Desai v. Attorney General of United States
695 F.3d 267
3rd Cir.2012Background
- Desai, a 1980 lawful permanent resident from India, was removed in 2010 after multiple criminal convictions.
- Desai sought CAT relief but was denied by IJ and BIA; this court denied review in 2009.
- In 2010 Desai moved sua sponte to reopen under 8 C.F.R. § 1003.2(a), filed after his removal and after the statutory 90-day window.
- BIA denied the motion, citing the post-departure bar at 8 C.F.R. § 1003.2(d), and indicated it would deny on the merits anyway.
- The core issue is whether the post-departure bar can be used to preclude sua sponte reopenings under the BIA regulation.
- Court reviews the BIA’s jurisdiction to consider sua sponte reopening in light of Prestol Espinal and related precedents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the post-departure bar precludes sua sponte reopening | Desai argues Prestol Espinal invalidates the bar | BIA relies on bar to deny jurisdiction | No, BIA may be precluded from sua sponte reopening where appropriate constraint applies |
Key Cases Cited
- Prestol Espinal v. Att'y Gen., 653 F.3d 213 (3d Cir. 2011) (invalidates post-departure bar when conflicting with statutory right to motion to reopen)
- Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) (supports restricting sua sponte jurisdiction where statute does not grant reopening right)
- Pllumi v. Att'y Gen., 642 F.3d 155 (3d Cir. 2011) (limits review to incorrect legal premise in sua sponte reopenings)
- Restrepo v. Att'y Gen., 617 F.3d 787 (3d Cir. 2010) (describes jurisdictional limits for review of final removal orders)