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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1363%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2007

## Text

RK

>

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
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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)

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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).
>

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1363%3A3. Public record. Not legal advice.