Besta Chikwanda v. MICHAEL B. MUKASEY, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 2, 2008
Decided July 2, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 07‐3321
BESTA CHIKWANDA,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney
General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
No. A97‐102‐105
O R D E R
Petitioner Besta Chikwanda seeks review of an order of the Board of Immigration
Appeals denying her request for withholding of removal. Chikwanda, who was born in
Zimbabwe and lived there for her entire life before fleeing to the United States in
January 2001, believes that if she is returned to Zimbabwe as ordered, it is more likely
than not that she will be subject to persecution on account of her involvement in the
Movement for Democratic Change (“MDC”), the party opposing the Zanu PF, the
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐3321 Page 2
current ruling party led by Robert Mugabe. Chikwanda also alleges that she has
suffered past persecution in Zimbabwe at the hands of Michael Mbofana, whom she
was forced to marry when she was 13 years old. Mbofana, she claims, was abducted by
Zimbabwean guerillas four years after the arranged marriage, but he returned to
Chikwanda’s home years later with members of the Zanu PF Youth to interrogate
Chikwanda about her MDC activities. At that time, she says, he beat her violently and
raped her.
We heard oral argument on this petition for review on June 2, 2008. While awaiting
argument, Chikwanda requested an emergency stay of removal pending review from
this court, as she had been scheduled to report to immigration authorities on May 27,
2008. In an order dated May 12, 2008, we granted the emergency stay of removal but
noted that “Petitioner must understand that a stay of removal does not affect her
obligation to report to custody on May 27.” We added that “[o]nly removal from the
United States is stayed,” thus making it clear that despite our order granting the stay,
Chikwanda still was required to report to the custody of the U.S. Department of
Homeland Security’s Immigration & Customs Enforcement (ICE) authorities on or
before May 27, 2008.
At oral argument, we asked both counsel for the Attorney General and Chikwanda’s
lawyer whether Chikwanda had indeed reported to ICE on May 27. A failure to do so
would make her a fugitive from justice, thereby compelling dismissal of her petition
under the fugitive‐disentitlement doctrine. See Sapoundjiev v. Ashcroft, 376 F.3d 727,
rehearing denied, 384 F.3d 916 (7th Cir. 2004). Neither side knew the answer to that
question, and so we ordered the parties to look into Chikwanda’s status and inform the
court whether or not she had reported to ICE on the required date. In a filing dated June
5, 2008, counsel for the Attorney General informed us that she had spoken with a
supervisor at ICE, who advised that he had no record of Chikwanda’s reporting to
custody on May 27. The ICE representative further stated that either Chikwanda or her
counsel had called the office twice to inquire whether Chikwanda needed to submit to
custody on May 27, and that both times the caller was informed that, yes, Chikwanda
was required to appear at ICE on or before that date. In a letter filed June 12, 2008,
counsel for Chikwanda said that she had been unable to contact Chikwanda and
therefore had no information about whether Chikwanda had reported to ICE. Counsel
further stated that she, too, had called ICE, and had likewise been informed that
Chikwanda did not appear on or before May 27, or on any date since. “Therefore,”
wrote counsel, “we do not dispute the submission entered [on behalf of the respondent]
stating that [Chikwanda] did not appear at her custody hearing.”

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No. 07‐3321 Page 3
The following day, we issued an order recounting these facts and requiring
Chikwanda’s counsel to show cause why the petition should not be dismissed under
the fugitive‐disentitlement doctrine. The 10‐day time period that we allowed for that
filing has long since passed, and we have received nothing from counsel. The only
possible inference this course of events supports is that Chikwanda did not report and
that she is therefore a fugitive. We therefore order the petition D ISMISSED under the
fugitive‐disentitlement doctrine.

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