08-5073-ag
Wang v. Holder

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 11th day of
February, two thousand ten.

Present:
            ROBERT D. SACK,
            ROBERT A. KATZMANN,
                        Circuit Judges,
            RICHARD J. SULLIVAN,
                        District Judge.*
________________________________________________

WEI QING WANG,

                  Petitioner,

                 v.                                         No. 08-5073-ag
ERIC H. HOLDER JR., U.S. Attorney General,**

            Respondent.
______________________________________________

For Petitioner:          DANIEL B. LUNDY , Barst & Mukamal, LLP, New York, NY



       *
          The Honorable Richard J. Sullivan, United States District Judge for the Southern
District of New York, sitting by designation.
       **
          Pursuant to Fed.R.App.P.43(c)(2), Attorney General Eric H. Holder Jr. is automatically
substituted for Michael B. Mukasey as respondent in this case.
For Respondent:        JOHN W. BLAKELEY , Senior Litigation Counsel (Tony West, Assistant
                       Attorney General, Leslie McKay, Assistant Director, on the brief), Office
                       of Immigration Litigation, U.S. Department of Justice, Washington, DC


        Petition for review of a decision of the Board of Immigration Appeals.

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the petition for review is DISMISSED.

        Petitioner Wei Qing Wang, a native and citizen of the People’s Republic of China, seeks

review of an order of the Board of Immigration Appeals (“BIA”) dated September 10, 2008,

denying his motion to reopen. We assume the parties’ familiarity with the underlying facts and

procedural history of the case.

        The government argues that we should dismiss the instant petition for review pursuant to

the fugitive disentitlement doctrine because he failed to surrender to the immigration authorities

after receiving a notice to surrender for deportation (commonly called a bag-and-baggage letter)

from the Immigration and Naturalization Service (“INS”). “The fugitive disentitlement doctrine

is an equitable doctrine that provides courts with discretion to dismiss the appeal of a defendant

or petitioner who is a fugitive from justice during the pendency of the appeal.” Qian Gao v.

Gonzales, 481 F.3d 173, 175 (2d Cir. 2007). All that is necessary for an alien to be considered a

fugitive is the issuance of a bag-and-baggage letter and the alien’s failure to comply with the

letter. Id. at 176.

        Arguing that this case is closely analogous to Qian Gao and that the fugitive

disentitlement doctrine therefore applies, the government had moved to stay briefing on the

merits, pressing this Court to dismiss the appeal or to grant the government’s alternative motion



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for summary disposition. As Qian Gao made clear, however, the decision to apply the fugitive

disentitlement doctrine is discretionary. Id. at 178. We therefore held the motion to dismiss in

abeyance pending briefing and argument on the merits. We have now received such briefing and

heard such argument. Noting the paucity of petitioner’s arguments on the merits — that the BIA

1) abused its discretion by denying his motion to reopen as untimely when it was clearly untimely

and none of the exceptions to the 90-day filing window apply here; and 2) improperly declined to

reopen the proceedings sua sponte when we lack jurisdiction to review such decisions, Ali v.

Gonzales, 448 F.3d 515, 518 (2d Cir. 2006) — we now dismiss the petition on fugitive

disentitlement grounds.

       The facts of this case are almost identical to those presented in Qian Gao. Having failed

to voluntarily depart in accordance with an order of the BIA, petitioner’s grant of voluntary

departure automatically converted to an order of deportation pursuant to 8 C.F.R. § 1240.26(d).

Instead of complying with the deportation order, petitioner remained in the country and married a

lawful permanent resident of the United States. In August 1999, he was issued a bag-and-

baggage letter from the INS directing him to surrender for deportation, with which he failed to

comply. Cf. id. at 174-75.

       Circuit precedent, therefore, strongly suggests that the fugitive disentitlement doctrine is

applicable here. See id. at 177-78. While Mr. Wang has not actively concealed his whereabouts

from U.S. authorities — indeed, he has lived with his U.S.-citizen wife and daughters in North

Carolina for a number of years, operating a restaurant business and filing federal income tax

returns — his actions nevertheless demonstrate his willingness to ignore the orders of the



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immigration authorities by “continu[ing] to carry on his life in complete disregard of the

outstanding bag-and-baggage letter and deportation order against him.” Id. at 175.

       Petitioner would not have any basis to challenge his deportation order were it not for the

fact that he got married after his voluntary departure was converted to an order of deportation. In

other words, the ground on which he now seeks relief is an event “of his own making that

transpired while he was a fugitive.” Id. at 178. When the basis of an alien’s motion to reopen

consists of events that transpired while he was a fugitive, permitting his appeal to go forward

“would have the perverse effect of encouraging aliens to evade lawful deportation orders in the

hope that, while they remain fugitives, they may contrive through their own efforts a new basis

for challenging deportation.” Id.

       Because Mr. Wang presented no circumstances militating against applying the fugitive

disentitlement doctrine,1 this appeal is dismissed so as to “discourage petitioners from fleeing to

evade the finality of a lawful deportation order and the removal to come.” Id.

       We have considered all of petitioner’s other arguments and find them to be without merit.

For the reasons set forth above, the petition for review is DISMISSED. Having completed our

review, we dismiss petitioner’s motion for a stay as moot.


                                                      FOR THE COURT
                                                      CATHERINE O’HAGAN WOLFE, CLERK




       1
         We reject petitioner’s argument that the equities in his case do not favor applying the
doctrine because he relied on advice provided by a “service agency.” Petitioner received the
inaccurate advice two years before he received the bag-and-baggage letter from the INS directing
him to leave the country. Having never returned to the agency to ask about the consequences that
this new letter entailed, he cannot now claim to have acted in reliance on it.

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