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Wu v. Holder

August 4, 2010

NEN DI WU, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL RESPONDENT.



SYLLABUS BY THE COURT

Petitioner Nen Di Wu petitions this Court for review of the Board of Immigration Appeals's June 1, 2009 order of removal. Before either party filed merits briefs, the Government moved to dismiss Wu's petition pursuant to the fugitive disentitlement doctrine. The issue before this Court is whether, in light of the considerations that inform this Court's discretionary power to dismiss pursuant to the fugitive disentitlement doctrine, such a motion is more appropriately considered after the parties have fully briefed and argued the merits of the case. We hold that it is and accordingly hold the motion in abeyance pending briefing and argument on the merits.

The opinion of the court was delivered by: Calabresi, Circuit Judge

Argued: June 14, 2010

Before: CALABRESI, POOLER, CHIN, Circuit Judges.

Petitioner Nen Di Wu moves for a stay of removal, and the Government moves to dismiss pursuant to the fugitive disentitlement doctrine. We grant Wu's stay of removal and hold the Government's motion in abeyance pending briefing and, if appropriate, argument on the merits.

I.

Wu is a native and citizen of the People's Republic of China. Certified Administrative Record 50. In a June 2, 2006 hearing before an Immigration Judge (IJ), Wu conceded removability but sought asylum and withholding of removal based on religion and political opinion, as well as relief under the Convention Against Torture (CAT). Id. at 96. Wu testified before the IJ that he had attended an underground Christian church in China and, for that reason, was persecuted by the Chinese Government. Id. at 72-73. Specifically, he claimed that on two occasions he was arrested and detained by the Chinese police because of his involvement with the church. He testified that on the first occasion, he was interrogated about the underground church's members, punched and kicked, and detained for two weeks. Id. at 76-77. He said that on the second occasion he was detained for one week and sent to a labor camp for six months. Id. at 78-79.

The IJ rejected Wu's testimony as "vague," "evasive[,] and non-responsive," id. at 54, and found insufficient corroborating evidence that Wu has regularly attended church while in the United States, id. at 55-56. He accordingly denied Wu's asylum, withholding, and CAT claims.

Id. at 58. The Board of Immigration Appeals (BIA) dismissed Wu's appeal on June 1, 2009. Id. at 3-4.

On June 16, 2009, Wu filed with this Court a petition for review of the BIA's decision, as well as a motion requesting a stay of removal pending the adjudication of his petition for review. The Government opposed the motion for a stay of removal. On September 16, 2009, in response to the Government's opposition to the motion for a stay of removal, this Court issued an order asking the Government to file a supplemental letter memorandum explaining whether the petitioner will in fact be removed from this country, and if so when that will occur, if the petitioner's motion for a stay is denied as prayed for in Respondent's opposition. In addition, if removal of the petitioner will not be effected forthwith, or within a reasonable time following a denial of the motion for a stay, or following the lifting of the stay if one is entered, then Respondent shall explain in detail why it is that Respondent has filed an opposition to the petitioner's motion for a stay rather than agree to the entry of an order that will have no effect, as a practical matter, on whether the petitioner is actually removed from this country.

This Court also issued a temporary stay of removal, pending the receipt of the requested briefs and the disposition of the motion for a stay of removal.

The Government responded to the order in two ways. First, on September 28, 2009, it sent a "bag-and-baggage" letter to Wu, which directed him to report to a United States Immigration Officer with his bags, ready for deportation, on October 13, 2009. See Resp't's Mot. to Dismiss Exs. A & B. Second, on October 28, 2009, it filed a supplemental letter memorandum explaining its policy of selectively opposing those motions for a stay of removal that it finds to be perfunctory or facially inadequate. The supplemental letter memorandum also noted that the Government had already begun the process of removing Wu, through the issuance of the bag-and-baggage letter.

One day after filing its supplemental letter memorandum, the Government moved to dismiss Wu's petition pursuant to the fugitive disentitlement doctrine on the basis that Wu became a fugitive when he did not report as directed in the September 28 bag-and-baggage letter. Wu opposed the motion on three grounds: (1) the Government could not have removed Wu on or shortly after the issuance of the bag-and-baggage letter because this Court had put in place a temporary stay of removal, (2) the bag-and-baggage letter was issued only a month before the motion to dismiss, and so this was not the traditional fugitive disentitlement case in which the petitioner "had evaded the final removal order for several years and then filed appeal or motion to reopen," and (3) because of Wu's ...


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