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.

____________

SUBMITTED MAY 26, 2006—DECIDED JULY 17, 2006

____________

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 disentitlement 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 immigration 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 preserving 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 enforcement 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