                    Case: 11-14941            Date Filed: 08/16/2012   Page: 1 of 6




                                                                           [DO NOT PUBLISH]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,

llllllllllllllllllllllllllllllllllllllll                                                Petitioner,

                                                    versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                              Respondent.

                                     ________________________

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

                                              (August 16, 2012)

Before BARKETT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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      Rigoberto Avila-Santoyo, a native and citizen of Mexico, appeals the Board

of Immigration Appeals’ (BIA’s) order dismissing his appeal from the

Immigration Judge’s (IJ’s) denial of his motion to reopen removal proceedings.

Avila-Santoyo was ordered removed pursuant to a stipulated order of removal on

March 13, 2009. On July 19, 2011, he filed an emergency motion to rescind his

removal order and reopen his removal proceedings. Avila-Santoyo asserts the

BIA erred in finding the IJ lacked jurisdiction under the departure bar to reopen

his removal proceedings, because the departure bar conflicts with an alien’s

statutory right to file one motion to reopen pursuant to 8 U.S.C. § 1229a(c)(7)(A).

He also argues the BIA abused its discretion in finding, in the alternative, that his

motion was untimely and not subject to equitable tolling. Finally, Avila-Santoyo

argues we have jurisdiction to review the BIA’s refusal to reopen the proceedings

sua sponte, and the BIA erred in refusing to exercise its discretion in this regard

because his stipulated order of removal and waiver of hearing was not knowing,

voluntary, and intelligent, in violation of his due process rights.

                                  I. DISCUSSION

A. Departure bar

      As an initial matter, this Court recently held that 8 C.F.R. § 1003.2(d), the

“departure bar” regulation stating the BIA may not entertain a motion to reopen

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filed by or on behalf of a person who has departed the United States,

impermissibly conflicts with an alien’s statutory right to file one motion to reopen

pursuant to 8 U.S.C. § 1229a(c)(7)(A). Lin v. U.S. Att’y Gen., 681 F.3d 1236,

1241 (11th Cir. 2012). Thus, based on Lin, the BIA erred in finding the IJ lacked

jurisdiction under the departure bar in 8 C.F.R. § 1003.23(b)(1) to reopen

Avila-Santoyo’s removal proceedings. Because the BIA correctly dismissed his

petition on an alternate ground, however, this error does not warrant granting

Avila-Santoyo’s petition.

B. The BIA’s decision that Avila-Santoyo’s motion to reopen was untimely

      Ordinarily, an alien who is subject to a final order of removal and wishes to

reopen the proceedings may file one motion to reopen. 8 U.S.C. § 1229a(c)(7)(A).

The time limitation for filing such a motion varies depending on the nature of the

proceeding the alien seeks to reopen. 8 U.S.C. § 1229a(c)(7)(C). Generally, a

motion to reopen must be filed within 90 days of the date of the final removal

order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1).

      Avila-Santoyo failed to meet the statutory requirements for filing a motion

to reopen. It is undisputed that Avila-Santoyo’s motion to reopen was not filed

within the 90-day time limit. That time limit runs for 90 days from the date of the

final administrative decision—in this case, from the IJ’s March 13, 2009, order of

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removal. Avila-Santoyo’s motion to reopen before the IJ was filed in July 2011,

well more than 90 days after the final removal order. Accordingly, the BIA did

not abuse its discretion1 in finding that Avila-Santoyo’s motion to reopen was due

to be dismissed as untimely.

       Furthermore, because Avila-Santoyo stipulated to his removal, he was not

removed pursuant to the in absentia process specifically set forth at 8 U.S.C.

§ 1229a(b)(5). Although he claims that his waiver of his right to a removal

hearing was not knowing and intelligent, such a claim, even if true, in no way

transforms his stipulated removal order into an in absentia removal order. Avila-

Santoyo could have raised this issue in a timely appeal to the BIA or a timely

motion to reopen or reconsider the IJ’s decision. He did not. The fact that he

chose not to appeal the allegedly invalid removal order and waiver, or to move to

reopen removal proceedings, does not mean that he may now argue that he was

removed in absentia such that his untimely motion to reopen is excused.

       Finally, because the 90-day period for filing a motion to reopen before the

BIA “is mandatory and jurisdictional, and, therefore, is not subject to equitable

tolling,” the BIA did not abuse its discretion in finding that Avila-Santoyo’s



       1
          We review the denial of a motion to reopen removal proceedings for an abuse of
discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).

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untimely motion to reopen was not subject to equitable tolling. Abdi v. U.S. Att’y

Gen., 430 F.3d 1148, 1150 (11th Cir. 2005).

C. The BIA’s refusal to reopen proceedings sua sponte

      We lack jurisdiction to review the BIA’s denial of a motion to reopen based

on its sua sponte authority because 8 C.F.R. § 1003.2(a) provides no meaningful

standard against which to judge the BIA’s exercise of its discretion. See Lenis v.

U.S. Att’y Gen., 525 F.3d 1291, 1292-94 (11th Cir. 2008). Therefore, we lack

jurisdiction to review the BIA’s denial of Avila-Santoyo’s motion to reopen based

on its sua sponte authority pursuant to 8 C.F.R. § 1003.2(a). See id.

      Although we noted in Lenis, that “an appellate court may have jurisdiction

over constitutional claims related to the BIA’s decision not to exercise its sua

sponte power,” contrary to Avila-Santoyo’s assertion, the BIA’s comments

regarding its reasoning for declining to exercise its sua sponte power to consider

his appeal do not amount to “legal” or “constitutional reasoning” so as to arguably

confer jurisdiction in this case. Lenis, 525 F.3d at 1294 n.7. Avila-Santoyo

asserts the BIA decided his due process claim on the merits, based on the BIA’s

statement that it disagreed with Avila-Santoyo’s claim that it would be “extremely

unfair” to hold him to the stipulated order of removal. This statement, however,




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merely explained the BIA’s determination that Avila-Santoyo had not

demonstrated any exceptional circumstances warranting sua sponte reopening.

Therefore, even assuming that the Lenis rationale has no application to the legal

and constitutional reasoning underlying the BIA’s refusal to exercise its sua

sponte authority to reopen removal proceedings, as Avila-Santoyo asserts, the

BIA’s comments regarding its reasoning for dismissing his appeal would not

amount to “legal” or “constitutional reasoning” so as to confer jurisdiction in this

case.

                                 II. CONCLUSION

        Although the BIA erred in finding the IJ lacked jurisdiction under the

departure bar in 8 C.F.R. § 1003.23(b)(1) to reopen Avila-Santoyo’s removal

proceedings, the BIA did not abuse its discretion in finding, in the alternative, that

Avila-Santoyo’s motion to reopen was due to be dismissed because it was

untimely and not subject to equitable tolling. We dismiss for lack of jurisdiction

any argument concerning the BIA’s refusal to exercise its sua sponte authority.

Accordingly, we deny in part, and dismiss in part, the petition for review.

        PETITION DENIED IN PART AND DISMISSED IN PART.




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