IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60569

RAJU RAJ GIRI, SUSMITA GIRI, RIWAJ GIRI,

Petitioners,

v.

PETER D. KEISLER, ACTING U.S. ATTORNEY GENERAL,

Respondent,

Petition for Review of an Order of the

Board of Immigration Appeals

Before KING, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:

Raju Raj Giri, along with his wife and their child, seeks review of an order

of the Board of Immigration Appeals (BIA) dismissing their appeal from the

immigration judge’s decision to deny their application for asylum, withholding

of removal, and relief under the Convention Against Torture (CAT). Pursuant

to the fugitive disentitlement doctrine, which we find applicable in this

immigration proceeding, the petition for review is DISMISSED. 

I. BACKGROUND

The Giris, who are natives and citizens of Nepal, entered the United States

through California on or about July 4, 2003, as non-immigrant visitors with

authorization to remain in this country for a temporary period not to exceed

United States Court of Appeals

Fifth Circuit

F I L E D

November 7, 2007

Charles R. Fulbruge III

Clerk
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January 2, 2004. After overstaying their visas, the Giris were issued notices on

February 5, 2004, to appear in immigration court for deportation proceedings.

At an immigration court hearing on April 5, 2004, the Giris conceded

removability, and then applied for asylum, withholding of removal, and

protection under the CAT. After a hearing on the merits on September 15, 2004,

the immigration judge rendered an oral decision on March 15, 2005, denying the

Giris’ claims for relief and ordering them removed to Nepal. On June 7, 2006,

the BIA affirmed the immigration judge’s decision. The Giris then filed a

petition for review of the BIA’s decision with this court. 

During the pendency of the Giris’ petition,the United States Immigration

and Customs Enforcement (ICE) denied their application for a stay of

deportation or removal on October 24, 2006, resulting in their removal orders

becoming administratively final. The Giris subsequently failed to report, as

required, to ICE with an unexpired passport and a one-way ticket to Nepal.

Acknowledging that ICE considered the Giris to be in “fugitive status” at that

point, they filed a motion for stay of removal with this court on February 17,

2007, which was ultimately denied. In a letter dated February 28, 2007, the

United States Department of Justice stated that the Giris are “currently not in

custody” and are “currently absconder fugitives.” On March 9, 2007, the

Government filed a motion to dismiss the Giris’ petition for review based on the

fugitive disentitlement doctrine, contending that the Giris had failed to comply

with various ICE orders and to cooperate with ICE personnel. To this day, the

Giris have not reported for removal.

II. ANALYSIS

The question presented in this appeal is whether the fugitive

disentitlement doctrine may be invoked to dismiss a petition for review of a BIA

decision by a fugitive alien. This is an issue of first impression in this circuit. 
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In another context, we have observed that “the fugitive disentitlement

doctrine limits a criminal defendant’s access to the judicial system whose

authority he evades.” Bagwell v. Dretke, 376 F.3d 408, 410 (5th Cir. 2004). As

the Bagwell court explained: 

The Supreme Court first recognized the doctrine over 100 years

ago, and the doctrine has since been used by both district and

appellate courts to enter judgment against a fugitive defendant

or to dismiss the defendant’s appeal. This power stems not from

any statute, but rather from a court’s inherent power “to protect

[its] proceedings and judgments in the course of discharging [its]

traditional responsibilities.”

Id. (alterations in original) (footnotes omitted) (quoting Degen v. United States,

517 U.S. 820, 823 (1996)); see also United States v. Delagarza-Villarreal, 141

F.3d 133, 136 (5th Cir. 1997) (“It is generally accepted that circuit courts have

the authority to fashion procedural rules governing the management of litigation

before them.”). We have summarized the Supreme Court’s justifications for use

of the fugitive disentitlement as follows:

First, if a defendant is a fugitive when the court considers his

case, it may be impossible for the court to enforce any judgment

that it renders. Second, courts have advanced a waiver or

abandonmenttheory: by fleeing custody, the defendant is thought

to have waived or abandoned his right to an appeal. Third,

allowing a court to dismiss a fugitive’s case is thought to

“discourage[] the felony of escape and encourage[] voluntary

surrenders.” Fourth, because a litigant’s escape impedes the

ability of a courtto adjudicate the proceedings before it, dismissal

of the case furthers the court’s “interest in efficient practice.”

Finally, the criminal defendant’s escape is thought to represent

an affront to the dignity and authority of the court.

376 F.3d at 411 (alterations in original) (internal quotation marks and footnotes

omitted).

With these rationales in mind, we now find it proper to extend the fugitive

disentitlement doctrine to the immigration context where, as here, the

petitioners are fugitive aliens who have evaded custody and failed to comply
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with a removal order. In so holding, we join with every other circuit that has

addressed whether the fugitive disentitlement doctrine applies to appeals from

the BIA under similar facts. See Gao v. Gonzales, 481 F.3d 173 (2d Cir. 2007)

(affirming precedent established in Bar-Levy v. INS, 990 F.2d 33 (2d Cir. 1993));

Garcia-Flores v. Gonzales, 477 F.3d 439 (6th Cir. 2007); Sapoundjiev v. Ashcroft,

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

2003); Arana v. INS, 673 F.2d 75 (3d Cir. 1982). The Seventh Circuit’s reasoning

is particularly persuasive in light of the justifications advanced by the Supreme

Court to support use of the doctrine in other contexts: 

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. When an alien fails to report for custody, this sets

up the situation that Antonio-Martinez called “heads I win, tails

you’ll never find me.” 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 . . . .

Sapoundjiev, 376 F.3d at 728-29 (internal citations omitted) (quoting AntonioMartinez, 317 F.3d at 1093). We also agree with the Ninth Circuit that applying

the fugitive disentitlement doctrine to certain immigration cases “furthers its

punitive and deterrent purposes.” Antonio-Martinez, 317 F.3d at 1093. As 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. The prospect of disentitlement provides a strong

incentive to maintain contact with the INS and counsel, rather than taking one’s

continued presence in the country for granted.” Id.
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Here, itis uncontested thatthe Giris have become fugitives since they filed

their petition for review with this court. Consequently, they now wish to invoke

the protection that a favorable decision from this court would provide, without

submitting themselves to the risk of an adverse ruling. While it is certainly

possible thatthe Giris may eventually decide to comply with their removal order

following an adverse ruling in this matter, there is no indication that they will

do so, and thus any decision on the merits, unless it is to petitioners’ liking, may

have no practical effect whatsoever. It is, as the Ninth Circuit suggests, akin to

a game of “heads I win, tails you’ll never find me.” Id. We can find no reason to

indulge such conduct, and therefore conclude that the fugitive disentitlement

doctrine serves to bar further review of the BIA’s decision. 

III. CONCLUSION

For the foregoing reasons, the Giris’ petition for review is DISMISSED.