U.S. Department of Justice Washington, D.C. 20530 Vol. 17, No. 3 MARCH 2013 LITIGATION HIGHLIGHTS Ninth Circuit Remands I-212 Class Action to District Court To Determine Whether Intervening Brand-X De- ADOPTION cision Applies Retroactively To Class Members ►BIA must recognize nunc pro tunc adoption decrees (9th Cir.) 10 In 2007, the Ninth Circuit held that I-212 waiver applicants already that plaintiff and a class of other Mex- unlawfully present in the United States ASYLUM ican citizens who had been previously are also subject to the ten-year bar ►Terrorism inadmissibility bar deported or removed from the United under INA § 212(a)(9)(C)(ii). does not apply to asylum grantee (5th States and then subsequently reen- Cir.) 7 tered without inspection, were ineligi- Following the remand to the dis- ►Immediate family members of a ble “as a matter of law” to adjust their trict court, plaintiffs sought, inter alia, local business owner Is not a particu- status because they were “ineligible to prevent the retroactive application lar social group (8th Cir.) 8 to receive I-212 waivers.” Duran- of Duran Gonzales I to those class ►Inconsistencies between an asy- Gonzales v. DHS, 508 F.3d 1227 (9th members who had filed their I-212 lum claim and State Department re- Cir. 2007) (Duran Gonzales I). Plain- applications prior to that decision. The ports cannot serve as the sole basis tiffs contended that, notwithstanding district court rejected the plaintiffs’ for an adverse credibility finding the statutory requirement that ten contentions and they timely appealed (11th Cir.) 11 year elapse between their last depar- contending that Duran Gonzales I ►Unsuccessful police efforts did ture from the United States and their should be given only prospective ef- not establish government was unable waiver application, Ninth Circuit case fect. In Duran Gonzales II, 659 F.3d or unwilling to control a private actor law permitted the waiver. 930 (9th Cir. 2011), the Ninth Circuit (8th Cir.) 8 also rejected plaintiffs’ contention, but In Duran Gonzales I, the court stayed the issuance of the mandate CRIME deferred under Brand X, to the BIA’s pending the resolution of an en banc ►Conviction for pointing or pre- interpretation in Matter of Torres- senting a firearm Is a particularly seri- Garcia, 23 I&N Dec. 866 (BIA 2006), (Continued on page 14) ous crime of violence (1st Cir.) 4 ►Fraudulent use of a social securi- ty card is a crime involving moral tur- pitude (7th Cir.) 7 The Fugitive Disentitlement Doctrine ►Conviction for misdemeanor sex- ual battery is a crime involving moral The fugitive disentitlement doc- or removal while an appeal of an im- turpitude (9th Cir.) 9 migration judge’s decision is pending trine (“FDD”) initially arose in the JURISDICTION criminal context, contemplating the before the BIA, it generally comes into dismissal of an absconding criminal play in two post-final-order scenarios: ►District court lacks jurisdicition to appellant’s appeal. It reflects the (1) while a petition for review is pend- review denial of NACARA special rule inherent authority of the federal ing before a court of appeals; and (2) cancellation of removal (S.D. Fla.) 14 courts of appeals to place conditions while a motion for reopening or recon- on the exercise of their appellate ju- sideration is pending before the BIA. risdiction. In one sense, the doctrine is a tool of case management, justify- The Supreme Court and the Inside ing the dismissal of certain cases Extension of the FDD from Criminal 6. Further Review Pending from a court docket. Over time it has to Civil Cases been extended to civil cases, includ- 5. DED Extension for Liberians ing immigration cases, where the ap- To date, the Supreme Court has 7. Summaries of Court Decisions pellant qualifies as a fugitive. In the addressed the doctrine in eight cases immigration context, because an al- spanning over a century. In the first, 13. Topical Parentheticals ien is not threatened with deportation (Continued on page 2) 1 March 2013 Immigration Litigation Bulletin The Fugitive Disentitlement Doctrine (Continued from page 1) missed at Term’s end, to be reinstat- deterrence was served and the Court Smith v. United States, 94 U.S. 97 ed only on the Court’s directive. opined that district courts had less (1876), the appellant absconded harsh alternatives at their disposal. while his appeal of his conviction was In later cases, the Court dis- pending before the Court. The Court missed outright rather than condition- In the most recent case, Degen was concerned that Smith might not ally. In Molinaro v. New Jersey, 396 v. United States, 517 U.S. 820 be made to respond to any judgment, U.S. 365 (1970), the convicted appel- (1996), the Court addressed the FDD stating it was “not inclined to hear lant failed to surrender himself to in a civil context. The appellant was and decide what may prove to be only state authorities as requested while involved in two proceedings; he fled a moot case”; without hearing the his case was pending before the abroad after both a criminal indict- case, it ordered dis- Court. The Court dis- ment and a civil forfeiture action had missal unless the missed, asserting that, been lodged against him. Although appellant surren- The Court observed while flight does not he showed no interest in returning to dered himself by the strip a case “of its char- face the criminal charges, he filed an end of the Court’s that absconding acter as an adjudicable answer in the civil case, but the dis- current term. Id. at betrays contempt case or controversy,” it trict court (affirmed by the circuit 97-98. The Court “disentitles” the fugi- court) granted the government sum- also entered a condi- for the very pro- tive from calling upon mary judgment because of his fugitive tional dismissal in a cess the appellant the resources of the status on the criminal side. The Court similar case, Bo- court to settle his stated that three reasons had been nahan v. Nebraska, invokes and injures claims. Id. at 366. given in its precedents for the FDD: 125 U.S. 692 (1887). (1) assuring the enforceability of a the dignity of the In 1975, the Court decision against the fugitive; (2) not In the third case, judiciary. again endorsed, as in allowing a fugitive to utilize the re- an appellant convict- Allen, dismissal by a sources of the court when he has ed and sentenced to state court. Estelle v. flouted the judicial system; and (3) death absconded while his case was Dorrough, 420 U.S. 534 (1975). After discouraging escape and encouraging pending before a state supreme filing an appeal of his conviction in voluntary surrender. Id. at 824. It court. After being captured and re- Texas, Dorrough absconded, only to also observed that disentitlement sentenced, he claimed the court vio- be captured two days later. The Court might be “necessary to prevent actual lated his due process by its dismissal, upheld the applicable state law, which prejudice to the Government from a although this was after a period dur- provided for dismissal unless an ab- fugitive’s extended absence. .” Id. ing which, if he had surrendered, his sconder voluntarily surrendered within at 825. The Court found that many appeal would have continued. Allen 10 days of escape. The Court stated of these rationales did not apply in v. State of Georgia, 166 U.S. 138 that such a dismissal “discourages the context of this case, where the (1987). The Court held that a state the felony of escape and encourages physical presence of the property court could follow its example and voluntary surrenders. It promotes the owner was unnecessary. It concluded efficient, dignified operation of” the dismiss, so long as the dismissal was that disentitlement was not appropri- consistent with state law and prac- appellate court. Id. at 539. ate here, although it recognized that tice. In addition to finding no due the court would suffer some indignity process violation, the Court observed In contrast to the earlier cases, and the result would not discourage that absconding betrays contempt for in Ortega-Rodriguez v. United States, the voluntary surrender of similar ab- the very process the appellant in- 507 U.S. 234 (1993), the Court, with- sconders. Nevertheless, it deemed vokes and injures the dignity of the out making a categorical pronounce- dismissal here “too blunt an instru- judiciary. ment, limited application of the FDD ment,” eroding rather than enhancing on the facts before it. The criminal respect for the judicial system. Id. at Eisler v. United States, 338 U.S. defendant fled after conviction, but 828. 189 (1949), involved an appellant was returned to custody eleven convicted of contempt of Congress in months later. He was no longer in The Extension of the FDD to Immi- connection with hearings before the flight when he was sentenced and gration Cases Before the BIA House Un-American Activities Commit- when he appealed. The Court noted tee. Eisler fled abroad after a grant of that all its rationales for the doctrine In the BIA’s precedential Matter certiorari. The government informed “assume some connection between of Barocio, 19 I. & N. Dec. 255 (BIA the Court post-argument that it had the defendant’s fugitive status and 1985), a couple from Mexico were exhausted its efforts to secure his the appellate process, sufficient to granted voluntary departure at a re- return. Over several dissents, a ma- make an appellate sanction a reason- moval hearing, failed to depart, and jority directed that the case be dis- able response.” Id.