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Utpal Ajitkumar Desai v. Attorney General of the United States

August 21, 2012

UTPAL AJITKUMAR DESAI, PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A037-061-888) Immigration Judge: Honorable Susan G. Roy

The opinion of the court was delivered by: Hardiman, Circuit Judge.

PRECEDENTIAL

Argued May 22, 2012

Before: RENDELL, FUENTES, and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

This appeal involves the jurisdiction of the Board of Immigration Appeals (BIA). A regulation known as the ―post-departure bar,‖ which is codified at 8 C.F.R. § 1003.2(d), precludes a removed person from filing a motion to reopen immigration proceedings. In Prestol Espinal v. Attorney General, 653 F.3d 213, 224 (3d Cir. 2011), we held the post-departure bar invalid to the extent it conflicted with a statute, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, 8 U.S.C. § 1229a(c)(7), that grants aliens the right to file one motion to reopen under certain conditions. We now consider whether the bar we rejected in Prestol Espinal can nonetheless be invoked by the agency as a basis for refusing to reopen proceedings sua sponte under a regulation, 8 C.F.R. § 1003.2(a). We hold that it can.

I

A native and citizen of India, Utpal Ajitkumar Desai was admitted to the United States as a lawful permanent resident in 1980. Eleven years later, Desai embarked on a prolific criminal career, which includes convictions for: burglary and criminal mischief (1991), burglary and conspiracy to commit burglary (1992), burglary (1992), theft (1993), theft in the third degree (1994), shoplifting (1997), possession of marijuana (2000), disorderly conduct (2001), and theft and possession of a controlled dangerous substance in the third degree (2002).

In 2008, Desai was charged with removability based on his 2002 conviction for possession of a controlled substance and his 1994 conviction for third-degree theft.

Although he did not contest removability, he applied for relief under the Convention Against Torture (CAT), alleging that his HIV-positive status made him vulnerable to discrimination and persecution in India. The Immigration Judge (IJ) held that Desai had not demonstrated eligibility for CAT relief, the BIA affirmed, and we denied Desai's subsequent petition for review. See Desai v. Att'y Gen., 330 F. App'x 333, 334-35 (3d Cir. 2009).

In February 2010, a year after Desai was removed to India, his 2002 conviction for possession of a controlled substance was vacated and relisted for a new trial. That November, well after the ninety-day window for filing a timely motion to reopen had closed, see 8 U.S.C. § 1229a(c)(7)(C), Desai filed a motion to reopen sua sponte. Motions to reopen sua sponte are governed by a regulation, 8 C.F.R. § 1003.2(a), that states:

The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or the party affected by the decision, must be in the form of a written motion to the Board. The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.

The BIA denied Desai's motion, finding that it lacked jurisdiction to consider Desai's request because of the postdeparture bar, which provides:

A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the ...


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