Fugitives in Immigration: a Call for Legislative Guidelines on Disentitlement

Publication year2012

Washington Law ReviewVolume 36, No. 1, Fall 2012


Fugitives in Immigration: A Call for Legislative Guidelines on Disentitlement

Kiran H. Griffith(fn*)

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 Ortega-Rodriguez v. United States and Degen v. United States,(fn10) has led to inconsistent application across the circuits.(fn11) Specifically, a split has arisen among the Second, Fifth, Seventh, and Ninth Circuits as to whether these rationales support invocation of the fugitive disentitlement doctrine to find fugitivity and dismiss an alien's petition for review when an alien(fn12) fails to report as ordered to the Department of Homeland Security (DHS) but his or her whereabouts are known to court, counsel, and federal authorities.(fn13)

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: Bright v. Holder.(fn18) Congress may, with its plenary authority to regulate immigration, enact guidelines on disentitlement of immigration petitions, and Congress should do so in this matter by amending the Immigration and Nationality Act to include a disentitlement provision.(fn19)

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.

A. The Four Rationales of the Fugitive Disentitlement Doctrine

1. Establishing the Doctrine with the Rationale of Enforceability

In 1876, the Supreme Court in Smith v. United States held that a court has discretion to refuse to hear the criminal appeal of a convicted defendant who had fled custody after filing that appeal, unless the defendant submits to the court's jurisdiction on or before the first day of its next term.(fn25) Enforceability concerns drove the Court's decision to conditionally dismiss an appeal under such circumstances.(fn26) It found that a court lacks actual or constructive control over a criminal appellant who is neither in police custody nor on bail, and this lack of control has bearing on the court's ability to enforce its judgment.(fn27) If the court affirms the judgment, the criminal appellant would likely refuse to submit to the sentence; moreover, even if the court reverses and orders a new trial on the matter, the criminal appellant may not appear if he or she finds continued fugitivity to be in his or her best interest.(fn28) The Court held that, under such circumstances, it is not inclined to hear and decide "what may prove to be only a moot case."(fn29)

Although Smith clearly approved of federal appellate courts conditionally dismissing the appeal of a fugitive criminal appellant on grounds of enforceability,(fn30) the Supreme Court broached the possibility of other rationales for dismissal in Allen v. Georgia.(fn31) While often viewed as affirming the enforceability rationale established by Smith, Allen set the stage for current policy considerations in the fugitive disentitlement doctrine, including concerns about adjudicability,(fn32) abandonment,(fn33) sanctions and judicial integrity,(fn34) and constitutionality.(fn35) Thus, despite the clear authorization at the end of the nineteenth century for the federal judiciary to dismiss an appeal due to fugitivity, Allen marked a significant shift toward increased complexity and lack of clarity as the Supreme Court added rationales and nuance to the fugitive disentitlement doctrine throughout the twentieth century.

2. Establishing the Rationale of Disentitlement as Penalty

In Molinaro v. New Jersey, the Supreme Court affirmed the principle of enforceability, established almost one century earlier in Smith, and upheld the dismissal of a criminal appeal of an appellant who, free on bail, refused to surrender to state authorities.(fn36) But Molinaro established two key advancements in the use of the fugitive disentitlement doctrine: (1) it confirmed a distinct rationale of disentitlement as penalty; and (2) it authorized immediate dismissal of an appeal, with prejudice.(fn37)

First, while the Molinaro Court found no persuasive reason to adjudicate the merits of a criminal case when the defendant who sought appellate review had since escaped, its decision to dismiss was based on a theory that disentitlement served as a sanction for appellant noncompliance rather than a theory that fugitivity had stripped the matter of its...

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