Tuesday, July 23, 2013

Alien Abandoned Appeal of BIA Decision Despite Circumstances of Departure

Montano-Vega v. Holder, 2013 WL 3285584 (7/1/13) (Published) - The alien was faced with an impossible choice. If he left the country the BIA would deem he abandoned his appeal of the voluntary departure denial, meaning he couldn't return for 10 years. Or he could stay, pursue his appeal and accumulate more than one year in the U.S., again triggering the 10-year ban. He chose to leave the country and challenge the BIA's finding of abandonment of the appeal because his departure was coerced. The 10th was unimpressed. The motivations for leaving didn't matter. Courts may intercede only when a governmental action violates positive law or needlessly penalizes the assertion of a constitutional right. Here the BIA violated no statute or regulation and there is no constitutional right to litigate a BIA appeal.