The BIA May Use Post-Departure Bar to Deny Motions Requesting Sua Sponte Reopening

Melsida Asatrian's picture

The Court of Appeals for the Third Circuit (the “Third Circuit”) recently held the Board of Immigration Appeals (the “BIA”) “did not err when it concluded that it lacked jurisdiction to consider [an alien's] motion to reopen sua sponte”, Desai v. Attorney General of the United States, No. 11-3229 (August 21, 2012), after the alien's departure from the United States. Id. The respondent was admitted as a lawful permanent resident in 1980. Id. He was subsequently arrested on numerous occasions and convicted of committing at least twelve crimes. Id. He was placed in removal proceedings in 2008 based upon convictions for possession of a controlled dangerous substance and theft in the third degree. Id. The respondent conceded removability as charged, but sought relief from removal under the Convention Against Torture (the “CAT”). Id. The Immigration Judge (the “IJ”) concluded the respondent failed to establish eligibility for CAT and the respondent was ordered removed. This determination was subsequently affirmed by the BIA and Third Circuit. Id.

A year after the respondent was removed from the United States his conviction for possession of a controlled substance was vacated and set for a new trial. Id. The respondent subsequently filed a motion to reopen his removal proceedings with the BIA. Id. This motion was filed well outside the ninety day window for filing a timely motion to reopen. See 8 U.S.C. §1229a(c)(7)(C), 8 C.F.R. §1003.2(c)(2), and 8 C.F.R. §1003.23(b)(1). The respondent's motion to reopen requested the BIA exercise its sua sponte authority to reopen removed proceedings. Desai, supra. Pursuant to 8 C.F.R. §1003.2(a) “the Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” 8 C.F.R. §1003.2(a). The BIA denied the respondent's motion to reopen concluding it lacked jurisdiction due to the application of the post-departure bar found in the Federal Regulations. The post-departure bar 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 filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.

8 C.F.R. §1003.2(d).

The respondent filed a timely petition for review with the Third Circuit. The respondent relied on the Third Circuit's decision in Prestol Espinal v. Attorney General, 653 F.3d 213 (3d Cir. 2011). In Prestol Espinal, the Third Circuit had concluded that the post-departure bar was “invalid to the extent it conflicted with a statute that grants aliens the right to file one motion to reopen under certain conditions.” Prestol Espinal, 653 F.3d at 224. The effect of the post-departure bar was to “nullify a statutory right.” Id.

However, the respondent's reliance on the Third Circuit's decision in Prestol Espinal was misplaced. While the Third Circuit's decision “was stated broadly and seemed to suggest that the post-departure bar was invalid in its entirety, [the Court's] explanation made clear that [it] had only statutory motions to reopen or reconsider in mind.” Desai, supra. The Third Circuit had determined the post-departure bar found in the Federal Regulations conflicted with Congress' clear intent in regards to motions to reopen for the following reasons:

first, the plain text of the statute provides each “alien” with the right to file one motion to reopen and one motion to reconsider. Second, the importance and clarity of this right has been emphasized by the Supreme Court in [Dada v. Mukasey, 554 U.S. 1, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008)]. Third, Congress specifically considered and incorporated limitations on this right and chose not to include the post-departure bar, despite its prior existence in regulation. Fourth, the post-departure bar would eviscerate the right to reopen/reconsider by allowing the government to forcibly remove the alien prior to the expiration of the time allowance. Fifth, Congress included geographic limitations on the availability of the domestic violence exception, but included no such limitation generally. Sixth, Congress specifically withdrew the statutory post-departure bar to judicial review in conformity with IIRIRA's purpose of speeding departure, but improving accuracy.


In Prestol Espinal the Third Circuit did “not discuss, or even acknowledge motions to reopen that are filed out of time or otherwise disqualified under the statutory scheme.” Id. These motions may still be considered by the BIA in the exercise of the agency's sua sponte authority. The authority is not set forth in the Immigration and Nationality Act (the “INA”), but rather the Federal Regulations. As such, “the concern driving [the Third Circuit's] holding in Prestol Espinal — that the post-departure bar undermines an alien's statutory right to file one motion to reopen — does not extend to [motions to reopen sua sponte, where neither that statutory right nor congressional intent is implicated.” Id.

The Desai decision further stresses the need to file a timely motion to reopen to ensure the decision on the merits of the case rather than a procedural technicality. This decision also underscored the importance of fighting deportation/removal to the extent possible in the United States. This can include seeking post-conviction relief for criminal convictions. If you or your loved one is in removal/ deportation proceedings, it is imperative to retain an experienced attorney.