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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14941
Non-Argument Calendar
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Agency No. A088-920-938
RIGOBERTO AVILA-SANTOYO,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
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(August 16, 2012)
Before BARKETT, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Rigoberto Avila-Santoyo, a native and citizen of Mexico, appeals the Board
of Immigration Appeals’ (BIA’s) order dismissing his appeal from the
Immigration Judge’s (IJ’s) denial of his motion to reopen removal proceedings.
Avila-Santoyo was ordered removed pursuant to a stipulated order of removal on
March 13, 2009. On July 19, 2011, he filed an emergency motion to rescind his
removal order and reopen his removal proceedings. Avila-Santoyo asserts the
BIA erred in finding the IJ lacked jurisdiction under the departure bar to reopen
his removal proceedings, because the departure bar conflicts with an alien’s
statutory right to file one motion to reopen pursuant to 8 U.S.C. § 1229a(c)(7)(A).
He also argues the BIA abused its discretion in finding, in the alternative, that his
motion was untimely and not subject to equitable tolling. Finally, Avila-Santoyo
argues we have jurisdiction to review the BIA’s refusal to reopen the proceedings
sua sponte, and the BIA erred in refusing to exercise its discretion in this regard
because his stipulated order of removal and waiver of hearing was not knowing,
voluntary, and intelligent, in violation of his due process rights.
I. DISCUSSION
A. Departure bar
As an initial matter, this Court recently held that 8 C.F.R. § 1003.2(d), the
“departure bar” regulation stating the BIA may not entertain a motion to reopen
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filed by or on behalf of a person who has departed the United States,
impermissibly conflicts with an alien’s statutory right to file one motion to reopen
pursuant to 8 U.S.C. § 1229a(c)(7)(A). Lin v. U.S. Att’y Gen., 681 F.3d 1236,
1241 (11th Cir. 2012). Thus, based on Lin, the BIA erred in finding the IJ lacked
jurisdiction under the departure bar in 8 C.F.R. § 1003.23(b)(1) to reopen
Avila-Santoyo’s removal proceedings. Because the BIA correctly dismissed his
petition on an alternate ground, however, this error does not warrant granting
Avila-Santoyo’s petition.
B. The BIA’s decision that Avila-Santoyo’s motion to reopen was untimely
Ordinarily, an alien who is subject to a final order of removal and wishes to
reopen the proceedings may file one motion to reopen. 8 U.S.C. § 1229a(c)(7)(A).
The time limitation for filing such a motion varies depending on the nature of the
proceeding the alien seeks to reopen. 8 U.S.C. § 1229a(c)(7)(C). Generally, a
motion to reopen must be filed within 90 days of the date of the final removal
order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1).
Avila-Santoyo failed to meet the statutory requirements for filing a motion
to reopen. It is undisputed that Avila-Santoyo’s motion to reopen was not filed
within the 90-day time limit. That time limit runs for 90 days from the date of the
final administrative decision—in this case, from the IJ’s March 13, 2009, order of
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removal. Avila-Santoyo’s motion to reopen before the IJ was filed in July 2011,
well more than 90 days after the final removal order. Accordingly, the BIA did
not abuse its discretion1 in finding that Avila-Santoyo’s motion to reopen was due
to be dismissed as untimely.
Furthermore, because Avila-Santoyo stipulated to his removal, he was not
removed pursuant to the in absentia process specifically set forth at 8 U.S.C.
§ 1229a(b)(5). Although he claims that his waiver of his right to a removal
hearing was not knowing and intelligent, such a claim, even if true, in no way
transforms his stipulated removal order into an in absentia removal order. Avila-
Santoyo could have raised this issue in a timely appeal to the BIA or a timely
motion to reopen or reconsider the IJ’s decision. He did not. The fact that he
chose not to appeal the allegedly invalid removal order and waiver, or to move to
reopen removal proceedings, does not mean that he may now argue that he was
removed in absentia such that his untimely motion to reopen is excused.
Finally, because the 90-day period for filing a motion to reopen before the
BIA “is mandatory and jurisdictional, and, therefore, is not subject to equitable
tolling,” the BIA did not abuse its discretion in finding that Avila-Santoyo’s
1
We review the denial of a motion to reopen removal proceedings for an abuse of
discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
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untimely motion to reopen was not subject to equitable tolling. Abdi v. U.S. Att’y
Gen., 430 F.3d 1148, 1150 (11th Cir. 2005).
C. The BIA’s refusal to reopen proceedings sua sponte
We lack jurisdiction to review the BIA’s denial of a motion to reopen based
on its sua sponte authority because 8 C.F.R. § 1003.2(a) provides no meaningful
standard against which to judge the BIA’s exercise of its discretion. See Lenis v.
U.S. Att’y Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008). Therefore, we lack
jurisdiction to review the BIA’s denial of Avila-Santoyo’s motion to reopen based
on its sua sponte authority pursuant to 8 C.F.R. § 1003.2(a). See id.
Although we noted in Lenis, that “an appellate court may have jurisdiction
over constitutional claims related to the BIA’s decision not to exercise its sua
sponte power,” contrary to Avila-Santoyo’s assertion, the BIA’s comments
regarding its reasoning for declining to exercise its sua sponte power to consider
his appeal do not amount to “legal” or “constitutional reasoning” so as to arguably
confer jurisdiction in this case. Lenis, 525 F.3d at 1294 n.7. Avila-Santoyo
asserts the BIA decided his due process claim on the merits, based on the BIA’s
statement that it disagreed with Avila-Santoyo’s claim that it would be “extremely
unfair” to hold him to the stipulated order of removal. This statement, however,
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merely explained the BIA’s determination that Avila-Santoyo had not
demonstrated any exceptional circumstances warranting sua sponte reopening.
Therefore, even assuming that the Lenis rationale has no application to the legal
and constitutional reasoning underlying the BIA’s refusal to exercise its sua
sponte authority to reopen removal proceedings, as Avila-Santoyo asserts, the
BIA’s comments regarding its reasoning for dismissing his appeal would not
amount to “legal” or “constitutional reasoning” so as to confer jurisdiction in this
case.
II. CONCLUSION
Although the BIA erred in finding the IJ lacked jurisdiction under the
departure bar in 8 C.F.R. § 1003.23(b)(1) to reopen Avila-Santoyo’s removal
proceedings, the BIA did not abuse its discretion in finding, in the alternative, that
Avila-Santoyo’s motion to reopen was due to be dismissed because it was
untimely and not subject to equitable tolling. We dismiss for lack of jurisdiction
any argument concerning the BIA’s refusal to exercise its sua sponte authority.
Accordingly, we deny in part, and dismiss in part, the petition for review.
PETITION DENIED IN PART AND DISMISSED IN PART.
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