Lukose v. Holder , 344 F. App'x 668 ( 2009 )

SUMMARY ORDER

Petitioner Vincent C. Lukose, a native and citizen of India, seeks review of a September 18, 2008 decision of the BIA. Petitioner argues as follows: (1) the BIA erred when it affirmed the immigration judge’s (“IJ”) decision to decline to reopen proceedings sua sponte to allow petitioner to apply for adjustment of status; and (2) the BIA erred when it denied Lukose’s motion to rescind the 1998 in absentia deportation order after it found that petitioner failed to rebut the presumption of effective service. We assume the parties’ familiarity with the underlying facts and procedural history in this case.

The fugitive disentitlement doctrine permits us to summarily dismiss Lukose’s petition for review -without reaching the merits. Under the fugitive disentitlement doctrine, we have the discretion to dismiss a petitioner’s appeal if that petitioner is “a fugitive from justice during the pendency of the appeal.” Gao v. Gonzales, 481 F.3d 173, 175 (2d Cir.2007). For the purposes of this doctrine, “an alien who fails to comply with a notice to surrender for deportation” is considered a fugitive. Id. at 176. Lukose, like the petitioner in Gao, disregarded a notice to surrender for deportation. And Lukose, again like the petitioner in Gao, “continued to carry on his life in complete disregard of the outstanding ... deportation order against him” including marrying and having two children. Id. at 175. Although these circumstances may now entitle him to relief, we recognize that “[allowing his motion to reopen to go forward would have the perverse effect of encouraging aliens to evade lawful deportation orders in the hope that, while they remain fugitives, they may contrive through their own efforts a new basis for challenging deportation.” Id. at 178. For this reason, we exercise our discretion and summarily dismiss the petition for review.

For the foregoing reason, the petition for review is DISMISSED. Inasmuch as we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot.