Darwin Gilberto Ruiz-Turcios v. U.S. Attorney General
717 F.3d 847
| 11th Cir. | 2013Background
- Ruiz-Turcios, a Honduran national, petitions for review of BIA denial of his third motion to reopen based on ineffective assistance of counsel.
- Statutory framework: 90-day filing deadline and a one-motion-to-reopen limit under 8 U.S.C. §1229a(c)(7)(A),(C)(i); 8 C.F.R. §1003.2(c)(2).
- He sought equitable tolling of both time and number limitations due to alleged ineffective assistance during removal proceedings and on appeal.
- BIA denied reopening relying on circuit precedent that the 90-day deadline is mandatory and not tollable (Abdi v. U.S. Att’y Gen.).
- En banc Avila-Santoyo held the 90-day deadline is a non-jurisdictional claim-processing rule tollable by equity; the court remanded to determine whether the one-motion rule is similarly tollable and undecided.
- This court vacated its prior Ruiz-Turcios opinion and substituted this decision, directing remand so BIA can address the jurisdictional question and tolling before merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the 90-day reopening deadline tollable? | Ruiz-Turcios contends tolling applies per Avila-Santoyo. | BIA adheres to Abdi, treating the deadline as mandatory and non-tollable. | 90-day deadline is non-jurisdictional and tollable. |
| Is the one-motion-to-reopen limit tollable? | One-motion rule should be non-jurisdictional and tollable like the 90-day deadline. | BIA did not address tolling for the one-motion limit; unresolved question. | Remand to decide whether the one-motion rule is non-jurisdictional and tollable. |
| What is the proper tolling framework before addressing Lozada/ineffective assistance? | Equitable tolling could allow consideration of merits if tolling applies. | Tolling requires threshold determinations before addressing substantive claims. | Threshold equitable tolling analysis applies; remand for BIA to determine tolling and then merits if warranted. |
| Should the Lozada denial rule be reviewed for adequacy of reasoning on remand? | BIA’s Lozada ruling was conclusory and insufficiently explained. | Not clearly argued; review limited by deferential standard. | vacate Lozada ruling and remand for fuller factual finding and explanation. |
Key Cases Cited
- Abdi v. U.S. Att’y Gen., 430 F.3d 1148 (11th Cir. 2005) (deadline deemed mandatory and non-tollable (before Avila-Santoyo))
- Pace v. DiGuglielmo, 544 U.S. 408 (Supreme Court 2005) (equitable tolling requires diligence and extraordinary circumstances)
- Henderson v. Shinseki, 131 S. Ct. 1197 (S. Ct. 2011) (statutory provisions may be regulatory constraints without jurisdictional consequence)
- I.N.S. v. Orlando Ventura, 537 U.S. 12 (S. Ct. 2002) (generally remand for agency decision when statute places matter in agency hands)
- Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (nothing in statute indicates jurisdictional consequence for timing limits)