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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14941
Non-Argument Calendar
________________________
Agency No. A088-920-938
RIGOBERTO AVILA-SANTOYO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 12, 2013)
ON PETITION FOR REHEARING
Before DUBINA, Chief Judge, TJOFLAT, CARNES, BARKETT, HULL,
MARCUS, WILSON, PRYOR, MARTIN and JORDAN, Circuit Judges, and
BLACK,∗ Senior Circuit Judge.
∗
Senior Circuit Judge Susan H. Black elected to participate in this decision, pursuant to 28
U.S.C. § 46(c).
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PER CURIAM:
Rigoberto Avila-Santoyo, a native of Mexico, petitions for review of the
Board of Immigration Appeals’s (“BIA’s”) order dismissing his appeal from the
Immigration Judge’s (“IJ’s”) denial of his motion to reopen his removal
proceedings. The BIA dismissed his appeal, concluding that it lacked jurisdiction
under the departure bar 1 and, alternatively, that the motion was filed more than 90
days after Avila-Santoyo’s final order of removal and was not subject to equitable
tolling. Under the statutory provisions of the Immigration and Nationality Act
(“INA”) and its implementing regulations, an alien generally may file only one
motion to reopen, and must do so no later than 90 days after the final order of
removal. 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Avila-
Santoyo’s motion to reopen was filed after the 90-day deadline, but he sought
equitable tolling of the time limitation.
The BIA rejected his equitable tolling argument relying on our circuit
precedent in Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005), which
held that the 90-day deadline for filing a motion to reopen is “mandatory and
1
This Court held in Lin v. U.S. Att’y Gen., 681 F.3d 1236, 1241 (11th Cir. 2012), that
the regulatory provision known as the “departure bar,” which states that the BIA may not
entertain a motion to reopen filed on behalf of a person who has departed the United States,
impermissibly conflicts with the statutory right to file one motion to reopen. Accordingly, the
BIA erred in concluding that the IJ lacked jurisdiction to reopen the removal proceedings under
the departure bar at 8 C.F.R. § 1003.23(b)(1).
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jurisdictional, and, therefore, it is not subject to equitable tolling.” This court, in
an unpublished panel decision, Avila-Santoyo v. U.S. Att’y Gen., 487 F. App’x
478, 2012 WL 3530679 (11th Cir. 2012), affirmed the BIA’s determination on the
ground that the 90-day deadline is jurisdictional and not subject to equitable
tolling.
A majority of this Court has now voted to vacate the panel opinion in this
case, and after briefing by the parties and in accordance with current Supreme
Court precedent, we now hold that the 90-day deadline to file a motion to reopen
immigration removal proceedings is not jurisdictional, but rather is a claim-
processing rule subject to equitable tolling. Today’s holding is based on several
recent Supreme Court decisions rendered since the time we decided Abdi and
brings our Court in line with those of our sister circuits which have addressed this
same issue.
I. The 90-day deadline for a motion to reopen is a non-jurisdictional claim-
processing rule
In Abdi, we applied the reasoning from an earlier decision, Anin v. Reno,
188 F.3d 1273, 1278 (11th Cir. 1999), in which we held that the 180-day deadline
for a motion to reopen in absentia removal proceedings is jurisdictional and
mandatory and hence not subject to equitable tolling. In Anin, we noted that
“[c]ongressional filing deadlines are given a literal reading by federal courts,” id.
at 1278, and that according to the Supreme Court “filing deadlines, like statutes of
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limitations, necessarily operate harshly and arbitrarily with respect to persons who
fall just on the other side of them, but if the concept is to have any content, the
deadline must be enforced,” id. (quoting United States v. Locke, 471 U.S. 84, 101
(1985)).
However, the Supreme Court subsequently acknowledged “that the word
‘jurisdiction’ has been used by courts, including this Court, to convey many, too
many, meanings,” and that it “ha[s] cautioned, in recent decisions, against
profligate use of the term.” Union Pac. R.R. Co. v. Locomotive Eng’rs and
Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, —, 130 S. Ct.
584, 596 (2009) (internal quotation marks omitted); see also Sebelius v. Auburn
Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013); Arbaugh v. Y&H Corp., 546 U.S.
500, 510 (2006).
Attempting to clarify its meaning and to “bring some discipline to the use
of” the jurisdictional label, the Court has “urged that a rule should not be referred
to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its
subject-matter or personal jurisdiction.” Henderson v. Shinseki, 131 S. Ct. 1197,
1202–03 (2011) (citing Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, —, 130 S.
Ct. 1237, 1243–44 (2010); Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). The
Court has noted that courts “have more than occasionally used the term
‘jurisdictional’ to describe emphatic time prescriptions in rules of court” even
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where those rules “are claim-processing rules that do not delineate what cases . . .
courts are competent to adjudicate.” Kontrick, 540 U.S. at 454. The Court pointed
out that there is “a critical difference between a rule governing subject-matter
jurisdiction and an inflexible claim-processing rule.” Id. at 456. Specifically, “a
court’s subject-matter jurisdiction cannot be expanded to account for the parties’
litigation conduct; a claim-processing rule, on the other hand, even if unalterable
on a party’s application, can nonetheless be forfeited if the party asserting the rule
waits too long to raise the point.” Id. Thus, so-called “claim-processing rules,”
which “seek to promote the orderly progress of litigation by requiring that the
parties take certain procedural steps at certain specified times,” generally should
not be deemed jurisdictional. Henderson, 131 S. Ct. at 1203 (“[R]ules, even if
important and mandatory, we have said, should not be given the jurisdictional
brand.”); see also Arbaugh, 546 U.S. at 510 (“[W]e have clarified that time
prescriptions, however emphatic, are not properly typed jurisdictional.” (internal
quotation marks omitted)).
The Court has further explained that in trying to reduce the reckless use of
the jurisdictional label, it has “adopted a ‘readily administrable bright line’ for
determining whether to classify a statutory limitation as jurisdictional.” Auburn,
133 S. Ct. at 824 (citing Arbaugh, 546 U.S. at 516). The critical consideration in
resolving whether the “jurisdictional label” is appropriately attached to a particular
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procedural rule, is whether “there is any ‘clear’ indication that Congress wanted
the rule to be ‘jurisdictional.’” Henderson, 131 S. Ct. at 1203. “If the Legislature
clearly states that a threshold limitation on a statute’s scope shall count as
jurisdictional, then courts and litigants will be duly instructed and will not be left to
wrestle with the issue.” Arbaugh, 546 U.S. at 515–16. Such a clear indication of
Congressional intent is not, however, limited to “magic words.” Henderson, 131 S.
Ct. at 1203. “[C]ontext, including [the Supreme Court’s] interpretation of similar
provisions in many years past, is relevant to whether a statute ranks a requirement
as jurisdictional.” Reed Elsevier, 130 S. Ct. at 1248. Accordingly, the Supreme
Court has explained, “[w]hen a long line of this Court’s decisions left undisturbed
by Congress[] has treated a similar requirement as ‘jurisdictional,’ we will presume
that Congress intended to follow that course.” Henderson, 131 S. Ct. at 1203
(internal citation and quotation marks omitted). 2
In Henderson, the Court identified three factors as germane to whether
Congress intended courts to treat the 120-day deadline for seeking review of a
decision of the Board of Veterans’ Appeals in the Veterans Court as jurisdictional.
First, the Court looked at the plain language of the statute3 which set the 120-day
2
Cf. Bowles v. Russell, 551 U.S. 205, 209 n.2 (2007) (holding that a statutory deadline
for taking an appeal in a civil case is jurisdictional based, in part, on a “century’s worth of
precedent and practice in American courts”).
3
The relevant statute provided in pertinent part that “a person adversely affected by [a
final] decision [of the Veterans Board] shall file a notice of appeal with the [Veterans] Court
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deadline and noted that it did “not suggest, much less provide clear evidence, that
the provision was meant to carry jurisdictional consequences.” Id. at 1204. Next,
the Court considered the provision’s placement within the overall statute,
concluding that its location in the subchapter entitled “Procedure,” rather than in a
separate subchapter entitled “Organization and Jurisdiction,” suggested that
Congress viewed the 120-day limit as a claim-processing rule. Id. at 1205.
Finally, the Court considered the “characteristics of the review scheme” for the
adjudication of veterans’ benefits, which it noted was solicitous to veterans and
contained provisions that encouraged favorable review of a veteran’s claim. Id. at
1205–06. Accordingly, the Court concluded that it did “not find any clear
indication that the 120-day limit was intended to carry the harsh consequences that
accompany the jurisdiction tag.” Id. at 1206.
Here, when we apply these same principles to the 90-day deadline for filing
a motion to reopen, we conclude, as the government now also concedes, that this
procedural rule is a non-jurisdictional claim-processing rule. First, there is nothing
in the plain text of 8 U.S.C. § 1229a(c)(7)(C)(i) that gives any indication, “much
less provide[s] clear evidence, that the provision was meant to carry jurisdictional
consequences.” See Henderson, 131 S. Ct. at 1204. The statute, similar to the
statute at issue in Henderson, simply provides that “[e]xcept as provided in this
within 120 days after the date on which notice of the decision is mailed.” Henderson, 131 S. Ct.
at 1204.
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subparagraph, the motion to reopen shall be filed within 90 days of the date of
entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i).
The statute does not speak in terms of subject matter jurisdiction, i.e. “a tribunal’s
power to hear a case.” Union Pacific, 558 U.S. at —, 130 S. Ct. at 596 (internal
quotation marks omitted). Moreover, that the statute is written in mandatory terms
is of no moment as the Supreme Court has rejected the idea that “all mandatory
‘prescriptions, however emphatic, are . . . properly typed jurisdictional.’” Id.
(quoting Arbaugh, 546 U.S. at 510); see also Kontrick, 540 U.S. at 454 (explaining
that a time limitation may be emphatic without being jurisdictional).
Next, the placement of the 90-day time limitation within the INA supports
the conclusion that this statutory provision is a claim-processing rule and not
jurisdictional. Section 1229a(c)(7)(C)(i) is located within a section of the INA
entitled “Removal Proceedings,” which contains numerous other provisions
governing the conduct of the parties, burdens of proof, rights of the alien,
evidentiary considerations, and the form and location of the removal proceedings.
See generally 8 U.S.C. § 1229a. All of these surrounding provisions address the
various procedural and administrative aspects of a removal proceeding and
therefore leave us with no clear indication that Congress wanted the 90-day
deadline for filing a motion to reopen to be treated as anything other than a non-
jurisdictional claim-processing rule, i.e. one that “seek[s] to promote the orderly
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progress of litigation by requiring that the parties take certain procedural steps at
certain specified times.” Henderson, 131 S. Ct. at 1203.
Finally, when we consider this statutory provision within the review scheme
that Congress created for motions to reopen, we find that this rule is appropriately
viewed as not being jurisdictional. The 90-day deadline was originally
promulgated as a regulation upon the instruction of Congress to the Attorney
General to establish a time period for the filing of motions to reopen removal
proceedings. See Immigration Act of 1990, Pub. L. No. 101-649, § 545(d), 104
Stat. 4978, 5066 (1990). Prior to that time, there were no limitations, statutory or
regulatory, on the time frame for seeking reopening of removal proceedings. See
Iavorski v. INS, 232 F.3d 124, 130–31 (2d Cir. 2000); Socop-Gonzalez v. INS, 272
F.3d 1176, 1190 (9th Cir. 2001) (en banc). According to the Supreme Court, a
“principal purpose” of this change to the INA was to lessen the “problem of
successive and frivolous administrative appeals and motions.” Stone v. INS, 514
U.S. 386, 400 (1995).
When issuing the regulation governing the 90-day deadline, the Attorney
General also promulgated related regulations providing exceptions to the time
limitation for motions to reopen. For example, the BIA or the IJ is permitted to
reopen removal proceedings sua sponte at any time. See 8 C.F.R. §§ 1003.2(a),
1003.23(b)(1). Reopening is also permissible, notwithstanding the 90-day
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deadline, to apply or reapply for asylum based on changed country conditions or
upon a joint motion of all parties. See 8 C.F.R. § 1003.2(c)(3)(ii)–(iii); 8 C.F.R.
§1003.23(b)(4)(i), (b)(4)(iv). The time limitation also does not apply to a motion
filed by the government based upon an allegation of fraud in the original
proceeding. See 8 C.F.R. § 1003.2(c)(3)(iv). Finally, persons ordered removed in
absentia are permitted 180 days to seek reopening following the entry of the final
order of removal. See 8 C.F.R. § 1003.2(c)(3)(i). Each of these regulatory
exceptions to the 90-day deadline is indicative of a certain degree of flexibility that
is inherently inconsistent with the “jurisdictional label.” “[T]he flexibility with
which IJs and the BIA have applied these congressional restrictions on motions to
reopen confirms that they are not jurisdictional.” Iavorski, 232 F.3d at 132.
The current statutory provisions governing the reopening of removal
proceedings were originally codified with the passage of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996. In so doing, Congress merely
adopted the regulatory provisions that allow one motion to reopen and the 90-day
filing deadline as well as the exceptions pertaining to changed country conditions
for asylum applications and the 180-day deadline for persons ordered removed in
absentia. See 8 U.S.C. § 1229a(c)(7)(C)(i)–(iii). In addition, Congress has also
exempted battered spouses, children and parents from the 90-day filing deadline
requirement. See id. § 1229a(c)(7)(C)(iv). By adopting regulations which were
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created for the purpose of curbing filing abuses, Congress has endorsed a review
scheme for the filing of motions to reopen that is intended to “promote the orderly
progress of litigation by requiring that the parties take certain procedural steps at
certain specified times[,]” Henderson, 131 S. Ct. at 1203, but which does not speak
to the BIA’s subject matter jurisdiction.
For the foregoing reasons, we overrule our circuit precedent in Abdi, and
now hold that the 90-day time limit to file a motion to reopen under 8 U.S.C. §
1229a(c)(7)(C)(i) is not jurisdictional.4
II. The 90-day deadline for a motion to reopen is subject to equitable tolling
Having determined that the 90-day deadline to seek reopening is not
jurisdictional, we now turn to the question of whether it is subject to equitable
tolling. We first consider the text of 8 U.S.C. § 1229a(c)(7)(C)(i), which suggests
the statute is subject to equitable tolling. The Supreme Court has explained that
“[o]rdinarily limitations statutes use fairly simple language, which one can often
plausibly read as containing an implied ‘equitable tolling’ exception.” United
States v. Brockamp, 519 U.S. 347, 350 (1997) (noting, as an example of such a
4
Our reasoning is equally applicable to the related statutory provision regarding the 180-
day deadline to seek reopening of a removal proceeding in which an alien was ordered removed
in absentia. See 8 U.S.C. § 1229a(b)(5)(C)(i). In Anin, we held that the 180-day deadline for
reopening in absentia removal proceedings is “jurisdictional and mandatory” and therefore not
subject to equitable tolling. 188 F.3d at 1278. However, for all of the reasons underlying our
decision to overrule Abdi, we recognize that the rationale underlying our decision in Anin is no
longer viable as it, too, has effectively been abrogated by intervening Supreme Court precedent.
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statute, the statutory provision which requires employment discrimination suits to
be filed “[w]ithin 90 days of receipt of notice of final [EEOC] action”). Likewise
here, the statutory language which simply provides that “the motion to reopen shall
be filed within 90 days,” 8 U.S.C. § 1229a(c)(7)(C)(i), suggests that the provision
is subject to equitable tolling. Cf. Brockamp, 519 U.S. at 350–51 (holding that a
statutory limitation period in the tax code that was stated in an “unusually
emphatic” and “highly detailed technical manner,” and was reiterated “several
times in several different ways” was not subject to equitable tolling). The 90-day
deadline is not “unusually generous” to the parties, which suggests that the
deadline is subject to equitable tolling. See United States v. Beggerly, 524 U.S.
38, 49 (1998) (holding that an “unusually generous” 12-year statute of limitations
is not subject to equitable tolling). And the 90-day deadline is part of a statutory
scheme “in which laymen, unassisted by trained lawyers,” sometimes initiate the
process. See Auburn, 133 S. Ct. at 828.
Next, the regulations promulgated by the Attorney General confirm that this
deadline is subject to equitable tolling. Specifically, the Attorney General
established a regulatory exception that permits the BIA or the IJ to reopen removal
proceedings sua sponte at any time and for any reason. See 8 C.F.R. §§ 1003.2(a),
1003.23(b)(1). Indeed, when enacting this regulation, the Attorney General
rejected the suggestion of the public commentary for a “good cause” regulatory
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exception to the time limit as unnecessary. In so doing, the Attorney General
responded that the BIA’s sua sponte authority to reopen removal proceedings
accomplished the same goal as a “good cause” exception.
The Department does not agree with the commenters’ suggestions that
a “good cause exception” would be an appropriate procedural
mechanism for addressing exceptional cases that fall beyond this
rule’s time and number limitations. Instead, section 3.2(a) of the rule
provides a mechanism that allows the Board to reopen or reconsider
sua sponte and provides a procedural vehicle for the consideration of
cases with exceptional circumstances.
61 Fed. Reg. 18900-01, 18902 (April 29, 1996). The Attorney General envisioned
a regulatory regime in which the BIA or IJ may sua sponte reopen a removal
proceeding for “exceptional cases that fall beyond this rule’s time and number
limitations.”5 The Supreme Court has stated that the existence of regulations that
permit extensions of time for filing that are based on considerations of fairness to
claimants “support[s] [the] application of equitable tolling.” See Bowen v. City of
New York, 476 U.S. 467, 480 n.12 (1986).
Section 1229a(c)(7)(C)(i) is subject to equitable tolling even though the
statute contains enumerated exceptions to the 90-day filing deadline, including
exceptions for asylum applicants, persons ordered removed in absentia, and
5
Generally, equitable tolling requires a litigant to show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin, 498 U.S. at 96). We see no material
distinction between the “exceptional circumstances” in the INA regulations and the
“extraordinary circumstance” requirement for equitable tolling.
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battered spouses, children, and parents. The Supreme Court has explained that,
although a statute may contain provisions that permit tolling in certain
circumstances, the presence of these specific exceptions does not necessarily
negate the intent of Congress to permit equitable tolling of the limitations period.
See Holland v. Florida, 130 S. Ct. 2549, 2561–62 (2010) (holding that the one-year
limitations period for state prisoners to seek federal habeas relief is subject to
equitable tolling, despite that the limitations period contains a provision that
permits tolling in one circumstance and contains multiple provisions relating to the
events that trigger its running). In Brockamp, the Supreme Court held that a
provision of the tax code that set forth “very specific exceptions” to its basic time
limit indicated to the Court “that Congress did not intend courts to read other
unmentioned, open-ended, ‘equitable’ exceptions into the statute that it wrote.”
Brockamp, 519 U.S. at 352. But the provision in that case also used “highly
detailed” and “technical” language, “se[t] forth its time limitations in usually
emphatic form,” “reiterate[d] its limitations several times in several different
ways,” and concerned an “underlying subject matter,” tax collection, with respect
to which there would have been substantial practical consequences of permitting
tolling. Id. at 350–52. The 90-day limitations period under 8 U.S.C. §
1229a(c)(7)(C)(i) and its exceptions are not particularly detailed or technical, the
statute does not set forth its limitations period in unusually emphatic form or
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reiterate the limitations period several times in several different ways, and the
availability of equitable tolling in the context of motions to reopen removal orders
will not pose substantial practical consequences.
For all of these reasons, we agree with every other circuit to have addressed
this issue and found equitable tolling to be applicable. See Harchenko v. INS, 379
F.3d 405, 410 (6th Cir. 2004); Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002);
Socop-Gonzalez, 272 F.3d at 1190; Iavorski, 232 F.3d at 130. In addition, the
Third and Seventh Circuits, in addressing the 180-day deadline for seeking
reopening of an in absentia order of removal, have applied the same reasoning and
likewise held that this deadline is not jurisdictional and is subject to equitable
tolling. See Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005); Borges v.
Gonzales, 402 F.3d 398, 406 (3d Cir. 2005). The government, essentially in
passing, suggests that we not join the circuit precedent cited above, but rather,
permit the BIA to decide, in the first instance, whether this statutory provision is
subject to equitable tolling. 6 In light of the statute, the regulations, the cases and
the rationale cited above, we see no reason to do so.
6
In support of its position, the government relies on the Supreme Court’s recent decision
in Auburn, in which the Court held that the 180-day statutory time limit for a medical provider to
appeal a Medicare reimbursement determination to an administrative review board was not
jurisdictional but also not subject to equitable tolling. 133 S. Ct. 828–29. In so concluding, the
Court relied on the fact that the agency had promulgated an implementing regulation that
“allowed only a distinctly limited extension of time to appeal to the [review board].” Id. at 826.
The Court reasoned that equitable tolling of the statute “would essentially gut the Secretary’s
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Having concluded that the 90-day deadline for a motion to reopen is a non-
jurisdictional claim-processing rule subject to equitable tolling, we GRANT Avila-
Santoyo’s petition, VACATE the BIA’s order denying reopening, and REMAND
to the BIA to consider whether to grant Avila-Santoyo’s request for equitable
tolling.
PETITION GRANTED, VACATED and REMANDED.
requirement that an appeal to the Board ‘shall be dismissed’” unless it met the limited provisions
of the regulation. Id.
We do not find that Auburn requires the conclusion that equitable tolling is unavailable to
overcome the 90-day deadline to reopen immigration removal proceedings. Unlike the
regulation at issue in Auburn, the INA regulations governing reopening, including the several
exceptions as previously outlined herein, are not limited to a very discrete and time-limited
extension as is the regulation at issue in Auburn. Instead the Attorney General established
several and varied exceptions to the 90-day time limit, and thus, we cannot say that also allowing
for equitable tolling would “essentially gut” the regulatory scheme envisioned by the Attorney
General.
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