Dembele, Ahoua v. Gonzales, Alberto ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 29, 2005
Decided February 22, 2006
Before
Hon. Daniel A. Manion, Circuit Judge
Hon. Ann Claire Williams, Circuit Judge
Hon. Diane S. Sykes, Circuit Judge
No. 05-2013
AHOUA DEMBELE, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A70-894-370
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Petitioner Ahoua Dembele is a 31-year-old native of the Ivory Coast. Like other
female members of her ethnic group, she suffered genital mutilation during childhood.
She legally entered the United States on a visitor’s visa in 1992, but she was
subsequently placed into removal proceedings for overstaying that visa. During her
years in the United States, Dembele gave birth to a daughter and a son who are
No. 05-2013 Page 2
American citizens. She initially applied for asylum based on her political activities in
the Ivory Coast, but an Immigration Judge (“IJ”) denied that claim in 1997. The Board
of Immigration Appeals (“BIA”) affirmed the IJ’s ruling without opinion in 2002. While
that appeal was pending in 2001, Dembele married an American citizen, Maurice
Sims.1 Following their marriage, Sims filed a visa petition on Demebele’s behalf, and
the case was reopened and remanded in order to allow her to apply for permanent
residency based on the marriage.
At the reopened proceeding for adjustment of status, Dembele admitted that she
had been arrested in the United States three times, twice for shoplifting and once for
an incident at a United States Passport Office. She explained that in 1998, when her
mother became ill, a friend offered to help her get a passport so she could visit the
Ivory Coast and then return to the United States. According to her testimony at the
hearing, Dembele accompanied her friend to the passport office, and an application was
filed using Dembele’s picture and her friend’s daughter’s United States birth
certificate. The two women were arrested and detained for about one hour of
questioning, but never charged or prosecuted. Dembele asserted at the hearing that
she did not realize she was filing a false passport application, and that her friend
submitted everything for her. The IJ continued the hearing and asked the parties to
1
Sims is not the biological father of Dembele’s daughter; the record is silent
as to who is the father of her son. At oral argument, Dembele’s counsel indicated that
Dembele did not know the whereabouts of her daughter’s biological father.
No. 05-2013 Page 3
produce documents related to the arrests, particularly the actual passport application,
because without those documents, he would be unable to make a determination.
At the follow-up hearing, the government stated that it was unable to obtain the
requested documentary evidence from the passport incident. Dembele orally moved
to reopen her asylum case based on the probability that her daughter, then eight years
old, would be mutilated against her mother’s will if the family returned to the Ivory
Coast, just as Dembele, her sister, and her nieces were mutilated. The IJ ruled that
he had no jurisdiction to reopen Dembele’s case for asylum, and in any case, the
evidence was insufficient to support that claim. The IJ further ruled that Dembele was
barred from permanent residency because she willfully and knowingly made a false
claim in her passport application. In a footnote, he noted that this ruling was wholly
based on Dembele’s own statements and on the record of her arrest, as the government
never produced the application. Dembele appealed to the BIA, which dismissed the
appeal of the adjustment of status determination and denied Dembele’s renewed
motion to reopen the case, relying on the same grounds as the IJ on both points.
Dembele appealed to this court, and we heard oral argument on November 29,
2005. While our decision was pending, immigration officials sent Dembele a notice
commonly called a “bag-and-baggage” letter, directing her to report for custody and
removal on January 19. On that day, Dembele filed an emergency motion to stay
removal. This court ordered her to supplement that motion with a statement
indicating whether she reported for removal as directed. On January 20, 2006,
No. 05-2013 Page 4
Dembele filed the supplement; she did not report and is at large.
This turn of events dictates the outcome of this proceeding. As urged by the
respondent in its motion to dismiss, Dembele’s failure to surrender to authorities
makes her a fugitive, and under the fugitive-disentitlement doctrine, those “who avoid
lawful custody forfeit judicial review.” Sapoundjiev v. Ashcroft, 376 F.3d 727, 728 (7th
Cir. 2004). As discussed in Sapoundjiev, every circuit that has addressed the question
has held that the doctrine applies in immigration cases. Id. A litigant cannot request
a favorable decision while evading the power of the court to enforce a decision that goes
the other way. As the Ninth Circuit put it, “Those who invoke our appellate
jurisdiction must take the bitter with the sweet: [t]hey cannot ask us to overturn
adverse judgments while insulating themselves from the consequences of an
unfavorable result.” Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003). See
also Bar-Levy v. INS, 990 F.2d 33 (2d Cir. 1993); Arana v. INS, 673 F.2d 75 (3d Cir.
1982). Dembele presents no counter-argument; her counsel sought to withdraw the
motion to stay removal, but points to no authority suggesting that this appeal should
be decided on its merits while the petitioner’s whereabouts are unknown.
For the reasons stated above, the motion to stay removal is withdrawn, and the
petition for review is dismissed.