Saiyad Abdul Mutalib Hussein v. Immigration and Naturalization Service

817 F.2d 63 Saiyad Abdul Mutalib HUSSEIN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 85-7453. United States Court of Appeals, Ninth Circuit. Decided Oct. 28, 1986. Order and Opinion Filed May 6, 1987. Martin J. Lawler, San Francisco, Cal., for petitioner. David J. Kline, Washington, D.C., for respondent. Petition for Review of a Decision of the Board of Immigration Appeals. Before GOODWIN, NORRIS and BRUNETTI, Circuit Judges. ORDER — 1 — The order filed October 28, 1986, 804 F.2d 146, is redesignated as a per curiam opinion for publication. — 2 — The Immigration and Naturalization Service has moved to dismiss the petition for review because of petitioner's escape from custody at Florence, Arizona on September 14, 1986. The motion is allowed. Escape from federal custody is inconsistent with the pursuit of judicial remedies and constitutes a voluntary waiver of any pending judicial review. The petitioner's act " 'disentitles [Hussein from] call[ing] upon the resources of [this] court for determination of his claims,'...." Arana v. INS, 673 F.2d 75, 77 (3rd Cir.1982) (per curiam) (quoting Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970) (per curiam). — 3 — Petition dismissed. NORRIS, Circuit Judge, concurring: — 4 — I agree with the result reached in this case. We have exercised our discretionary authority to dismiss an appeal because the petitioner has escaped from custody. I write separately merely to make it clear that there is no per se requirement of dismissal in such cases.