In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1435

VASSIL SAPOUNDJIEV, ENCHEVA SAPOUNDJIEV,

and HRISTO C. SAPOUNDJIEV,

Petitioners,

v.

JOHN ASHCROFT, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals

____________

SUBMITTED MAY 27, 2004—DECIDED JULY 22, 2004

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Before EASTERBROOK, MANION, and KANNE, Circuit

Judges.

EASTERBROOK, Circuit Judge. An immigration judge

concluded that Vassil Sapoundjiev, a citizen of Bulgaria, is

not entitled either to asylum or to withholding of removal.

On January 28, 2004, the Board of Immigration Appeals

affirmed that decision, which affected not only Vassil but

also his wife Encheva and son Hristo, for their applications

are derivative from his. Immigration officials sent the three
2 No. 04-1435

Sapoundjievs notices (often called bag-and-baggage letters) directing them to report for custody and removal on

May 13, 2004. Six days before that date arrived, the

Sapoundjievs filed an application for stay of removal. On

May 12 a judge entered a temporary stay of removal pending a response by the Attorney General. This order did not

affect the Sapoundjievs’ obligation to surrender, so that removal could be implemented if the stay should be lifted.

Nonetheless, the family did not report as directed. Contending that the Sapoundjievs are fugitives, the Attorney

General has asked us to vacate the temporary stay and

deny any further relief.

Every circuit that has considered the issue has concluded

that the fugitive-disentitlement doctrine applies to immigration cases, and that aliens who avoid lawful custody

forfeit judicial review. See Bar-Levy v. INS, 990 F.2d 33 (2d

Cir. 1993); Arana v. INS, 673 F.2d 75 (3d Cir. 1982);

Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir. 2003);

Zapon v. Department of Justice, 53 F.3d 283 (9th Cir. 1995).

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. See, e.g., Ortega-Rodriguez v. United

States, 507 U.S. 234 (1993); Smith v. United States, 94 U.S. 97

(1876). 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”. 317 F.3d at 1093. A litigant whose

disappearance makes an adverse judgment difficult if not

impossible to enforce cannot expect favorable action. See

Degen v. United States, 517 U.S. 820 (1996). We observed in

Sarlund v. Anderson, 205 F.3d 973 (7th Cir. 2000), that after

Degen a practical question dominates: has flight made the

litigation a one-way street? 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
No. 04-1435 3

† In a brief filed at our request as amicus curiae on behalf of the

alien in Zheng v. Ashcroft, No. 03-1185, attorney Laura E. Juhnke

contends that under United States v. Marshall, 856 F.2d 896, 899-

900 (7th Cir. 1988), and United States v. $40,877.59, 32 F.3d 1151,

1156 (7th Cir. 1994), only a person who has left the state may be

treated as a fugitive. The issue in Marshall was not the fugitive-disentitlement doctrine but the statute of limitations, and

though language about absence from the state was quoted in

$40,877.59 (which anticipated Degen by holding that a person’s

fugitive status does not bar defense of a civil forfeiture action) it

was not important to the holding or judgment of that decision. It

is hard to see why absence from a state should be indispensable;

the only way prosecutors or immigration officials could know

whether a person is or is not in a given state would be to have him

in custody. Fugitives may hide out near home, where they have

friends willing to conceal them. None of our fugitivedisentitlement decisions turns on proof that the missing person is

in a different state, and it would not be sound to adopt such a

requirement. Nonetheless, we extend thanks to Ms. Juhnke,

whose brief has been helpful to us in both proceedings.

proposition is as applicable to the fugitive alien as it is to the

fugitive criminal defendant (or, in Sarlund, the fugitive civil

plaintiff).

Counsel representing the Sapoundjievs contends that, because immigration officials know where the family lives, they

are not trying to have things both ways. Now it is far from

clear that the Sapoundjievs will choose to be at home when

agents arrive to arrest them, and hard to see how the judiciary could tell whether to believe a promise to show up if

the case should be decided adversely. The point of custody is

to end the guessing game. That’s why anyone who is told to

surrender, and does not, is a fugitive.†

 See Bar-Levy, 990

F.2d at 34. This court issued a temporary stay of removal, not

a grant of bail pending removal. That agents may be able to

locate an absconder does not make him less a fugitive. Like-
4 No. 04-1435

wise a prisoner who walks away from a camp that lacks walls

has committed the crime of escape, even if it is easy to track

him down—indeed, even if he returns before he is missed. See

United States v. King, 338 F.3d 794 (7th Cir. 2003). A corporate executive who fails to report at the start of a sentence for

antitrust offenses is a fugitive, and his appeal will be dismissed, even if it turns out that he has been relaxing at his

country estate and does not plan to put up a fight when

apprehended. Just so with an alien who, by failing to report

as ordered, retains the option of going underground if the

judicial decision is adverse.

We are unimpressed by counsel’s argument that aliens are

entitled to ignore bag-and-baggage letters because custody

“prevents Petitioners from having a meaningful opportunity

to be heard” on their claims for relief. An appeal in a criminal

case remains meaningful even if the defendant is incarcerated

while the matter is under advisement. A convict who asserted

that he is entitled to appellate review before spending the

first day in custody would not fare well. Likewise with aliens.

Time in administrative custody differs from removal. Doubtless there is a risk of erroneous removal while the litigation

continues, but we have no reason to think that errors are

common; immigration officials in this circuit have taken steps

to make sure that even after-hours stays will be implemented.

See Dimitrova v. Ashcroft, 368 F.3d 960 (7th Cir. 2004). The

Sapoundjievs received their interim stay the day before they

were to report; they could have taken the documents with

them, and counsel could have accompanied them to make

sure that immigration officials knew that they were entitled

to remain in the United States pending further judicial action.

Or counsel might have asked for a delay in the date to report

or bail pending our decision. The Sapoundjievs are not being

removed for serious crimes, so they are entitled to seek

conditional release while their petition for review is pending.

See 8 U.S.C. §1231(a)(2); 8 C.F.R. §241.33(a); Demore v. Kim,

538 U.S. 510 (2003). No such request was made, however, and
No. 04-1435 5

at all events the district director’s order with respect to bail

pending removal is not reviewable in this court, given 28

U.S.C. §1252(a)(2)(B), (g). See Najjar v. Ashcroft, 273 F.3d

1330, 1339 (11th Cir. 2001).

Ortega-Rodriguez holds that the fugitive-disentitlement

doctrine applies only while the criminal remains at large.

Again the same approach should be applied to alien removal

proceedings. Two months have passed since the Attorney

General invoked the fugitive-disentitlement doctrine as the

basis for his opposition to the Sapoundjievs’ request for a stay

of removal and his request that their petition be denied. They

did not surrender in order to preserve their legal claims; to the

contrary, as we have recounted, they have asserted through

counsel that they are entitled to ignore the bag-and-baggage

order and wait for agents to locate and arrest them. Consequently, the temporary stay is vacated, the motion for stay of

removal is denied, and the petition for review is dismissed.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-22-04