United States of America, Plaintiff-appellee, v. Forty-five Thousand Nine Hundred Forty Dollars ($45,940) Inunited States Currency (terry C. Mckay, Claimant),defendants-appellants, 739 F.2d 792 (2d Cir. 1984)

McKay has refused to appear at his criminal arraignment. He contends that he is not a fugitive from justice because he was involuntarily deported from this country by the United States Department of Justice, Immigration and Naturalization Service and was prohibited from reentering the United States for one year following the deportation pursuant to 8 U.S.C. § 1182(a) (16) and thereafter by 8 U.S.C. § 1182(a) (17).

Title 8 U.S.C. § 1182 provides in pertinent part:

(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States.

(16) Aliens who have been excluded from admission and deported and who again seek admission within one year from the date of such deportation, unless prior to their reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their reapplying for admission;

(17) Aliens who have been arrested and deported, or who have fallen into distress and have been removed pursuant to this chapter or any prior act, or who have been removed as alien enemies, or who have been removed at Government expense in lieu of deportation pursuant to section 1252(b) [8 U.S.C. § 1252(b) ] of this title, and who seek admission within five years of the date of such deportation or removal, unless prior to their embarkation or reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their applying or reapplying for admission;³ 

Subsection 16 concerns aliens who have not been admitted into the United States and, rather than holding deportation proceedings, the Immigration and Naturalization Service conducts an exclusion hearing⁴  and, if appropriate, expels them to their native country (i.e., Canada or Mexico).⁵  Such aliens are barred from admission (without prior consent of the Attorney General) for only one year. See generally Landon v. Plascencia, 459 U.S. 21, 26 n. 4, 103 S. Ct. 321, 326 n. 4, 74 L. Ed. 2d 21 (1982); H.R.Rep. No. 264, 97th Cong. 1st Sess., reprinted in 1981 U.S.Code & Admin.News, 2577, 2589. This subsection is not relevant to McKay because he was involuntarily deported, not excluded. Subsection 17 appears to be relevant to McKay's status. He was arrested and deported. If he had sought to reenter the United States, then he would have had to comply with subsection 17 and the rules promulgated by the INS to administer it. These rules, codified in 8 C.F.R. Sec. 212.2(b) provide in pertinent part:

(b) Alien applying to consular officer for nonimmigrant visa or nonresident border crossing card. Permission to reapply for admission to the United States after deportation or removal, within five years of the date of such deportation or removal for an alien who is applying or will apply to a consular officer for nonimmigrant visa or nonresident border crossing card, shall be requested through the consular officer and may be granted only in accordance with section 212(a) (17) [8 U.S.C. § 1182(a) (17) ] and (d) (3) (A) [8 U.S.C. § 1182(d) (3) (A) ] of the Act and Sec. 212.4 [8 C.F.R. Sec. 212.4] of this part. However, the alien may apply for such permission on Form I-212....

Subsection 17 and 8 C.F.R. Sec. 212.4(b) provide that an alien who has been arrested and deported and who seeks to reenter the United States seek permission to reapply for admission through the United States Consulate which then makes a recommendation to the Attorney General. The Attorney General decides whether to grant the alien permission to apply for admission. See Landon, supra, 459 U.S. at 26 n. 4, 103 S. Ct. at 326 n. 4; Der-Rong Chour v. INS, 578 F.2d 464, 468 (2d Cir. 1978), cert. denied, 440 U.S. 980, 99 S. Ct. 1786, 60 L. Ed. 2d 239 (1979). This requirement is valid under Congress' broad power to control the admission of aliens. See generally Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S. Ct. 2576, 2583, 33 L. Ed. 2d 683 (1972). " [I]n the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens.' " Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 1478, 52 L. Ed. 2d 50 (1977) (quoting Mathews v. Diaz, 426 U.S. 67, 80, 96 S. Ct. 1883, 1891, 48 L. Ed. 2d 478 (1976)). The Supreme Court has "long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Id. (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210, 73 S. Ct. 625, 628, 97 L. Ed. 956 (1953) (other citations omitted)). See also Bertrand v. Sava, 684 F.2d 204, 209-212 (2d Cir. 1982). Imposing the burden on an alien, who has been previously deported, to affirmatively seek permission in the United States Consulate is within Congress' broad power to control immigration and naturalization. The INS regulation, 8 C.F.R. Sec. 212.4 is consistent with the Congressional mandate.

McKay never contacted the United States Consulate to seek application for admission to the United States to appear at his arraignment. McKay's contention is that the United States must seek to extradite him pursuant to the Treaty of Extradition between the United States of America and Canada, 27 U.S.T. 983, T.I.A.S. No. 8237.⁶  McKay's argument is inconsistent with subsection 17 and 8 C.F.R. Sec. 212.4. The burden is on McKay to seek permission to apply for admission to the United States, even for the limited purpose of appearing at his arraignment. The government argues that McKay's failure to undertake such action requires the court to consider him a fugitive from justice.

McKay further contends that he is not a fugitive from justice because he was "involuntarily deported" by the INS. This circuit recently stated that the

intent to flee from prosecution or arrest may be inferred from a person's failure to surrender to authorities once he learns that charges against him are pending. Matter of Assarsson, 687 F.2d 1157, 1161-62 (8th Cir. 1982); United States v. Ballesteros-Cordova, 586 F.2d 1321, 1324 (9th Cir. 1978). This is true whether the defendant leaves the jurisdiction intending to avoid prosecution, or, having learned of charges while legally outside the jurisdiction, "constructively flees" by deciding not to return. Jhirad v. Ferrandina, 536 F.2d 478, 483-84 (2d Cir.), cert. denied, 429 U.S. 833, 97 S. Ct. 97, 50 L. Ed. 2d 98 (1976) (Jhirad II).

United States v. Catino, 735 F.2d 718, 722-723 (2d Cir. 1984). McKay is free to move around Canada. Though he had notice of the criminal proceeding, he has not reported to the United States Consulate in accordance with 8 U.S.C. § 1182(a) (17) and 8 C.F.R. Sec. 212.4. We find that McKay is a fugitive from justice.

The government argues that if McKay is a fugitive from justice, then he is not entitled to defend the related civil forfeiture proceeding. In Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970) the Supreme Court confronted a situation where the criminal defendant escaped while his direct appeal was pending decision of the Court. Consequently, the Court summarily and unconditionally dismissed the appeal:

No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims. In the absence of specific provision to the contrary in the statute under which Molinaro appeals, 28 U.S.C. § 1257(2), we conclude, in light of the Smith [v. United States, 40 to 97, 94 U.S. 97, 24 L. Ed. 32 (1876) ] and Bonahan [v. Nebraska, 125 U.S. 692, 8 S. Ct. 1390, 31 L. Ed. 854 (1887) ] decisions, that the Court has the authority to dismiss the appeal on this ground.

Id. at 366, 90 S. Ct. at 498-99; see United States v. Baccollo, 725 F.2d 170, 171-72 (2d Cir. 1983).

The Supreme Court has never extended Molinaro to civil matters relating to the criminal fugitive. Recently, Justice Rehnquist, acting as Circuit Justice, in refusing to stay the applicant's dismissal in Conforte v. C.I.R., 692 F.2d 587, 589-90 (9th Cir. 1982) stated that " [w]hile this Court has never extended the 'fugitive from justice' rule beyond the facts of Molinaro and Smith (i.g., where the criminal conviction the litigant is a fugitive from is the judgment being challenged on appeal), the court below correctly points out that the Courts of Appeals have done so on a number of occasions. Since we have denied certiorari in this type case in the past, I do not believe it likely that applicant's petition will be granted. See e.g., Doyle v. Department of Justice, [668 F.2d 1365 (D.C. Cir. 1981) (per curiam), cert. denied, 455 U.S. 1002, 102 S. Ct. 1636, 71 L. Ed. 2d 870 (1982) ]." Conforte v. C.I.R., 459 U.S. 1309, 103 S. Ct. 663, 664, 74 L. Ed. 2d 588 (1983).

In Doyle v. Department of Justice, supra, the appellant failed to appear for service of his sentence. A bench warrant was issued for his arrest. Doyle then filed suit under the Freedom of Information Act seeking all Department of Justice records concerning him. The court affirmed the dismissal of Doyle's civil complaint and noted that so long as Doyle "evades federal authority ... he may not demand that a federal court service his complaint." Id. at 1365-66 (citing Molinaro, supra) . In Broadway v. City of Montgomery, Alabama, 530 F.2d 657 (5th Cir. 1976) the plaintiff sought damages from an alleged illegal wiretap installed by defendant's police officers. The district court granted defendant's motion for summary judgment. The circuit court affirmed because "John L. Broadway, being a fugitive from justice, is not entitled to call on the resources of an appellate court for a determination of his case." Id. at 659 (citing Molinaro, supra) . In United States Ex Rel. Bailey v. U.S.C.O. of P.M., U.S. Army, 496 F.2d 324 (1st Cir. 1974), a petitioner for a writ of habeas corpus sought relief from an Army regulation, although absent without leave and not in custody. The court affirmed the district court's dismissal of the action on the basis that petitioner could not "invoke the processes of the law while flouting them ... [and] call upon the resources of the Court for determination of his claims.' " Id. at 326 (quoting Molinaro, supra) . Thus, the District of Columbia, the Fifth and the First Circuits have extended Molinaro to civil lawsuits where the appellant is a fugitive in a related criminal matter.

The most closely analogous case, however, is United States v. $83,320 in United States Currency, 682 F.2d 573 (6th Cir. 1982), where the court refused to extend Molinaro to a fugitive who did not appear at sentencing but was challenging the civil forfeiture. The court based its decision on the ground that "the individual accused of the related criminal violation is not necessarily the only individual with a direct, litigable interest in the outcome of the forfeiture action." Id. at 576. But in so doing the court did not consider that the government was seeking to dismiss only the fugitive's appeal which would not prejudice any other claimant.

In seeking forfeiture under section 231 of the Bank Secrecy Act of 1970, 31 U.S.C. § 5316,

the Customs Service notifies any person who appears to have an interest in the seized property of the property's liability to forfeiture and of the claimant's right to petition the Secretary of the Treasury for remission or mitigation of the forfeiture. See 19 C.F.R. Sec. 162.31(a) (1982). The regulations require a claimant to file the petition within 60 days. 19 C.F.R. Sec. 171.12(b) (1982).

If the claimant does not file a petition, or if the decision on a petition makes legal proceedings appear necessary, the appropriate Customs officer must prepare a full report of the seizure for the United States Attorney. 19 U.S.C. § 1603 (1982). Upon receipt of a report, the United States Attorney is required 'immediately to inquire into the facts' and, if it appears probable that a forfeiture has been incurred, 'forthwith to cause the proper proceedings to be commenced and prosecuted, without delay.' 19 U.S.C. § 1604. After a case is reported to the United States Attorney for institution of legal proceedings, no administrative action may be taken on any petition for remission or mitigation. 19 C.F.R. Sec. 171.2(a) (1982).

United States v. Eight Thousand Eight Hundred And Fifty Dollars ($8,850) In United States Currency, --- U.S. ----, 103 S. Ct. 2005, 2008-09, 76 L. Ed. 2d 143 (1983) (footnotes omitted).

These procedures were followed in the instant case. Proper notice was given and McKay was the only claimant. The judgment affects only McKay. He waived his right to due process in the civil forfeiture proceeding by remaining a fugitive.

Judgment affirmed.