June 19, 2018

Tenth Circuit: Board of Immigration Appeals Dismissal of Appeal Under 8 C.F.R. § 1003.4 Not Due Process Violation

The Tenth Circuit Court of Appeals published its opinion in Montano-Vega v. Holder on Monday, July 1, 2013.

Arturo Montano-Vega was in this country unlawfully. When the government charged him with as much, he asked for permission to leave the country voluntarily in order to avoid a congressionally mandated ten-year bar on readmission for aliens who have been “ordered removed.”

The Immigration Judge assigned to Montano-Vega’s case exercised his discretion and refused his request to leave voluntarily because of Montano-Vega’s criminal record. Montano-Vega filed an appeal with the Board of Immigration Appeals contesting the IJ’s decision. To continue to pursue the appeal, he had to remain in the country. Once Montano-Vega left the country to avoid a separate ten-year bar, the BIA deemed his appeal abandoned as a matter of law under 8 C.F.R. § 1003.4.

Montano-Vega appealed the BIA’s decision, challenging the legality of its application of § 1003.4 to his case. He asserted that the BIA’s application of § 1003.4 to his case infringed his due process rights. The court rejected this argument. “While entitled to ‘minimal procedural due process’ protections, it is settled law that aliens enjoy no constitutionally protected liberty or property interest in obtaining discretionary relief from removal under 8 U.S.C. § 1229c(b)(1).”

The court also rejected his argument that he should not be considered to have abandoned his appeal under § 1003.4 because he had no choice but to leave the country. The plain language of § 1003.4 states that any departure ends an appeal and many circuits have held that even inadvertent, unwanted, or accidental departures can lawfully trigger the regulation. The court denied the § 1003.4 appeal and otherwise dismissed his petition for review for lack of jurisdiction.

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