Requirement of Diligence for Equitable Tolling and Strict Application of the INA One-Motion Rule: Portillo-Bautista v. U.S. Attorney General

Introduction

Juana María Portillo‐Bautista, a native and citizen of El Salvador, appealed the denial by the Board of Immigration Appeals (BIA) of her motion to reopen and motion to reconsider. The underlying removal order stemmed from her entry without inspection in July 2011 and subsequent asylum and cancellation applications. In October 2021, after the Supreme Court’s decision in Niz-Chavez v. Garland clarified the “stop-time” rule under INA § 1229b(d)(1), Portillo-Bautista moved to reopen based on newly accrued eligibility for cancellation of removal. The BIA denied relief as untimely, not equitably tolled, and number-barred under the INA’s one-motion rule. This Eleventh Circuit decision affirms those rulings and establishes that (1) a petitioner abandons an equitable tolling claim by failing to contest the due diligence requirement, and (2) new evidence attached to a motion to reconsider may constitute a number-barred second motion to reopen.

Summary of the Judgment

The Eleventh Circuit denied Portillo-Bautista’s petition for review in full. It held:

1. She abandoned any challenge to the BIA’s finding that she failed to exercise due diligence, a prerequisite for equitable tolling of the 90-day deadline to file a motion to reopen under INA § 1229a(c)(7)(C)(i).
2. The additional evidence submitted with her motion to reconsider was properly treated as a second motion to reopen, which is barred by the statute’s one-motion limit (INA § 1229a(c)(7)(A)).

Consequently, her untimely reopening request was neither tolled nor admissible, and her petition was denied.

Analysis

Precedents Cited

• Niz-Chavez v. Garland (593 U.S. 155, 2021): Held that only a single, fully detailed Notice to Appear triggers the “stop-time” rule for cancellation of removal under INA § 1229b(d)(1). Portillo-Bautista argued this decision meant her initial NTA never triggered the stop-time rule.
• Ruiz-Turcios v. U.S. Attorney General (717 F.3d 847, 11th Cir. 2013): Set forth the two-part test for equitable tolling—due diligence and extraordinary circumstances.
• Lapaix v. U.S. Attorney General (605 F.3d 1138, 11th Cir. 2010): Established that failure to brief an issue on appeal constitutes abandonment of that argument.
• Sapuppo v. Allstate Floridian Insurance Co. (739 F.3d 678, 11th Cir. 2014): Reinforced that unaddressed arguments are abandoned.
• Ferreira v. U.S. Attorney General (714 F.3d 1240, 11th Cir. 2013) and Zhang v. U.S. Attorney General (572 F.3d 1316, 11th Cir. 2009): Confirmed standard of review and scope of abuse of discretion for motions to reopen and reconsider.

Legal Reasoning

1. Equitable Tolling Requirement: INA § 1229a(c)(7)(C)(i) imposes a 90-day deadline to file a motion to reopen. Equitable tolling under Ruiz-Turcios demands proof of (a) diligent pursuit of rights and (b) extraordinary circumstances beyond the petitioner’s control. Although Portillo-Bautista argued that Niz-Chavez was an extraordinary circumstance, she never contested the BIA’s finding that she lacked due diligence. Under Lapaix and Sapuppo, failure to challenge that predicate finding means the issue is abandoned, precluding tolling.

2. One-Motion Rule: INA § 1229a(c)(7)(A) permits only one motion to reopen. Portillo-Bautista’s motion to reconsider introduced new evidence (country reports, articles on gang‐related persecution) which the BIA properly treated as a second motion to reopen. She did not argue on appeal that the ruling was erroneous, abandoning that claim as well.

Impact

This decision reinforces strict adherence to procedural requirements in immigration proceedings:

• Plaintiffs must expressly challenge each component of the BIA’s factual and legal findings to preserve arguments on appeal.
• The one-motion rule is applied rigorously; new evidence cannot be shoehorned into a motion to reconsider to evade statutory limits on reopening.
• Practitioners must raise due diligence arguments explicitly when seeking equitable tolling, or those arguments will be deemed waived.

Complex Concepts Simplified

• Equitable Tolling: A judge may pause (“toll”) a deadline if a party (1) diligently pursued rights and (2) faced extraordinary obstacles. Both factors are mandatory.
• Stop-Time Rule: Under INA § 1229b(d)(1), a noncitizen’s continuous presence (for cancellation eligibility) ceases to accrue once served a valid NTA.
• One-Motion Rule: INA § 1229a(c)(7)(A) allows only one reopening request. Any additional request—disguised as a reconsideration—will be barred.
• Abandonment on Appeal: Failing to argue or challenge a point means it is forfeited and cannot be raised later.

Conclusion

Portillo-Bautista v. U.S. Attorney General clarifies that petitioners in removal proceedings must (1) explicitly contest each BIA finding to avoid abandonment, (2) satisfy both due diligence and extraordinary circumstances for equitable tolling, and (3) respect the INA’s strict one-motion limit for reopening. This decision underlines the importance of procedural vigilance and precise advocacy in immigration litigation.