Case: 13-12953 Date Filed: 03/28/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12953
Non-Argument Calendar
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Agency No. A028-654-740
UTOH OLUWATOYIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(March 28, 2014)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Utoh Oluwatoyin petitions us for review of the BIA’s decision denying her
motion to reconsider its denial of her motion to reopen her deportation
proceedings. On appeal, she argues that: (1) the BIA abused its discretion by
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denying her motion for reconsideration of its order denying as untimely her motion
to reopen because it wrongly applied the 90-day time limitation established in 8
C.F.R. § 1003.2(c)(2); and (2) she was eligible for adjustment of status under 8
U.S.C. § 1255(a). After careful review, we deny the petition.
We review the BIA’s denial of a motion for reconsideration for abuse of
discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). A
motion to reconsider must specify errors of fact or law in the BIA’s initial decision,
and the motion must be supported by pertinent authority. Id. (citing 8 C.F.R. §
1003.2(b)(1)). Reiterating arguments previously presented to the BIA generally
does not meet this standard. Id.
In deciding whether to uphold the BIA’s decision, we are limited to the
grounds on which the decision relied. See N.L.R.B. v. U.S. Postal Serv., 526 F.3d
729, 732 n.2 (11th Cir. 2008) (noting that we cannot uphold an administrative
order unless the grounds upon which the agency relied were the same grounds
upon which the order could be sustained); Kwon v. INS, 646 F.2d 909, 916 (5th
Cir. 1981) (en banc) (same). A party abandons an issue by failing to argue it.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). 1
An agency’s consistent interpretation of its own regulations is due
“substantial deference” unless it is plainly erroneous or is inconsistent with the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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regulation. U.S. Steel Mining Co., LLC v. Director, OWCP, 386 F.3d 977, 985
(11th Cir. 2004) (quotation omitted). Prior to the implementation of 8 C.F.R. §
1003.2(c)(2), there were no statutory or regulatory time limitations on when a
person could move to reopen her proceedings. Avila-Santoyo v. U.S. Att’y Gen.,
713 F.3d 1357, 1361 (11th Cir. 2013). However, in response to an act of Congress,
the agency enacted § 1003.2(c)(2) and other similar regulations in order to lessen
successive and frivolous administrative appeals and motions. Id.
Section 1003.2(c)(2) requires that a motion to reopen deportation
proceedings before the BIA be filed within 90 days of the final agency order or on
or before September 30, 1996, whichever is later. 8 C.F.R. § 1003.2(c)(2); see also
In re H-A-, 22 I. & N. Dec. 728, 733 (BIA 1999) (noting that, although there are
now statutory provisions governing motions to reopen filed in removal
proceedings, the regulations provide the sole time limitations on filing motions to
reopen in deportation proceedings). A similar regulation applies to motions to
reopen before the IJ. See 8 C.F.R. § 1003.23(b)(1) (“A motion to reopen must be
filed within 90 days of the date of entry of a final administrative order of removal,
deportation, or exclusion, or on or before September 30, 1996, whichever is
later.”). The BIA has held that § 1003.23(b)(1) applies to any final administrative
order of removal, deportation, or exclusion entered on or after July 1, 1996, as the
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regulatory September 30, 1996, deadline is 90 days after July 1, 1996. Matter of
Monges Garcia, 25 I. & N. Dec. 246, 250 (BIA 2010).
Previously, we held that the 90-day statutory deadline applicable to removal
proceedings was “mandatory and jurisdictional.” Abdi v. U.S. Att’y Gen., 430 F.3d
1148, 1150 (11th Cir. 2005). However, in Avila-Santoyo, we relied on new
binding Supreme Court precedent limiting the meaning of the term “jurisdiction”
to overrule our Abdi decision. Avila-Santoyo, 713 F.3d at 1361. We therefore
concluded that the 90-day rule was merely a claims processing rule, and that the
90-day deadline is subject to equitable tolling. Id. at 1362-65. A petitioner’s
eligibility for equitable tolling is a threshold showing that must be made before the
agency or we cannot reach the merits of the underlying claim on a motion to
reopen. Ruiz Turcios v. U.S. Att’y Gen., 717 F.3d 847, 851 (11th Cir. 2013). To
establish eligibility for equitable tolling, a litigant must show that (1) she has been
pursuing her rights diligently, and (2) some extraordinary circumstance stood in
her way. Id.
Here, the BIA did not abuse its discretion by denying reconsideration of its
order denying as untimely Oluwatoyin’s motion to reopen her deportation
proceedings. First, we give deference to the BIA’s interpretation of the relevant
regulations because the conclusion that the 90-day deadline applies to all final
orders entered after the effective date of the regulation is not plainly erroneous or
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inconsistent with the regulation. Further, Matter of Monges Garcia suggests that §
1003.2(c)(2) also applies to all final administrative decisions issued on or after July
1, 1996, as we can discern no meaningful difference between § 1003.2(c)(2) and §
1003.23(b)(1) that would impact the BIA’s interpretation of the deadline.
Therefore, because the final administrative order in this case was issued on
September 30, 2002, the 90-day timeline applied, meaning that any motion to
reopen had to be filed by December 30, 2002. Because Oluwatoyin did not file her
motion to reopen until October 9, 2012, her motion was untimely.
As for whether Oluwatoyin is entitled to equitable tolling of the 90-day
deadline, she has abandoned that issue on appeal. Although she noted in her initial
brief that equitable tolling is now available, she has not argued that she, in
particular, is entitled to equitable tolling or how equitable tolling specifically
applies to her. Thus, she has abandoned any equitable tolling argument on appeal,
and we deny the petition on the untimeliness issue. Finally, because we deny the
petition on this ground, we need not reach her argument that she is entitled to
adjustment of status.
PETITION DENIED.
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