Ike Bright v. Eric Holder, Jr. , 649 F.3d 397 ( 2011 )

Case: 10-60300 Document: 00511565147 Page: 1 Date Filed: 08/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 8, 2011
No. 10-60300 Lyle W. Cayce
Clerk
IKE ROMANUS BRIGHT,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit
Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Ike Romanus Bright failed to surrender after he was ordered removed
from the United States. The Board of Immigration Appeals denied Bright’s
motion to reopen his removal proceedings, and it also denied reconsideration.
We DISMISS.
FACTUAL AND PROCEDURAL HISTORY
Ike Romanus Bright, a native and citizen of Nigeria, became a lawful
permanent resident of the United States in November 1985. Nearly a year later,
he pled guilty in Texas state court to attempted second-degree murder.
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On March 21, 2007, the United States Department of Homeland Security
(“DHS”) issued a notice to appear charging that Bright was subject to removal
pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“the
Act”), because of his prior conviction, 8 U.S.C. § 1227(a)(2)(A)(iii). Bright was
released from DHS custody on a $2,000 bond.
At his initial hearing before the Immigration Judge (“IJ”), Bright admitted
the factual allegations contained in the notice to appear and conceded he was
removable as charged, but sought relief pursuant to former Section 212(c) of the
Act. The IJ rejected Bright’s arguments and ordered him removed to Nigeria.
The Board of Immigration Appeals (“BIA”) agreed and dismissed Bright’s appeal
on December 23, 2008. Bright did not file a petition for review.
On January 12, 2009, DHS ordered Bright’s attorney to surrender him for
removal on February 12. When Bright failed to appear, DHS issued a notice
declaring that his bond had been breached and forfeited, and a warrant was
issued for his arrest.
On March 9, Bright filed a motion to reopen removal proceedings and a
request to stay the removal order. DHS argued, in part, that Bright did not
merit a favorable exercise of discretion because he failed to surrender for
removal and was a fugitive. Bright replied, in part, that his failure to report for
removal did not render him a fugitive because he had maintained the same
address throughout his removal proceedings, his address was known to DHS,
and he made no attempt to evade the authorities.
On September 4, the BIA denied Bright’s motion to reopen and his request
to stay the removal order, determining that, pursuant to the fugitive
disentitlement doctrine, Bright’s failure to report for removal rendered him
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ineligible for consideration of additional relief. Bright subsequently filed a
motion for reconsideration. The BIA denied Bright’s motion for reconsideration
on March 24, 2010. Bright filed a timely petition for review.
DISCUSSION
Bright does not dispute that DHS ordered him to surrender for removal
on February 12, 2009, that he received notice of that order through his counsel
of record, or that, to date, he has failed to report as ordered. The issue before us
is whether Bright is a fugitive under the fugitive disentitlement doctrine,
barring our review of the BIA’s decision.1 See Giri v. Keisler, 507 F.3d 833, 835
(5th Cir. 2007). Because this is a question of law, we review it de novo.
Ramirez-Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006).
“[T]he fugitive disentitlement doctrine limits a criminal defendant’s access
to the judicial system whose authority he evades.” Bagwell v. Dretke, 376 F.3d
408, 410 (5th Cir. 2004). We have extended the fugitive disentitlement doctrine
to the immigration context, holding that the doctrine prevented further review
of a BIA decision where the petitioners became fugitives after evading custody
and failing to comply with a removal order. Giri, 507 F.3d at 835. The doctrine
is an equitable one “that a court exercises in its discretion.” Bagwell, 376 F.3d
at 413 (citation omitted).
1
We note that Bright did not file a timely petition for review of the BIA’s September
4, 2009, denial of his motion to reopen. See 8 U.S.C. § 1252(b)(1). To the extent he seeks to
challenge that decision, this court lacks jurisdiction to review those claims. See Stone v. INS,
514 U.S. 386, 405-06 (1995). Moreover, Bright has abandoned his challenge to the BIA’s denial
of his second motion to reopen, because his opening and reply briefs do not address that issue.
See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
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The doctrine is justified by several rationales, including: (1) the difficulty
of enforcing a judgment against a fugitive; (2) a waiver or abandonment theory,
where “by fleeing custody, the defendant is thought to have waived or abandoned
his right to an appeal”; (3) the “discourage[ment of] the felony of escape and
encourage[ment of] voluntary surrenders”; (4) the furtherance of “the court’s
interest in efficient practice” “because a litigant’s escape impedes the ability of
a court to adjudicate the proceedings before it”; and (5) a response to the
fugitive’s “affront to the dignity and authority of the court.” Id. at 411 (quotation
marks, brackets, and citations omitted).
There is a split among the circuit courts on whether an alien is a fugitive
where, as here, he has maintained the same address throughout his removal
proceedings, the address was known to DHS, and DHS made no attempt to
locate or arrest the alien following his failure to report for removal. The Second
and Seventh Circuits have applied the fugitive disentitlement doctrine in this
context, reasoning that even when an alien’s location is known, immigration
officials “must deploy resources to bring him in. And, of course, he may not be
so easy to find once his litigation options are exhausted.” Gao v. Gonzales, 481
F.3d 173, 176 (2d Cir. 2007) (quotation marks and citation omitted); Sapoundjiev
v. Ashcroft, 376 F.3d 727, 729 (7th Cir. 2004). The Ninth Circuit, on the other
hand, has held that an alien’s failure to report for removal did not make her a
fugitive during the pendency of her petition for review because her whereabouts
were known to her counsel, DHS, and the court. Sun v. Mukasey, 555 F.3d 802,
805 (9th Cir. 2009).2
2
In non-precedential opinions, panels of the Third, Eighth, and Eleventh Circuits have
indicated a willingness to limit the doctrine to aliens who are hiding or otherwise not
locatable. See Ye v. Attorney Gen. of the United States, 383 F. App’x 113, 116 (3d Cir. 2010)
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We are persuaded by the Second and Seventh Circuits, especially in light
of the purposes underlying the fugitive disentitlement doctrine. See Giri, 507
F.3d at 835. Applying the fugitive disentitlement doctrine to those who evade
removal despite their address being known by DHS will encourage voluntary
surrenders, the efficient operation of the courts, and respect for the judiciary and
the rule of law. See id.Everyone understands that the government is overwhelmed with
petitioners and procedures, and that it heavily relies on the word
and voluntary compliance of numerous aliens within our borders. It
is easy to game this system, but we should not treat disregard of
government directives as a norm.
Gao, 481 F.3d at 176 (quotation marks, brackets, ellipses, and citation omitted).
Bright became a fugitive when he did not surrender for removal on
February 12, 2009, despite that his address was known to authorities. In
accordance with the fugitive disentitlement doctrine, we are barred from further
review of Bright’s petition. See Giri, 507 F.3d at 836.
Bright’s petition for review is DISMISSED.
(unpublished); Nnebedum v. Gonzales, 205 F. App’x 479, 480-81 (8th Cir. 2006) (unpublished);
Zhou v. U.S. Attorney Gen., 290 F. App’x 278, 281 (11th Cir. 2008) (unpublished).
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