Olga Tovashova v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION OCT 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLGA TOVASHOVA and ARTEM No. 10-70381
ARTAMONOV,
Agency Nos. A098-669-184
Petitioners, A094-822-089
v.
ORDER DISMISSING APPEAL*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2013**
San Francisco, California
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
Olga Tovashova and Artem V. Artamonov (collectively, “petitioners”)
petition for review of a decision by the Board of Immigration Appeals affirming an
immigration judge’s denial of asylum, withholding of removal, and protection
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under the Convention Against Torture. During the appeal, however, petitioners
absconded from intensive supervision by the Department of Homeland Security
(DHS). Respondent Eric H. Holder moves to dismiss the petition under the
fugitive disentitlement doctrine. We exercise our discretion to grant the motion
and dismiss the petition.
The fugitive disentitlement doctrine “is a discretionary sanction courts can
impose ‘to prevent appellate review for escapees from the criminal justice
system.’” Mamigonian v. Biggs, 710 F.3d 936, 940 (9th Cir. 2013) (quoting Sun v.
Mukasey, 555 F.3d 802, 804 (9th Cir. 2009)). The doctrine has been applied in the
immigration context to deny “appellate relief for aliens who have fled custody and
cannot be located at the time their appeals are pending.” Mamigonian, 710 F.3d at
940 (internal quotation marks omitted). In determining whether to apply the
doctrine, we have considered two factors: “(1) the pragmatic concern with ensuring
that the court’s judgment will be enforceable against the appellant; and (2) the
equitable notion that a person who flouts the authority of the court waives his
entitlement to have his appeal considered.” Sun, 555 F.3d at 804–05.
Applying these considerations, we conclude that dismissal is appropriate
under the circumstances of this case.
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On June 15, 2010, we denied petitioners’ request to stay removal. The DHS
subsequently placed petitioners in the Intensive Supervision Appearance Program
(ISAP) with Global Position System (GPS) monitoring bracelets. On February 19,
2013, the DHS removed Tovashova’s GPS monitoring bracelet, but required her to
report telephonically, appear in person weekly at the DHS office, and allow
random home visits every four weeks. The DHS imposed the same reporting
requirements on Artamonov in addition to monitoring him via a GPS bracelet.
On July 18, 2013, after the Russian consulate notified the DHS that
passports had been issued for petitioners, ISAP Officer Caceres visited petitioners
at their home. Officer Caceres informed petitioners that they must report to the
DHS office the next day and that Tovashova would be placed back on GPS
monitoring. However, rather than report as ordered the next day, petitioners
absconded. The DHS received a tamper alert on Artamonov’s GPS bracelet and
when DHS officers arrived at petitioners’ home, they found the bracelet in a box
on the front porch with Officer Caceres’s name on it. The DHS’s subsequent
efforts to contact petitioners were unsuccessful.
In September 2013, respondent notified petitioners’ counsel that it intended
to file a motion to dismiss this appeal. In response, petitioners’ counsel
acknowledged that petitioners were evading the DHS but gave no indication of
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their whereabouts. Even after we ordered petitioners to respond to respondent’s
motion, petitioners still failed to take any steps to bring themselves into
compliance with the conditions of supervision by the DHS, other than to file
“change of address” forms with the U.S. Citizenship and Immigration Services on
October 7, 2013. These forms did not reflect any real “change,” as petitioners’
“new” address is identical to their old address. Indeed, there is no indication that
they have made any attempt to contact the DHS to surrender. That petitioners have
notified the DHS that they are now at their former residence does not make them
any less fugitives. Compare Sapoundjiev v. Ashcroft, 376 F.3d 727, 729–30 (7th
Cir. 2004) (dismissing the petition even when the petitioners’ address was known
because they continued to remain fugitives by failing to surrender and by
maintaining that they were entitled to wait for the agents to arrest them), with
Mamigonian, 710 F.3d at 940–41 (declining to dismiss the appeal where, after
absconding, the petitioner contacted ICE and was placed on electronic monitoring).
We are troubled by petitioners’ actions. Not only did they flout the authority
of the court, they failed to bring themselves into compliance with the conditions of
intensive supervision despite knowing that respondent’s motion to dismiss was
pending. Their actions are such that we have little confidence that they would
comply with an unfavorable ruling on their petition. Accordingly, we exercise our
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discretion to grant the motion to dismiss pursuant to the fugitive disentitlement
doctrine.
PETITION DISMISSED.
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