Desai v. Attorney Gen. of the U.S., No. 11-3229 (3d Cir. 2012)
Annotate this Case
A citizen of India, Desai was admitted to the U.S. as a lawful permanent resident in 1980. He acquired convictions for: burglary and criminal mischief (1991), burglary and conspiracy to commit burglary (1992), burglary (1992), theft (1993), theft (1994), shoplifting (1997), possession of marijuana (2000), disorderly conduct (2001), and theft and possession of a controlled substance in the third degree (2002). In 2008, Desai was charged with removability based on his 1994 and 2002 convictions. He applied for relief under the Convention Against Torture, alleging that his HIV-positive status made him vulnerable to discrimination and persecution in India. A year after Desai’s removal, his 2002 conviction was vacated. After the 90-day window, 8 U.S.C. 1229a(c)(7)(C), Desai moved to reopen sua sponte. The BIA held that it lacked jurisdiction because the post-departure bar, 8 C.F.R. 1003.2(d), precludes a removed person from filing a motion to reopen. The Third Circuit denied appeal. While the court previously held the post-departure bar invalid to the extent it conflicted with the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. 1229a(c)(7), (granting aliens the right to file one motion to reopen under certain conditions), it can be invoked as a basis for refusing to reopen under 8 C.F.R. 1003.2(a).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.