Fugitives in Immigration: A Call for Legislative Guidelines on Disentitlement

In light of Supreme Court jurisprudence regarding the fugitive disentitlement doctrine, the circuit courts of appeal have readily expanded the doctrine’s use to civil matters, as well as immigration. But the Supreme Court’s nuanced treatment of the rationales underlying this doctrine, specifically in Ortega-Rodriguez v. United States and Degen v. United States, has led to inconsistent application across the circuits. Specifically, a split has arisen among the Second, Fifth, Seventh, and Ninth Circuits as to whether these rationales support invocation of the fugitive disentitlement doctrine to find fugitivity and dismiss an alien’s petition for review when an alien fails to report as ordered to the Department of Homeland Security (DHS) but his or her whereabouts are known to court, counsel, and federal authorities. Part II of this Comment will outline how the fugitive disentitlement doctrine has evolved since its birth in criminal appeals. Part II will also highlight how the Supreme Court’s treatment of the doctrine has set the stage for the current circuit split on its application to immigration. Part III will explore the current circuit split in immigration, focusing on the rationale used by each circuit in support of its decision to find, or not find, fugitivity when an alien failed to appear before the DHS but is otherwise locatable by court, counsel, and federal authorities. This Part will establish that, while the facts vary from case to case, the circuit courts struggle not with the facts but with the application of the doctrinal rationales in the context of immigration. Part IV will discuss potential judicial intervention but, in the end, conclude that the unique realm of immigration justifies action by Congress. This Part will thus advocate for Congress to enact a disentitlement provision, consistent with prior similar legislation in a civil context but unique to the concerns of immigration, including policies on national security and foreign relations. Part V will provide a brief conclusion