Fugitives in Immigration: a Call for Legislative Guidelines on Disentitlement
Publication year | 2012 |
I. Introduction
The fugitive disentitlement doctrine, which arose as a common law doctrine out of criminal appeals, provides an appellate court with the discretion to dismiss the appeal of, or "disentitle," a fugitive appellant when such fugitivity occurs during the appellate process or is sufficiently connected to that process to justify dismissal as a reasonable sanction.(fn1) The Supreme Court of the United States formally established the doctrine's application in criminal appeals in the late 1800s,(fn2) and the Court has since accumulated four main rationales in support of its application: enforcea-bility, disentitlement, efficiency and dignity of the appellate process, and deterrence.(fn3) While the Court has given much consideration to the doctrine's application,(fn4) it has significantly curbed the doctrine's use in only two instances: in cases where a fugitive defendant is recaptured prior to filing a criminal appeal;(fn5) and in civil forfeiture actions(fn6) where the civil claimant is a fugitive defendant in a related criminal matter.(fn7) Furthermore, although its review of the doctrine has largely occurred in the context of criminal appeals, the Court has not explicitly restricted the doctrine's use to criminal law. Instead, the Court has indicated that the doctrine's use rests within a federal appellate court's inherent powers to set reasonable procedural rules in its management of litigation.(fn8)
In light of Supreme Court jurisprudence regarding the fugitive dis-entitlement doctrine, the circuit courts of appeal have readily expanded the doctrine's use to civil matters, as well as immigration.(fn9) But the Supreme Court's nuanced treatment of the rationales underlying this doctrine, specifically in
As a result of this circuit split, the question of whether an alien is a fugitive due to a failure to appear before the DHS when the alien is otherwise locatable by court, counsel, and federal authorities-regardless of whether the failure to report occurred before or after a petition is filed seems to turn less on facts and more on the circuits' differences in weighing relevant policy concerns. Such an alien is not a fugitive in the Ninth Circuit,(fn14) is likely not a fugitive in the Second Circuit,(fn15) but is a fugitive in the Fifth and Seventh Circuits.(fn16) This circuit split causes inconsistency and unpredictability for alien petitioners across the United States. Given that the Supreme Court treats the fugitive disentitlement doctrine as resting largely in a federal court's inherent powers to manage litigation, and given its acknowledgment that uniformity in application among the circuits is not required, definitive resolution of this circuit split in immigration can more likely be found in Congressional action.(fn17) Moreover, the Supreme Court has denied certiorari in the most recent circuit court case on this matter:
Part II of this Comment will outline how the fugitive disentitlement doctrine has evolved since its birth in criminal appeals. Part II will also highlight how the Supreme Court's treatment of the doctrine has set the stage for the current circuit split on its application to immigration. Part III will explore the current circuit split in immigration, focusing on the rationale used by each circuit in support of its decision to find, or not find, fugitivity when an alien failed to appear before the DHS but is otherwise locatable by court, counsel, and federal authorities. This Part will establish that, while the facts vary from case to case, the circuit courts struggle not with the facts but with the application of the doctrinal rationales in the context of immigration. Part IV will discuss potential judicial intervention but, in the end, conclude that the unique realm of immigration justifies action by Congress. This Part will thus advocate for Congress to enact a disentitlement provision, consistent with prior similar legislation in a civil context(fn20) but unique to the concerns of immigration, including policies on national security and foreign relations. Part V will provide a brief conclusion.
II. Supreme Court Jurisprudence on Fugitive Disentitlement: From Criminal Appeals to Civil Forfeiture and Beyond
Over the course of a century, since the Supreme Court first established in the late 1800s that fugitive disentitlement was appropriate in criminal appeals, the Court has articulated four rationales justifying an appellate court's invocation of the doctrine to dismiss an appeal pending before the court: enforceability, disentitlement, efficiency and dignity of the appellate process, and deterrence.(fn21) While the Court has twice curbed the expansion of the doctrine's use, it has not explicitly confined the doctrine to criminal matters. And federal courts have used the doctrinal rationales to justify dismissal in matters beyond criminal appeals in civil matters such as civil forfeiture,(fn22) but also, more importantly, in the realm of immigration.(fn23) Congress has also taken a signal from Supreme Court jurisprudence, codifying disentitlement in federal legislation pertaining to civil forfeiture.(fn24) To properly identify the source of the circuits' current struggle with respect to the doctrine's application in immigration, Supreme Court jurisprudence on the fugitive disentitlement doctrine, including what the Court left unanswered, must be carefully reviewed.
1. Establishing the Doctrine with the Rationale of Enforceability
In 1876, the Supreme Court in
Although
2. Establishing the Rationale of Disentitlement as Penalty
In
First, while the
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