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Post-Departure Bars and Legal Double-Standards

By Robyn Hagan Cain | Last updated on

A regulation called the "post-departure bar" precludes a removed person from filing a motion to reopen immigration proceedings. In Prestol Espinal v. Attorney General, the Third Circuit Court of Appeals held the post-departure bar invalid to the extent it conflicted with a statute, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which grants aliens the right to file one motion to reopen under certain conditions.

This week, the Third Circuit ruled that the same bar it rejected in Prestol Espinal can nonetheless be invoked by the agency as a basis for refusing to reopen proceedings sua sponte under the regulation.

Utpal Ajitkumar Desai, a native and citizen of India, was admitted to the United States as a lawful permanent resident in 1980. In 2008, Desai was charged with removability based on a 2002 conviction for possession of a controlled substance and a 1994 conviction for third-degree theft.

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 90-day window for filing a timely motion to reopen had closed, Desai filed a motion to reopen sua sponte.

Motions to reopen sua sponte are governed by 8 C.F.R. § 1003.2(a), which 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 post-departure bar. The BIA further noted that, even if it had jurisdiction, it would nonetheless deny Desai's motion on the merits.

Relying on Prestol Espinal, Desai claimed that the BIA erred in determining that it lacked jurisdiction to consider his motion sua sponte due to the post-departure bar.

The Third Circuit Court of Appeals disagreed.

Motions to reopen sua sponte are not governed by the IIRIRA statutory scheme. Thus, the Third Circuit reasoned that the concern driving the Prestol Espinal holding --that the post-departure bar undermines an alien's statutory right to file one motion to reopen -- does not extend to cases where neither that statutory right nor congressional intent is implicated.

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