NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ 18-1072 ________________ AMBRIORIX FRANCISCO OVALLE, Petitioner v. ATTORNEY GENERAL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 ...
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