Espinal v. Attorney Gen. of United States, No. 10-1473 (3d Cir. 2011)Annotate this Case
Petitioner, born in the Dominican Republic, lived in the U.S. from 1982 until 2009, when DHS charged him as removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act as an alien present without being admitted or paroled, and under sections 212(a)(2)(A)(i) and (a)(2)(B) as an alien convicted of an offense relating to a controlled substance and an alien convicted of two or more offenses involving crimes of moral turpitude. He admitted the factual allegations was found removable, but applied for asylum, withholding of removal, and Convention Against Torture protection. He claimed that, because of his assistance to the Drug Enforcement Agency, he would be targeted for violence if returned to the Dominican Republic. The immigration judge denied the applications. The BIA affirmed and 21 days later, petitioner was removed. The BIA denied a motion to reconsider, citing lack of jurisdiction resulting from removal (8 C.F.R.1003.2(d)).The Third Circuit reversed and remanded, holding that the post-departure bar is inconsistent with the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. 1229a(c)(6)(A), (7)(A), which grants an alien the right to file one motion to reconsider and one motion to reopen without any geographic limitation on that right.