ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA C.A. No. 81-1346
Before Adams and Sloviter, Circuit Judges, and Stern, District Judge.*fn* Before Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges, and Stern, District Judge.*fn*
Isidoro M. Arana appeals from a final order of the district court denying his petition for habeas corpus. As an initial matter, we must decide whether to entertain an appeal from an individual, such as Arana, who is subject to an order of deportation but who has hidden his whereabouts from immigration authorities and this Court and has failed to comply with an order and a bench warrant issued by the district court.
The record indicates that Arana was declared deportable by an Immigration Judge in September 1979, and granted the right of voluntary departure, which subsequently was extended until March 6, 1981. On March 20, 1981, the Immigration and Naturalization Service (INS) ordered Arana to report for deportation on April 6, 1981. It is unclear from the record whether Arana received notification of this order since, according to the Government, he had moved from his last-known address without informing the INS of his whereabouts, as required by law. At any rate, on April 6, 1981, a petition for habeas corpus was filed by Arana's attorney with the district court seeking a stay of Arana's deportation. In response to Arana's request, a temporary stay of the INS order was issued by the district court on that date so that the district court could consider the petition for habeas. After reviewing the administrative record, the district judge denied the petition for habeas and ordered Arana to report for deportation, since the April 6 date of deportation had now passed. When Arana did not report to the INS, the Government returned to the district court and sought a bench warrant for Arana's arrest, in view of his "fail(ure) to report as ordered by the Court." That same day, May 22, 1981, the district judge granted the Government's motion and ordered that a bench warrant issue for the arrest of Arana.
According to the briefs filed with this Court, to date Arana has neither complied with the district court's order nor has he been located by federal authorities.*fn1 On this appeal, therefore, the Government argues that Arana "should be foreclosed from further pursuing this matter" so long as he refuses to make known his whereabouts. Inasmuch as Arana's counsel has not disputed the fact that Arana cannot now be located, we agree.
In Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970) (per curiam), the Supreme Court dismissed the appeal of an individual who failed to surrender himself to state authorities after his bail had been revoked. In declining to adjudicate the case of a "fugitive from justice," the Court concluded that a person who "escapes from the restraints placed upon him" pursuant to a conviction "disentitles (himself from) call(ing) upon the resources of the Court for determination of his claims," id. at 365-66. Following Molinaro, this Court dismissed the appeal of a convicted escapee who remained at large at the time of oral argument on his appeal. Government of Virgin Islands v. James, 621 F.2d 588 (3d Cir. 1980) (per curiam). See also United States v. Swigart, 490 F.2d 914, 915 (10th Cir. 1973) ("any court has the inherent discretion to refuse to hear the claim of a litigant who is willing to comply with that court's decree only if it is favorable").
We believe that Molinaro, James, and Swigart provide sufficient authorization for dismissal of this appeal.*fn2 There is nothing in the record, nor in the presentation by counsel for Arana, to indicate that Arana would make himself available to immigration officials were we to entertain his appeal and affirm the district court's denial of habeas relief. Rather than disclosing his whereabouts and, at the same time, applying for a stay of deportation, the appellant apparently has decided to conceal himself from this Court, the district court, and the INS-presumably to appear only if a judgment favorable to his cause is entered. We believe such behavior "disentitles (Arana from) call(ing) upon the resources of (this) Court for determination of his claims," Molinaro, 396 U.S. at 366, 90 S. Ct. at 498. Accordingly, an order dismissing this appeal will be entered.
SUR PETITION FOR REHEARING
The petition for rehearing filed by Appellant in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active ...