(CN) - The 9th Circuit revived a battered Chinese woman's request to reopen her asylum petition, saying the Board of Immigration Appeals was wrong to consider her a fugitive.
When Wenqin Sun failed to show up on the date set for her removal, the BIA labeled her a fugitive and denied her petition for review.
Judge Schroeder said that, regardless of her earlier conduct, she is no longer a fugitive, and there is "no reason to treat her as if she were by refusing to reconsider her petition for review in this court."
The government cited the fugitive disentitlement doctrine, which allows courts to dismiss the appeals of convicted criminals who have fled.
But the judges said dismissal isn't warranted, even for a former fugitive, if the individual's fugitive status doesn't coincide with the appeal.
"Although Sun did not report for removal from the United States in August of 2004, as ordered by the BIA, that failure does not make her a fugitive now, during the pendency of her petition to review the BIA's denial of reopening," Schroeder wrote.
Sun sought to reopen her asylum case on the basis of ineffective counsel.
The three-judge panel vacated dismissal and remanded.
"Sun acted diligently in retaining new counsel and is entitled to the benefit of the equitable tolling doctrine," Schroeder concluded.
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