Sapoundjiev, Vassil v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1435
VASSIL SAPOUNDJIEV, ENCHEVA SAPOUNDJIEV,
and HRISTO C. SAPOUNDJIEV,
Petitioners,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals
____________
SUBMITTED MAY 27, 2004—DECIDED JULY 22, 2004
____________
Before EASTERBROOK, MANION, and KANNE, Circuit
Judges.
EASTERBROOK, Circuit Judge. An immigration judge
concluded that Vassil Sapoundjiev, a citizen of Bulgaria, is
not entitled either to asylum or to withholding of removal.
On January 28, 2004, the Board of Immigration Appeals
affirmed that decision, which affected not only Vassil but
also his wife Encheva and son Hristo, for their applications
are derivative from his. Immigration officials sent the three
2 No. 04-1435
Sapoundjievs notices (often called bag-and-baggage let-
ters) directing them to report for custody and removal on
May 13, 2004. Six days before that date arrived, the
Sapoundjievs filed an application for stay of removal. On
May 12 a judge entered a temporary stay of removal pend-
ing a response by the Attorney General. This order did not
affect the Sapoundjievs’ obligation to surrender, so that re-
moval could be implemented if the stay should be lifted.
Nonetheless, the family did not report as directed. Contend-
ing that the Sapoundjievs are fugitives, the Attorney
General has asked us to vacate the temporary stay and
deny any further relief.
Every circuit that has considered the issue has concluded
that the fugitive-disentitlement doctrine applies to immi-
gration cases, and that aliens who avoid lawful custody
forfeit judicial review. See Bar-Levy v. INS, 990 F.2d 33 (2d
Cir. 1993); Arana v. INS, 673 F.2d 75 (3d Cir. 1982);
Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir. 2003);
Zapon v. Department of Justice, 53 F.3d 283 (9th Cir. 1995).
Litigation entails reciprocal obligations: an appellant (or
petitioner) who demands that the United States respect a
favorable outcome must ensure that an adverse decision
also can be carried out. See, e.g., Ortega-Rodriguez v. United
States, 507 U.S. 234 (1993); Smith v. United States, 94 U.S. 97
(1876). When an alien fails to report for custody, this sets up
the situation that Antonio-Martinez called “heads I win, tails
you’ll never find me”. 317 F.3d at 1093. A litigant whose
disappearance makes an adverse judgment difficult if not
impossible to enforce cannot expect favorable action. See
Degen v. United States, 517 U.S. 820 (1996). We observed in
Sarlund v. Anderson, 205 F.3d 973 (7th Cir. 2000), that after
Degen a practical question dominates: has flight made the
litigation a one-way street? Someone who cannot be bound by
a loss has warped the outcome in a way prejudicial to the
other side; the best solution is to dismiss the proceeding. That
No. 04-1435 3
proposition is as applicable to the fugitive alien as it is to the
fugitive criminal defendant (or, in Sarlund, the fugitive civil
plaintiff).
Counsel representing the Sapoundjievs contends that, be-
cause immigration officials know where the family lives, they
are not trying to have things both ways. Now it is far from
clear that the Sapoundjievs will choose to be at home when
agents arrive to arrest them, and hard to see how the ju-
diciary could tell whether to believe a promise to show up if
the case should be decided adversely. The point of custody is
to end the guessing game. That’s why anyone who is told to
surrender, and does not, is a fugitive.† See Bar-Levy, 990
F.2d at 34. This court issued a temporary stay of removal, not
a grant of bail pending removal. That agents may be able to
locate an absconder does not make him less a fugitive. Like-
†
In a brief filed at our request as amicus curiae on behalf of the
alien in Zheng v. Ashcroft, No. 03-1185, attorney Laura E. Juhnke
contends that under United States v. Marshall, 856 F.2d 896, 899-
900 (7th Cir. 1988), and United States v. $40,877.59, 32 F.3d 1151,
1156 (7th Cir. 1994), only a person who has left the state may be
treated as a fugitive. The issue in Marshall was not the fugi-
tive-disentitlement doctrine but the statute of limitations, and
though language about absence from the state was quoted in
$40,877.59 (which anticipated Degen by holding that a person’s
fugitive status does not bar defense of a civil forfeiture action) it
was not important to the holding or judgment of that decision. It
is hard to see why absence from a state should be indispensable;
the only way prosecutors or immigration officials could know
whether a person is or is not in a given state would be to have him
in custody. Fugitives may hide out near home, where they have
friends willing to conceal them. None of our fugitive-
disentitlement decisions turns on proof that the missing person is
in a different state, and it would not be sound to adopt such a
requirement. Nonetheless, we extend thanks to Ms. Juhnke,
whose brief has been helpful to us in both proceedings.
4 No. 04-1435
wise a prisoner who walks away from a camp that lacks walls
has committed the crime of escape, even if it is easy to track
him down—indeed, even if he returns before he is missed. See
United States v. King, 338 F.3d 794 (7th Cir. 2003). A corpo-
rate executive who fails to report at the start of a sentence for
antitrust offenses is a fugitive, and his appeal will be dis-
missed, even if it turns out that he has been relaxing at his
country estate and does not plan to put up a fight when
apprehended. Just so with an alien who, by failing to report
as ordered, retains the option of going underground if the
judicial decision is adverse.
We are unimpressed by counsel’s argument that aliens are
entitled to ignore bag-and-baggage letters because custody
“prevents Petitioners from having a meaningful opportunity
to be heard” on their claims for relief. An appeal in a criminal
case remains meaningful even if the defendant is incarcerated
while the matter is under advisement. A convict who asserted
that he is entitled to appellate review before spending the
first day in custody would not fare well. Likewise with aliens.
Time in administrative custody differs from removal. Doubt-
less there is a risk of erroneous removal while the litigation
continues, but we have no reason to think that errors are
common; immigration officials in this circuit have taken steps
to make sure that even after-hours stays will be implemented.
See Dimitrova v. Ashcroft, 368 F.3d 960 (7th Cir. 2004). The
Sapoundjievs received their interim stay the day before they
were to report; they could have taken the documents with
them, and counsel could have accompanied them to make
sure that immigration officials knew that they were entitled
to remain in the United States pending further judicial action.
Or counsel might have asked for a delay in the date to report
or bail pending our decision. The Sapoundjievs are not being
removed for serious crimes, so they are entitled to seek
conditional release while their petition for review is pending.
See 8 U.S.C. §1231(a)(2); 8 C.F.R. §241.33(a); Demore v. Kim,
538 U.S. 510 (2003). No such request was made, however, and
No. 04-1435 5
at all events the district director’s order with respect to bail
pending removal is not reviewable in this court, given 28
U.S.C. §1252(a)(2)(B), (g). See Najjar v. Ashcroft, 273 F.3d
1330, 1339 (11th Cir. 2001).
Ortega-Rodriguez holds that the fugitive-disentitlement
doctrine applies only while the criminal remains at large.
Again the same approach should be applied to alien removal
proceedings. Two months have passed since the Attorney
General invoked the fugitive-disentitlement doctrine as the
basis for his opposition to the Sapoundjievs’ request for a stay
of removal and his request that their petition be denied. They
did not surrender in order to preserve their legal claims; to the
contrary, as we have recounted, they have asserted through
counsel that they are entitled to ignore the bag-and-baggage
order and wait for agents to locate and arrest them. Conse-
quently, the temporary stay is vacated, the motion for stay of
removal is denied, and the petition for review is dismissed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-22-04