When Circuit Court Justices Disagree: The Fugitive Disentitlement Doctrine

Dr. Richard Kimble (Harrison Ford) is confronted
by US Marshal Samuel Gerard (Tommy Lee Jones)

Another split in the circuits has arisen.  This split involves the applicability of the fugitive disentitlement doctrine in removal proceedings.  The fugitive disentitlement doctrine stands for the proposition that a fugitive from justice does not have standing in the court to seek relief from the order that he or she are evading.  Or to put it another way, like Roman Polanski or James “Whitey” Bulger, a person who is evading an adverse court order such as a prison term or removal order cannot seek the help of the courts until they submit to the courts order.

On August 8, 2011, the Fifth Circuit Court of Appeals in New Orleans handed down its decision in Bright v. Holder.  Ike Romanus Bright is a native and citizen of Nigeria and a lawful permanent resident.  The Department of Homeland Security sought Bright’s removal from the US after he plead guilty to attempted second degree murder in Texas.  The Immigration Judge found Bright removable, and the DHS sent Bright a notice to appear for removal on February 12, 2009.  When Bright failed to appear for removal, DHS issued a warrant for Bright’s arrest.

On March 9, 2009, Bright asked the Board of Immigration Appeals to reopen his case.  The DHS opposed the motion, stating that Bright was a fugitive from justice because he failed to appear for removal three weeks earlier.  Citing Sun v. Mukasey, 555 F3d. 802 (9th Cir. 2009) Bright replied stating that he was not a fugitive.  Unlike the fictional Dr. Richard Kimble, Bright was not actively evading the authorities.  In the three week between the date for removal and the filing of the motion to reopen, Bright maintained the same address, that address was known to the DHS.  Bright made no attempt to evade the authorities, and DHS had made no attempt to apprehend Bright.  The BIA denied his motion, and Bright appealed to the Fifth Circuit Court of Appeal.

The Fifth Circuit was unpersuaded by Bright’s argument.  Following the Second Circuit's decision in Gao. v Gonzales, 481 F.3d 173 (2nd Cir, 2007)  and Seventh Circuit's decision in Sapoundjiev v. Ashcroft, 376 F.3d 727 (7th Cir, 2004), the court dismissed his petition for review stating that the mere fact that he had failed to appear for removal makes Bright a fugitive.  This decision sets up a split in the circuits.  The Second and Seventh Courts of Appeals have held that the mere failure to appear for removal makes an alien a fugitive from justice.  The Ninth, Third, Eight, and Eleventh Circuits have held that the fugitive disentitlement doctrine only applies to individual that are actually evading authorities.  It is unclear if the US Supreme Court would review Bright’s case.  He has 90 days to petition the court for a writ of certiorari.

(c) Richard M. Green, All Rights Reserved