Eleventh Circuit Holds Motions to Reopen Removal Proceedings are Subject to Equitable Tolling

In its recent decision in Avila-Santoyo v. Holder, — F.3d. —, No. 11-14941 (11th Cir. 2013) (en banc), the Eleventh Circuit overturned precedent holding that the 90-day filing requirement for motions to reopen is subject to equitable tolling. Equitable tolling is an exception to time limitations that, for those eligible, allows the clock to be temporarily stopped. In its prior ruling in Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005), the Court had ruled that the filing deadline was “mandatory and jurisdictional,” meaning that the 90-day time period was to be strictly enforced, and thus the clock could not be stopped. For those immigrants in Florida and the rest of the Eleventh Circuit who were subject to the 90-day filing requirement, the rigid enforcement of the time limitation presented significant hardship when failure to file was due to reasons beyond the immigrant’s control.

The decision to overturn Abdi was based on several Supreme Court decisions rendered since Abdi. The Court ruled first that the deadline for motions to reopen is a “non-jurisdictional claim-processing rule” based on a line of Supreme Court cases holding that rules should not be referred to as jurisdictional unless they govern a court’s subject-matter or personal jurisdiction; rules relating to statutes of limitations and other time periods are instead claim-processing rules, which have more flexibility. Secondly, the Supreme Court held in another line of cases that limitations statutes can ordinarily be read to contain an implied equitable tolling exception. The Eleventh Circuit held that this, coupled with the fact that courts can reopen removal proceedings on their own outside of the time frame indicated that the motion to reopen deadline contained an implied equitable tolling exception.

The Avila-Santoyo decision brings the Eleventh Circuit in line with the seven other circuits that have addressed this issue.