Reply Brief — Gao v. Mukasey (No. 07-244)

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No. 07-244

IN THE

SUPREME COURT OF THE UNITED STATES

QIAN GAO,

Petitioner,

v.

MICHAEL MUKASEY, Attorney General

Respondent.

On Petition For Writ Of Certiorari To The United States

Court of Appeals For The Second Circuit

REPLY BRIEF FOR PETITIONER

Charles Christophe, Esq.

Counsel of Record

Jeffrey Mosczyc, Esq. *

*Admitted in NY only

2 Wall Street, 8» Floor

New York, New York 10005

(TEL) 212.344.3800

LEGAL PRINTERS, Washington DC @ 202-747-2400 e legalprinters.com

TABLE OF CONTENTS

Page

SS SEALE LLL LLL LT i

ME OE GOOG PAIEIROCIEAOS on cccccccocccscccccorcccvececveccescoecs ii

II.

TABLE OF CONTENTS

THE FUGITIVE DISENTITLEMENT

DOCTRINE APPLIES ONLY TO THOSE

WHO FALL WITHIN THE SCOPE OF

THE STATUS, “FUGITIVE,” #£AS

PETITIONER DOES NOT, THE

DOCTRINE IS INAPPLICABLE, AND ITS

EE SE Rkiccstetcersciconsinnsentesocebanctinain 1

A. As Petitioner Did Not Flee Custody,

The Use Of The Term Fugitive, And

Concomitantly, The Fugitive

Disentitlement Doctrine Is In Error.....1

B. Application Of The FDD In The Instant

Case Would Violate Petitioner’s Fifth

IG Bi icrcnsvatccocesencnssceseensnene 5

EVEN IF PETITIONER IS IN FACT

DEEMED A FUGITIVE, APPLICATION

OF THE FDD IS IMPROPER...................... 6

A. The Use Of The Fugitive

Disentitlement Doctrine Is

Unnecessary And It’s Application Is

Therefore Impropet...................00eeeeeeeees 6

TABLE OF AUTHORITIES

Supreme Court Cases

Bridges v. Wixon, 326 U.S. 135 (1945)... 5

Degen v. U.S., 517 U.S. 820 (1996).............. 1, passim.

Harisiades v. Shaughnessy, 342 U.S. 580 (1952)..... 5

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .......... 5

Ng Fung Ho v. White, 259 U.S. 276 (1922)..........0.0. 5

Reno v. Flores, 507 U.S. 292, 307 (1993)............00000 5

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).... 5

Federal Cases

Antonio-Martinez v. INS, 317 F.3d 1089 (9 Cir.

Bar-Levy v. United States Dep't of Justice, INS, 990

pb 4 os XS RRTERR ene hen te La

Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005) .... 6

Collazos v. United States, 368 F.3d 190 (2"4 Cir.

RE RIETRRC eat AAC Rtas CIs Boa 3

Empire Blue Cross & Blue Shield v. Finkelstein,

S35 Fe i ae Gs BI paiincssccecesscvinsciinnensttinveens 3

Gao v. Gonzales, 481 F.3d 173 (2d Cir. 2007)........... 1

Ofosu v. McETroy, 98 F.3d 694 (2d Cir. 1996)........... 2

United States v. Sharpe, 470 U.S. 675, (1988) ......... 8

United States v. Van Cauwenberghe, 934 F.2d 1048

Ee I ii iiedabinstinianinaseisididadatdigncntadaconaianae 8

Xian Chai Huang v. United States DOJ, 231 Fed.

pe | TIN MS A ee 4

Zapon v. (8. Department of Justice, 53 F.3d 283 (9%

Ey BIE disadicenncsevhctenieiited tucdenmbannianbisiammaionaa die: 2

il

Agency Decisons

Matter of Barocio, 19 1. & N. Dec. 255, 256 (BIA

MEET Ci cisanidictecdniatedanaiyddereasteniusemusaseadeemmemiat 6

111

REPLY BRIEF

I. THE FUGITIVE DISENTITLEMENT

DOCTRINE APPLIES ONLY TO THOSE

WHO FALL WITHIN THE SCOPE OF

THE STATUS, “FUGITIVE,” AS

PETITIONER DOES NOT, THE

DOCTRINE IS INAPPLICABLE, AND ITS

USE, IN ERROR.

A. As Petitioner Did Not Flee Custody,

The Use Of The Term Fugitive, And

Concomitantly, The Fugitive

Disentitlement Doctrine Is In Error.

As the Court of Appeals for the Second Circuit

(hereinafter “Second Circuit”) noted when the

instant matter appeared before it: “(t]he fugitive

disentitlement doctrine is an equitable doctrine that

provides courts with discretion to dismiss the appeal

of a defendant or petitioner who is a fugitive from

justice during the pendency of the appeal.” Gao v.

Gonzales, 481 F.3d 173, 175 (2d Cir. 2007). In

coming to the conclusion that the Federal

Disentitlement Doctrine (hereinafter “FDD”) was

applicable to Mr. Gao, the Second Circuit extended

the doctrine from its paradigmatic application, that

of a fugitive fleeing while his appeal is pending, to

that of an alien failing to comply with a notice to

surrender for deportation (/d. at 175-176). In doing

so, the Second Circuit relies on its precedential

decision of, Bar-Levy v. United States Dep't of

Justice, INS, 990 F.2d 33, 35 (2d Cir. 1993).

This Honorable Court, however, explicitly

refrained from making such an expansion to the

term “fugitive” in Degen v. U.S, deciding the case,

but at the same time to declining to resolve “whether

Degen is a fugitive in all the senses of the word

debated by the parties.” 517 U.S. 820, 828 (1996).

Additionally, in earlier decisions, both the Second

Circuit and the Ninth Circuit Courts of Appeals have

found ambiguity with regard to the term fugitive as

it would apply to an alien in Mr. Gao’s

circumstances.

The Ninth Circuit, in attempting to explain

how someone who, like Mr. Gao did not flee custody,

but rather remained in his home, his location known

to the government, could be deemed a fugitive said;

“{allthough an alien who fails to surrender to the

INS despite a lawful order of deportation is not,

strictly speaking, a fugitive in a criminal matter, we

think he is nonetheless a fugitive from justice.”

Antonio-Martinez v. INS, 317 F.3d 1089, (9 Cir.

2003), citing Zapon v. U.S. Department of Justice, 53

F.3d 283, 285 (9t» Cir. 1995); Bar-Levy v. United

States Dep't of Justice, INS, 990 F.2d 33, 35 (2d Cir.

1993). (Emphasis added). Similarly, the Second

Circuit also redefined the meaning of the term

“fugitive” saying in Ofosu v. McElroy, “he is a

fugitive in the sense that the INS must deploy

resources to bring him in.” Ofosu v. McElroy, 98 F.3d

694, 700 (2d Cir. 1996). (Emphasis added). That

these Courts felt compelled to redefine the term

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fugitive, parsing its meaning into disparate “senses,”

and categories, e.g., “fugitive from justice,” in order

to apply the FDD to a non-reporting alien, highlights

the incongruence between the “paradigmatic” model

and Mr. Gao’s case.

While the Respondent properly asserts that

Degen does not preclude the application of the FDD

in civil matters, it fails to address this Honorable

Court’s prior eschewance with regard to defining the

scope of the states encompassed by the term

“fugitive.” The consequence of this silence is an

exercise in semantical gymnastics by the Ninth and

Second Circuit Courts. The resulting definitions, “an

alien who fails to surrender... is not, strictly

speaking, a fugitive in the criminal matter,”

“fugitive, in the sense...” and “fugitive from justice...”

are illustrative of the need for explication by this

Honorable Court in this matter.

It is worthwhile to note that apparently even

the Second Circuit Court disagrees with the Ninth

Circuit Court’s definition of “fugitive from justice.”!

To wit, in Collazos v. United States, the Second

Circuit Court said, “lal fugitive from justice has been

defined as ‘lal person who, having committed a

crime, flees from [the] jurisdiction of [the] court

where [a] crime was committed or departs from his

usual place of abode and conceals himself within the

| In the case at bar the Second Circuit calls Mr. Gao a “fugitive

from justice.” Neither the reason for the expansion nor an

acknowledgment of it is provided. Gao v. Gonzales, 481 F.3d at

176 citing Bar-Levy v. United States Dep't of Justice, INS, 990

F.2d 33, 35 (2d Cir. 1993)

3

district.” 368 F.3d 190, 195-196 (2d Cir. 2004) citing

Empire Blue Cross & Blue Shield v. Finkelstein, 111

F.3d 278, 281 (2d Cir. 1997) (quoting Black's Law

Dictionary 604 (5th ed. 1979)). Such a definition is

in direct accord with the paradigmatic example of a

“fugitive” (one who flees while an appeal is pending)

and in direct opposition to Mr. Gao’s circumstances

(not flight taken), and the Ninth Circuit Court’s

definition of a “fugitive from justice.”

Moreover, Petitioner asserts that not only did

he not flee from justice; he was never even aware of

being called into custody and challenges the veracity

of the signature on the “bag and baggage” letter

receipt. Admittedly, Petitioner did not raise the

issue of the falsified signature before the Second

Circuit. However, as the application of the FDD, and

consequently, Mr. Gao’s status as a “fugitive,” only

became an issue after the Second Circuit’s decision,

there was no need to raise the defense. Conversely,

and contrary to the Respondent representation, once

the Second Circuit foreclosed Mr. Gao’s appeal he

noted his challenge of the receipt, stating; “[t]he

Immigration and Nationality Service alleges that it

issued a notice for Mr. Gao to surrender himself for

deportation, which Mr. Gao never received.” (Pet. 2).

Petitioner therefore respectfully asserts that he is

not foreclosed from raising this defense and that he

is neither a fugitive, nor a “fugitive from justice.”

In fact, in a decision subsequent to the matter

at bar the Second Circuit, in deciding whether

application of the FDD was proper used the

following reasoning; “Huang has neither denied

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receiving notice of the order nor explained her

failure to comply. Under these circumstances, we

find it appropriate to invoke the fugitive

disentitlement doctrine and dismiss Huang’s petition

for review.” Xian Chai Huang v. United States DO,

231 Fed. Appx. 52, 54 (2d Cir. 2007). That Mr. Gao’s

denial of receiving notice and his subsequent

explanations as to his failure to comply are not taken

into consideration in his case, but yet, are the

determining factors regarding application in a case

decided by the same court, a decision that even cites

to the case at bar, brings into sharp relief, the

inconsistencies behind its current application.

B. Application Of The FDD In The Instant

Case Would Violate Petitioner’s Fifth

Amendment Rights

It is well established that the Fifth

Amendment entitles aliens to due process of law in

deportation proceedings. See Reno v. Flores, 507

U.S. 292, 307 (1993); Wong Yang Sung v. McGrath,

339 U.S. 33 (1950). At stake in asylum proceedings

is the potential deprivation of a_ significant,

constitutionally protected liberty interest, and often

— more poignantly — the very life and freedom of the

Petitioner. Accordingly, removal proceedings must

be conducted in a manner which upholds the

principles of fundamental fairness and substantial

justice. See Bridges v. Wixon, 326 U.S. 135 (1945);

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);

Harisiades v. Shaughnessy, 342 U.S. 580 (1952); Ng

Fung Ho v. White, 259 U.S. 276 (1922).

As such, application of the FDD in this case,

where the subject is not, in fact, a fugitive,

represents not only an abuse of the doctrine, but also

an abridgment of Mr. Gao’s Constitutional, Fifth

Amendment rights. Respondent is quick to point out

(Res. 8) that “disentitlement comports with due

process in civil contexts just as it does in criminal

cases.” However, regardless of the purported accord

between the two, it is clear that disentitlement is

does not comport, in any context, when the subject of

the sanction is himself, not a fugitive.

Il. EVEN IF PETITIONER IS IN FACT

DEEMED A FUGITIVE, APPLICATION

OF THE FDD IS IMPROPER.

A. The Use Of The Fugitive

Disentitlement Doctrine Is

Unnecessary And It’s Application Is

Therefore Improper

As this Court noted in Degen, “la] court’s

inherent power is limited by the necessity giving rise

to its exercise.” (829) (Emphasis added). Mr. Gao

has never made any attempt to hide from the federal

government. He has gotten married and filed a

marriage certificate, he has had children and filed

their birth certificates. -He has made himself

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available to the government. Consequently, the use

of the FDD is excessive and therefore, not in line

with the guidelines set forth in Degen. In Degen, the

court found that the circumstances were such that

“[tIhere was no necessity to justify the rule of

disentitlement.” (Ibid.). Petitioner asserts that such

is true in his case as well.

In Bhasin v. Gonzales,2 the court denied

application of the FDD pointing out that there were

significant differences between the circumstances of

the case and that of Matter of Barocio,? an agency

decision relied on by the Board of Immigration

Appeals. In Baroccio, the Court notes, in addition to

a signed receipt the “agency also detailed its efforts

to locate the respondents, including attempts to

locate them at “their last known address, the male

respondent's last known place of employment, the

postal service, the California Department of Motor

Vehicles, and the local gas and_ telephone

companies.” Bhasin v. Gonzales, 423 F.3d 977, 988-

989 (9th Cir. 2005) citing Matter of Barocio, 19 1. &

N. Dec. 255, 256 (BIA 1985). The Court then

declines to apply the FDD in Mr. Bhasin’s case,

saying; “(w]e find no such deliberate flouting of the

immigration laws in the present case.” (Ibid.).

Similarly, no such attempts were made to locate Mr.

Gao either. In fact, if the agency had attempted to

find Mr. Gao, they would have found him at home, at

the address they had in their possession. The need

2 423 F.3d 977 (9th Cir. 2005)

3191. & N. Dec. 255 (BIA 1985).

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for the application of the FDD is therefore, lacking

as well.

To highlight this lack of necessity Petitioner

again points to the rarity with which the doctrine is

applied in cases with circumstances such as his own.

The fact that Circuit Courts have felt comfortable

adjudicating their cases without relying on the

doctrine, not only underscores the practicality of the

endeavor, but addresses the superfluous nature of

the application of the FDD in the instant matter.

Furthermore, the Second Circuit’s contention

that application of the FDD is necessary because the

“INS must deploy resources to bring him inl,]” is, in

fact, not an argument as to the necessity of the

doctrine but rather, as to the economy of resources in

adjudicating similar claims. Petitioner does not

challenge the assertion, that in_ certain

circumstances the government may be able to

conserve its resources by allowing for a more liberal

use of judicial sanctions. Petitioner does, however,

dispute the rectitude of this purported justification.

This Court clearly stated that the Federal

Disentitlement Doctrine is to be used only when its

application is deemed necessary; when it is

necessary, not when it is convenient, not when it is

expedient and certainly not when it is cost-effective.

The Respondent may contend that, in addition

to its utility in conserving government resources, the

application of the FDD serves to protect the dignity

of the court in matters such as these. This Court,

however, already addressed such a defense, saying;

“lilt remains the case, however, that the sanction of

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disentitlement is most severe and so could disserve

the dignitary purposes for which it is invoked.”

Degen v. U.S., 517 U.S. at 828. This is even truer

where, as here, the application of the FDD is

unnecessary and seemingly arbitrary. The

application of the Fugitive Disentitlement Doctrine

would result in, exactly as this Court cautioned in

Degen, respect for the court being “eroded, not

enhanced, by too free a recourse to rules foreclosing

consideration of claims on the merits.” (Ibid.).

Additionally, the resulting removal would leave

United States citizen children without a father, a

family without financial support, and new mouths

dependant on government’ welfare. If the

government pursues application of the doctrine to

conserve resources, surely this expense should factor

into their calculation.

It is important to remember, as the Ninth

Circuit highlighted; [t]he disentitlement doctrine,

however, is not one of jurisdictional dimensions, but

rather one based on equitable considerations. United

States v. Van Cauwenberghe, 934 F.2d 1048, 1054

(9th Cir. 1991) See United States v. Sharpe, 470 U.S.

675, 681 n.2, (1985) (disentitlement doctrine is

“based on . . . equitable principle[s]”). The equities

here demand for a hearing on the merits of Mr. Gao’s

claim. Accordingly, Petitioner respectfully asserts

that the Second Circuit failed to follow the

guidelines set forth for proper application of the

FDD and abused their discretion in applying the

Fugitive Disentitlement Doctrine in this case.

CONCLUSION

This Court should grant Petitioner’s writ of

certiorari and schedule this matter for briefing and

oral argument, in order to address the scope of the

Fugitive Disentitlement Doctrine and to ensure Mr.

Gao the opportunity to have the merits of his

meritorious appeal reviewed.

Respectfully submitted,

BY: /s/

CHARLES CHRISTOPHE, Esq.

Counsel of Record

JEFFREY S. MOSCZYC, Esq.*

*Admitted only in NY

Christophe & Associates P.C.

2 Wall Street, 8th Floor

New York, New York 10005

212.344.3800

Attorneys for Petitioner

December 2007

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