Cases & Deals

Non-citizen prevails before Eleventh Circuit in important immigration case

Client(s) Santoyo, Rigoberto Avila

Jones Day obtained a significant en banc Eleventh Circuit decision on behalf of a Mexican non-citizen holding that the deadline for reopening immigration proceedings is subject to equitable tolling. On April 12, 2013, the United States Court of Appeals for the Eleventh Circuit issued a unanimous decision for the full en banc court recognizing, for the first time, that the 90 day deadline for reopening immigration proceedings may be excused, or "equitably tolled," in cases of extraordinary circumstances.

Born in Mexico, Mr. Avila-Santoyo came to the United States with his parents at the age of two. He spent the next 16 years in the U.S., where he was raised and attended school. In 2008, he became the father of a United States citizen daughter. Four months later, he was arrested and detained by immigration officials in Florida. The officials encouraged Mr. Avila-Santoyo to sign a stipulated order of removal, which purported to waive his right to a hearing and appeal, in exchange for release from detention. An immigration judge approved the stipulation in absentia; Mr. Avila-Santoyo had been deported the day before.

Concerned for his daughter's safety and welfare, Mr. Avila-Santoyo returned to the United States more than a year later. After being arrested and charged with illegal reentry, he filed a petition to reopen his immigration proceedings. An immigration judge and the Board of Immigration Appeals (BIA) denied Mr. Avila-Santoyo's petition as untimely under the statutory 90 day period for reopening.

The decision by the Eleventh Circuit undoes those orders and gives Mr. Avila-Santoyo the opportunity to demonstrate that extraordinary circumstances justify an exception to the statutory deadline. The court of appeals' decision overrules prior circuit precedent that foreclosed the possibility of equitable tolling by treating the 90 day deadline as jurisdictional, and thus not subject to exceptions. Now, Mr. Avila-Santoyo and the many non-citizens like him who seek adjustment of their immigration status, may petition the immigration courts for review of their claims without the categorical bar of a jurisdictional deadline.

Rigoberto Avila-Santoyo v. U.S. Attorney General, No. 11-14941 (11th Cir.)