Wednesday, October 6, 2010

2nd Circuit - Fugitive Disentitlement Doctrine

Nen Di Wu v. Holder, __F.3d__, 2010 WL 3023810 (2d Cir. Aug. 4, 2010): The court held in abeyance the Government’s motion to dismiss an asylum seeker’s petition for review under the fugitive disentitlement doctrine. In appealing the Board’s denial of asylum, the petitioner moved the court to stay deportation during the pendency of the petition for review. The Government opposed the motion, prompting a request for a supplemental memorandum regarding its intent to enforce the removal order, and the court issued a temporary stay. The Government issued a “bag and baggage” letter and filed the motion to dismiss with the court some 16 days after the petitioner failed to appear for deportation. Noting its broad discretion to grant or deny a motion to dismiss under the fugitive disentitlement doctrine, the court added that such a decision “should be informed by the reasons for the doctrine and the equities of the case.” The court then discussed the traditional justifications for the doctrine. It also noted the need to consider the equities of the case (including whether the party provided an explanation for its fugitive status), and “the extent to which a party has truly evaded the law.” While the court found that the petitioner “technically” was “seemingly” a fugitive from justice, the record did not provide sufficient evidence to consider the relevant factors mentioned above. The court thus held its decision on the motion in abeyance pending briefing, and possibly oral argument, on the merits.

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