MUKASEY, United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

517 F.3d 1201

Lee MARTIN, Petitioner, v. Michael B. MUKASEY, United States Attorney General,^* Respondent.

No. 06-9572.

United States Court of Appeals, Tenth Circuit.

February 26, 2008.

Sarah Faville of Sandra Saltrese-Miller & Associates, Denver, CO, for Petitioner.

Stephen J. Flynn, Senior Litigation Counsel, and Anh-Thu P. Mai, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before TYMKOVICH, McKAY, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Lee Martin, a native and citizen of England, petitions us for review of a final order of removal from the United States. Based on the fugitive disentitlement doctrine, we dismiss the appeal.

I

Mr. Martin is a citizen of England who married a United States citizen in 1998. On June 4, 2000, he filed an application for adjustment of status based on the marriage. The application was denied in March 2001, and the Department of Homeland Security (DHS) instituted removal proceedings against Mr. Martin. At those proceedings, the court found Mr. Martin was removable given that he was an immigrant not in possession of a valid, unexpired travel document or document of identity and nationality at the time he applied for admission to the United States. See 8 U.S.C. § 1182(a)(7)(A)(i)(I).

Mr. Martin moved for cancellation of his removal under the battered spouse provision of 8 U.S.C. § 1229b(b)(2), contending his removal would create an extreme hardship on his young daughter, Emily.¹ See id. (Attorney General may cancel removal if alien establishes abuse, physical presence in United States for at least three years, good moral character, and that the removal would result in "extreme hardship to the alien, the alien's child, or the alien's parent."). DHS contested only the claim of extreme hardship. In March 2005, an Immigration Judge (IJ) denied Mr. Martin's request for cancellation of removal and ordered him removed. When Mr. Martin's motion for reconsideration was denied, he appealed. On July 17, 2006, the Bureau of Immigration Appeals (BIA) affirmed, and Mr. Martin filed this appeal.

Four days after the BIA affirmed the IJ's decision to remove Mr. Martin, DHS sent him and his counsel a notice directing Mr. Martin to appear before DHS on August 7, 2006 to "discuss [his] case and [his] intentions of departing the U.S." Aple. Br., Add. at Att. 1. The notice instructed Mr. Martin to bring with him various United States identity documents and a "[o]ne-way, non-refundable ticket to ENGLAND FOR USE ON OR BEFORE August 14, 2006." Id. After Mr. Martin failed to report for the meeting, a warrant was issued for his arrest.

DHS made repeated attempts to locate Mr. Martin. The agency discovered that shortly after the notice was sent, Mr. Martin resigned from his employment, advising his employer that he was scheduled to be deported and could not provide the requisite documentation. He could not be found at his last known address, 515 Amy's Way in Grand Junction, Colorado, and had not advised DHS of a change of address as required by law. 8 U.S.C. § 1305(a); 8 C.F.R. § 265.1. Subpoenaed utility records indicated an address for Mr. Martin of 2931 Bunting in Grand Junction, Colorado, but the landlord advised DHS that Mr. Martin had vacated the premises after October 2006 without giving notice. Family and friends who were interviewed said they were not aware of his current location and did not know how to reach him. The mother of his child stated she had not had recent contact with him. While Mr. Martin has continued to pursue this appeal through counsel, he has not presented himself to DHS or made any information about himself known to them since he was ordered removed.

DHS maintains that Mr. Martin has absconded and asks us to dismiss his appeal on the basis of the fugitive disentitlement doctrine. In response, counsel for Mr. Martin asserts the government failed to establish that Mr. Martin received notice of the appointment he missed, or that Mr. Martin is, in fact, a fugitive. He also contends we should exercise our discretion and refuse to apply the doctrine to this appeal. He argues, in the alternative, that applying the doctrine would be unconstitutional. We address each argument in turn.

II

A. Notice

Initially, we address Mr. Martin's argument regarding sufficiency of notice to him of the order to appear before DHS. He maintains that a Mr. Fraser and/or a Melody Fraser — both of whom Mr. Martin denies knowing — signed for the registered letter DHS attempted to send to Mr. Martin notifying him of the removal proceedings. But notice was also mailed to Mr. Martin's counsel, who does not deny receiving it.

"It is a longstanding principle that in our system of representative litigation ... each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney." Garcia v. I.N.S., 222 F.3d 1208, 1209 (9th Cir.2000) (quoting Link v. Wabash R.R., 370 U.S. 626, 634, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)) (internal citation and quotation omitted); see also Bruce J. Pierce & Assoc., Inc. v. Resolution, 987 F.2d 663, 665 (10th Cir.1993) (imputing to plaintiff notice received by counsel). DHS's notice to Mr. Martin's counsel satisfies the notice requirement. In addition, Mr. Martin failed to comply with his statutory duty to keep DHS abreast of his whereabouts. This is an additional reason to deny his complaint about lack of notice. See Antonio-Martinez v. I.N.S., 317 F.3d 1089, 1092-93 (9th Cir.2003) (appeal dismissed under fugitive disentitlement doctrine where alien failed to notify agency of new address).

B. Fugitive Status

Next, we consider whether Mr. Martin is actually a fugitive. "Although an alien who fails to surrender to the INS despite a lawful order of deportation is not, strictly speaking, a fugitive in a criminal matter, we think that he is nonetheless a fugitive from justice." Bar-Levy v. I.N.S., 990 F.2d 33, 35 (2d Cir.1993); see also Gao v. Gonzales, 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 the letter."); Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir.2004) ("[A]nyone who is told to surrender, and does not, is a fugitive."). Here, Mr. Martin not only failed to appear for his scheduled appointment, he also failed to provide DHS with his current address. Given that other courts have found each of these individual failures sufficient to constitute fugitive status in an immigration appeal, we have no reservation about concluding that the two failures together render Mr. Martin a fugitive. Gao, 481 F.3d at 176; Antonio-Martinez, 317 F.3d at 1092; Bar-Levy, 990 F.2d at 35.

C. Fugitive Disentitlement Doctrine

The fugitive disentitlement doctrine permits a court to dismiss a defendant's appeal if he flees while the appeal is pending. "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." Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). The doctrine has its origin in the criminal context, see Smith v. United States, 94 U.S. 97, 97, 24 L.Ed. 32 (1876), and arises from a court's inherent authority to protect its proceedings and judgments. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). The rationale for the doctrine lies primarily in concern for the enforceability of a court's judgments and a "`disentitlement' theory that construes a defendant's flight during the pendency of his appeal as tantamount to waiver or abandonment." Ortega-Rodriguez, 507 U.S. at 240, 113 S.Ct. 1199.

This court has applied the fugitive disentitlement doctrine numerous times in the criminal appeal context. See, e.g., United States v. Hanzlicek, 187 F.3d 1219, 1220 (10th Cir.1999) (dismissing criminal appeal where defendant failed to report for supervised release following prison term and was declared a fugitive from justice); see also Brinlee v. Crisp, 608 F.2d 839, 856-57 (10th Cir.1979) (upholding denial of habeas corpus petition when state court dismissed criminal defendant's appeal because he was a fugitive), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980); Lopez v. Malley, 552 F.2d 682, 683 (10th Cir.1977) (same); Gonzales v. Stover, 575 F.2d 827, 828 (10th Cir.1978) (same); United States v. Swigart, 490 F.2d 914, 915 (10th Cir.1973) (federal criminal appeal); United States v. O'Neal, 453 F.2d 344, 345 (10th Cir.1972) (same). We have also upheld application of the fugitive disentitlement doctrine to support granting a default judgment in a civil forfeiture action. United States v. Timbers Preserve, Routt Co., Colo., 999 F.2d 452, 455 (10th Cir.1993).

Although we have not had an opportunity to address the matter, many of our sister circuits have applied the doctrine to a pending immigration appeal. See, e.g., Gao, 481 F.3d at 178; Garcia-Flores v. Gonzales, 477 F.3d 439, 442 (6th Cir.2007); Sapoundjiev, 376 F.3d at 728; Antonio-Martinez, 317 F.3d at 1092-93; Bar-Levy, 990 F.2d at 35; Arana v. INS, 673 F.2d 75, 77 (3d Cir.1982) (per curiam).² Today, we follow their lead and sound logic in holding that the fugitive disentitlement doctrine applies in immigration appeals.

Several reasons support our decision to dismiss the pending immigration appeal of a fugitive. See Ortega-Rodriguez, 507 U.S. at 240-42, 113 S.Ct. 1199. First and foremost is our concern for the enforceability of our decisions. Without the fugitive present to accept the decision of this court, there is no guarantee that our judgment could be executed. In other words, enforcement is likely to occur only if we should decide in favor of the fugitive immigrant. See Antonio-Martinez, 317 F.3d at 1093 ("heads...