                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0460n.06

                                           No. 09-4121                                     FILED
                                                                                       Jul 07, 2011
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk

SHIGUI DONG,                                      )
                                                  )
          Petitioner,                             )
                                                  )
v.                                                )     ON APPEAL FROM THE BOARD OF
                                                  )     IMMIGRATION APPEALS
ERIC H. HOLDER, JR., U.S. ATTORNEY                )
GENERAL,                                          )
                                                  )
          Respondent.                             )
                                                  )


          Before: BOGGS, and KETHLEDGE, Circuit Judges; and COLLIER, Chief District Judge.*

          CURTIS L. COLLIER, Chief District Judge. Petitioner Shigui Dong (“Petitioner”) seeks

review of the final order issued by the Board of Immigration Appeals (“BIA”) dismissing his appeal

from the Immigration Judge’s decision denying Petitioner asylum, withholding of removal, and

protection under the Convention Against Torture. On April 27, 2011, Petitioner’s counsel moved

to waive the oral argument scheduled for May 31, 2011. As grounds, Petitioner’s counsel stated that

he has not had any contact with Petitioner since February, 2010, that he believes – but does not know

– Petitioner left the United States in February, 2010 and has not returned, and that Petitioner’s

whereabouts are presently unknown to counsel. We granted the motion to waive oral argument. We

now DISMISS this case because we hold Petitioner’s disappearance disentitles him to continue his

appeal.

          *
       The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
       “The fugitive disentitlement doctrine limits access to the federal courts by a fugitive who has

deliberately fled from custody.” Kacaj v. Gonzales, 163 F. App’x 367, 368 (6th Cir. 2006).

Invocation of the doctrine is discretionary. Id. This Court, along with other circuits, has extended

the doctrine to include cases where a petitioner in an immigration case disappears while his appeal

of a BIA decision is pending. In Chen v. Gonzales, 187 F. App’x 502 (6th Cir. 2006), we dismissed

an appeal of a BIA decision where, during the pendency of the appeal, the petitioner failed to report

as ordered to an Immigration and Customs Enforcement (“ICE”) field office. We held that the

fugitive disentitlement doctrine “applie[s] to petitions for review of decisions of the BIA when an

alien fails to surrender despite a lawful order of removal.” Id. at 504. Similarly, in Kacaj, we denied

a petition for review of a removal order where the petitioner failed to report to ICE as ordered

following the BIA’s decision, and petitioner’s counsel reported to the Court that he did not know his

client’s whereabouts. See 163 F. App’x at 368.

       In Garcia-Flores v. Gonzales, 477 F.3d 439 (6th Cir. 2007), we explained at some length the

rationale for extending the fugitive disentitlement doctrine to immigration cases where the petitioner

has disappeared or failed to report to immigration authorities:

       Litigation entails reciprocal obligations: an appellant (or petitioner) who demands
       that the United States respect a favorable outcome must ensure that an adverse
       decision also can be carried out. . . . A litigant whose disappearance makes an
       adverse judgment difficult if not impossible to enforce cannot expect favorable
       action. . . . Someone who cannot be bound by a loss has warped the outcome in a way
       prejudicial to the other side; the best solution is to dismiss the proceeding. That
       proposition is as applicable to the fugitive alien as it is to the fugitive criminal
       defendant . . . .

Garcia-Flores, 477 F.3d at 441 (quoting Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir.

2004)). We went on to reason that a petitioner’s remaining at large despite a removal order “evinces



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an intent to avail himself of the ‘heads I win, tails you’ll never find me’ approach.” Id. at 442.

Consequently, we dismissed the appeal pursuant to the fugitive disentitlement doctrine.

       Many sister circuits have likewise applied the fugitive disentitlement doctrine to pending

immigration appeals. See, e.g., Gao v. Gonzales, 481 F.3d 173 (2d Cir. 2007); Arana v. INS, 673

F.2d 75 (3d Cir. 1982); Giri v. Keisler, 507 F.3d 833 (5th Cir. 2007); Sapoundjiev v. Ashcroft, 376

F.3d 727 (7th Cir. 2004); Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003); Martin v.

Mukasey, 517 F.3d 1201 (10th Cir. 2008). The Tenth Circuit has characterized appellate judgments

in immigration cases where the petitioner cannot be located as “worthless judgment[s]” which

“waste[] time and resources” of the judicial system, and “encourage the recourse of flight” for other

petitioners with pending immigration appeals. Martin, 517 F.3d at 1205. Similarly, in Antonio-

Martinez, a case in which “no one has any clue where [petitioner] is,” the Ninth Circuit explained:

       Those who disregard their legal and common-sense obligation to stay in touch while
       their lawyers appeal an outstanding deportation order should be sanctioned. . . .
       Those who invoke our appellate jurisdiction must take the bitter with the sweet: They
       cannot ask us to overturn adverse judgments while insulating themselves from the
       consequences of an unfavorable result.

317 F.3d at 1093. Disentitlement of an appeal, the court reasoned, “provides a strong incentive to

maintain contact with the INS and counsel.” Id.

       Here, Petitioner received a final order from the BIA upholding his removal order on August

26, 2009. He filed his appeal with this Court on September 11, 2009. According to counsel, in

February 2010, counsel was informed by Petitioner’s translator that Petitioner was no longer residing

in the United States. Petitioner has not been seen or heard from by counsel since. According to the

Department of Justice, Petitioner has not responded to ICE’s efforts to contact him. Since

Petitioner’s supervised release requires him to notify ICE of any change in address, ICE considers


                                                  3
Petitioner to be in violation of his supervised release. Further, to the extent Petitioner has not

verified his departure from the United States, ICE considers him to be a fugitive.

       As in Antonio-Martinez, Petitioner has failed to keep both the government and his counsel

apprised of his whereabouts. See 317 F.3d at 1093. If he has left the country, he is no longer entitled

to claim asylum. See Kalaj v. Gonzales, 185 F. App’x 468, 473 (6th Cir. 2006) (explaining that an

asylum applicant who returns to the country of alleged persecution without a compelling reason may

be presumed to have abandoned his application). If he remains in the United States, he has failed

to meet his obligations to the government. Petitioner’s conduct demonstrates at best that he wishes

to abandon his appeal (if, indeed, he has left the country), and at worst that he intends to “avail

himself of the ‘heads I win, tails you’ll never find me’ approach.” Garcia-Flores, 477 F.3d at 442.

Were we to rule on the merits of this appeal, an outcome adverse to Petitioner would likely prove

impossible to enforce. However, were we to overturn the removal order, it is plausible to imagine

Petitioner would shortly “reappear” to reap the benefit of the ruling. This situation is an “affront to

the dignity of the judicial process,” Gao, 481 F.3d at 176, and threatens a waste of judicial time and

resources.   Accordingly, we find the fugitive disentitlement doctrine applicable here, and

consequently DISMISS the appeal.




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