             Case: 12-11503    Date Filed: 11/08/2012   Page: 1 of 5

                                                                       [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                          ________________________

                                No. 12-11503
                            Non-Argument Calendar
                          ________________________

                           Agency No. A097-310-428



DARWIN GILBERTO RUIZ-TURCIOS,

                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________
                               (November 8, 2012)

Before BARKETT, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Darwin Gilberto Ruiz-Turcios, a native of Honduras, petitions for review of

the Board of Immigration Appeals’s (“BIA”) decision denying his motion to
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reopen his removal proceedings. Ruiz-Turcios was ordered removed after the

Immigration Judge (“IJ”) determined that he did not meet the requirements for

asylum, withholding of removal, or relief under the Convention Against Torture

based on his claim that he has been persecuted by the street gangs in Honduras on

account of his religious and political beliefs. He filed a pro se appeal to the BIA,

which was denied. He subsequently filed two pro se motions for reconsideration

and two pro se motions to reopen, which were all denied by the BIA.

      He most recently filed a counseled motion to reopen with the BIA on

November 23, 2011, in which he raised two arguments in favor of reopening.

First, he asserted that his original attorney provided him ineffective assistance in

connection with his removal proceedings and that because of his attorney’s

ineffective assistance the 90-day filing period for a motion to reopen should be

equitably tolled. Second, he argued that his proceeding should be reopened

because the conditions regarding gang violence have gotten worse in Honduras.

The BIA denied his motion to reopen on both grounds.

      We review the BIA’s 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). Review is limited to determining whether the BIA exercised its discretion

in an arbitrary or capricious manner. Id. An alien may only file one motion to

reopen, and must do so no later than 90 days after the final order of removal. 8


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U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). As to Ruiz-Turcios’s

request for reopening based on his prior counsel’s ineffective assistance, the BIA

concluded that based on our Court’s decision in Abdi v. U.S. Att’y Gen., 430 F.3d

1148, 1150 (11th Cir. 2005), the 90-day limit for motions to reopen is “mandatory

and jurisdictional” and not subject to equitable tolling even where a claim for

ineffective assistance of counsel has been raised. Although Ruiz-Turcios argues

that the language of Abdi is merely dicta, we cannot say that the BIA abused its

discretion in denying reopening based on our decision in Abdi, whether the

pertinent language is dicta or Abdi’s holding. 1

1
        We note that Ruiz-Turcios is not the first petitioner to question whether Abdi is binding
precedent on the question of whether the 90-day time limitation for filing motions to reopen is
not subject to equitable tolling. See Tambi v. U.S. Att’y. Gen., 458 Fed. Appx. 800, 803 n.4 (11th
Cir. 2012). Likewise, another panel of this Court has characterized Abdi as dicta, albeit in an
unpublished decision. See Pereira v. U.S. Att’y. Gen., 258 Fed. Appx. 277, 279 (11th Cir. 2007).
Moreover, five of our sister circuits disagree with Abdi’s characterization of the 90-day time
limitation as jurisdictional and instead have held that it is akin to statutes of limitations, and
therefore, subject to equitable tolling. Id. at 279 n.4 (citing to the decisions of the Second, Third,
Seventh, Ninth and Tenth circuits).

         The Supreme Court’s recent decision in Holland v. Florida, 130 S. Ct. 2549, 2560–61
(2010), in which the Court held that the statutory limitations period under 28 U.S.C. § 2244 for
filing federal habeas corpus claims is subject to equitable tolling, raises significant doubts that
Abdi’s conclusion is correct. The Court in Holland noted that the statutory filing deadline for
federal habeas claims is not jurisdictional because “[i]t does not set forth an inflexible rule
requiring dismissal whenever its clock has run.” 130 S. Ct at 2560 (internal quotation marks
omitted). The Court also reiterated the well-established principle that “a nonjurisdictional
federal statute of limitations is normally subject to a rebuttable presumption in favor of equitable
tolling.” Id. (citing Young v. United States, 535 U.S. 43, 49 (2002) and Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990)). Here, we see nothing in the statute governing motions
to reopen that demonstrates that Congress intended the 90-day limitation to be “an inflexible rule
requiring dismissal.” Holland, 130 S. Ct. at 2560. See also Arbaugh v. Y&H Corp., 546 U.S.
500, 516 (2006) (“[W]hen Congress does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as nonjurisdictional in character.”).


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      The time and number limitations on motions to reopen, however, do not

apply where the motion is based upon changed country conditions arising in the

alien’s country of nationality or within the country to which removal is ordered.

Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009); 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The alien must demonstrate that

conditions within the relevant country have changed, as a change in personal

circumstances alone will not suffice to allow an otherwise untimely and successive

motion to reopen. See Zhang, 572 F.3d at 1319.

      Ruiz-Turcios argues that he has demonstrated changed country conditions

sufficient to warrant reopening of his asylum and withholding of removal

application. Specifically, he relies on the recent murder of his sister and the 2009

Department of State Country Report on Human Rights for Honduras, which states

that there are problems with extrajudicial killings and politically-related violence.

The 2004 and 2005 versions of the report, which Ruiz-Turcios relied on in his

original hearing, documented the same problems. Moreover, the murder of his

sister is tragically consistent with the evidence of violence that he submitted at his

original hearing. Because he has failed to demonstrate changed circumstances in

gang violence in Honduras since he filed his previous motion to reopen, the BIA

did not abuse its discretion in denying his motion. Accordingly, we deny his

petition.


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PETITION DENIED.




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