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Ask Not for Whom the Filing Period Tolls: It Tolls for Thee

By Robyn Hagan Cain on November 09, 2012 | Last updated on March 21, 2019

An alien may only file one motion to reopen, and must do so no later than 90 days after the final order of removal. The Board of Immigration Appeals (BIA) takes that restriction pretty seriously.

Technically, there's an exception to the one-and-done filing rule: The time and number limitations on motions to reopen do not apply if the motion is based upon changed country conditions. To qualify, the alien must demonstrate that conditions within the relevant country have changed.

A change in personal circumstances alone is not enough to allow an otherwise untimely and successive motion to reopen, as today's Eleventh Circuit petitioner learned.

Darwin Gilberto Ruiz-Turcios was ordered removed after an 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.

Most recently, Ruiz-Turcios filed a counseled motion to reopen with the BIA, in which he raised two arguments.

First, he asserted that his original attorney was ineffective, and that the 90-day filing period for a motion to reopen should be equitably tolled because of his attorney's ineffective assistance.

Second, he argued that his proceeding should be reopened because the conditions regarding gang violence have grown worse in Honduras.

The problem with Ruiz-Turcios' third motion? It was his third motion to reopen. The BIA denied his motion on both grounds.

Ruiz-Turcios told the Eleventh Circuit that he had demonstrated changed country conditions sufficient to warrant reopening of his asylum and withholding of removal application. Specifically, he relied 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 appellate court denied his petition because he failed to demonstrate changed circumstances. The court noted that the 2004 and 2005 versions of the report -- which Ruiz-Turcios relied on in his original hearing -- documented the same problems as his current motion. While it agreed that his sister's murder was tragic, the court opined that the type of violence was consistent with the evidence he submitted at his original hearing.

When arguing changed circumstances to support a successive motion to reopen, keep in mind that personal tragedy doesn't fall within a recognized category of change.

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