Published December, 2012

Desai v. Attorney Gen. of U.S., 695 F.3d 267, 271 (3d Cir. 2012).

This is a United States Court of Appeals, Third Circuit decision affirming the Board of Immigration Appeals (BIA) denial of an HIV-positive Indian man's request for reconsideration of his removability from the United States.

Desai, an HIV-positive citizen of India, was admitted to the United States as a lawful permanent resident in 1980. In 2008, he was charged with removability based on convictions of possession of a controlled substance and third-degree theft. His criminal history also includes convictions for burglary, criminal mischief, theft, and various other offenses. Desai sought protection under the Convention Against Torture (CAT), alleging that his HIV status would make him vulnerable to discrimination and persecution should he be returned to India. An immigration judge found he had not shown eligibility under CAT, the BIA and Court of Appeals agreed, and he was deported.

A year after Desai was deported to India, he filed a motion requesting reconsideration after his possession of a controlled substance conviction was vacated. The BIA denied Desai's request, finding that it lacked jurisdiction since he had already been deported. The BIA also noted that even if it had jurisdiction, it would deny Desai's motion on the merits. The Court of Appeals upheld this decision, stating the BIA did not have jurisdiction to hear the case.