Tuesday, March 13, 2012

Fugitive Disentitlement and the Juridical Presumptions of Administrative Agencies in the United States

Courts in the United States have all sorts of procedural mechanisms for acting summarily against disrespectful litigants.  These mechanisms make sense as punitive devices in the context of equity--a litigant ought not to preserve her rights intact where she has failed to conform her behavior to the rules applicable to all parties. Some of these have been written into statute.  One of them is the so-called principle of fugitive disentitlement:

(Pix (c) Larry Catá Backer)

28 USC § 2466 - Fugitive disentitlement

(a) A judicial officer may disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action or a claim in third party proceedings in any related criminal forfeiture action upon a finding that such person—
(1) after notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution—
(A) purposely leaves the jurisdiction of the United States;
(B) declines to enter or reenter the United States to submit to its jurisdiction; or
(C) otherwise evades the jurisdiction of the court in which a criminal case is pending against the person; and
(2) is not confined or held in custody in any other jurisdiction for commission of criminal conduct in that jurisdiction.
(b) Subsection (a) may be applied to a claim filed by a corporation if any majority shareholder, or individual filing the claim on behalf of the corporation is a person to whom subsection (a) applies. 
This provision has been applied by courts without much question.  For more, see The Fugitive-Disentitlement Doctrine: Cert Petition Offers Two Splits for the Price of One (Part 1 of 2), Circuit Splits, February 20, 2012; The Fugitive-Disentitlement Doctrine: Cert Petition Offers Two Splits for the Price of One (Part 2 of 2), Circuit Split, Feb. 21, 2012. 


But modern governance has increasingly transferred quasi judicial power onto a variety of regulatory agencies that are increasingly taking over the bulk of regulatory governance in the United States.  These agencies have been delegated combined executive, legislative and judicial authority by constitutionally created governmental institutions themselves prohibited from such amassing of power under the U.S. federal constitutional system. 
The issue of the authority of the federal courts to extend to Article I tribunals, which are not courts, the authority to disentitle claimants under the fugitive disentitlement doctrine was recently contested in the case of Bright v. Holder, 649 F.3d 397 (5th Cir. 2011).  The facts are straightforward:
 Ike Romanus Bright, a native and citizen of Nigeria, became a lawful permanent resident of the United States in November 1985. Nearly a year later, he pled guilty [*399] in Texas state court to attempted second-degree murder.

On March 21, 2007, the United States Department of Homeland Security ("DHS") issued a notice to appear charging that Bright was subject to removal pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("the Act"), because of his prior conviction, 8 U.S.C. § 1227(a)(2)(A)(iii). Bright was released from DHS custody on a $2,000 bond.

At his initial hearing before the Immigration Judge ("U"), Bright admitted the factual allegations contained in the notice to appear and conceded he was removable as charged, but sought relief pursuant to former Section 212(c) of the Act. The IJ rejected Bright's arguments and ordered him removed to Nigeria. The Board of Immigration Appeals ("BIA") agreed and dismissed Bright's appeal on December 23, 2008. Bright did not file a petition for review.

On January 12, 2009, DHS ordered Bright's attorney to surrender him for removal on February 12. When Bright failed to appear, DHS issued a notice declaring that his bond had been breached and forfeited, and a warrant was issued for his arrest.

On March 9, Bright filed a motion to reopen removal proceedings and a request to stay the removal order. DHS argued, in part, that Bright did not merit a favorable exercise of discretion because he failed to surrender for removal and was a fugitive. Bright replied, in part, that his failure to report for removal did not render him a fugitive because he had maintained the same address throughout his removal proceedings, his address was known to DHS, and he made no attempt to evade the authorities.

On September 4, the BIA denied Bright's motion to reopen and his request to stay the removal order, determining that, pursuant to the fugitive disentitlement doctrine, Bright's failure to report for removal rendered him ineligible for consideration of additional relief. Bright subsequently filed a motion for reconsideration. The BIA denied Bright's motion for reconsideration on March 24, 2010. Bright filed a timely petition for review. (From Bright v. Holder, 649 F.3d 397 (5th Cir. 2011) [2011 BL 204817])
The Fifth Circuit had little problem extending the fugitive disentitlement principles  to the regulatory context:

"[T]he fugitive disentitlement doctrine limits a criminal defendant's access to the judicial system whose authority he evades." Bagwell v. Dretke, 376 F.3d 408, 410 (5th Cir. 2004). We have extended the fugitive disentitlement doctrine to the immigration context, holding that the doctrine prevented further review of a BIA [*400] decision where the petitioners became fugitives after evading custody and failing to comply with a removal order. Giri, 507 F.3d at 835. The doctrine is an equitable one "that a court exercises in its discretion." Bagwell, 376 F.3d at 413 (citation omitted).

The doctrine is justified by several rationales, including: (1) the difficulty of enforcing a judgment against a fugitive; (2) a waiver or abandonment theory, where "by fleeing custody, the defendant is thought to have waived or abandoned his right to an appeal"; (3) the "discourage[ment of] the felony of escape and encourage[ment of] voluntary surrenders"; (4) the furtherance of "the court's interest in efficient practice" "because a litigant's escape impedes the ability of a court to adjudicate the proceedings before it"; and (5) a response to the fugitive's "affront to the dignity and authority of the court." Id. at 411 (quotation marks, brackets, and citations omitted).


We are persuaded by the Second and Seventh Circuits, especially in light of the purposes underlying the fugitive disentitlement doctrine. See Giri, 507 F.3d at 835. Applying the fugitive disentitlement doctrine to those who evade removal despite their address being known by DHS will encourage voluntary surrenders, the efficient operation of the courts, and respect for the judiciary and the rule of law. See id.

Everyone understands that the government is overwhelmed with petitioners and procedures, and that it heavily relies on the word and voluntary compliance of numerous aliens within our borders. It is easy to game this system, but we should not treat disregard of government directives as a norm. (From Bright v. Holder, 649 F.3d 397 (5th Cir. 2011) [2011 BL 204817])
Petition has been made for review by the U.S. Supreme Court (No. 11-890). For more on the case, see the following excerpted from the Scotus blog:

Issue: (1) Whether a noncitizen who fails to respond to an agency order to report for removal is a “fugitive” for purposes of applying the “fugitive disentitlement” doctrine where the petitioner has not absconded and his address is known to the court and the government; (2) whether a petitioner is a “fugitive” for purposes of applying the “fugitive disentitlement” doctrine even if he has been detained and is in government custody; and (3) whether the doctrine is a per se jurisdictional bar to appellate review, or merely authorizes a court to exercise its discretion and weigh the equities in a particular case.
 SCOTUSblog Coverage
 Briefs and Documents
Certiorari-stage documents
I was part of a group of law faculty submitting an amicus brief ably prepared by Michael Sink (counsel of record) and Stephanie Dunn of Perkins Coie.  That brief is excerpted here:

Amici are constitutional scholars who teach courses covering Constitutional or Administrative law at their respective law schools.2 Amici share a personal and professional interest in ensuring that Due Process requirements are consistently and meaningfully applied to all proceedings, whether judicial or administrative, that put at issue an individual’ s life, liberty , or property . Because a broad application of the fugitive disentitlement doctrine affects the Due Process rights of thousands of individuals, Amici urge this Court to grant the petition for writ of certiorari to consider and clarify the scope and application of the fugitive disentitlement doctrine in the circumstances presented by Mr. Bright’s petition. 
1 The parties have consented to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no counsel or a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae or their counsel made a monetary contribution to its preparation or submission. Counsel of record for all parties received notice of amici curiae’s intention to file this brief at least 10 days prior to the due date and have consented to its filing.
2 A full list of amici is set forth in Appendix A. Amici join this brief as individuals and not on behalf of their respective institutions.
The fugitive disentitlement doctrine was originally developed to support dismissal of direct appeals by escaped criminal defendants. Smith v. United States, 94 U.S. 97, 97 (1876); Molinaro v. New Jersey, 396 U.S. 365, 366 (1970). The doctrine, however, has been increasingly expanded by lower federal courts to contexts well beyond those originally recognized by this Court. As the doctrine has been stretched beyond the criminal arena, little consideration has been given to either the intrinsic limits on a Court’s inherent judicial power, or the constraints imposed by the Due Process clause of the Constitution. See, e.g., Martha B. Stolley, Sword or Shield: Due Process and the Fugitive Disentitlement Doctrine, 87 J. CRIM. L. & CRIMINOLOGY 751, 769 (1997) (noting “the curious absence in lower court fugitive disentitlement decisions of any due process analysis”).

This case presents a striking example of the ever expansive application of the doctrine. Here, the doctrine was applied in the first instance, not by an Article III court, but by an administrative agency. The United States Court of Appeals for the Fifth Circuit then summarily affirmed the agency’ s application of the fugitive disentitlement doctrine with no analysis of either Mr. Bright’s due process rights or the propriety of an administrative agency exercising a judicial power. Applying the judicially created doctrine, an administrative agency effectively deprived Mr. Bright, a lawful permanent resident of the United States whose location was

known to the Department of Homeland Security, of any substantive hearing regarding his removal from the United States, his home and his family. This Court should grant the petition for writ of certiorari to determine the availability of the fugitive disentitlement doctrine inside the administrative agency context, and to clarify the limitations imposed on the doctrine by the Due Process Clause of the United States Constitution.


The fugitive disentitlement doctrine is an equitable judicial doctrine created by this Court. Smith, 94 U.S. 97. The Court held that “[i]t is clearly within our jurisdiction to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render.” Initially limited to appeals, Smith and its progeny primarily framed the fugitive disentitlement doctrine as a question of an inherent judicial power to avoid ruling on potentially moot cases that could not be enforced. Id.; see also Bohanan v. Nebraska, 125 U.S. 692, 692 (1887) (defendant was no longer in custody or control of the court below); Allen v. Georgia, 166 U.S. 138, 140 (1897) (applying the doctrine and holding that “we have repeatedly held that we would not hear and determine moot cases”); accord Eisler v. United States, 338 U.S. 189, 190 (1949) Molinaro, 396 U.S. 366; Ortega-Rodriguez v. United States, 507 U.S. 234, 240 (1993).


As the doctrine developed, this Court articulated additional justifications for the doctrine, including deterrence, respect for judicial tribunals, and judicial efficiency. See Allen, 166 U.S. at 141 (escaping from legal custody is “a contempt of [the court’s] authority, to which no court is bound to submit”); Estelle v. Dorrough, 420 U.S. 534, 537 n.7 (1975) (Texas fugitive disentitlement statute not only deterred escapes but also “secure[d] the State’s interest in orderly judicial procedure”); Ortega- Rodriguez, 507 U.S. at 242 (“dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice”).

In the process, however, this Court has cautioned that the doctrine is not without limits and may be subject to constitutional constraints. Moreover, the doctrine is subject to a proportionality or tailoring standard. In Degen v. United States, for example, the Court declined to extend the doctrine into the civil forfeiture context because although “[t]here would be a measure of rough justice in saying Degen must take the bitter with the sweet, and participate in the District Court either for all purposes or none,” “the justice would be too rough.” 517 U.S. 820, 829 (1996). “A court’s inherent power is limited by the necessity of giving rise to its exercise.” Id. Nevertheless, few decisions from this Court have addressed the outer limits of the doctrine.

In this case, the Board never examined whether or to what extent it had the power to apply the


fugitive disentitlement doctrine, or how Mr. Bright’s Due Process rights were implicated by the application of the fugitive disentitlement doctrine. The Fifth Circuit Court of Appeals, moreover, summarily affirmed the Board’s application of the doctrine based on Mr. Bright’s status before the Board, which had changed by the time the Fifth Circuit decided the appeal. This case thus presents an ideal vehicle to determine the availability of the fugitive disentitlement doctrine inside the administrative agency context, and to clarify the limitations imposed on the doctrine by the Due Process Clause of the United States Constitution.


The Board of Immigration Appeals is an administrative agency, and, thus a creature of statute. Federal Trade Commission v. Dean Foods Co., 384 U.S. 597, 605-06 (1966); Guardians Ass’n v. Civil Service Com’n of City of New York, 463 U.S. 582, 613-14 (1983) (O’Connor, J., concurring in judgment). It possesses only those powers delegated to it by Congress in its enabling statute, the Immigration and Nationality Act. See Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 322 (1961) (“the fact is that the Board is entirely a creature of Congress and the determinative question is not what the Board thinks


it should do but what Congress has said it can do”); Hamilton v. Gonzales, 485 F.3d 564, 569 (10th Cir. 2007) (describing the INA as the Board of Immigration Appeals’ enabling statute).3

Congress may confer upon an administrative agency the power to assess a statutory penalty. Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 333 (1909). But administrative agencies are not Article III courts and do not possess full judicial power. See Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 725 (1929) (“The Board of Tax Appeals is not a court. It is an executive or administrative board, upon the decision of which the parties are given an opportunity to base a petition for review to the courts after the administrative inquiry of the Board has been had and decided”); Crowell v. Benson, 285 U.S. 22, 50-51 (1932).4 Where a statute authorizes a penalty, the administrative agency does not exercise judicial power simply by applying a 
3 See also Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) (“The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes.”).
4 See also Federal Maritime Com'n v. South Carolina State Ports Authority, 535 U.S. 743, 777 (2002) (Breyer, J. dissenting) (“Federal administrative agencies do not exercise the ‘[j]udicial power of the United States.’”); Freytag v. C.I.R., 501 U.S. 868, 912 (1991) (Scalia, J. dissenting) (“When the Tax Court was statutorily denominated an ‘Article I Court’ in 1969, its judges did not magically acquire the judicial power”). 
statutorily mandated penalty. Oceanic Steam Nav., 214 U.S. at 333.

The Immigration and Nationality Act is a “comprehensive federal statutory scheme for regulation of immigration and naturalization” that sets “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” De Canas v. Bica, 424 U.S. 351, 353, 359 (1976). Under the Act, the Attorney General is charged with administering the INA, 8 U.S.C. § 1103(a)(1), and has, in turn, delegated to the BIA the “discretion and authority conferred upon the Attorney General by law” in the course of “considering and determining cases before it.” 8 C.F.R. § 3.1(d)(1) (1998). See Negusie v. Holder, 555 U.S. 511, 516-17 (2009). The appellate review provision of the Immigration and Nationality Act, however, does not vest the power in the Board of Immigration Appeals to deny an appeal based on fugitive status. 8 U.S.C. § 1252.

The Board, moreover, has not issued a regulation authorizing the use of the doctrine as an implied delegation of power under the Act. And even if it had, such a rule requires review to determine whether its application is consistent with the statutory grant of an appellate right. See INS v. Jong Ha Wang, 450 U.S. 139, 144 (1981); see also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984) (“Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit”); INS v. Aguirre–Aguirre, 526 U.S. 415, 424 (1999)


(“principles of Chevron deference are applicable to [the INA] scheme.”).

The fugitive disentitlement doctrine is a judicially created doctrine originally created as an exercise of federal courts’ inherent judicial power. Degen, 517 U.S. at 823 (“Courts invested with the judicial power of the United States have certain inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities.”). See also Estelle, 420 U.S. at 257. No decision of this Court has expressly considered whether an administrative agency has the inherent power to apply the doctrine. Nor has this Court recognized that such power has been impliedly delegated by Congress in a statutory scheme that is silent on the issue.
Neither the Board’s opinion applying the doctrine to bar Mr. Bright from any hearing on his removal from the United States nor the Fifth Circuit’s cursory affirmation of the Board’s decision (after Mr. Bright had been taken into custody) consider the right of the Board to apply the doctrine as an exercise of statutory authority or inherent administrative power. Rather, both decisions simply rely on federal judicial precedent. The Board’s application of the doctrine therefore raises serious questions about both the scope of the Board’s statutory authority, and Congress’ ability to delegate judicial power to administrative agencies.

Further weighing against a conclusion that the Board’s application of the fugitive disentitlement doctrine might qualify as an implied delegation of


authority or inherent agency power is the absence of necessity for the application of the doctrine. Unlike the cases decided by this Court where there were concerns over the Court’s ability to enforce a judicial decree, no such concern was present in this case. Mr. Bright’s location was known and the Department of Homeland Security made no effort to take him into custody. And, in those deportation cases where the individual does flee the jurisdiction of the United States, the Board’s decision has been effectively enforced. Thus, in the immigration context, there is no need for a fugitive disentitlement doctrine when the individual has fled the country because the government’ s goal has been accomplished.

The Board’s application of the doctrine in such cases is more akin to an ultra vires punitive sanction than a simple administrative rule aimed at ensuring its decisions are enforceable. Austin v. United States, 509 U.S. 602, 610 (1993); American Bus Ass’n v. Slater, 231 F.3d 1, 6-7 (D.C. Cir. 2000). Absent statutory power to impose such a penalty, the Board’s application of the fugitive disentitlement doctrine is a nullity. See Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129, 134 (1936).
Even if the Board had been authorized by statute to create such a rule, its decision would still raise significant issues about administrative agencies’ exercise of inherent judicial supervisory powers reserved for Article III courts. See Stern v. Marshall, 131 S.Ct. 2594, 2611 (2011); Northern


Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 52 (1982). Administrative agencies may not create or apply rules (whether authorized by statute or not) that traverse constitutional limits in the name of efficiency or simply because, as the Fifth Circuit put it, the agency “is overwhelmed with petitioners and procedures.” Bright v. Holder, 649 F.3d 397 (5th Cir. 2011) (quotation omitted). See INS v. Chadha, 462 U.S. 919, 944 (1983) (“the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.”).


This Court has repeatedly held that federal courts may not exercise their inherent or supervisory powers in a manner that violates constitutional rights. See, e.g., Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988); Thomas v. Arn, 474 U.S. 140, 148 (1985). The Constitution limits “the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause.” Societe Internationale v. Rogers, 357 U.S. 197, 209 (1958). To hold otherwise “would confer on the judiciary discretionary power to disregard the considered limitations of the law it is


charged with enforcing.” United States v. Payner, 447 U.S. 727, 737 (1980).

The Due Process Clause of the Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property without due process of law.” U.S. Const. amend. V. This Court has held that “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (citation and quotation omitted). See also Hovey v. Elliott, 167 U.S. 409, 414 (1897) (“To say that courts have inherent power to deny all right to defend an action and to render decrees without any hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends.”). Due Process requires that an individual be afforded any statutorily-created rights. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (defendant had a “substantial and legitimate expectation” that the State would honor a statutorily-created procedural right, “and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation”).
Individuals in the United States have Due Process rights regardless of their status. Cf. McVeigh v. United States, 78 U.S. (1 Wall.) 259, 267 (1870). In an ordinary case, a lawful alien resident has Due Process rights, cf. Demore v. Kim, 538 U.S.


510 (2003), Reno v. Flores, 507 U.S. 292, 306 (1993); Kwong Hai Chew v. Colding, 344 U.S. 590, 600 (1953), which are implemented by federal statute.

Assuming that the Board of Immigration Appeals had the inherent authority to impose a judicially- created sanction, its exercise of that sanction is subject to the same limitations as federal courts, if not to more stringent limits. And the Fifth Circuit’s decision affirming the Board’s order (after Mr. Bright had been taken into custody) must also be independently examined. As this Court has repeatedly noted, but not previously decided, the application of the doctrine would raise serious Due Process concerns if it was not necessary to secure the enforceability of the judgment, Degen, 517 U.S. at 829, Ortega-Rodriquez, 507 U.S. at 248-49, and where the subject party had a right to an appeal. Cf. Goeke v. Branch, 514 U.S. 115 (1995).

Both are the case here. The Fifth Circuit’s and the Board’s application of the fugitive disentitlement doctrine against Mr. Bright deprived him of his statutorily-created appellate right. There is no concern in this case that the Department of Homeland Security is unable to enforce a final deportation order given that Mr. Bright’s location is known to the Department of Homeland Security. And by the time of his appeal to the Fifth Circuit, Mr. Bright was in custody, yet the court declined to decide the merits of his appeal or remand his case back to the Board based on his status before the Board. Neither the Board nor the Fifth Circuit Court of Appeals, however, examined to what extent


Mr. Bright’s Due Process rights were implicated by the application of the fugitive disentitlement doctrine.
Absent a necessity to apply the fugitive disentitlement doctrine at either level, the Board’s and the Fifth Circuit’s application of the doctrine raise significant issues about Due Process limitations on the exercise of inherent judicial powers.


Because the Fifth Circuit’s affirmance of the Board of Immigration Appeal’s application of the fugitive disentitlement doctrine raises serious questions about administrative agencies’ ability to impose inherent judicial sanctions, as well as the limits imposed by the Due Process Clause of the United States Constitution on such sanctions, the petition for a writ of certiorari should be granted.

Respectfully submitted.
Michael A. Sink Counsel of Record
Stephanie E. Dunn Perkins Coie LLP
1900 16th Street, #1400 Denver, CO 80202
(303) 291-2300


Appendix A
List of Amici Curiae Constitutional Law Professors
The following Constitutional or Administrative law professors join this brief:
Larry Catá Backer, W. Richard and Mary Eshelman Faculty Scholar and Professor of Law, and Professor of International Affairs, Pennsylvania State University, Dickinson School of Law.
David A. Goldberger, Isadore and Ida Topper Professor Emeritus of Law, The Ohio State University, Michael E. Moritz College of Law.
Linda A. Malone, Marshall-Wythe Foundation Professor of Law, William & Mary Law School.
Karl M. Manheim, Professor of Law, Loyola Law School Los Angeles.
John Parry, Professor of Law, Lewis & Clark Law School.
Allen E. Shoenberger, Professor of Law, Loyola University Chicago – School of Law.

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