                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                      18-1072
                                 ________________

                       AMBRIORIX FRANCISCO OVALLE,
                                                 Petitioner
                                    v.

             ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                               Respondent
                          ________________

                        On Petition for Review of an Order of
                         the Board of Immigration Appeals
                            (Agency No. A038-511-086)
                                 ________________

                               Argued: March 12, 2019

               Before: JORDAN, KRAUSE, and ROTH, Circuit Judges


                         (Opinion filed: November 19, 2019)

Jeffrey B. Rubin
Kimberly A. Williams       [ARGUED]
Rubin Pomerleau
One Center Plaza
Suite 400
Boston, MA 02108
       Counsel for Petitioner Ambriorix Francisco Ovalle

Lindsay Corliss            [ARGUED]
Andrea Gevas
United States Department of Justice
Office of Immigration Litigation
Room 2207
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
      Counsel for Respondent Attorney General of the United States
                                ________________

                                       OPINION*
                                    ________________

KRAUSE, Circuit Judge.

       Petitioner Ambriorix Francisco Ovalle departed the United States after he was

convicted as a youthful offender for attempted criminal sale of a controlled substance.

Seventeen years later, he filed a sua sponte motion with the BIA to “reopen and terminate

his removal proceedings.” AR 19. The BIA found that the post-departure bar deprived it

of jurisdiction to consider Ovalle’s motion. Because the BIA may not treat the post-

departure bar as a jurisdictional limitation of its sua sponte authority, we will grant the

petition in part and remand to the BIA.1

I.     Background

       Ovalle was born in the Dominican Republic, admitted to the United States as a

lawful permanent resident, and later convicted as a youthful offender of attempted




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       1
        Judge Roth concurs in the judgment to the extent that it grants the petition.
However, Judge Roth would remand to the BIA with instructions to grant Ovalle’s
motion to reopen. She believes that where, as here, there is no longer a conviction
supporting deportation, the BIA may not rely on the post-departure bar as a basis for
refusing to reopen proceedings sua sponte, even as a matter of discretion. Thus, Judge
Roth would grant the petition based on her view that Ovalle has the right to one motion to
reopen and that the post-departure bar is inapplicable because Ovalle’s conviction was
vacated due to a defect in the underlying proceedings.
                                              2
criminal sale of a controlled substance. The Government charged him as removable,

initially serving him with a notice to appear that did not specify the time or location of his

removal proceeding but later following up with a notice of hearing that did provide those

details. During his proceedings, Ovalle successfully argued to the Immigration Judge

that his youthful offender adjudication did not constitute a deportable offense under the

Immigration and Nationality Act, but he conceded deportability on appeal to the BIA and

was deported to the Dominican Republic in 1999.

       Seventeen years later, he filed a sua sponte motion to reopen with the BIA,

arguing that under the BIA’s decision in In re Devison, 22 I. & N. Dec. 1362 (B.I.A

2000)—which came down shortly after Ovalle was deported and held that youthful

offender adjudications do not constitute “conviction[s]” under the INA, id. at 1373—he

was never “convicted of a[] crime” for immigration purposes and his removal

proceedings should be “reopen[ed] and terminat[ed],” AR 26. The BIA reasoned that,

while our Circuit and many others have “invalidated the post-departure bar when applied

to statutory motions to reopen, i.e., timely motions to reopen[,] . . . untimely (sua sponte)

motions to reopen are subject to the post-departure bar” according to our decision in

Desai v. Attorney General, 695 F.3d 267 (3d Cir. 2012). AR 2. Because Ovalle filed a

sua sponte motion, the BIA applied Desai and concluded that he was “not eligible for sua

sponte reopening in light of the post-departure bar.” AR 2. Ovalle timely appealed.

II.    Discussion

       On appeal, Ovalle argues first that the BIA was incorrect to rely on the post-

departure bar in denying his sua sponte motion and second that the Immigration Court

                                              3
never acquired jurisdiction over his removal proceedings because his notice to appear did

not provide the time and location of his hearing.2 Because the second argument is

squarely foreclosed by our recent decision in Nkomo v. Attorney General, 930 F.3d 129

(3d Cir. 2019), we address only the first.3

       In relevant part, the post-departure bar provides that “[a] motion to reopen . . .

shall not be made by or on behalf of a person . . . subsequent to his or her departure from

the United States.” 8 C.F.R. § 1003.2(d). Two types of motions to reopen are available

to an alien: (1) motions filed under 8 U.S.C. § 1229a(c)(7), which are known as statutory

motions to reopen; and (2) motions filed under a “catch-all provision” of 8 C.F.R.

§ 1003.2,4 which are known as sua sponte motions to reopen, Sang Goo Park v. Att’y



       2
         Though we generally do not have jurisdiction to review the BIA’s denial of a sua
sponte motion to reopen, see Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651 (3d Cir.
2017), we may “exercise jurisdiction to the limited extent of recognizing when the BIA
has relied on an incorrect legal premise,” in which case we may “remand to the BIA so it
may exercise its authority against the correct legal background,” Pllumi v. Att’y Gen., 642
F.3d 155, 160 (3d Cir. 2012).
       3
         In Nkomo, we joined with seven of our sister circuits in rejecting the precise
argument that Ovalle makes here: that under the Supreme Court’s decision in Pereira v.
Sessions, 138 S. Ct. 2105 (2018), a notice to appear must contain “time and place
information” in order for jurisdiction over an alien’s removal proceeding to vest, and that
neither a later notice of hearing containing that information nor the alien’s ultimate
appearance at and participation in her removal proceedings is sufficient to cure any
jurisdictional defects. Nkomo, 930 F.3d at 133–34. We reject the argument here for the
same reasons we articulated in Nkomo.
       4
         That provision reads in relevant part: “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 . . . must
be in the form of a written motion to the Board. The decision to grant or deny a motion

                                              4
Gen., 846 F.3d 645, 650 (3d Cir. 2017). Ten circuits,5 including ours, see Prestol Espinal

v. Att’y Gen., 653 F.3d 213, 214 (3d Cir. 2011), have invalidated the post-departure bar

insofar as it is applied to statutory motions to reopen filed by departed aliens. Far fewer

have addressed the post-departure bar’s application to sua sponte motions to reopen filed

by departed aliens, but our Circuit, see Desai, 695 F.3d at 270, along with the Second and

Fifth Circuits, see Zhang v. Holder, 617 F.3d 650, 660 (2d Cir. 2010); Ovalles v. Holder,

577 F.3d 288, 296–97 (5th Cir. 2009), has explicitly authorized the BIA to rely on the

post-departure bar when denying such motions.

       The Government considers Desai “controlling” and urges us to deny Ovalle’s

petition on that basis. Respondent’s Br. 11. While we agree that we are bound by

Desai’s conclusion that the BIA may rely on the post-departure bar “as a basis for

refusing to reopen proceedings sua sponte,” 695 F.3d at 268, the Supreme Court’s

intervening decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), requires us to consider

the precise nature of that “basis” and to clarify our holding in Desai.

       Much like Ovalle, the petitioner in Desai was deported on the basis of a controlled

substance conviction. 695 F.3d at 268. A year after he departed the United States, his


to reopen or reconsider is within the discretion of the Board, subject to the restrictions of
this section.” 8 C.F.R. § 1003.2(a).
       5
         See Toor v. Lynch, 789 F.3d 1055, 1057 (9th Cir. 2015); Santana v. Holder, 731
F.3d 50, 51 (1st Cir. 2013); Garcia-Carias v. Holder, 697 F.3d 257, 264 (5th Cir. 2012);
Contreras-Bocanegra v. Holder, 678 F.3d 811, 816 (10th Cir. 2012) (en banc); Jian Le
Lin v. Att’y Gen., 681 F.3d 1236, 1241 (11th Cir. 2012); Luna v. Holder, 637 F.3d 85,
100 (2d Cir. 2011); Pruidze v. Holder, 632 F.3d 234, 239–40 (6th Cir. 2011); Marin-
Rodriguez v. Holder, 612 F.3d 591, 593–94 (7th Cir. 2010); William v. Gonzales, 499
F.3d 329, 334 (4th Cir. 2007).
                                              5
conviction was vacated and listed for a new trial. Id. He filed a motion to reopen sua

sponte and the BIA denied the motion, “finding that it lacked jurisdiction to consider

Desai’s request because of the post-departure bar.” Id. at 269. On appeal, we

distinguished Prestol-Espinal, reasoning that “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—d[id] not extend to cases [involving sua sponte motions to reopen],

where neither that statutory right nor congressional intent is implicated.” Id. at 270. As a

result, we held that the BIA “did not err” by treating the post-departure bar as a basis for

denying Desai’s sua sponte motion. Id. at 271.

       We went on, however, to “find[] further support” for this conclusion in the Second

Circuit’s decision in Zhang, “agree[ing] with[] and adopt[ing]” its analysis, id., which

endorsed the BIA’s treatment of the post-departure bar as a jurisdictional limitation on

the basis of Auer deference, see Zhang, 617 F.3d at 660, 665; see also Matter of

Armendarez-Mendez, 24 I. & N. Dec. 646, 648 (B.I.A. 2008) (explaining that the BIA

“construe[s] the departure bar rule as imposing a limitation on [its] jurisdiction” and that

it has “reiterated that construction of the rule in an unbroken string of precedents

extending over 50 years” (citation omitted)).

       The Government would have us resolve this case on a straightforward application

of Desai, but as our summary of that case reflects, it is susceptible to two different

readings. On one, Desai simply affirms that the post-departure bar can be invoked as a

matter of discretion, a conclusion that remains good law. But on another reading, Desai

gives Auer deference to the BIA’s view that the post-departure bar deprives it of

                                              6
jurisdiction. That reasoning, however, does not survive the Supreme Court’s recent

decision in Kisor.

       In Kisor, the Court held that Auer deference is cabined to cases where an

“agency’s interpretation . . . in some way implicate[s] its substantive expertise.” Id. at

2417. “[T]he basis for deference ebbs,” the Supreme Court explained, “when the subject

matter of the dispute is distant from the agency’s ordinary duties,” id. (citation and

alterations omitted), as is the case when the “interpretive issue[] . . . fall[s] more naturally

into a judge’s bailiwick,” id. Because the scope of the BIA’s sua sponte jurisdiction is

precisely the kind of “interpretive issue[] [that] fall[s] more naturally into [our]

bailiwick,” id., deference to the BIA’s interpretation of the post-departure bar as

jurisdictional is no longer warranted.

       Without that constraint, we conclude that the application of the post-departure bar

in a given case is properly understood as an exercise of the BIA’s discretion, not a

limitation on its jurisdiction.6 Even the BIA, despite long denoting the bar as


       6
         According to 8 C.F.R. § 1003.2, which is the source of the BIA’s sua sponte
authority, the BIA “may at any time reopen or reconsider on its own motion any case in
which it has rendered a decision” and 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.”
Id. (emphasis added). While the post-departure bar may be one basis for exercising that
discretion, it is not absolute and it does not implicate the BIA’s jurisdiction, i.e., its
competence to adjudicate a particular matter, see Reed Elsevier, Inc. v. Muchnick, 559
U.S. 154, 160 (2010). Two other Circuits interpret 8 C.F.R. § 1003.2 this way, see
Pruidze, 632 F.3d at 238 (finding that “[n]othing in the statutory scheme suggests that the
Board lacks jurisdiction . . . to issue decisions that affect the legal rights of aliens
abroad”); Marin-Rodriguez, 612 F.3d at 593, 595 (same), and Zhang itself called the
BIA’s jurisdictional characterization of the post-departure bar “anything but airtight” and
“linguistically awkward,” noting that it might have “reach[ed] a different conclusion” if it
were “writing on a blank slate,” Zhang, 617 F.3d at 660.
                                               7
“jurisdiction[al],” Armendarez-Mendez, 24 I. & N. Dec. at 648, has at times described it

as a “general rule” that may be subject to “exception[s],” Matter of Bulnes-Nolasco, 25 I.

& N. Dec. 57, 58 (B.I.A. 2009). Thus, after Kisor, Desai—to the extent it was susceptible

to such an interpretation—can no longer be read as affirming the BIA’s view of the post-

departure bar as jurisdictional, see In re Krebs, 527 F.3d 82, 84 (3d Cir. 2008).

       Because the BIA in this case read Desai as endorsing a jurisdictional interpretation

of the post-departure bar and did not treat the bar as a matter of discretion, it relied on an

“incorrect legal premise,” Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2012), and

while it may elect to invoke the bar on discretionary grounds on remand, that is not a

foregone conclusion. Given the similarity between the particular circumstances of this

case and our cases addressing relief for non-departed aliens who are no longer

“‘convicted’ for immigration purposes,” Cruz v. Att’y Gen., 452 F.3d 240, 242 (3d Cir.

2006); see Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005), the BIA may well choose not

to invoke the post-departure bar in this case. In any event, we cannot affirm on a basis

different than the one articulated by the agency, see Li v. Att’y Gen., 400 F.3d 157, 163

(3d Cir. 2005), so we will remand for the BIA to decide whether to invoke the post-

departure bar in this case “against the correct legal background,” Pllumi, 642 F.3d at 160

(citation omitted).

III.   Conclusion

       For the foregoing reasons, we will grant the petition in part and remand to the BIA

for proceedings consistent with this opinion.



                                              8
