Rigoberto Avila-Santoyo v. U.S. Attorney General
487 F. App'x 478
11th Cir.2012Background
- Avila-Santoyo, a Mexican citizen, was removed by IJ March 13, 2009 under a stipulated removal and waiver of a removal hearing.
- He filed an emergency motion July 19, 2011 to rescind the removal order and reopen removal proceedings.
- The BIA dismissed the appeal, addressing multiple theories including a departure-bar issue and timeliness.
- Avila-Santoyo argued the departure bar under 8 C.F.R. § 1003.2(d) conflicted with the statutory right to one motion to reopen under 8 U.S.C. § 1229a(c)(7)(A).
- The court held the departure-bar error existed but was not dispositive because the BIA had an alternate ground to deny; moreover, the motion was untimely and not equitably tolled.
- The court also addressed sua sponte reopening, concluding it lacked jurisdiction to review the BIA’s sua sponte denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Departure bar vs. statutory right to reopen | Lin conflict—departure bar improperly restricts reopening. | BIA's alternate ground supported denial; departure-bar error harmless. | Departure-bar error acknowledged; petition denied on alternative ground |
| Timeliness of motion to reopen | Motion timely under tolling or other equitable principles. | Motion filed well beyond 90-day limit; untimely and not tolled. | Motion untimely; not subject to equitable tolling |
| Sua sponte reopening jurisdiction | Court has jurisdiction to review BIA sua sponte denial on due process grounds. | No meaningful standard to review BIA's sua sponte discretion; no jurisdiction. | Lacks jurisdiction to review sua sponte denial |
Key Cases Cited
- Lin v. U.S. Att’y Gen., 681 F.3d 1236 (11th Cir. 2012) (departure bar conflicts with statutory right to one motion to reopen)
- Abdi v. U.S. Att’y Gen., 430 F.3d 1148 (11th Cir. 2005) (equitable tolling not allowed for mandatory 90-day period)
- Lenis v. U.S. Att’y Gen., 525 F.3d 1291 (11th Cir. 2008) (no meaningful standard to judge BIA sua sponte discretion)
- Zhang v. U.S. Att’y Gen., 572 F.3d 1316 (11th Cir. 2009) (review of denial of motion to reopen for abuse of discretion)