In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4494
TELESFORO GUTIERREZ-ALMAZAN,
Petitioner,
v.
ALBERTO GONZALES,
Respondent.
____________
On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A36-748-745.
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SUBMITTED MAY 26, 2006—DECIDED JULY 17, 2006
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Before KANNE, ROVNER, and WOOD, Circuit Judges.
PER CURIAM. Telesforo Gutierrez-Almazan was ordered
removed after immigration authorities determined that
his 1994 conviction for sexual abuse of a minor was an
aggravated felony. Gutierrez filed a petition for review in
this court, challenging the determination of the Board of
Immigration Appeals that he is ineligible for relief under
former section 212(c) of the Immigration and Nationality
Act. See INS v. St. Cyr, 533 U.S. 289 (2001). After he filed
his opening brief in this court, however, the government
moved to dismiss the petition under the fugitive disen-
titlement doctrine. We deny the motion to dismiss for the
reasons set out below.
2 No. 05-4494
The facts needed to understand this matter are few. On
February 8, 2006, the Department of Homeland Security
(DHS) sent Gutierrez a notice (commonly referred to as a
“bag and baggage” letter) ordering him to surrender for
removal on March 9. Presumably in response to the notice,
Gutierrez filed in this court on February 14 a motion for a
stay of removal pending his appeal. Two days later a
motions judge ordered a temporary stay and directed the
government to respond to the motion by March 1. The
government filed its response on March 6, stating that it
did not oppose a stay of removal, and on March 22 this
motions panel granted Gutierrez’s motion for a stay. But in
the meantime, March 9 came and went and he did not
surrender. His counsel now states that he advised Gutierrez
that he didn’t need to report because of the temporary stay;
that advice was unfounded. See Sapoundjiev v. Gonzales,
376 F.3d 727, 729 (7th Cir. 2004).
Then on May 26, 2006, the government filed its motion to
dismiss. Gutierrez’s counsel immediately called DHS and
stated that Gutierrez was willing to surrender to immigra-
tion authorities at any time and place the government
requested. A DHS official told Gutierrez to report on May
30, which he did. He remains in custody.
The fugitive disentitlement doctrine is a discretionary
device by which courts may dismiss criminal appeals or civil
actions by or against individuals who are fugitives from
justice. Sarlund v. Anderson, 205 F.3d 973, 974 (7th Cir.
2000). Courts have consistently held that it applies in the
immigration context. See, e.g., Sapoundjiev, 376 F.3d at
728; Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir.
2003). But it is not at all clear that it should be invoked in
a case like this, where the party in question is no longer a
fugitive. Gutierrez is not at large; he is in custody. In cases
where escaped fugitives have been recaptured, courts have
been reluctant to impose the severe sanction of disentitling
them to access to the federal courts. See Ortega-Rodriguez
No. 05-4494 3
v. United States, 507 U.S. 234 (1993); Hanson v. Phillips,
442 F.3d 789 (2d Cir. 2006); Katz v. United States, 920 F.2d
610 (9th Cir. 1990), abrogated on other grounds by Lozada
v. Deeds, 964 F.2d 956 (9th Cir. 1992); cf. Walsh v. Walsh,
221 F.3d 204, 214-15 (1st Cir. 2000) (noting that courts
have generally dismissed cases where the fugitive has failed
to surrender voluntarily after a given term). We are
therefore even more cautious about applying it here, where
the petitioner not only did not escape (he simply failed to
report, on bad advice from his lawyer), but also turned
himself in as soon as he learned that he was wanted, rather
than waiting to be apprehended.
In Degen v. United States, 517 U.S. 820 (1996), the
Supreme Court cautioned against frequent use of fugitive
dismissal, stating that it is too blunt an instrument for
deterring other petitioners from absconding and for preserv-
ing the court’s authority and dignity. The Court emphasized
that above all, pragmatic considerations should guide
courts’ application of the doctrine. The essential question,
then, is this: have the petitioner’s actions made the enforce-
ment of an adverse judgment impossible? Here the answer
is plainly no: Gutierrez is in custody, and the government
will have no trouble removing him if his appeal in this court
fails.
We suggested in Sapoundjiev that a petitioner in an
immigration case who fails to report and then faces a
motion to dismiss under the fugitive disentitlement doctrine
may still surrender to immigration authorities and preserve
his appeal. 376 F.3d at 730. We now so hold, and DENY the
motion to dismiss the appeal.
4 No. 05-4494
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-17-06