On July 1, 2013, the United States Court of Appeals for the Tenth Circuit issued a precedent decision in Montano-Vega v. Holder, 721 F.3d 1175 (10th Cir. 2013) [PDF version]. The case concerned an alien who had been denied voluntary departure. The alien chose to depart the country with his appeal pending anyway he would have risked becoming subject to the 10-year bar of inadmissibility [see article] had he remained to adjudicate his appeals. Upon departing, the Board of Immigration Appeals (BIA) dismissed his appeal of the denial of voluntary departure under 8 C.F.R. 1003.4 for having left the country while his appeal was pending. The petitioner (alien) sought review from the Tenth Circuit of the Board's decision to deem the appeal abandoned under 8 C.F.R. 1003.4. The Tenth Circuit ruled against the alien, finding both that 8 C.F.R. 1003.4 could not be invalidated based on a policy argument, and that the application of 8 C.F.R. 1003.4 did not infringe upon the petitioner's due process rights.
In this article we will examine the facts of the case and the Tenth Circuit's decision, which provides a look at a situation in which an alien facing removal may be forced to choose between two unappealing options.
It is also worth noting that the opinion in Montano-Vega was authored by Judge Neil Gorsuch, who was nominated by President Donald Trump to the United States Supreme Court on January 31, 2017 [see blog]. Judge Gorsuch's nomination is pending at the time of this article. The case offers an example of Judge Gorsuch's writing and reasoning on an interesting immigration issue. Please see our articles on Judge Gorsuch's opinions in De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) [see article], and Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 [see blog], to learn more about his other significant immigration decisions. Please see a full blog on Judge Gorsuch's background and jurisprudence to learn more [see blog].
The petitioner in the case had admitted that he was in the country unlawfully. He requested a grant of voluntary departure in order to avoid being subject to the ten-year bar on readmission for aliens who have been “ordered removed” from the United States that is found in section 212(a)(9)(A)(ii)(I) of the Immigration and Nationality Act (INA).
The Immigration Judge (IJ) presiding over the case denied the petitioner's application for voluntary departure based on the petitioner's criminal record. Section 240B(b)(1) provides the basis of the discretionary authority to deny an application for voluntary departure. The petitioner appealed the denial to the Board of Immigration Appeals (BIA).
The petitioner then faced what the Tenth Circuit's decision itself described as a “hard choice.” In the following sections, we will detail the petitioner's options as discussed by the Tenth Circuit:
- The petitioner could remain in the United States to contest his appeal. If the Board sided with the petitioner, he would be able to depart the United States under a grant of voluntary departure. However, if the petitioner lost the appeal, he would be subject to removal and thus to the 10-year bar of inadmissibility for aliens ordered removed under section 212(a)(9)(A)(ii)(I). Furthermore, if the petitioner remained throughout the pendency of the appeal, he would have also likely become subject to the 10-year bar of inadmissibility for the accrual of one year or more of unlawful presence (upon removal), which is found in section 212(a)(9)(B)(i)(II). The Tenth Circuit explained that an alien subject to inadmissibility under sections 212(a)(9)(A)(ii)(I) and 212(a)(9)(B)(i)(II) would have to procure a waiver for both grounds of inadmissibility in order to be admitted before the expiration of 10 years (See Barillas-Alverez v. Reno, No. 98-Civ-5445, 2000 WL 204523, at *4 (S.D.N.Y. Feb. 18, 2000)). Conversely, if the appeal was sustained, the petitioner would likely not be subject to the 10-year bar of inadmissibility under section 40.9.2(b)(3)(H)(iii) of the Adjudicator's Field Manual (AFM).
- The petitioner could instead depart the United States with his appeal still pending. This would trigger two adverse consequences. First, the petitioner's appeal before the Board would be deemed abandoned as a matter of law under 8 C.F.R. 1003.4. Second, the petitioner would be subject to a 10-year bar of inadmissibility under section 212(a)(9)(A)(ii)(II) of the INA for having departed the United States while an order of removal was outstanding. While the results of this scenario would obviously be worse than if the alien remained and prevailed on his appeal, they would nevertheless be more favorable than the repercussions of remaining in the United States and losing his appeal. This is because the petitioner would be subject to only one 10-year bar of inadmissibility, section 212(a)(9)(A)(ii)(II), instead of two. The practical effect of this distinction is that the petitioner would only need one waiver of inadmissibility to be admitted prior to the expiration of 10 years instead of two waivers of inadmissibility.
The Tenth Circuit explains that the petitioner chose the second option, deciding to depart the United States while his appeal before the Board was pending. The Court noted that “[a]dmittedly, no option-staying or going-had much attraction from his perspective.” Nevertheless, the Tenth Circuit noted that the respondent made a decision which granted him the advantage of only needing a waiver of one bar of inadmissibility rather than, potentially, waivers of two bars of inadmissibility.
Upon the petitioner's departure, the Board dismissed his appeal of the denial of voluntary departure under 8 C.F.R. 1003.4, considering the appeal abandoned.
The petitioner appealed the Board's decision to dismiss his appeal under 8 C.F.R. 1003.4 to the Tenth Circuit. Firstly, the petitioner “challeng[ed] the legality of [the BIA's] application of [8 C.F.R.] 1003.4 to his case.” Secondly, the petitioner asked the Tenth Circuit to consider whether the IJ had abused his discretion in denying his application for a grant of voluntary departure under section 240B(b)(1) of the INA.
The Tenth Circuit began by explaining that it could only consider whether the IJ had abused his discretion if it found that the Board's invocation of 8 C.F.R. 1003.4 was “legally lacking in some respect.” This is because the final issue before the Tenth Circuit was the Board's invocation of 8 C.F.R. 1003.4 in holding that the petitioner's appeal of the IJ's decision was abandoned as a matter of law. Accordingly, the Tenth Circuit moved to consider the petitioner's arguments against the Board's invocation of 8 C.F.R. 1003.4.
The petitioner first argued that 8 C.F.R. 1003.4 is invalid, citing to the Tenth Circuit decision in Contreras-Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012) (en banc) [PDF version]. However, the Tenth Circuit noted that Contreras-Bocanegra, and cases that reached the same conclusion in other circuits, invalidated an entirely different regulation found in 8 C.F.R. 1003.2(d). Contreras-Bocanegra struck down 8 C.F.R. 1003.2(d), which purported “to prohibit departed aliens from filing motions to reopen or reconsider closed immigration cases,” as inconsistent with section 240(c) of the INA. The Tenth Circuit stated that the petitioner “offers us no reason to think that [8 C.F.R.] 1003.4 is destined for the same fate…” The Tenth Circuit described the petitioner's argument as being that, as a policy matter, 8 C.F.R. 1003.4 “is just as distasteful” as 8 C.F.R. 1003.2(d). However, the Tenth Circuit stated that “this line of argument seriously mistakes the nature of our business,” and that “the business of deciding the sometimes hard, often fine, and nearly always contestable questions of immigration policy belongs to the legislature and the executive, not the courts.”
The petitioner's second argument was that the Board's application of 8 C.F.R. 1003.4 to his case infringed on his due process rights. However, the Tenth Circuit noted that the petitioner failed to explain how this was true. The Board noted that aliens are entitled to “minimal due process protections,” but cited to Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009) [PDF version], which held that aliens do not enjoy a constitutionally protected liberty or property interest in obtaining discretionary relief from removal under section 240B(b)(1) of the INA (voluntary departure). Furthermore, the Tenth Circuit had also held in Yuk v. Ashcroft, 355 F.3d 1222, 1229 (10th Cir. 2004) [PDF version],.that aliens have no due process rights to an administrative appeal.
The petitioner cited to two decisions from outside of the Tenth Circuit to support his due process arguments. Firstly, he cited to the Ninth Circuit decision in Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800 (9th Cir. 2004) [PDF version]. In this decision, the Ninth Circuit reversed an order revoking a petitioner's lawful permanent resident (LPR) status because the Government had failed to give notice of the effect of a departure from the United States while the appeal was pending. However, the Tenth Circuit found that even granting the Ninth Circuit's due process analysis in Martinez-de Bojorquez, the case would not be applicable to Montano-Vega because the petitioner in the instant case never claimed that he lacked notice of the effect that his departure would have on his appeal, andby all indications he had “understood all too well what his departure would mean.”
The petitioner also cited to the Sixth Circuit decision in Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009) [PDF version]. In Madrigal, the Sixth Circuit held that when the government physically removes an alien from the United States, the alien does not abandon his or her appeal under 8 C.F.R. 1003.4. To start, the Tenth Circuit expressed skepticism of the Sixth Circuit's holding, stating that “[i]t's unclear whether the Sixth Circuit thought this exception could be found lurking somewhere in the terms of the rule itself, or whether it thought the Constitution's due process guarantee required it” (although the Tenth Circuit did not offer an opinion as to whether Madrigal was correct). However, even granting the Madrigal decision, the Tenth Circuit found that the exception it defined was “very narrow indeed,” only applying “to aliens the government physically removes, not to aliens who leave on their own motion, either 'deliberately or inadvertently,' 'purposeful[ly] or untwitting[ly]” (572 F.3d at 245). In light of the narrow scope of Madrigal, the Tenth Circuit held that it would not in any event apply to the petitioner in Montano-Vega, because he had not been physically removed by the government. To this effect, the Tenth Circuit rejected the petitioner's argument that Madrigal applied because he had left under the shadow of the 10-year unlawful presence bar.
Broadly, the Tenth Circuit held that an alien's “intentions or motives” in making a departure make no difference as to the applicability of 8 C.F.R. 1003.4. It also held that it did not read Madrigal as including any requirement that the Board must analyze an alien's state of mind in making a departure decision. For its part, the Tenth Circuit held that the idea that an alien's state of mind is relevant to the applicability of 8 C.F.R. 1003.4 “has no foundation in the regulation's text.” The Tenth Circuit noted that there exists ample circuit court precedent supporting the idea that inadvertent, unwanted, or accidental departures may trigger 8 C.F.R. 1003.4. The Tenth Circuit thus held that the petitioner did not establish that his constitutional rights were violated, and that he had alleged no violation of a statute or regulation.
In conclusion, the Tenth Circuit made clear that it was not holding that 8 C.F.R. 1003.4 is not susceptible to legal challenges generally, but rather that the challenges brought to it in the instant case were “legally unavailing.” The Tenth Circuit denied the petitioner's challenge to the Board's deeming his appeal withdrawn under 8 C.F.R. 1003.4, and it otherwise dismissed his petition for lack of jurisdiction.
Montano-Vega v. Holder highlights a difficult situation that an alien who is seeking to exhaust his or her appeals may find due to the 10-year unlawful presence bar of inadmissibility. The decision itself is relatively narrow, not foreclosing other challenges to the application of 8 C.F.R. 1003.4, but rejecting the petitioner's challenge finding no constitutional, statutory, or regulatory violation. An alien facing immigration proceedings should always retain an experienced immigration attorney. Such an attorney will be well-equipped to advise the alien of the relative risks and potential benefits associated with different legal strategies. The best approach will always depend on the specific facts of the individual case, including the relevant legal authorities.