ELIMINATING THE FUGITIVE DISENTITLEMENT DOCTRINE IN IMMIGRATION MATTERS.

• Author: Valdez, Tania N.

INTRODACTION 965 I. MIGRATION OF THE DOCTRINE TO IMMIGRATION LAW 969 A. Fugitive Disentillement as a Criminal Doctrine 970 B. Doctrinal Creep to Civil Contexts 972 1. Civil Forfeiture 973 2. Immigration-Related FOIA 975 C. Extension to Immigration Appeals 977 1. Immigration Administrative and Appellate Processes 977 2. Overview of Courts' Rationales 982 3. Two Circuit Splits Regarding Definitions of Fugitivity 985 II. SHORTCOMINGS OF JUDICIAL RATIONALES 989 A. Practical Consequences of Surrendering to Immigration A uthorities 989 1. Immediate Deportation 990 2. Detention 992 B. Limits to Courts' Inherent Powers 997 1. Necessity 998 2. Reasonableness 999 a. Enforceability 1000 b. Punishment 1001 c. Deterrence 1005 d. Dignity 1006 C. Legislative Intent 1007 D. Violation of Constitution al Rights 1008 1. Procedural Due Process 1008 2. First Amendment Right to Petition 1011 III. POLICY REASONS TO ELIMINATE FUGITIVE DISENTITLEMENT IN IMMIGRATION CASES 1013 A. Preserve Judicial Review of Removed Orders 1013 1. Independent Adjudicators Ensure Fairness and Preserve Legitimacy of the System 1014 2. Article III Courts Are Specially Equipped to Decide Constitutional and Statutory Interpretation Issues 1019 3. Oversight Function 1021 4. Ensure Compliance with International Human Rights Obligations 1023 B. Avoid Governmental and Judicial Abuse of Power 1025 CONCLUSION 1027 INTRODUCTION

The fugitive disentitlement doctrine is a judicially created procedure by which a court can dismiss a case without considering the merits. The early cases invoking this doctrine, which developed in the criminal appellate context, explained the Supreme Court's concern that orders could not be enforced against people convicted of crimes who had escaped the physical custody of the state during the pendency of their appeals. (1)

Proponents of fugitive disentitlement, including the federal courts, justify its use through several rationales. The main reasons are: enforceability of court orders when the individual cannot be located; that a person should not be able to avail themselves of access to the courts if the person is a fugitive; deterring others from escaping and encouraging voluntary surrenders; and promoting the efficient, dignified operation of the courts. (2) The fugitive disentitlement doctrine was later expanded to civil cases, including review of immigration appeals. (3) A basic Westlaw search reveals that there are seventy-two circuit court cases discussing fugitive disentitlement in immigration matters. (4) Although the number of cases dismissed pursuant to the doctrine is currently small, its impact is far-reaching. The doctrine has been used to dismiss petitions filed by longtime lawful permanent residents of the United States, (5) asylum-seekers, (6) and parents of U.S. citizens, (7) among numerous others. Fugitive disentitlement has been acknowledged as a doctrine applicable to immigration cases by nine of the federal courts of appeals. (8)

To bring this topic to life, let us consider a real case where the government sought dismissal based on the fugitive disentitlement doctrine.(9) Mr. A came to the United States more than ten years ago as a lawful permanent resident. He has been diagnosed with paranoid schizophrenia, a severe mental illness. During a mental health crisis, he was arrested and criminally charged. In criminal court, Mr. A was found incompetent and could not continue with his case for months, until his competency was restored enough to work with his public defender. Soon after he pled guilty and was credited with time served, Mr. A was transferred directly to immigration custody and placed into removal proceedings. The immigration judge found him competent to represent himself. Proceeding pro se, Mr. A lost his lawful permanent resident status and was denied every form of relief for which he applied.

After losing his appeal to the Board of Immigration Appeals (BIA), he filed a petition for review with a federal court of appeals. Mr. A also filed a motion for a stay of removal with the circuit court, based on his fear of being tortured due to his mental illness and the lack of availability of his psychotropic medication in his country of origin. The circuit court denied the motion for a stay. Still fearing deportation, Mr. A refused to sign the travel paperwork presented by his deportation officer. Due to his refusal, and regardless of the fact that he had been diagnosed with a serious mental illness and remained in immigration custody where he had been for two years, the government filed a motion to dismiss Mr. A's entire case before the circuit court, on the grounds that he--while in ICE's physical custody--was a "fugitive." (10)

This case raises serious questions about the fugitive disentitlement doctrine. How should "fugitive" be defined? How much discretion should adjudicatory bodies have to "control their dockets" in the name of dignity of the court? Does dismissal of a case based on the fugitive disentitlement doctrine comport with even the minimal constitutional protections that apply in removal proceedings? Should the fact that Mr. A was mentally ill and feared persecution and torture in his country of origin have affected the government's decision to file the motion to dismiss, or the court's decision to entertain it? Was entertaining the motion to dismiss "efficient" in terms of controlling the circuit court's docket, where it delayed the briefing schedule and likely pushed oral argument back by six months? Was such "efficiency" fair to Mr. A, where the government succeeded in delaying proceedings enough for Mr. A to be deported (to the country where he feared persecution) while his case remained pending?

This Article tracks the doctrinal creep of fugitive disentitlement into immigration matters and exposes the shortcomings of federal courts' justifications for doing so." There is somewhat sparse scholarship on the specific topic of fugitive disentitlement in immigration cases. Scholars have largely embraced the doctrine, although to varying degrees. One scholar has argued that fugitive disentitlement was appropriately extended from criminal proceedings to the civil immigration context and is operating sufficiently as it exists now.(12) Another posits that fugitive disentitlement should only apply to noncitizens who actively evade capture and custody, as opposed to noncitizens who merely remain in the United States in defiance of a removal order. (13) And one scholar advocates that the circuit split regarding the definition of "fugitive" should be resolved through a legislative fix that enshrines fugitive disentitlement in the immigration statute. (14)

Other scholars have briefly criticized the doctrine in discussions of immigration-adjacent topics. Margaret B. Kwoka has pointed out problems with the application of the doctrine in various circumstances related to noncitizens' access to information through Freedom of Information Act (FOIA) requests. (15) And Michael J. Wishnie critiqued the fugitive disentitlement doctrine in the context of policies intended to deter noncitizens from reporting crimes to law enforcement, arguing that such law enforcement policies interfere with the First Amendment right to petition."' Additionally, Geoffrey A. Hoffman and Susham M. Modi described the fugitive disentitlement doctrine as part of the war on terror's attacks on immigration. They raised that there are potential constitutional problems, and other fairness concerns, with using fugitive disentitlement outside of the criminal context. (17) Hoffman and Modi also discussed the infirmity of labeling people who fail to report to immigration authorities--as opposed to those who "abscond[]"--as "fugitives," as well as identifying flaws in applying the doctrine to asylum seekers in particular.(18)

This Article argues that Article III courts have failed to recognize The essential nature of judicial review in this unique civil context of immigration law. (19) Courts have not considered the high stakes at issue in removal proceedings or the lack of available procedural protections for noncitizens. They have also given short shrift to the question of whether the courts' own "inherent powers" truly include the power to dismiss noncitizens' cases in this manner. In fact, the rationales provided in criminal cases do not naturally extend to civil immigration cases. This Article argues that proper consideration of each of these arguments should lead courts to eliminate usage of fugitive disentitlement in immigration matters.

Part I explains how the fugitive disentitlement doctrine, traditionally applied to people convicted of crimes who had escaped from jail, was contorted to apply to civil matters, including immigration. Part I includes an explanation of this doctrinal creep, including the federal courts' reasoning for extending the doctrine.

Part II begins by highlighting the practical realities for noncitizens, most saliently that surrendering to immigration authorities can result in immediate deportation, even if their court of appeals case is still pending. This Part also describes the shortcomings of judicial rationales for applying fugitive disentitlement to immigration cases. Courts do not have unlimited "inherent power" to control their dockets. Rather, such powers are limited by principles of necessity and reasonableness. Dismissal without consideration of the merits of the case is a disproportionately harsh sanction considering the high stakes in removal cases, particularly considering that other sanctions are available to the courts. It is also unreasonable to apply the doctrine in the removal context because the proffered rationales do not support it. Moreover, courts' concerns about upholding their own dignity should not lead them to abdicate their responsibility to decide the issues before them. Part II further questions the balance between the judiciary and legislature in setting the boundaries of...