Luis L. Armentero v. Immigration and Naturalization Service

412 F.3d 1088 Luis L. ARMENTERO, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. No. 02-55368. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 7, 2004. Filed June 21, 2005. Marc Van Der Hout and Megan Ferstenfeld-Torres, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California; Trina A. Realmuto, American Immigration Law Foundation, Washington, D.C.; and Michael Tanaka, Deputy Federal Public Defender, Los Angeles, California, for the petitioner-appellant. David J. Kline and Michelle E. Gorden, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent-appellee. Appeal from the United States District Court for the Central District of California, Terry J. Hatter, District Judge, Presiding. Before: MESKILL, * FERGUSON, and BERZON, Circuit Judges. ORDER 1 As the Petitioner-Appellant is now a fugitive from custody, the "fugitive disentitlement" doctrine precludes him from pursuing this appeal. See Degen v. United States, 517 U.S. 820 , 116 S.Ct. 1777 , 135 L.Ed.2d 102 (1996); Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir.2003). Accordingly, the…

concurring specially:

I concur in the order to dismiss this matter on the basis of the fugitive disen-titlement doctrine. I write separately, however, to express my concern over the increasing assumption of power 'by U.S. administrative officials to decide matters vested by our constitution to the judiciary. Administrative agents cannot be vested with the authority to render decisions concerning the length of detention. Such decision-making power rests in the hands of a judicial officer.

*1089 8 U.S.C. § 1231 (a)(6) provides in relevant part: “An alien ordered removed who is inadmissible under ... section 1182 of this title ... may be detained beyond the removal period.” 8 C.F.R. §§ 212.12-13 (the “Cuban Review Plan”), adopted in 1987, confer special administrative authority to a Cuban Review Panel to determine a Mariel Cuban detainee’s suitability for parole. The Panel consists of two or three persons selected from the staff of the Bureau of Immigration and Customs Enforcement (BICE), a division of the Department of Homeland Security. See 8 C.F.R. § 212.12 (c). A Mariel Cuban detainee may be released on parole only “for emergent reasons or for reasons deemed strictly in the…

dissenting:

I respectfully dissent from the majority’s decision to dismiss this case on the basis of the “fugitive disentitlement” doc *1090 trine. Several considerations counsel against resort to such a sanction on the facts of this case. Instead, I would again reach the merits of the question decided by this panel in its initial decision — who is the proper respondent for habeas petitions filed by immigration detainees? See Armentero v. INS, 340 F.3d 1058 (9th Cir.2003) {Armentero I), withdrawn, 382 F.3d 1153 (9th Cir.2004) (order).

As I suggest below, our original opinion, when clarified and considered in light of the government’s litigation stance, is consistent with the Supreme Court’s decision in Rumsfeld v. Padilla, 542 U.S. 426 , 124 S.Ct. 2711 , 159 L.Ed.2d 513 (2004). Padilla expressly reserved the question decided by this panel in Armentero I. See id. at 2718 n. 8.1 am therefore convinced that, as in Armentero I, we should remand to the district court to allow Armentero to amend his habeas petition to name a proper respondent, who need not be the “Field Office Director.”

As I read Padilla , it did not entirely abandon the Supreme Court’s earlier admonition that “we…

ORDER

As the Petitioner-Appellant is now a fugitive from custody, the “fugitive disen-titlement” doctrine precludes him from pursuing this appeal. See Degen v. United States, 517 U.S. 820 , 116 S.Ct. 1777 , 135 L.Ed.2d 102 (1996); Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir.2003). Accordingly, the appeal is DISMISSED.

IT IS SO ORDERED.