Document Type

Article

Publication Date

2022

Status

Accepted

Abstract

Federal courts of appeals have declared that they may dismiss immigration appeals filed by noncitizens who are deemed “fugitives.” The fugitive disentitlement doctrine emerged in the criminal context with respect to defendants who had escaped from physical custody. Although the doctrine originated out of concerns that court orders could not be enforced against criminal fugitives, the doctrine has since crept into civil contexts, including immigration. But rather than invoking the doctrine for its originally intended purpose of ensuring that court orders could be enforced, courts now primarily invoke it for the purposes of punishment, deterrence, and protecting the dignity of the courts.

This Article makes three primary contributions to existing literature. First, it describes how the fugitive disentitlement doctrine migrated from criminal proceedings to civil immigration proceedings, analyzing the circuit courts’ explanations for the doctrine’s expansion. Second, this Article explains why the courts’ justifications do not actually translate as directly to immigration cases as it may seem. Moreover, the courts have failed to adequately consider that their inherent powers are limited, including by noncitizens’ constitutional rights and the principle of reasonableness. Third, this Article argues that courts have not adequately considered the unique nature of immigration proceedings, most saliently the importance of judicial review of agency action in this context. Further, the doctrine is a lens through which judicial power, the balance between the courts and the agencies, and U.S. legal institutions’ view on immigration can be examined.

GW Paper Series

2023-06

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