Avila-Santoyo v. U.S. Attorney Gen.

• Decision Date: 12 April 2013
• Docket Number: Non–Argument Calendar.,No. 11–14941,11–14941,n–Argument Calendar.
• Citation: 713 F.3d 1357
• Parties: Rigoberto AVILA–SANTOYO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

713 F.3d 1357

Rigoberto AVILA–SANTOYO, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 11–14941

Non–Argument Calendar.

United States Court of Appeals,Eleventh Circuit.

April 12, 2013.

Claudia Valenzuela Rivas, Nat. Imm. Justice Ctr., Brian Joseph Murray, Jones Day, Chicago, IL, Jason Todd Burnette, Jones Day, Atlanta, GA, for Petitioner.

Patrick James Glen, Jennifer Paisner Williams, David V. Bernal, Krystal Samuels, U.S. Dept. of Justice, OIL, Eric Holder, Jr., U.S. Atty. Gen.'s Office, Washington, DC, Michelle Ressler, Dist. Counsel's Office, Miami, FL, for Respondent.

Linton Joaquin, Karen Cassandra Tumlin, Nat. Imm. Law Ctr., Los Angeles, CA, for Amicus Curiae Nat. Imm. Law Ctr.

Petition for Review of a Decision of the Board of Immigration Appeals.

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.

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 bar¹ 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 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 Fed.Appx. 478 (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 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, 105 S.Ct. 1785, 85 L.Ed.2d 64 (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, 175 L.Ed.2d 428 (2009) (internal quotation marks omitted); see also Sebelius v. Auburn Reg'l Med. Ctr., ––– U.S. ––––, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013); Arbaugh v. Y&H Corp., 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (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, ––– U.S. ––––, 131 S.Ct. 1197, 1202–03, 179 L.Ed.2d 159 (2011) (citing Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 130 S.Ct. 1237, 1243–44, 176 L.Ed.2d 18 (2010); Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (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 where those rules “are claim-processing rules that do not delineate what cases ... courts are competent to adjudicate.” Kontrick, 540 U.S. at 454, 124 S.Ct. 906. 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, 124 S.Ct. 906. 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, 126 S.Ct. 1235 (“[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, 126 S.Ct. 1235). The critical consideration in resolving whether the “jurisdictional label” is appropriately attached to a particular 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, 126 S.Ct. 1235. 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 statute ³ which set the 120–day 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 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...