Wenqin Sun v. Mukasey

• Decision Date: 09 February 2009
• Docket Number: No. 07-70691.,No. 06-74450.,06-74450.,07-70691.
• Citation: 555 F.3d 802
• Parties: WENQIN SUN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Wenqin Sun, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

555 F.3d 802

WENQIN SUN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

Wenqin Sun, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.

No. 06-74450.

No. 07-70691.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2008.

Filed February 9, 2009.

Drew Sieminski, Oakland, CA, for the petitioner.

Jem C. Sponzo, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-592-229.

Before: MARY M. SCHROEDER, D.W. NELSON, and STEPHEN REINHARDT, Circuit Judges.

SCHROEDER, Circuit Judge:

Petitioner Wenqin Sun is a native and citizen of China, and she is also a battered spouse. The Board of Immigration Appeals ("BIA") affirmed the Immigration Judge's ("IJ's") denial of asylum, withholding of removal, and relief under the Convention Against Torture, and entered a final order of removal in 2004. Sun did not seek review of that decision and now seeks review of the BIA's denial, on timeliness grounds, of her motion to reopen removal proceedings on the basis of her successful application to qualify for an adjustment of status under the Violence Against Women Act ("VAWA"), 8 U.S.C. § 1154. Her motion to reopen was not filed within the year provided for in 8 U.S.C. § 1229a(c)(7)(C)(iv)(III) because of errors of counsel. She seeks review of the BIA's rulings that: (1) she did not adequately show her first lawyer was ineffective; and (2) she did not act diligently to obtain new counsel after becoming aware of the first lawyer's omissions. Sun also seeks review of the BIA's denial of her motion for reconsideration of its previous decision, which the BIA also denied after finding that Sun failed to specify any errors of fact or law that would justify reversing the earlier decision.

As a threshold matter, we must address the government's contention that we should not consider Sun's petition for review because she failed to appear on the date set for her removal and is for that reason a "fugitive from justice" with-out entitlement to review in this court. The fugitive disentitlement doctrine developed to prevent appellate review for escapees from the criminal justice system. Regardless of Sun's conduct at the time she was ordered to report for removal, she is not now a fugitive from justice, and there is, therefore, no reason for us to treat her as if she were by refusing to consider her petition for review in this court.

We therefore examine the bases for the BIA's rulings and grant the petitions for review. Regardless of the Board's holding that Sun fell short of the strict requirements for establishing ineffective assistance of counsel under Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.1988), Sun acted diligently in retaining new counsel and is entitled to the benefit of the equitable tolling doctrine. See Iturribarria v. INS, 321 F.3d 889, 897-99 (9th Cir.2003). We remand to the BIA for consideration of the merits of Sun's motion to reopen. We also hold that the BIA should have granted Sun's motion to reconsider, because Sun clearly pointed out the factual error underlying the BIA's denial of her motion to reopen. See 8 C.F.R. § 1003.2(b)(1).

I. Fugitive disentitlement

The government contends that Sun's petition for review should be dismissed on the basis of the fugitive disentitlement doctrine, which was developed over a century ago to allow appellate courts to dismiss the appeals of convicted criminals who have fled. 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." Ortega-Rodriguez v. United States, 507 U.S. 234, 242, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). 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).

In the immigration context, we have dismissed petitions for review by aliens who have fled custody and cannot be located when their appeals come before this court. See, e.g., id. at 1091-93 (petitioner had been missing and out of touch with his attorney for two years); Hussein v. INS, 817 F.2d 63, 63 (9th Cir.1987) (petitioner had escaped from federal immigration detention facility and was at large). Other circuits that have considered the issue have also applied the doctrine to fugitive aliens under similar circumstances. See, e.g., Martin v. Mukasey, 517 F.3d 1201, 1203-04 (10th Cir.2008); Gao v. Gonzales, 481 F.3d 173, 175-77 (2d Cir.2007); Garcia-Flores v. Gonzales, 477 F.3d 439, 441-42 (6th Cir.2007); Sapoundjiev v. Ashcroft, 376 F.3d 727, 728-30 (7th Cir.2004); Arana v. INS, 673 F.2d 75, 76-77 (3d Cir.1982) (per curiam).

No court has ever applied the doctrine to an alien whose whereabouts are known and who has not fled from custody. This is the first case in this circuit to consider the applicability of the doctrine in such circumstances. We therefore look to the justifications offered to support its application.

Where the doctrine may apply, the court has some discretion to decide whether to apply it. United States v. Van Cauwenberghe, 934 F.2d 1048, 1054-55 (9th Cir.1991). Two justifications frequently advanced in support of dismissal on a fugitive disentitlement theory are: (1) the pragmatic concern with ensuring that the court's judgment will be enforceable against the appellant; and (2) the equitable notion that a person who flouts the authority of the court waives his entitlement to have his appeal considered. See Ortega-Rodriguez, 507 U.S. at 240, 113 S.Ct. 1199; Antonio-Martinez, 317 F.3d at 1092.

In light of these concerns, we must conclude that the critical question the court must ask when deciding whether to apply the fugitive disentitlement doctrine is whether the appellant is a fugitive at the time the appeal is pending. The Supreme Court has held that for disentitlement to be appropriate, there must be "some connection between a defendant's fugitive status and the appellate process." Ortega-Rodriguez, 507 U.S. at 244, 113 S.Ct. 1199. Thus dismissal is not warranted even in the case of a former fugitive, if his "fugitive status at no time coincides with his appeal." Id.

Although Sun did not report for removal from the United States in August of 2004, as ordered by the BIA, that failure does not make her a fugitive now, during the pendency of her petition to review the BIA's denial of reopening. Sun's whereabouts are known to her counsel, DHS, and this court. Because Sun is not currently a fugitive, and has not been a fugitive at least since the time she first filed a petition for review with this court, we hold it would be inappropriate to apply the fugitive disentitlement doctrine to dismiss Sun's case. We will consider the merits of her appeal, which relate to the timeliness of her motion to open removal proceedings.

II. Timeliness

We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA's denial of Sun's motion to reopen, because the Board's determination that an alien has failed to provide a sufficient justification for an untimely motion presents a mixed question of fact and law, rather than a discretionary determination, as urged by the government. See Ghahremani v. Gonzales, 498 F.3d 993, 998-999 (9th Cir.2007). We turn to the merits of Sun's arguments.

Sun's problems all stem from the fact that she retained two lawyers: one to handle her successful VAWA petition, and the other to handle her unsuccessful efforts to seek relief from removal through asylum. According to Sun, the lawyer handling the VAWA adjustment in 2003 told her to forget about applying to the courts for relief, even though the IJ already ordered her removed and the removal order was pending on appeal to...