646 F.3d 133
2d Cir.2011Background
- Wu seeks review of BIA's June 1, 2009 order of removal.
- Government moves to dismiss under fugitive disentitlement.
- Court previously stayed removal; motion held in abeyance pending merits briefing.
- DHS issued bag-and-baggage letter; Wu did not report as ordered.
- DHS issued new bag-and-baggage letter; Wu again did not report; stays of removal were in place.
- Court reviews four-factor framework and functions of the doctrine; decides not to apply it here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fugitive disentitlement applies to Wu | Wu is not warranting dismissal under doctrine | Wu is a fugitive for failure to report | Not controlling; discretion exercised not to apply |
| Whether dismissal is warranted to sanction noncompliance | Disentitlement is inappropriate sanction here | Sanction appropriate to deter noncompliance | Not warranted given equities and lack of prejudice |
| Whether the merits of Wu's petition support dismissal | Merits should be reached on the merits, not dismissed | Merits are weak; dismissal preserves process integrity | Merits should be decided on the merits; dismissal denied |
| Whether government prejudice supports dismissal | No prejudice shown by Wu's fugitive status | Resources expended due to fugitive status | No showing of prejudice; dismissal denied |
Key Cases Cited
- Gao v. Gonzales, 481 F.3d 173 (2d Cir. 2007) (fugitive disentitlement may apply; discretionary; tailoring to facts)
- Degen v. United States, 517 U.S. 820 (Supreme Court 1996) (court's dignity and enforcement of judgments; precedent for procedure)
- Esposito v. INS, 987 F.2d 108 (2d Cir. 1993) (fugitive disentitlement; discretionary limits)
- Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir. 2003) (fugitive disentitlement; discretion in immigration context)
- Ortega-Rodriguez v. United States, 507 U.S. 234 (1993) (faulty premise that any defiance warrants dismissal; merits focus)