PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
               _______________

                   No. 11-3229
                 _______________

           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
         ____________________________

              Argued May 22, 2012
Before: RENDELL, FUENTES, and HARDIMAN, Circuit
                    Judges.

              (Filed: August 21, 2012 )
Scott E. Bratton, Esq. [ARGUED]
Margaret Wong & Associates
3150 Chester Avenue
Cleveland, OH 44114
       Attorneys for Petitioner

Tiffany L. Walters, Esq. [ARGUED]
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
John M. McAdams, Jr., Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
       Attorneys for Respondent

                _________________________

                OPINION OF THE COURT
              ___________________________

HARDIMAN, Circuit Judge.

        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, 

, 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),




                               2
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




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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 post-
departure 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



                             4
       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 BIA noted, further, that, even if it
had jurisdiction, it would nonetheless deny Desai‘s motion on
the merits.

                               II

       Our jurisdiction is governed by Immigration and
Nationality Act (INA) § 242, 8 U.S.C. § 1252, amended by
the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119
Stat. 231, which authorizes us to review final orders of
deportation, exclusion, and removal. In cases such as this
one, where a petitioner is removable for having been
convicted of an aggravated felony, our jurisdiction is limited
to addressing the jurisdictional prerequisite, Restrepo v. Att’y
Gen., 

, 790 (3d Cir. 2010), and evaluating
―constitutional claims or questions of law raised upon a
petition for review,‖ 8 U.S.C. § 1252(a)(2)(D); accord
Brandao v. Att’y Gen., 

, 428 (3d Cir. 2011).

       ―Because the BIA retains unfettered discretion to
decline to sua sponte reopen or reconsider a deportation
proceeding, this court is without jurisdiction to review a
decision declining to exercise such discretion to reopen or
reconsider the case.‖ Calle-Vujiles v. Ashcroft, 

,
475 (3d Cir. 2003). Where, however, we are ―presented with
a BIA decision rejecting a motion for sua sponte reopening,
we may exercise jurisdiction to the limited extent of
recognizing when the BIA has relied on an incorrect legal
premise.‖ Pllumi v. Att’y Gen., 

, 160 (3d Cir.
2011). ―In such cases we can remand to the BIA so it may




                               5
exercise its authority against the correct ‗legal background.‘‖
Id. (quoting Mahmood v. Holder, 

, 469 (2d Cir.
2009)). Following Pllumi, we exercise our jurisdiction in this
case to examine the validity of the BIA‘s legal determination
that the post-departure bar precluded its review of Desai‘s
motion to reopen sua sponte.

                               III

       Desai claims the BIA erred in determining that it
lacked jurisdiction to consider his motion because of the post-
departure bar of 8 C.F.R. § 1003.2(d). He relies on our
decision in Prestol Espinal, where we invalidated the post-
departure bar after finding it inconsistent with IIRIRA, 8
U.S.C. § 1229a(c), which grants an alien the right to file one
motion to reopen, subject to certain restrictions.1 653 F.3d at
224.

        In Prestol Espinal, however, we invalidated the post-
departure bar only in those cases where it would nullify a
statutory right, i.e., where a petitioner‘s motion to reopen falls
within the statutory specifications. Prestol Espinal does not
discuss, or even acknowledge, motions to reopen that are filed
out of time or otherwise disqualified under the statutory
scheme. Such motions, which may still be considered by the
BIA as motions to reopen sua sponte, are not authorized by
statute. Instead, they arise under a regulation, 8 C.F.R.
§ 1003.2(a), that the Attorney General promulgated under her

       1
         As we did in Prestol Espinal, we treat a motion to
reconsider and a motion to reopen in pari materia for
purposes of the post-departure bar. See Prestol Espinal, 653
F.3d at 217 n.3.




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broad authority to review administrative determinations in
immigration cases, see, e.g., 8 U.S.C. § 1103(g)(2). Because
the BIA considers motions sua sponte pursuant to a grant of
authority from the Attorney General, there is no statutory
basis for a motion to reopen in the sua sponte context. See
Zhang v. Holder, 

, 661 (2d Cir. 2010).

        In Prestol Espinal, we reasoned that ―the post-
departure bar regulation conflicts with Congress‘ clear
intent.‖ 653 F.3d at 224. Although our conclusion was stated
broadly and seemed to suggest that the post-departure bar was
invalid in its entirety, our explanation made clear that we had
only statutory motions to reopen or reconsider in mind:

      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, 

 (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




                              7
       conformity with IIRIRA‘s purpose of speeding
       departure, but improving accuracy.

Id. As we have explained, motions to reopen sua sponte like
the one Desai filed in this case are not governed by that
statutory scheme. Thus, the concern driving our 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 cases like this one, where neither that statutory right
nor congressional intent is implicated.2

        Our decision today finds further support in Zhang,
where the Second Circuit Court of Appeals ―consider[ed] the
scope of the BIA‘s jurisdiction to reopen otherwise-final
removal proceedings in response to a party‘s motion, where
the motion to reopen is deficient under the INA and instead
asks the Board to invoke its sua sponte authority.‖ 617 F.3d
at 654. Distinguishing Zhang‘s case from those dealing with
a statutory right to file a motion to reopen or a broad statutory
grant of authority, the Second Circuit found that ―the BIA
       2
          Desai‘s claim that the BIA incorrectly relied on
Matter of Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA
2008), also is unavailing. In Armendarez-Mendez, issued
before Prestol Espinal, the BIA found that it lacked
jurisdiction to entertain an alien‘s untimely motion requesting
sua sponte reopening of his removal proceedings because he
had filed it after his departure from the United States. Id. at
660. While Armendarez-Mendez‘s broad suggestion that ―the
departure bar rule remains in full effect‖ after IIRIRA even
where an alien is exercising his statutory right to file a timely
motion to reopen, id., has been abrogated by Prestol Espinal,
its holding remains valid as applied to motions requesting sua
sponte reopening for the reasons discussed above.



                               8
[was] not plainly erroneous in its position . . . that the
departure bar limits its sua sponte jurisdiction‖ and that the
BIA ―did not err in concluding that § 1003.2(d) deprived it of
authority to consider [Zhang‘s] motion to reopen [sua sponte]
after he was removed from the country.‖ Id. at 665; see also
id. at 664 (―[T]his is not an instance where a statute vests an
agency with broad authority that the agency has declined to
exercise.‖). We agree with, and adopt, the Second Circuit‘s
analysis.

      For the reasons stated, we hold that the BIA did not err
when it concluded that it lacked jurisdiction to consider
Desai‘s motion to reopen sua sponte. Therefore, we will
deny his petition.




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