E.E.V. and M.C.C.-G. v. TODD W. BLANCHE , Acting Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 25-2256 & 25-2268
E.E.V. and M.C.C.-G.,
Petitioners,
v.
T ODD W. BLANCHE ,
Acting Attorney General of the United States,
Respondent.
____________________
On Petitions for Review of Orders of the
Department of Homeland Security.
Nos. A000-000-000 & A000-000-000.
____________________
A RGUED A PRIL 15, 2026 — D ECIDED J ULY 6, 2026
____________________
Before BRENNAN, Chief Judge, and HAMILTON and KOLAR ,
Circuit Judges.
HAMILTON , Circuit Judge. Federal law prohibits removal of
a noncitizen from the United States to a country where he or
she will be persecuted because of a protected ground or sub-
jected to torture. In most circumstances, agency denials of
such relief are subject to judicial review.

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2 Nos. 25-2256 & 25-2268
We consider here the federal government’s motions to dis-
miss petitions for review brought by noncitizens who seek
withholding of removal or relief under the Convention
Against Torture (CAT). Petitioners E.E.V. and M.C.C.-G. are
two of a larger group of noncitizens who seek judicial review
of removal orders because they fear persecution and torture if
they are removed. Before the Supreme Court decided Riley v.
Bondi, 606 U.S. 259 (2025), binding circuit precedent required
petitioners like E.E.V. and M.C.C.-B. to wait to file their peti-
tions for judicial review until all their administrative proceed-
ings had concluded. E.g., F.J.A.P. v. Garland, 94 F.4th 620, 628–
29 (7th Cir. 2024); see 8 U.S.C. § 1252(b)(9) (so-called “zipper
clause” consolidating review of all questions of law and fact
arising from removal proceedings). The Court held in Riley
that the statutory thirty-day deadline to seek judicial review
in such cases runs from the date of a final administrative re-
moval order even though a noncitizen’s requests for with-
holding of removal and CAT relief may still be pending. Un-
less the Riley treatment of that deadline is subject to equitable
tolling, these petitions for review were filed too late.
The government has moved to dismiss these petitions as
untimely. It has also raised new jurisdictional arguments that
seek more broadly to block judicial review of many nonciti-
zens’ requests for withholding of removal or CAT relief. We
reject the government’s attempts to limit such judicial review,
both as applied to these petitioners and more broadly. We in-
stead follow the path mapped out in Riley itself and find these
petitioners are entitled to equitable tolling of the thirty-day
deadline. We deny these motions to dismiss.

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Nos. 25-2256 & 25-2268 3
I. Factual and Procedural Background
A. Withholding-Only Relief
The government may not remove involuntarily a nonciti-
zen from the United States to a country: (1) where her “life or
freedom” would be threatened due to her race, religion, na-
tionality, membership in a particular social group, or political
opinion; or (2) where it is more likely than not that she would
be subjected to torture. The first is a statutory prohibition
known as “withholding of removal” or sometimes “statutory
withholding of removal.” 8 U.S.C. § 1231(b)(3)(A); see 8 C.F.R.
§§ 208.1(a)(1), 208.16(a) (terminology). The second is an inter-
national treaty obligation under the Convention Against Tor-
ture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, often referred to as “CAT relief.” Dec. 10, 1984,
Senate Treaty Doc. No. 100-20, 1465 U.N.T.S. 85; see also Au-
guste v. Ridge, 395 F.3d 123, 130–34 (3d Cir. 2005) (discussing
ratification and congressional reservations); 8 C.F.R. § 208.18
(implementing regulations). With five narrow exceptions,
nearly all noncitizens present in the United States are eligible
to seek these forms of relief. Foreign Affairs Reform and Re-
structuring Act of 1998 (FARRA), § 2242(c), Pub. L. No. 105-
277, 112 Stat. 2681–822, citing 8 U.S.C. § 1231(b)(3). Because
“removal from the United States is not at issue” in such pro-
ceedings—only the country where a noncitizen may be sent is
at issue—these limits are forms of “withholding-onlyʺ relief.
Riley, 606 U.S. at 263.1
A noncitizen may seek withholding-only relief during re-
moval proceedings before an immigration judge and the
1 Asylum is not a form of withholding-only relief. Johnson v. Guzman
Chavez, 594 U.S. 523, 536–37 (2021).

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4 Nos. 25-2256 & 25-2268
Board of Immigration Appeals. However, not all noncitizens
go through such plenary removal proceedings. Three alterna-
tive removal processes are implicated in these petitions for ju-
dicial review. First, the Department of Homeland Security
may issue an “expedited removal order” to a noncitizen who
lacks valid entry documents and cannot demonstrate contin-
uous physical presence in the United States for the past two
years. 8 U.S.C. § 1225(b)(1)(A); 8 C.F.R. § 235.3(b)(7) (terminol-
ogy). Second, the agency may issue a “final administrative re-
moval order” (sometimes known as a “FARO”) to a nonciti-
zen convicted of an “aggravated felony.” 8 U.S.C. § 1228(b); 8
C.F.R. § 238.1(b)(2)(i) (terminology). Third, the agency may
“reinstate” a prior order of removal against a noncitizen who
was previously removed and who then illegally reenters the
country. 8 U.S.C. § 1231(a)(5). Expedited removal orders, final
administrative removal orders, and reinstatement orders may
not be reviewed by an immigration judge or appealed to the
Board. 8 U.S.C. §§ 1225(b)(1)(C), 1231(a)(5); 8 U.S.C.
§ 1228(b)(3) (challenge to a FARO goes straight to court of ap-
peals without review by immigration judge or Board).2
Nonetheless, noncitizens subject to these orders are still
entitled to seek withholding-only relief. A noncitizen subject
to a final administrative removal order or reinstatement order
who expresses fear of returning to the country of removal will
2 There is one limited exception: when a person subject to expedited
removal claims to have status as a lawful permanent resident, refugee, or
asylee, or claims to be a United States citizen, and the immigration officer
cannot verify that claim, the officer will issue the expedited removal order
and refer the person to an immigration judge for review of that claim (and
not any other issues). If the person proves his or her claim, the expedited
removal order is vacated. The immigration judge’s decision cannot be ap-
pealed to the Board. See 8 C.F.R. § 235.3(b)(5).

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Nos. 25-2256 & 25-2268 5
be interviewed by an asylum officer to determine if the noncit-
izen has a “reasonable fear” of persecution or torture, mean-
ing a reasonable possibility exists that he will be persecuted
on the basis of a protected ground or tortured in the country
of removal. 8 C.F.R. § 208.31(b)–(c).
If the asylum officer makes a positive determination, the
noncitizen is referred to an immigration judge for withhold-
ing-only proceedings. § 208.31(e). If the officer makes a nega-
tive determination, the noncitizen may have that determina-
tion reviewed by an immigration judge based on the record
before the asylum officer. § 208.31(g); § 1208.31(g) (2020). If
the immigration judge upholds the negative determination,
that decision may not be appealed to the Board. The immigra-
tion judge may also vacate the negative determination and
place the noncitizen in withholding-only proceedings in
which the final decision may be appealed to the Board.
§ 1208.31(g)(1)–(2) (2020).3
For an expedited removal order, the process is slightly dif-
ferent. A noncitizen who asserts a fear of persecution or tor-
ture in the country of removal will be interviewed by an asy-
lum officer to determine if the noncitizen has a “credible fear”
of persecution or torture, meaning there is a “significant pos-
sibility” the noncitizen is eligible for withholding of removal
or CAT protection. 8 C.F.R. § 208.30(b), (e)(2)–(3). If the officer
makes a positive determination, the noncitizen will be re-
ferred to an immigration judge for withholding-only proceed-
ings (or for plenary removal proceedings), and again the final
3 See Pangea Legal Services v. U.S. Dep’t of Homeland Security, 512 F.
Supp. 3d 966 (N.D. Cal. 2021) (enjoining amendment to rule).

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6 Nos. 25-2256 & 25-2268
decision may be appealed to the Board. § 208.30(f); Grace v.
Barr, 965 F.3d 883, 887–88 (D.C. Cir. 2020).4
A negative determination must be reviewed by a supervi-
sory asylum officer, and if the supervisor concurs with the of-
ficer, the noncitizen may have the determination reviewed by
an immigration judge, who must provide the noncitizen with
an opportunity to be heard and questioned. § 208.30(g)(1). If
the immigration judge concludes that the noncitizen lacks a
credible fear of persecution or torture, the noncitizen cannot
appeal to the Board. § 1208.30(g)(2)(iv)(A).
Critical to this case, any “final order of removal” other
than an expedited removal order is subject to judicial review
in the court of appeals through a petition for review. 8 U.S.C.
§ 1252(a)(1)–(2). The term “final order of removal” is not de-
fined in the United States Code, although the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(IIRIRA) provides that “any reference in law to an order of
removal shall be deemed to include a reference to an order of
exclusion and deportation or an order of deportation.”
§ 309(d)(2), Pub. L. No. 104-208, 110 Stat. 3009–627. An “order
of deportation” means an order “concluding that the alien is
deportable or ordering deportation.” 8 U.S.C.
§ 1101(a)(47)(A). The “zipper clause” consolidates judicial re-
view of all questions of law and fact arising out of removal
proceedings into a single judicial proceeding through a peti-
tion for review of a final order of removal. § 1252(b)(9) (“Judi-
4 A noncitizen subject to an expedited removal order may apply for
asylum, 8 U.S.C. § 1225(b)(1)(A)(ii), unlike someone subject to a final ad-
ministrative removal order or reinstatement order, §§ 1228(b)(5),
1231(a)(5). Upon a positive credible-fear determination, the asylum officer
may retain jurisdiction over the asylum claim. 8 C.F.R. § 208.30(f).

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Nos. 25-2256 & 25-2268 7
cial review of all questions of law and fact, including interpre-
tation and application of constitutional and statutory provi-
sions, arising from any action taken or proceeding brought to
remove an alien from the United States under this subchapter
shall be available only in judicial review of a final order under
this section.”).
The motions to dismiss we consider here are based on the
statutory deadline for filing a petition for review: “The peti-
tion for review must be filed not later than 30 days after the
date of the final order of removal.” 8 U.S.C. § 1252(b)(1). Until
recently, every court of appeals, including this court, held that
the clock for that deadline started upon the conclusion of
withholding-only proceedings. F.J.A.P. v. Garland, 94 F.4th
620, 628–29 (7th Cir. 2024) (collecting cases and noting Second
and Fourth Circuits had recently departed from this view), ab-
rogated by Riley v. Bondi, 606 U.S. 259.
The Supreme Court held last year in Riley v. Bondi, how-
ever, that because a final administrative removal order may
not be appealed within the agency—which is also true of a
reinstatement order—it becomes final and starts the clock for
the thirty-day deadline upon issuance even if withholding
proceedings remain pending. 606 U.S. 259, 266–67, 272 (2025)
(“withholding-only proceedings do not disturb the finality of
an otherwise final order of removal”). The Court recognized
the “legitimate practical concerns” posed by needing to file a
petition for review before withholding-only proceedings con-
clude. Id. at 272. The solution to that problem, the Court
wrote, is for the government to “alert the court of appeals to
the pendency of a withholding-only proceeding so that re-
view there can wait until that issue is decided.” Id.

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8 Nos. 25-2256 & 25-2268
The Riley Court also held that the thirty-day deadline is
not a jurisdictional bar. Id. at 277. That conclusion is important
because “[a] litigant’s failure to comply with a jurisdictional
bar deprives a court of all authority to hear a case, regardless
of waiver or equitable considerations.” Id. at 273, quoting 33
Wright & Miller, Federal Practice & Procedure § 8316, p. 50
(2018). The Court concluded: “In sum, we hold that § 1252’s
30-day filing rule is not jurisdictional, but because the Gov-
ernment does not wish to press that ground for dismissal, it
does not preclude this case from proceeding on remand.” Ri-
ley, 606 U.S. at 277. An opinion dissenting in part noted that
in such cases, equitable tolling is “likely available now that
the Court has recognized that § 1252(b)(1)’s appeal deadline
is not jurisdictional.” Id. at 302–03 (Sotomayor, J., dissenting
in part).
B. These Petitions for Review
Shortly after the Supreme Court decided Riley on June 26,
2025, this court received over a dozen petitions for review
from noncitizens whose orders of removal had been final for
more than thirty days when Riley was decided, but whose
withholding-only proceedings were still pending or whose
negative credible-fear determinations were pending before
immigration judges. Unlike in Riley itself, however, the gov-
ernment has moved to dismiss or deny each of these petitions
as untimely. Because the government and each petitioner
raised substantially similar arguments in each motion, we di-
rected the parties to identify suitable lead cases for briefing
and argument on the common issues presented in these mo-
tions. After receiving their selections, we consolidated these

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Nos. 25-2256 & 25-2268 9
two petitions for briefing and argument on the motions to dis-
miss.5
E.E.V. is a citizen of El Salvador. She entered the United
States unlawfully and was removed to El Salvador under an
expedited removal order issued in March 2007 and executed
two months later. Years later, in August 2015, Border Patrol
agents apprehended her after she reentered the United States
near Rio Grande City, Texas. The agency issued a reinstate-
ment order the next day in McAllen, Texas. At some later time,
E.E.V. expressed fear of returning to El Salvador. An asylum
officer conducted a reasonable-fear interview in February
2017. The officer determined that E.E.V. showed a reasonable
fear of persecution or torture in El Salvador and referred her
to an immigration judge for withholding-only proceedings.
Her proceedings began in Chicago and were later reassigned
to another immigration judge in Indianapolis, where they re-
main pending as of this decision. E.E.V. filed her petition for
review on July 24, 2025, less than thirty days after the Su-
preme Court issued its decision in Riley.
M.C.C.-G. is a citizen of Mexico who entered the United
States on an unknown date. In November 2018, she was con-
victed of theft in a municipal court in Goshen, Indiana, and
given a suspended sentence of 365 days in custody. She was
later detained by immigration officials after a traffic stop. The
agency notified her of its intent to issue a final administrative
5 The other petitions for review presenting common issues identified
at the time were Nos. 25-2226, 25-2227, 25-2238, 25-2239, 25-2257, 25-2258,
25-2265, 25-2266, 25-2267, 25-2273, 25-2274, 25-2281, and 25-2282. This
court later granted the petitioner’s unopposed motion for voluntary dis-
missal in No. 25-2266. See Fed. R. App. P. 42(b). At this time, we are also
aware that similar issues may be presented in Nos. 25-2301 and 25-2453.

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10 Nos. 25-2256 & 25-2268
removal order on May 11, 2025, and issued it the next day. She
expressed fear of returning to Mexico, but an asylum officer
found that she did not have a reasonable fear of persecution
or torture. She requested review of that determination by an
immigration judge. That request was still pending when she
filed her petition for review on July 26, 2025, also within thirty
days after Riley was issued. On August 7, 2025, the immigra-
tion judge vacated the negative reasonable-fear determination
and placed her in withholding-only proceedings. Those pro-
ceedings were before an immigration judge during the brief-
ing of these motions, but the judge later denied relief on De-
cember 8, 2025. She appealed to the Board, where her pro-
ceedings remain pending as of this decision.
II. Jurisdictional Challenges
Before we turn to the equitable tolling issues at the center
of these cases, we must address two new arguments challeng-
ing this court’s jurisdiction. The first challenge—raised for the
first time in the government’s reply brief—is that a reinstate-
ment order is not subject to judicial review because it is not a
final order of removal. That argument asks us to overrule
binding precedents in this circuit and is contrary to prece-
dents in all other circuits as well. If we were to adopt the gov-
ernment’s position, we would foreclose judicial review of
questions of law and fact arising from reinstatement orders,
including entitlement to CAT protection and even claims of
mistaken identity and United States citizenship. The second
challenge, that these petitions were filed too early, is irrecon-
cilable with the government’s primary position—that they
were filed too late—and runs counter to the course charted in
Riley itself for placeholder petitions for review like these. We
reject both jurisdictional challenges.

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Nos. 25-2256 & 25-2268 11
A. Reviewability of Reinstatement Orders
This court has consistently concluded that a reinstatement
order is a final order of removal subject to judicial review un-
der 8 U.S.C. § 1252. E.g., Velazquez-Olais v. Blanche, 172 F.4th
536, 538 (7th Cir. 2026); F.J.A.P., 94 F.4th at 633; Villa v. Barr,
924 F.3d 370, 373 (7th Cir. 2019); Torres-Tristan v. Holder, 656
F.3d 653, 656 (7th Cir. 2011); Lemos v. Holder, 636 F.3d 365, 366
(7th Cir. 2011). Though the dissenting opinion calls these con-
clusions “‘drive-by’ jurisdictional statements,” neither that
opinion nor the government has identified any precedential
decision from any circuit holding otherwise. See post at 53.
And while Riley abrogated some of the analysis in F.J.A.P., the
Court said nothing about reinstatement orders. That’s not
surprising because Riley did not involve a reinstatement order
in the first place.
Judicial review of a reinstatement order is limited to the
reinstatement order itself. Villa, 924 F.3d at 372–73. To issue a
reinstatement order, an immigration official must make three
determinations: (1) the identity of the noncitizen; (2) that the
noncitizen was removed or departed voluntarily under a
prior order of removal; and (3) that the noncitizen unlawfully
reentered the United States. Id. at 373, citing 8 C.F.R.
§ 241.8(a). Those three determinations, not the validity of the
original order of removal that is “reinstated,” are what may
be reviewed. See id.
Although judicial review of a reinstatement order is nar-
row, the zipper clause both allows and requires a petition for
judicial review of a final order of removal to raise a peti-
tioner’s challenges to the denial of withholding-only relief.
See F.J.A.P., 94 F.4th at 635 (“Section 1252(b)(9)’s zipper clause
consolidates our review of withholding proceedings with our

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12 Nos. 25-2256 & 25-2268
review of final orders of removal; it does not limit that re-
view.”); see also id. at 641 (opinion of Brennan, J.) (“With a
final order of removal, we can review all questions of law and
fact … arising from any action taken or proceeding brought
to remove [the] alien from the United States.”) (internal quo-
tation marks omitted and alterations in original).6
The government argues now that a reinstatement order is
not a final order of removal. If that position were accepted,
courts of appeals would lack jurisdiction to consider through
a petition for review any questions of law and fact arising
from a reinstatement order. There would be no judicial review
of whether the government has the right person, whether the
person is likely to be subjected to torture, whether the person
reentered the country illegally, and even whether the person
subject to the order is or is not actually a United States citizen
with a constitutional right to remain in the United States.
We do not overrule circuit precedent without a “compel-
ling reason,” such as statutory changes or intervening Su-
preme Court decisions that have undermined our prior case
law. United States v. Betts, 99 F.4th 1048, 1055–56 (7th Cir.
2024), quoting Wilson v. Cook County, 937 F.3d 1028, 1035 (7th
6 Although prior precedents of this court characterized § 1252(b)(9) as
a limit and not a grant of jurisdiction, they did so in the context of peti-
tioners arguing that the zipper clause overrides other unambiguous juris-
dictional limits in § 1252. See Leyva v. Ashcroft, 380 F.3d 303, 307 (7th Cir.
2004). This court has since emphasized the “strong presumption favoring
judicial review of administrative action.” F.J.A.P., 94 F.4th at 633, quoting
Salinas v. United States Railroad Retirement Bd., 592 U.S. 188, 197 (2021). Ac-
cordingly, “[t]o the extent there is ambiguity in the meaning of” the phrase
“shall be available only in judicial review of a final order” in § 1252(b)(9),
“it must be resolved in [petitioners’] favor.” See Salinas, 592 U.S. at 197.

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Nos. 25-2256 & 25-2268 13
Cir. 2019) (per curiam). Three cases warrant discussion here:
Nasrallah v. Barr, 590 U.S. 573 (2020), Johnson v. Guzman
Chavez, 594 U.S. 523 (2021), and Riley. None provides a sound
reason, let alone a compelling one, to overrule circuit prece-
dent and restrict judicial review in such cases.
Nasrallah did not undermine this court’s precedents. The
“narrow” question presented in Nasrallah was whether the so-
called “criminal alien bar” stripping the courts of appeals of
jurisdiction to review factual challenges, but not legal or con-
stitutional challenges, to a final order of removal for a noncit-
izen convicted of certain criminal offenses extends to the de-
nial of CAT relief. The Court’s answer hinged on analysis that
is not relevant here. 590 U.S. at 576; see 8 U.S.C.
§ 1252(a)(2)(C); F.J.A.P., 94 F.4th at 627 (terminology). The
Court concluded that it does not, for two reasons. “A CAT or-
der is not itself a final order of removal because it is not an
order ‘concluding that the alien is deportable or ordering de-
portation.’” 590 U.S. at 582, quoting 8 U.S.C. § 1101(a)(47)(A).
It also does not “merge into” a final order of removal since it
does not “affect the validity” of the removal order, as the
noncitizen still may be removed to a different country. Id.
Nasrallah itself recognized the narrow scope of its “merge
into” analysis when it wrote that “FARRA and
§ 1252(b)(9) simply establish that a CAT order may be re-
viewed together with the final order of removal, not that a
CAT order is the same as, or affects the validity of, a final or-
der of removal.” Id. at 583. In other words, whether an order
merges into a final order of removal for purposes of the crim-
inal alien bar is a distinct question from whether it is subject
to judicial review through a petition for review of a final order
of removal.

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14 Nos. 25-2256 & 25-2268
Guzman Chavez also did not undermine circuit precedent.
There, the Court discussed two immigration detention provi-
sions not relevant to these petitions. 594 U.S. at 526, 533, citing
8 U.S.C. §§ 1226(a), 1231(a)(1)(A)–(B), (2). As both the majority
and the separate opinion in F.J.A.P. recognized, the Court ex-
pressly left open in a footnote whether a reinstatement order
is a final order of removal and noted that § 1252 “uses differ-
ent language than § 1231 and relates to judicial review of re-
moval orders rather than detention.” Id. at 535 n.6, cited in
F.J.A.P., 94 F.4th at 632 (majority), 643–44 (Brennan, J.).
Further, in F.J.A.P., which was decided in 2024, after
Nasrallah and Guzman Chavez, we reaffirmed that a reinstate-
ment order is a final order of removal subject to (limited) ju-
dicial review. 94 F.4th at 633. A separate opinion questioned
that holding and drew particular attention to Nasrallah and
Guzman Chavez, so we are confident the majority did not
simply overlook this issue. See id. at 643–44 (Brennan, J.). The
separate opinion noted that “caution counsels against” over-
ruling precedent and wrote: “So, as does the majority opinion,
I conclude that a reinstatement decision is a final order of re-
moval subject to judicial review under § 1252(b)(9).” Id. at 644
(Brennan, J.).
That leaves only Riley as a possible candidate for overrul-
ing circuit precedent. But Riley clearly supports our prece-
dents on the reviewability of reinstatement orders. In con-
cluding that a denial of withholding-only relief is not a final
order of removal, the Court wrote as follows on the definition
of the term “order of removal”:
While the Immigration and Nationality Act
does not define the term “order of removal,”
any statutory reference to “an order of removal”

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Nos. 25-2256 & 25-2268 15
is “deemed to include a reference to … an order
of deportation.” Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, §
309(d)(2), 110 Stat. 3009–627. An “order of de-
portation,” in turn, is defined as an order “con-
cluding that the alien is deportable or ordering
deportation.” 8 U.S.C. § 1101(a)(47)(A). So an
“order of removal” must have those same char-
acteristics.
We must therefore identify which order con-
cluded that Riley is “deportable” and com-
manded his deportation, and it is clear that the
qualifying order is the FARO issued by DHS on
January 26, 2021. That order held that Riley was
deportable and directed that he be removed
from the United States.
Id. at 267. The Court had already used § 1101(a)(47)(A) to de-
fine the term “order of removal” in Nasrallah. 590 U.S. at 579.
Riley, if anything, expanded the definition of “order of re-
moval” to encompass not only an “order of deportation” as
defined in the statute but also an order with the “same char-
acteristics.”7
Notably, Riley used the terms “removable” and “re-
moved” interchangeably with “deportable” and “deported.”
Compare id. at 264 (“If the immigration officer finds that the
alien is removable … the officer issues a FARO specifying the
country to which the alien must be deported.”) (emphasis
7 The withholding-only relief at issue in Riley was “deferral of re-
moval,” which is temporary relief available to a noncitizen categorically
ineligible for permanent CAT relief. 606 U.S. at 265; 8 C.F.R. § 1208.17(a).

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16 Nos. 25-2256 & 25-2268
added), with id. at 267 (“[The FARO] held that Riley was de-
portable and directed that he be removed from the United
States.”) (emphasis added). That choice is consistent with the
“statute-wide change in terminology” made by IIRIRA. Cal-
cano-Martinez v. INS, 533 U.S. 348, 350 n.1 (2001); see also Per-
alta-Cabrera v. Gonzales, 501 F.3d 837, 839 n.1 (7th Cir. 2007)
(“[O]ne of the many changes made was the substitution of the
term ‘deportation’ with ‘removal.’”).8
On its face, E.E.V.’s reinstatement order fits that definition.
It is an “order” that declares: “In accordance with [8 U.S.C.
§ 1231(a)(5)], you are removable as an alien who has illegally
reentered the United States after having been previously re-
moved or departed voluntarily while under an order of exclu-
sion, deportation or removal and are therefore subject to re-
moval by reinstatement of the prior order.” (Emphasis
added). The next sentence of the order informs E.E.V. how she
can “contest this determination.” (Emphasis added). Her rein-
statement order is therefore a “final order of removal” under
the definition given in Riley. See Laureano v. Attorney General,
177 F.4th 453, 457 (3d Cir. 2026) (“[T]he reinstatement order
… itself operates to remove [petitioner] from the United
States, meeting the definition of a final order of removal.”),
citing Riley, 606 U.S. at 267. After all, E.E.V. cannot again be
removed under her original expedited removal order without
that order being reinstated. “Once an order has been exe-
cuted, it cannot be re-executed.” Velazquez-Olais, 172 F.4th at
538.
8 We do not suggest that the different terminology may never be im-
portant, just that it did not matter in Riley and does not matter here.

-- 16 of 65 --

Nos. 25-2256 & 25-2268 17
The dissenting opinion contends otherwise: “Reinstate-
ment orders are not defibrillators. I am aware of no statute or
case stating that original removal orders are defunct until
given life by reinstatement orders.” See post at 55. That is es-
sentially what happens, though. A noncitizen who is removed
and reenters the country is not removable through reinstate-
ment unless and until an immigration officer determines that
she reentered illegally. See 8 U.S.C. § 1231(a)(5). If a nonciti-
zen reenters the country legally—for example, with the con-
sent of the Attorney General, see Mendoza v. Sessions, 891 F.3d
672, 679–80 (7th Cir. 2018) and §§ 1182(a)(9)(A)(iii), 1326(a)—
then the prior order of removal remains defunct.
There is nothing unusual about our exercising jurisdiction
over reinstatement orders. Even the government acknowl-
edges that “the courts of appeals have unanimously exercised
jurisdiction over petitions for review of reinstatement or-
ders.” Respondent’s Reply Br. at 3. Indeed. See Arevalo v. Ash-
croft, 344 F.3d 1, 9 (1st Cir. 2003); Garcia-Villeda v. Mukasey, 531
F.3d 141, 150 (2d Cir. 2008); Laureano, 177 F.4th at 457; Tomas-
Ramos v. Garland, 24 F.4th 973, 980 & n.3 (4th Cir. 2022) (treat-
ing negative reasonable-fear determination as relevant re-
moval order); Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014);
Moreno-Martinez v. Barr, 932 F.3d 461, 463 (6th Cir. 2019); Lara-
Nieto v. Barr, 945 F.3d 1054, 1059 (8th Cir. 2019); Ruiz v. Bondi,
172 F.4th 673, 676 (9th Cir. 2026); Arostegui-Maldonado v. Gar-
land, 75 F.4th 1132, 1139–40 (10th Cir. 2023); Avila v. U.S. At-
torney General, 560 F.3d 1281, 1284 (11th Cir. 2009). 9
9 Some of these cases included explicit or implicit holdings on the tim-
ing of judicial review that were abrogated by Riley.

-- 17 of 65 --

18 Nos. 25-2256 & 25-2268
Against this weight of authority, the government and the
dissenting opinion suggest there is a recent trend challenging
that conclusion. Each one of the cited authorities either agreed
with our holding, did not squarely decide the issue, was not
a majority opinion, is no longer in force, or some combination
of the four. See F.J.A.P., 94 F.4th at 644 (Brennan, J.); Martinez
v. Garland, 86 F.4th 561, 568 & n.4 (4th Cir. 2023) (“[W]e leave
that question for another day.”), vacated and remanded, 145 S.
Ct. 2836 (2025) (in light of Riley); Ruiz-Perez v. Garland, 49 F.4th
972, 976 (5th Cir. 2022) (“But today is not the day.”); Bhak-
tibhai-Patel v. Garland, 32 F.4th 180, 195 (2d Cir. 2022) (“[W]e
recognize that an illegal reentrant may obtain judicial review
of DHS’s decision to reinstate a prior order of removal ….”),
abrogated in part on other grounds by Riley, 606 U.S. 259; Vega-
Anguiano v. Barr, 982 F.3d 542, 559 (9th Cir. 2019), as amended
(2020) (Bennett, J., dissenting from denial of rehearing en
banc) (“An alien subject to reinstatement may petition for ju-
dicial review of the reinstatement order.”); Arostegui-Maldo-
nado, 75 F.4th at 1149 (Tymkovich, J., concurring) (“[L]ike
most circuits, we treat the reinstatement order as the func-
tional equivalent of an order of removal and therefore retain
jurisdiction to review it.”); Laureano, 177 F.4th at 472–73
(Matey, J., dissenting).10
Under the government’s and the dissenting opinion’s the-
ory, a reinstatement order is not subject to any judicial review
through a petition for review, including even a challenge
based on citizenship. That jurisdictional prohibition would
apply equally to a petition for review that is indisputably
timely. If the government were correct on this point, then a
10 The Fifth Circuit is currently considering this question. See Martinez
v. Blanche, No. 25-60400 (5th Cir. Mar. 2, 2026), Dkt. No. 70.

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Nos. 25-2256 & 25-2268 19
United States citizen wrongfully deported in the past and sub-
sequently detained by immigration authorities might lack any
way to vindicate in federal court his constitutional right to re-
main in the United States.
After all, immigration statutes limit the availability of the
writ of habeas corpus, the historical mechanism for United
States citizens to assert so-called “nationality claims,” in favor
of consolidating such questions into a single petition for re-
view in the court of appeals. 8 U.S.C. § 1252(a)(2), (4)–(5),
(b)(9); cf. United States v. Wong Kim Ark, 169 U.S. 649, 653, 696,
705 (1898) (affirming grant of habeas relief to birthright citizen
wrongfully refused reentry to United States), citing Quock
Ting v. United States, 140 U.S. 417 (1891). Notably, for an expe-
dited removal order, which is the only kind of removal order
excluded from the petition for review procedure, judicial re-
view of a nationality claim is available through habeas corpus.
§ 1252(e)(2). Not so for a reinstatement order, though. Nor
may a person in removal proceedings or one ordered re-
moved seek a declaratory judgment of citizenship in a district
court. § 1503(a). Indeed, the statutory provision authorizing
the court of appeals to decide a nationality claim on the plead-
ings or to transfer it to a district court for factual development
presupposes the existence of a “petitioner” who “may have
such nationality claim decided only as provided in this para-
graph,” meaning through a petition for review of a final order
of removal. § 1252(b)(5).
Wrongful deportation of United States citizens is not
merely a “hypothetical” concern with “vanishingly small”
odds, as the dissenting opinion asserts. See post at 56. Case
reports show that the government has on several occasions
sought to deport citizens through reinstatement and rejected

-- 19 of 65 --

20 Nos. 25-2256 & 25-2268
their nationality claims at every stage until a court stepped in
on a petition for review. See Iracheta v. Holder, 730 F.3d 419,
421–22, 427 (5th Cir. 2013) (granting United States citizen’s pe-
tition for review challenging reinstatement of a removal or-
der); Minasyan v. Gonzales, 401 F.3d 1069, 1072–74, 1080 (9th
Cir. 2005) (same); Garza-Flores v. Mayorkas, 38 F.4th 440, 443,
446 (5th Cir. 2022) (ordering hearing on nationality claim on
petition for review from reinstatement order); Batista v. Ash-
croft, 270 F.3d 8, 10–12, 17 (1st Cir. 2001) (habeas corpus peti-
tion challenging reinstatement order transferred from district
court for treatment as petition for review; ordering hearing on
nationality claim). In Gastelum Chavez v. Barr, the government
pursued reinstatement against a person who had already
been acquitted of illegal reentry after presenting a citizenship
defense. 773 F. App’x 427, 427–28 (9th Cir. 2019) (non-prece-
dential) (affirming district court’s citizenship finding).
In other words, the government’s new jurisdictional argu-
ment asserts a power for the executive branch to banish, with-
out any access to judicial review, wrongfully deported United
States citizens who return to this country. See Duarte-Ceri v.
Holder, 630 F.3d 83, 89 (2d Cir. 2010) (“The most precious right
of citizenship is at stake. The stakes are indeed high and mo-
mentous, for deportation is a drastic measure and at times the
equivalent of banishment or exile.”) (cleaned up), quoting
first Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 (1963),
then Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947), and then
Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). In fact, if not even
a person’s identity or the existence of the prior order of re-
moval were subject to judicial review, then the government’s
jurisdictional theory would allow the executive to banish an-
yone. We are concerned not merely with clerical errors that
the “safeguards” identified by the dissent might sometimes—

-- 20 of 65 --

Nos. 25-2256 & 25-2268 21
but not always—catch. See post at 56. Indeed, various govern-
ments across the world have sought ways to select at will the
“right” people to ship off to the “right” places.11 Such breath-
taking power for the executive branch in the United States
would fly in the face of both the constitutional allocation of
authority between the branches of government and the mean-
ing of United States citizenship. See Trump v. Barbara, 609 U.S.
—, —, 146 S. Ct.—, —, No. 25-365, slip op. at 26 (U.S. June 30,
2026) (“Citizenship, then and now, was the right to have
rights—to freely participate in our political community. The
Framers of the Fourteenth Amendment extended that prom-
ise to ‘every free-born person in this land.’ We keep that
promise today.”) (citation omitted).
We would not easily be persuaded that Congress has im-
plicitly granted the government that power, if it even could
grant such a power. Nothing in Riley or any other Supreme
Court decision convinces us to overrule circuit precedent to
do so. We conclude once again that a reinstatement order is a
final order of removal.
B. Ripeness
The government’s next jurisdictional argument makes a
U-turn, saying these petitions for review should be dismissed
as not yet ripe. That argument asks us to reject the path
charted in Riley itself for dealing with the new practical real-
ity, after Riley, that a petition for review will almost always
11 See Dareh Gregorian et al., El Salvador’s President Says He Won’t Re-
turn Mistakenly Deported Man to U.S., NBC News (Apr. 14, 2025),
https://www.nbcnews.com/politics/trump-administration/president-el-
salvador-wont-return-deported-man-kilmar-abrego-garcia-rcna201136.

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22 Nos. 25-2256 & 25-2268
need to be filed before withholding-only proceedings have
finished:
The Government’s final submission concerns
the practical problems that it fears will arise if a
removal order becomes final before the issue of
withholding-only relief is decided. The Govern-
ment worries that aliens like Riley who wish
only to contest removal to their native country
will not file a petition for review until their re-
quest for withholding of removal to that desti-
nation is denied. And if an alien files a petition
for review before the question of withholding-
only relief is settled, the Government fears that
the proceeding in the court of appeals may be
wrapped up before the BIA denies withholding-
only relief, and the alien may thus be deprived
of any judicial review of that denial.
606 U.S. at 271–72. The Court then offered a solution to this
procedural dilemma posed by its holding:
In a case like this, the Government can inform
aliens of the need to file a petition within 30
days after the issuance of a FARO, and it can
alert the court of appeals to the pendency of a with-
holding-only proceeding so that review there can
wait until that issue is decided.
606 U.S. at 272 (emphasis added). That is, Riley itself recog-
nized and provided a solution for the problem that the gov-
ernment now claims defeats this court’s jurisdiction: hold the
petitions pending until withholding-only proceedings con-

-- 22 of 65 --

Nos. 25-2256 & 25-2268 23
clude. So, these petitions are not unripe simply because with-
holding-only proceedings remain ongoing.
The government’s fallback position, as we understand it,
is that these petitions are unripe because withholding-only
proceedings have not concluded and these petitioners have
not (yet) raised substantive challenges to their final orders of
removal, meaning at present there is nothing for this court to
decide. This argument fails for three independent reasons.
First, even if the government were correct that a challenge
to the final order of removal is required, these petitioners may
well have one. These petitions are not yet at the merits stage.
Petitioners have not yet been required to lay out the argu-
ments they intend to pursue. Counsel indicated in the briefing
and again at oral argument that either or both petitioners may
challenge their final orders of removal. The government offers
no reason not to credit those assertions.
Second, and more fundamental, we are considering here
the government’s motions to dismiss these petitions because
they were supposedly filed too late—the opposite of unripe.
The government’s self-contradictory arguments signal that
something is seriously amiss with the government’s theories.
Its position amounts to “a heads I win, tails you lose, propo-
sition, which the law would be unlikely to countenance.”
McCann v. Hy-Vee, Inc., 663 F.3d 926, 931 (7th Cir. 2011) (also
concerning timing for bringing court action).
Third, nothing in Riley suggested that its approval of
placeholder petitions for review depended on the petitioner
challenging the final order of removal itself. Riley himself
“did not contest his removal from the United States”—that is,
“it was undisputed that Riley had been convicted of an aggra-

-- 23 of 65 --

24 Nos. 25-2256 & 25-2268
vated felony”—“but he resisted return to Jamaica under the
[CAT].” 606 U.S. at 264. While addressing the “practical prob-
lems” posed by removal orders becoming final before with-
holding-only proceedings conclude, the Court offered a path
forward for noncitizens “like Riley who wish only to contest
removal to their native country.” Id. at 271 (emphasis added).
And then the Court remanded for further proceedings. Id. at
277. Whether these statements amount to an implicit holding
or not, we cannot distinguish Riley based on a factor present
in Riley itself. As the Third Circuit wrote in Laureano, “the Su-
preme Court [in Riley] had no doubt that courts of appeals
have jurisdiction to review withholding-only rulings inde-
pendent of any substantive review of final orders of removal.”
177 F.4th at 458 (footnote omitted).12
The government relies on two cases in support of its posi-
tion. Neither provides persuasive support. In Navarrete v.
12 The concurrence in Riley does not help the government either. Jus-
tice Thomas observed that “Riley has never petitioned for judicial review
of a final order of removal” because he petitioned from the Board’s CAT
denial. 606 U.S. at 280 (Thomas, J., concurring). Riley’s action was con-
sistent with a line of cases in the Fourth Circuit, where his case arose, treat-
ing the denial of withholding-only relief as itself the final order of re-
moval, rather than as the step that makes a removal order become final. See
Martinez, 86 F.4th at 568 (“[O]ur Court has considered the ruling at the last
available stage of agency review to be ‘the agency’s “final order” for pur-
poses of judicial review.’”), quoting Tomas-Ramos, 24 F.4th at 980 n.3.
As the concurrence in Riley noted, “Congress has specified that federal
courts of appeals lack jurisdiction to review CAT orders ‘except as part of
the review of a final order of removal.’” 606 U.S. at 278 (Thomas, J., con-
curring), quoting FARRA, § 2242(d), 112 Stat. 2681–822. But the concur-
rence never suggested that “review of a final order of removal” requires a
substantive challenge to that order of removal on top of a challenge to the
denial of withholding-only relief.

-- 24 of 65 --

Nos. 25-2256 & 25-2268 25
Bondi, the petitioner incorrectly filed a petition for review
from a negative reasonable-fear determination, not the rein-
statement order under which he was to be removed. 170 F.4th
1214, 1219 (9th Cir. 2026). Then he sought the court’s leave to
amend his petition to raise a “nominal” challenge to his re-
moval order, which the court denied as futile. Id. at 1224. We
do not disagree with the outcome of Navarrete. Riley clearly
requires a would-be petitioner to file a petition for review of
a final order of removal, not from the denial of withholding-
only relief. By contrast, the petitioners before us properly filed
their petitions for review from their final orders of removal.
Insofar as certain statements in Navarrete could be read to
require a challenge to a final order of removal in order to se-
cure judicial review of withholding-only relief in all circum-
stances—a position adopted by the other case the government
cites, Hayles v. U.S. Attorney General, ___ F.4th ___, 2026 WL
1782580 (11th Cir. 2026)—that analysis rests on shaky ground.
To start, the petitioner in Riley itself raised no such challenge,
and at least this court and the Ninth and Eleventh Circuits
have exercised jurisdiction over petitions challenging only the
denial of withholding-only relief. See F.J.A.P., 94 F.4th at 624–
25; De Leon v. Garland, 51 F.4th 992, 998, 1008 (9th Cir. 2022);
Rodriguez v. U.S. Attorney General, 735 F.3d 1302, 1305 (11th
Cir. 2013). 13
Some language in Navarrete seems, with respect, to go
astray insofar as it overreads the conclusion in Nasrallah that
a denial of CAT relief “does not affect the validity of the final
13 Navarrete did not suggest that a substantive challenge to removability
is required, a proposition squarely foreclosed by Monsalvo v. Bondi, 604
U.S. 712, 722 (2025). See 170 F.4th at 1223.

-- 25 of 65 --

26 Nos. 25-2256 & 25-2268
order of removal and therefore does not merge into the final
order of removal.” 170 F.4th at 1221, quoting 590 U.S. at 582.
“Merger” and “validity” are not the relevant questions under
the zipper clause, as we explained above. A claim of entitle-
ment to CAT relief presents “questions of law and fact … aris-
ing from” removal proceedings, which both Navarrete and
Hayles acknowledged. 170 F.4th at 1220; ___ F.4th at ___, 2026
WL 1782580, at *3.
The missing analytical step is that both Navarrete and
Hayles assumed that judicial review of a final order of removal
requires a substantive challenge to a removal order even if the
real focus of the petitioner’s case is withholding-only relief.
Navarrete, 170 F.4th at 1221–22 (“[W]e have not been granted
any jurisdiction to hear CAT claims independent of challenges
to final orders of removal.”); Hayles, ___ F.4th at ___, 2026 WL
1782580, at *3–4 (“[O]ur review of CAT claims may come only
through a review of [a] final order.”). That proposition is not
supported by Nasrallah or Riley. And neither Navarrete nor
Hayles explains the assumption. Navarrete seemed to be
searching for a justification when it cited a leading treatise on
federal procedure for the proposition that “the only jurisdic-
tion to review CAT orders is a ‘pendent jurisdiction’ requiring
‘an independent basis of federal subject matter jurisdiction’
under 8 U.S.C. § 1252(a)(1)—specifically, a petition for review
of a final order of removal.” 170 F.4th at 1222, quoting 13
Wright & Miller, Federal Practice & Procedure § 3523 (3d ed.
2025). Then, Navarrete concluded that the substantive chal-
lenge to the removal order must be “colorable” because a friv-
olous claim is insufficient to invoke a federal court’s jurisdic-
tion. Id. at 1224; see also In re African-American Slave Descend-
ants Litig., 471 F.3d 754, 757–58 (7th Cir. 2006) (no supple-
mental jurisdiction based on frivolous federal law claim).

-- 26 of 65 --

Nos. 25-2256 & 25-2268 27
Equating pendent jurisdiction in a multi-claim civil action
with jurisdiction over a petition for review in immigration
law does not follow. That logical leap was elided in Navarrete
by the careful use of a “cf.” signal to cite a section of the
Wright & Miller treatise that concerns neither immigration
law in general nor the zipper clause in particular. Navarrete
cited no authorities explicitly drawing that analogy.
Congress has confirmed more than once that CAT orders
are subject to judicial review. See Nasrallah, 590 U.S. at 585. It
has done so through legislation drafted against the backdrop
that, until only a few years ago, courts uniformly treated the
denial of withholding-only relief as the triggering event for
the deadline to file a petition for review. See F.J.A.P., 94 F.4th
at 628–29. That means ripeness was not relevant then in the
way it now could be after Riley. Petitioners here represent that
“[p]ractically speaking, th[e] deadline will pass long before
applications for protection will have been adjudicated, and of-
ten before withholding-only proceedings have even begun.”
Petitioners’ Br. at 2. That looks to be true. The fastest resolu-
tion to a claim for CAT relief is when the immigration judge
affirms a negative reasonable-fear determination. In M.C.C.-
G.’s case, however, the judge took over two months to decide.
And if the noncitizen receives a positive determination, with-
holding-only proceedings will not conclude even close to the
deadline. E.E.V.’s withholding-only proceedings began in
February 2017 and remain pending today.
Congress knows how to exclude certain noncitizens from
eligibility for seeking CAT relief. It has done so only for a few
narrow categories. FARRA, § 2242(c), 112 Stat. 2681–822.
Those categories are, essentially, “serious” criminals, spies,
persecutors, and Nazi concentration camp guards. See 8

-- 27 of 65 --

28 Nos. 25-2256 & 25-2268
U.S.C. §§ 1182(a)(3)(E), 1227(a)(4)(D), 1231(b)(3)(B). Congress
also knows how to foreclose judicial review of orders denying
CAT relief for certain classes of noncitizens. It has done so for
noncitizens subject to expedited removal orders. They cannot
seek judicial review of negative credible-fear determinations
or, if referred to an immigration judge for withholding-only
proceedings, denials of relief by the Board. See Nasrallah, 590
U.S. at 586 n.5 (“In expedited removal proceedings, the immi-
gration laws do not provide for any judicial review of CAT
claims. Our ruling today does not affect that law.”) (citations
omitted). Congress has certainly not foreclosed judicial re-
view for noncitizens subject to reinstatement orders and final
administrative removal orders. But because such individuals
often (but not always) lack any basis on which to contest re-
moval, the government’s rule would exclude many of them
from seeking judicial review too, regardless of timing.
Accordingly, we decline the government’s invitation, con-
trary to Riley and inconsistent with the practice of this and
every other circuit, to conclude that Congress has silently
foreclosed judicial review of the denial of withholding-only
relief to a noncitizen who does not also challenge substan-
tively a final order of removal.
III. Timeliness
So we have jurisdiction over these petitions for judicial re-
view. We now arrive at the original heart of the matter. The
government argues that these petitions for review should be
dismissed as untimely. To recall, § 1252(b)(1) says that a “pe-
tition for review must be filed not later than 30 days after the
date of the final order of removal.” E.E.V.’s reinstatement or-
der was issued on August 27, 2015, and M.C.C.-G.’s final ad-
ministrative removal order was issued on May 12, 2025. They

-- 28 of 65 --

Nos. 25-2256 & 25-2268 29
did not file petitions for review until July 24 and July 26, 2025,
respectively, so neither filed within the thirty-day deadline as
measured in Riley. The government contends that, even
though Riley held the deadline is not jurisdictional, it is none-
theless not subject to equitable tolling and must be enforced
if properly raised. Petitioners argue that equitable tolling is
available under the statute and appropriate in these circum-
stances. We agree with petitioners on both points.
A. Availability of Equitable Tolling
Riley did not address the availability of equitable tolling
because it did not need to. Instead, the Court noted that “be-
cause the Government does not wish to press that ground for
dismissal, it does not preclude this case from proceeding on
remand.” 606 U.S. at 277. In other words, the government
waived the deadline, so the Riley case itself could proceed.
And the Riley majority did not respond to the partial dissent’s
prediction that “standard principles of equitable tolling … are
likely available.” 606 U.S. at 302–03 (Sotomayor, J., dissenting
in part). 14
Simply put, Riley left open the availability of equitable toll-
ing. The dissenting opinion relies on language in Riley de-
scribing the question presented as whether § 1252(b)(1) “is a
jurisdictional requirement or simply a mandatory claim-pro-
14 The government’s brief in this case twice suggests, if not outright
argues, that the majority’s statement is an implied holding about the avail-
ability of equitable tolling. See Respondent’s Br. at 18–19, 26–27. We think
not. The proposition that waiver means the case may proceed does not
imply that lack of waiver means the case otherwise may not proceed; that
logical fallacy is known as “denying the antecedent.” See NLRB v. Noel
Canning, 573 U.S. 513, 589 (2014) (Scalia, J., concurring in the judgment).
Riley simply did not need to decide the issue.

-- 29 of 65 --

30 Nos. 25-2256 & 25-2268
cessing rule,” 606 U.S. at 263, to conclude that the Court has
already foreclosed equitable tolling. See Nutraceutical Corp. v.
Lambert, 586 U.S. 188, 192 (2019) (suggesting “mandatory”
rules are never subject to equitable tolling); but see Fort Bend
County v. Davis, 587 U.S. 541, 549 n.5 (2019) (noting court has
reserved whether mandatory rules could ever allow equitable
exceptions).
The government’s reasoning is not persuasive. The Court
used the phrase “claim[s]-processing rule” two other times in
Riley, in neither instance attached to the word “mandatory.”
See 606 U.S. at 273–74 (Riley and government have “better ar-
gument” that § 1252(b)(1) is a “quintessential claim-pro-
cessing rule”) (alteration omitted); id. at 275 (“Our precedents
extending back nearly 20 years support classifying
§ 1252(b)(1)’s filing deadline as a claims-processing rule.”).
More critically, the majority opinion in Riley did not engage
in any of the analysis the Court has used in the past to decide
when equitable tolling is available. See id. at 272–77.
The Sixth Circuit has since addressed the issue in Oxlaj-
Perez v. Blanche, 174 F.4th 516, 520 (6th Cir. 2026), and found
equitable tolling available. The Fifth Circuit in Liao v. Bondi,
162 F.4th 519, 524 (5th Cir. 2025), characterized § 1252(b)(1) as
“a mandatory claim-processing rule that, if properly raised,
must be enforced,” though as in Riley, the opinion did not ex-
pressly address equitable tolling. We agree with the Sixth Cir-
cuit that equitable tolling is—indeed must be—available
here. 15
15 Other circuits have discussed the availability of equitable tolling af-
ter Riley in non-precedential orders. Ordonez-Vasquez v. U.S. Attorney Gen-
eral, No. 24-11994, 2025 WL 1795050, at *2, *4 & n.4 (11th Cir. June 30, 2025)

-- 30 of 65 --

Nos. 25-2256 & 25-2268 31
The Supreme Court has taught consistently for decades
that non-jurisdictional statutes of limitations are subject to a
rebuttable presumption in favor of allowing equitable tolling
in appropriate cases. E.g., Enbridge Energy, LP v. Nessel ex rel.
Michigan, 608 U.S. ___, ___, 146 S. Ct. 1074, 1082 (2026); Harrow
v. Department of Defense, 601 U.S. 480, 489 (2024); Arellano v.
McDonough, 598 U.S. 1, 6–7 (2023); Boechler, P.C. v. Comm’r of
Internal Revenue, 596 U.S. 199, 208–09 (2022); United States v.
Wong, 575 U.S. 402, 407–08 (2015); Lozano v. Montoya Alvarez,
572 U.S. 1, 10–11 (2014); Holland v. Florida, 560 U.S. 631, 645–
46 (2010); Young v. United States, 535 U.S. 43, 49–50 (2002); Ir-
win v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990). The
thirty-day deadline for filing a petition for review of a final
order of removal is a statute of limitations because it “pre-
scribes a period within which certain rights … may be en-
forced.” Young, 535 U.S. at 47.
The presumption is not overcome in this case. We start
with petitioners’ observations that the deadline is quite short
and directed at them, not at the court, both of which do “noth-
ing to rebut the presumption” in favor of equitable tolling.
Boechler, 596 U.S. at 209. In line with the Court’s recent deci-
sion in Enbridge, we also acknowledge but give less weight to
the government’s observation that the statute speaks in man-
(relying on pre-Riley precedent treating deadline as jurisdictional and ac-
knowledging only that the Court granted certiorari in Riley, even though
the opinion had already been released); In re Asemani, No. 25-1513, 2025
WL 1823953, at *1 (4th Cir. July 2, 2025) (relying on pre-Riley precedent
vacated and remanded same day Riley was decided); Zeledon v. Bondi, No.
24-4763, 2025 WL 2375227, at *1 (9th Cir. Aug. 15, 2025) (not deciding issue
since not sufficiently raised); Rodriguez-Novoa v. Bondi, No. 24-1153, 2026
WL 617096, at *1 (2d Cir. Mar. 5, 2026) (not deciding issue since petition
was meritless).

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32 Nos. 25-2256 & 25-2268
datory terms. Such language “is at least consistent with treat-
ing its deadline as mandatory and not subject to equitable toll-
ing,” but Enbridge makes clear that such language is “not suf-
ficient, on its own, to rebut the presumption.” 608 U.S. at ___,
146 S. Ct. at 1082 (emphasis added). We therefore view the
“plain language of the statute” as equivocal with respect to
equitable tolling, and certainly not enough on its own to “dis-
place the presumption of tolling.” Oxlaj-Perez, 174 F.4th at 523.
We look next to the expansive and grave “nature of the
subject matter,” which makes it unlikely that Congress meant
to forbid equitable tolling. See Enbridge, 608 U.S. at ___, 146 S.
Ct. at 1084, quoting Arellano, 598 U.S. at 14. Although Enbridge
and Arellano used the subject matter of the statutes in those
cases merely as “garnish,” that factor is far stronger here. In
Holland, the Court noted that the presumption in favor of eq-
uitable tolling applied with special force in the context of ha-
beas corpus, which has traditionally been governed by equi-
table principles. 560 U.S. at 646. Section 1252 implicates ha-
beas corpus because it channels judicial review of CAT deni-
als and nationality claims away from habeas and into a peti-
tion for review of a final order of removal. 8 U.S.C.
§ 1252(a)(4)–(5), (b)(5), (b)(9), (e)(2), (g).
The stakes in these cases are whether a person will be re-
moved to a country where she faces persecution, torture, or
worse. In some cases the issue will be United States citizen-
ship. In many of these circumstances, a petition for review is
the only mechanism Congress has provided for a person to
argue her claims before Article III judges. The government
contends that executive branch “employees” who handle
many immigration cases are bound to obey the personal legal
opinions of the President and the Attorney General, and it

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Nos. 25-2256 & 25-2268 33
considers immigration judges to be removable at will. See
Exec. Order No. 14215, § 7, 90 Fed. Reg. 10447, 10448–49 (Feb.
18, 2025) (“The President and the Attorney General’s opinions
on questions of law are controlling on all employees in the
conduct of their official duties.”); Jackler & Jaroch Consolidation
v. Dep’t of Justice, 2026 MSPB 3, ¶ 21 (Mar. 20, 2026) (conclud-
ing immigration judges lack civil service protections), petition
for review docketed sub nom. and hearing en banc granted, Jackler
v. MSPB, No. 26-1575 (Fed. Cir.). As in Holland, the constitu-
tional and human importance of such claims “counsels hesi-
tancy before interpreting … statutory silence as indicating a
congressional intent to close courthouse doors that a strong
equitable claim would ordinarily keep open.” 560 U.S. at
649.16
The government asserts that practical interests specific to
immigration law cut against recognizing “case-specific excep-
tions and individualized equities.” It also warns that recog-
nizing equitable tolling will invite spurious untimely peti-
tions filed merely to delay removal. Respondent’s Br. at 43.
We are not persuaded.
16 This is an observation about congressional intent, not a holding
about unraised Suspension Clause issues. On its face, the carve-out for
questions of law and constitutional claims does not apply to any jurisdic-
tion-stripping provisions in § 1252 itself except for the criminal alien bar
and the prohibition on judicial review of discretionary forms of relief. 8
U.S.C. § 1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in any
other provision of this chapter (other than this section) which limits or elim-
inates judicial review, shall be construed as precluding review of consti-
tutional claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this section.”)
(emphasis added).

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34 Nos. 25-2256 & 25-2268
First, because Congress provided for judicial review of
CAT claims and did not extinguish review through habeas of
nationality claims challenging expedited removal orders
(which are excluded from petitions for review), we know it
“did not seek to end every possible delay at all costs.” See Hol-
land, 560 U.S. at 649 (making this point in habeas context).
True, E.E.V. has remained in this country for nearly a decade
after her reinstatement order was issued. Such delays may be
mystifying for those outside the nation’s immigration bureau-
cracies, but we have no reason to think E.E.V. is responsible
for the delays. And the government need not wait for an un-
timely petition before effectuating removal. Johnson v. Guzman
Chavez, 594 U.S. 523, 534–35 (2021). Further, the government’s
argument is undercut by the availability of equitable tolling
for other immigration law deadlines. The thirty-day statutory
deadline to file a motion to reconsider with the Board is sub-
ject to equitable tolling. Hernandez-Alvarez v. Barr, 982 F.3d
1088, 1095 (7th Cir. 2020); see 8 U.S.C. § 1229a(c)(6)(B). So is
the ninety-day statutory deadline to file a motion to reopen
with the Board. Hernandez-Alvarez, 982 F.3d at 1096; see
§ 1229a(c)(7)(C). The Board’s own precedents allow equitable
tolling of the thirty-day regulatory deadline to file a notice of
appeal of an immigration judge’s decision. Matter of Morales-
Morales, 28 I. & N. Dec. 714, 716–17 (BIA 2023); see 8 C.F.R.
§ 1003.38(b).
As for practical concerns specific to withholding-only pro-
ceedings, the new reality after Riley is that a petition for re-
view will almost always come due long before withholding-
only proceedings end. Under those circumstances, tolling the
deadline to a date when the agency still has not decided the
claim leads to no additional delay. For untimely petitions that
may actually cause delay, the appropriateness of equitable

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Nos. 25-2256 & 25-2268 35
tolling might be resolved quickly through a motion to dis-
miss, which need not address any other issues.
Moreover, and in stark contrast to the “decisive” feature
of the statute in Enbridge, where the presumption of equitable
tolling was rebutted, the thirty-day deadline at issue here
lacks not only exceptions sounding in equity, but any excep-
tions at all. See 608 U.S. at ___, 146 S. Ct. at 1082; see also Arel-
lano, 598 U.S. at 7 (“[38 U.S.C. § 5110] contains detailed in-
structions for when a veteran’s claim for benefits may enjoy
an effective date earlier than the one provided by the default
rule. It would be inconsistent with this comprehensive
scheme for an adjudicator to extend effective dates still fur-
ther through the doctrine of equitable tolling.”).
Congress did not specifically provide relief from the dead-
line if, for example, immigration authorities unlawfully delay,
frustrate, or prevent a noncitizen from filing a timely petition
for review. Federal courts have recently found that immigra-
tion officials engaged in the following examples of conduct
that might warrant equitable tolling of missed deadlines:
 Denying access to an attorney during detention,
including by denying visits, phone calls, mail,
or email, shuffling detainees between various
facilities across the country without notice, and
coercing detainees into signing voluntary re-
moval forms before consulting an attorney. See
Perdomo v. Noem, 815 F. Supp. 3d 1057, 1067–71
(C.D. Cal. 2025), appeal docketed, No. 26-209 (9th
Cir.); Advocates for Human Rights v. U.S. Dep’t of
Homeland Security, 825 F. Supp. 3d 858, 868–74
(D. Minn. 2026), appeal docketed, No. 26-2064 (8th
Cir.).

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36 Nos. 25-2256 & 25-2268
 Dumping the noncitizen onto the street hun-
dreds of miles from home without her personal
property or identification documents. See S.J. v.
Bondi, ___ F. Supp. 3d ___, 2026 WL 490104, at
*1 (D. Minn. Feb. 20, 2026), appeal docketed sub
nom., Jimenez v. Isihara, No. 26-1327 (8th Cir.).
 Designating removal to a third country over
thirty days after a final order of removal because
the noncitizen obtained withholding-only relief
as to his home country, but doing so without no-
tice and without informing him of the right to
undergo another reasonable-fear interview. See,
e.g., Abrego Garcia v. Noem, 811 F. Supp. 3d 741,
746–54 (D. Md. 2025) (recounting government’s
“extraordinary” attempts to remove El Salva-
doran national to Uganda, Eswatini, Ghana, and
Liberia), appeal docketed, No. 26-6466 (4th Cir.);
Kumar v. Wamsley, 817 F. Supp. 3d 1059, 1065–67
(W.D. Wash. 2025) (granting habeas relief; gov-
ernment attempted to remove Indian national,
an HIV-positive gay man, to Uganda); Mbaba v.
Perez, No. 26-cv-00070, 2026 WL 917484, at *1–3
(S.D. Tex. Feb. 13, 2026) (enjoining removal to
Equatorial Guinea of Mauritanian national who
escaped chattel slavery). 17
17 These are all district court decisions. Some did not involve orders
of removal, and many of them granted habeas relief. We express no view
on their merits, nor on the Ninth Circuit’s observation in a Federal Tort
Claims Act case that a Cuban national granted withholding of removal
whom the government later sought to remove to Mexico “could not have
contested this decision through the normal petition-for-review process be-

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Nos. 25-2256 & 25-2268 37
The last group of cases cannot be attributed to mistakes.
“The Department of Homeland Security has adopted a policy
whereby it may take people and drop them off in parts un-
known—in so-called ‘third countries’—and, ‘as long as the
Department doesn’t already know that there’s someone
standing there waiting to shoot … that’s fine.” D.V.D. v. U.S.
Dep’t of Homeland Security, 821 F. Supp. 3d 102, 117 (D. Mass.
2026) (alteration in original), appeal docketed, No. 26-1212 (1st
Cir.), prior order stayed, 145 S. Ct. 2153, and clarification granted,
145 S. Ct. 2627.
Nor is the deadline incorporated into other statutes with
specific allowances for exceptions, as the United States Code
does three times with the thirty-day deadline for removal of
civil actions to federal court at issue in Enbridge. 608 U.S. at
___, 146 S. Ct. at 1083. The only equitable-seeming exception
to any related statutory deadline cited by the government
here applies to statutory briefing deadlines. The court “may
not extend these deadlines except upon motion for good
cause shown” and, if they are not met, the petition must be
dismissed “unless a manifest injustice would result.” 8 U.S.C.
§ 1252(b)(3)(C).
This solitary provision concerning briefing schedules does
not persuade us that Congress meant to prohibit equitable
tolling of the time to file a petition for review, regardless of
the equities in a particular case. Section 1252 sets bespoke stat-
utory briefing deadlines and makes them subject to extension
by the court based on “good cause.” That is the same standard
cause it was made after his removal proceedings had ended.” Ibarra-Perez
v. United States, 154 F.4th 989, 1000 (9th Cir. 2025). We cite these cases to
show examples of potential grounds for equitable tolling and to illustrate
the stakes if access to judicial review were cut off by such actions.

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38 Nos. 25-2256 & 25-2268
for extending the default briefing deadline provided by the
federal rules in other cases. See Fed. R. App. P. 2(a), 31(a).
Granting the court the authority to change briefing deadlines
for petitions for review on the same standard as it may alter
briefing deadlines set by the federal rules suggests nothing
about equitable exceptions for the deadline to file the petition
in the first place.
Careful attention to the differences between rules and stat-
utes, and between the interaction of different rules with stat-
utes, is also why we find unconvincing the government’s re-
liance on Nutraceutical Corp. v. Lambert, 586 U.S. 188 (2019). In
Nutraceutical, the Court held that the fourteen-day deadline to
seek a discretionary interlocutory appeal of a grant or denial
of class certification under Rule 23(f) is not subject to equita-
ble tolling. Id. at 189–90. The Court began by noting where the
deadline comes from: “Because Rule 23(f)’s time limitation is
found in a procedural rule, not a statute, it is properly classi-
fied as a nonjurisdictional claim-processing rule.” Id. at 192.
Then, the Court noted that “some claim-processing rules are
‘mandatory’—that is, they are ‘“unalterable”’ if properly
raised by an opposing party.” Id., quoting Manrique v. United
States, 581 U.S. 116, 121 (2017), quoting in turn Eberhart v.
United States, 546 U.S. 12, 15 (2005). Critical to the Court’s con-
clusion that Rule 23(f) is such a mandatory rule not subject to
equitable tolling is that “the Federal Rules of Appellate Pro-
cedure single out Civil Rule 23(f) for inflexible treatment.” Id.
at 193. That is:
While Appellate Rule 2 authorizes a court of ap-
peals for good cause to “suspend any provision
of these rules in a particular case,” it does so
with a conspicuous caveat: “except as otherwise

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Nos. 25-2256 & 25-2268 39
provided in Rule 26(b).” Appellate Rule 26(b),
which generally authorizes extensions of time,
in turn includes this express carveout: A court
of appeals “may not extend the time to file … a
petition for permission to appeal.” Fed. Rule
App. Proc. 26(b)(1). In other words, Appel-
late Rule 26(b) says that the deadline for the
precise type of filing at issue here may not be
extended. The Rules thus express a clear intent
to compel rigorous enforcement of Rule 23(f)’s
deadline, even where good cause for equitable
tolling might otherwise exist.
Id. (alteration in original).
Appellate Rule 26(b) reads in full:
Extending Time. For good cause, the court may
extend the time prescribed by these rules or by
its order to perform any act, or may permit an
act to be done after that time expires. But the
court may not extend the time to file:
(1) a notice of appeal (except as authorized in
Rule 4) or a petition for permission to appeal; or
(2) a notice of appeal from or a petition to enjoin,
set aside, suspend, modify, enforce, or other-
wise review an order of an administrative
agency, board, commission, or officer of the
United States, unless specifically authorized by
law.
To begin, if any part of Rule 26(b) is relevant to this case,
it is not Rule 26(b)(1)’s absolute prohibition on extensions of
time to file discretionary interlocutory appeals that was ad-

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40 Nos. 25-2256 & 25-2268
dressed in Nutraceutical. Here we address instead the quali-
fied prohibition in Rule 26(b)(2), which allows extension
when “specifically authorized by law.”
The presumption in favor of equitable tolling of statutes of
limitation drafted by Congress is law. It applies to petitions
for review of agency action. See Boechler, 596 U.S. at 202–03,
209 (petition for review of tax levy); Harrow, 601 U.S. at 482
(petition for review of Merit System Protection Board order);
Nelson v. SEC, 138 F.4th 514, 517, 523 (D.C. Cir. 2025) (petition
for review of whistleblower award; “As we have previously
stressed, however, the presumption of equitable tolling ap-
plies to deadlines pertaining to petitions for review.”). We
agree with both the Sixth and D.C. Circuits that Rule 26(b)(2)’s
“specifically authorized” language does not override the pre-
sumption in favor of equitable tolling for statutory deadlines.
Oxlaj-Perez, 174 F.4th at 527; Nelson, 138 F.4th at 523.
Moreover, we need not read either part of Rule 26(b) to
apply to statutory deadlines for petitions for review in the
first place. See Oxlaj-Perez, 174 F.4th at 527 (“But Nutraceuti-
cal’s analysis of Rule 23(f) is inapposite here. There was no
presumption of tolling in Nutraceutical because the case in-
volved only a Federal Rule of Civil Procedure.”). Rule 26(b) is
an exception to Rule 2(a), which authorizes the court of ap-
peals, in order “to expedite its decision or for other good
cause—[to] suspend any provision of these rules in a particular
case and order proceedings as it directs, except as otherwise
provided in Rule 26(b).” (Emphasis added.) Rule 26(b) clari-
fies that the power to suspend the rules includes the power to
“extend the time prescribed by these rules or by its order to
perform any act” or to “permit an act to be done after that
time expires,” with the two exceptions given above. Once

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Nos. 25-2256 & 25-2268 41
again, however, § 1252(b)(1) is a statute, not a deadline pre-
scribed by the Federal Rules of Appellate Procedure or by the
order of the court. The only rules-based deadline applicable
to petitions for review itself incorporates whatever deadline
is set by the statute: “Review of an agency order is com-
menced by filing, within the time prescribed by law, a petition
for review ….” Fed. R. App. P. 15(a)(1) (emphasis added). The
“time prescribed by law” includes the time during which the
statute of limitation may be tolled, if the statute itself allows
equitable tolling.
Rule 26(b)(2) prohibits a court from suspending the rules
under Rule 2(a) to grant an extension of time for a petition for
review under the more forgiving standard of “good cause,”
regardless of whether equitable tolling is available under the
statute or appropriate under the circumstances. In the absence
of Rule 26(b)(2) the court would seem to have the power to
apply the more lenient “good cause” standard. But suspen-
sion of the rules for “good cause” is unnecessary if equitable
tolling is available under the statute and therefore available
under Rule 15(a) as well. Nor would we expect an exception
to the court’s authority to suspend the rules to override some-
how both the statute and Rule 15(a).
The thirty-day deadline to file a petition for review under
§ 1252(b)(1) is subject to equitable tolling. 18
18 The government’s argument that Riley should be given “retroactive
effect” is beside the point. See Harper v. Virginia Dep’t of Taxation, 509 U.S.
86, 97 (1993). Our holding on timeliness assumes that Riley has full retro-
active effect. Otherwise, we would not spend so much time on the availa-
bility of equitable tolling under the statute or, below, on its appropriate-
ness in these cases. Instead, we would apply F.J.A.P. rather than Riley, dis-
miss these petitions as untimely under pre-Riley precedent, and require

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42 Nos. 25-2256 & 25-2268
B. Appropriateness of Tolling
A party seeking equitable tolling must meet the high bar
of showing that it is appropriate in her particular case. “Gen-
erally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circum-
stance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). These petitions for review are among the rare cases
where those conditions are met.19
Both petitioners have diligently pursued their rights, in-
cluding their rights to judicial review. The government has
not suggested that either petitioner has failed to participate
diligently in withholding-only proceedings. Petitioners have
also acted diligently in this court since filing their petitions for
review, including responding to the government’s motions
and meeting all briefing deadlines in these consolidated pro-
ceedings. The only question is whether they acted diligently
between receiving their final orders of removal and filing the
petitions.
If petitioners had filed these petitions for judicial review
within thirty days of their final orders of removal in August
2015 and May 2025, circuit precedent would have required
this court to dismiss them as unripe. F.J.A.P., 94 F.4th at 636,
citing Order, Delgado-Arteaga v. Lynch, No. 15-1810 (7th Cir.
petitioners to file fresh petitions after the conclusion of withholding-only
proceedings—exactly what the government would have asked us to do if
they had filed timely petitions before Riley was decided. See F.J.A.P., 94
F.4th at 636. That is not what we have done.
19 We do not need to address the “unique circumstances” doctrine ar-
gued by petitioners. See Bowles v. Russell, 551 U.S. 205, 213–14 (2007).

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Nos. 25-2256 & 25-2268 43
Aug. 7, 2015), Dkt. No. 11 (granting motion to dismiss); see
also Eke v. Mukasey, 512 F.3d 372, 377–78 (7th Cir. 2008) (“We
are satisfied that the Attorney General is correct that the im-
migration authorities were not finished with Eke’s case until
the BIA’s final decision [on withholding-only relief] ….”).
Then, when Riley abrogated F.J.A.P. and immediately put
E.E.V. and M.C.C.-G. outside the thirty-day window, both
filed their petitions for review within thirty days. Both peti-
tioners acted with the necessary diligence. 20
The Supreme Court appears to have left open whether re-
liance on binding precedent that is later overruled can qualify
as an extraordinary circumstance to justify equitable tolling.
See Menominee Indian Tribe of Wisconsin v. United States, 577
U.S. 250, 253, 257–58, 258 n.4 (2016) (noting litigant’s mistake
in relying on district court decision that was not appealed is
“quite different from relying on actually binding precedent
that is subsequently reversed,” but not deciding if the latter
may justify equitable tolling), aff’g 764 F.3d 51, 62 (D.C. Cir.
2014) (suggesting availability of equitable tolling for reliance
on binding precedent for “deciding when and how to file”
claims). This court’s discussion of Menominee Indian Tribe in
Evans v. United States also seems to leave this question open:
What is more, as the Supreme Court stated
in Menominee Indian Tribe of Wisconsin v. United
States, misreading case precedent is “funda-
mentally no different from a garden variety
claim of excusable neglect[.]” 577 U.S. 250, 257–
20 We do not decide or imply whether noncitizens in these petitioners’
situation were required to file petitions for judicial review within thirty
days after Riley was decided to establish equitable tolling.

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44 Nos. 25-2256 & 25-2268
58 (2016) (internal quotation marks omitted)
(distinguishing cases in which a party relies on
binding precedent that is subsequently re-
versed).
132 F.4th 473, 480 (7th Cir. 2025) (alteration in original).
Other circuits have addressed similar issues about when
to file claims in habeas corpus cases, and we find their think-
ing instructive. In Harris v. Carter, when the petitioner was
convicted, then-binding circuit precedent held that an un-
timely state court post-conviction petition was “properly
filed” and therefore tolled the one-year statute of limitations
under the Antiterrorism and Effective Death Penalty Act, 28
U.S.C. § 2244(d). 515 F.3d 1051, 1052–53 (9th Cir. 2008), citing
Dictado v. Ducharme, 244 F.3d 724, 727–28 (9th Cir. 2001). The
Supreme Court abrogated Dictado in Pace, but Pace himself
had not acted with the necessary diligence. The Court did not
decide if its holding created an extraordinary circumstance
for prisoners who “detrimentally relied” on prior circuit case
law. 544 U.S. at 418. The Ninth Circuit noted in Harris that
such reliance was “not the result of oversight, miscalculation
or negligence on [the petitioner’s] part, all of which would
preclude the application of equitable tolling.” 515 F.3d at
1055. Rather, the court wrote:
The Supreme Court’s overruling of the Dic-
tado rule made it impossible for Harris to file a
timely petition. Harris’ petition became time-
barred the moment that Pace was decided. Fi-
nally, Harris had no control over the operative
fact that caused his petition to become un-
timely—the Supreme Court’s decision
in Pace. These are precisely the circumstances in

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Nos. 25-2256 & 25-2268 45
which equitable principles justify tolling of the
statute of limitations.
Id. at 1056 (emphasis added).
Similarly, in Sherwood v. Prelesnik, the Sixth Circuit ad-
dressed another change in the law concerning the same stat-
ute at issue in Harris that also led to an untimely habeas cor-
pus petition. 579 F.3d 581 (6th Cir. 2009). In Sherwood, a new
Supreme Court decision abrogated a Sixth Circuit precedent
and held that filing a petition for certiorari after the state court
of last resort denied relief did not toll the federal statute of
limitations. Id. at 583–84, 588, citing Lawrence v. Florida, 549
U.S. 327, 337 (2007), abrogating Abela v. Martin, 348 F.3d 164,
172–73 (6th Cir. 2003) (en banc). Sherwood had relied on Abela
in waiting 363 days after his conviction became final to file his
application for state post-conviction relief, meaning he went
from having ninety days after the Michigan Supreme Court
denied reconsideration to having just two days. See id. at 584,
588. The Sixth Circuit concluded that equitable tolling was ap-
propriate because Abela had “assured” Sherwood of an addi-
tional ninety days when he made the “crucial decision” to
seek state post-conviction relief rather than file a habeas peti-
tion in federal court. Id. at 588–89. The court quoted Sher-
wood’s brief: “By the time the rules changed, counsel had ef-
fectively no opportunity to alter the course of Mr. Sherwood’s
‘ship.’” Id. at 588.
We agree with the reasoning of Harris and Sherwood and
find it applies here. A change in binding case law that makes
it impracticable, as in Sherwood, or impossible, as in Harris, for
a party ever to have timely sought relief can constitute an ex-
traordinary circumstance for the purpose of equitable tolling.
A person who relies in good faith on binding precedent in de-

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46 Nos. 25-2256 & 25-2268
ciding when to bring a claim or to seek judicial review would
have no discernible reason to challenge settled case law just
to advance the timing of a case that he reasonably expected to
be able to bring later.
In the government’s view, however, E.E.V. should have re-
alized that her reinstatement order became final upon issu-
ance back in 2015. That would have been contrary to then-set-
tled case law in this circuit and in every other circuit. See
F.J.A.P., 94 F.4th at 628–29. Then she should have filed a peti-
tion for review and tried to convince this court we were
wrong about the deadline. In fact, at that time, the government
itself would have moved to dismiss her premature petition,
and we would have granted the motion. See, e.g., Order, Baa-
tarjav v. Garland, No. 21-1191 (7th Cir. Apr. 9, 2021), ECF 14;
Order, Lorenzo-Avila v. Whitaker, No. 18-3589 (7th Cir. Dec. 14,
2018), ECF 5; Order, Atisele v. Lynch, No. 15-1183 (7th Cir. July
22, 2015), ECF 29. And even if E.E.V. had won that then-im-
probable argument, in the best-case scenario she would have
ended up with a placeholder petition for review pending the
conclusion of withholding-only proceedings. That’s the same
situation she is in now. For someone in her position, that was
not a fight worth picking.
Moreover, by the logic of the government’s argument,
every other noncitizen in the same situation in the years before
Riley was decided should have done the same thing: file a pe-
tition for review that would have been premature under bind-
ing precedent, asking us to reconsider that precedent. And to
what end? Parties are of course free to urge us to reconsider
circuit precedent, but we do not respond with limitless pa-

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Nos. 25-2256 & 25-2268 47
tience to repeated, futile efforts to overturn circuit prece-
dent. 21
The equities here are clear-cut. E.E.V. and M.C.C.-G. relied
on this court’s binding precedent in deciding when to seek
judicial review. Then, the Supreme Court decided Riley, and,
according to the government, they suddenly found the court-
house doors barred. Cf. Holland, 560 U.S. at 649. Not so. These
petitioners are entitled to equitable tolling, so these petitions
for review are timely.
IV. Venue
In the alternative to dismissal as untimely, the government
moved to transfer E.E.V.’s petition to the Fifth Circuit because
her reinstatement order was issued in Texas. See 28 U.S.C.
§ 41.22 Venue is proper in “the court of appeals for the judicial
21 For example, the Supreme Court held in Pereira v. Sessions, 585 U.S.
198 (2018), that a notice to appear was required to specify the place, date,
and time of a noncitizen’s removal hearing. In the face of a flood of re-
quests for dismissals of removal proceedings, we held that a Pereira defect
did not defeat jurisdiction in removal proceedings in Ortiz-Santiago v. Barr,
924 F.3d 956 963–64 (7th Cir. 2019). Our decision in Ortiz-Santiago was not
the last word. Many noncitizens continued to ask us to revisit that deci-
sion. E.g., Arreola-Ochoa v. Garland, 34 F.4th 603, 607–08 (7th Cir. 2022)
(“Arreola is far from the first person to ask us to revisit this holding.”)
(collecting cases); United States v. Calan-Montiel, 4 F.4th 496, 497 (7th Cir.
2021) (referring to “what seems to be a tsunami of requests to overrule
Ortiz-Santiago” and concluding: “This subject has been fully worked over
in the Seventh Circuit. Unless instructed otherwise by the Supreme Court,
we shall continue to treat § 1229a(a)(1) as a claims-processing require-
ment.”).
22 Notwithstanding its later jurisdictional arguments, in this section of
its motion to dismiss, the government wrote: “As Riley makes clear, the

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48 Nos. 25-2256 & 25-2268
circuit in which the immigration judge completed the pro-
ceedings.” 8 U.S.C. § 1252(b)(2). Merits briefing will not begin
unless and until E.E.V. is denied withholding-only relief. Her
proceedings began before an immigration judge in Chicago
and are now pending in Indianapolis. If proceedings conclude
there or elsewhere in this circuit, venue is proper here.
Even if venue would also be proper in the Fifth Circuit or
eventually becomes proper elsewhere, we would not transfer
her petition unless doing so would be in the interests of jus-
tice. Cordova-Soto v. Holder, 732 F.3d 789, 792 (7th Cir. 2013); 28
U.S.C. § 1631. We see three relevant considerations. First,
E.E.V. acted reasonably by filing in the circuit where her with-
holding-only proceedings began and remained ongoing at the
time of filing. Second, she is represented by pro bono counsel
based in Chicago (and elsewhere outside the Fifth Circuit).
Third, this court has already invested considerable resources
in ruling on the government’s motion to dismiss, which has
been fully briefed—with a sur-reply brief from petitioners,
several letters of supplemental authority, and two amicus
briefs—and argued before a three-judge panel, leading to this
opinion. See Cordova-Soto, 732 F.3d at 792. Transfer is not war-
ranted.
Accordingly, the government’s motions to dismiss or
summarily deny these petitions are DENIED. The govern-
ment’s motion to transfer E.E.V.’s petition is DENIED. The
court will hold these petitions for review in abeyance pending
the agency’s final decisions in petitioners’ withholding-only
proceedings.
final administrative removal order in this case is the August 27, 2015, re-
instatement order.”

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Nos. 25-2256 & 25-2268 49
BRENNAN, Chief Judge, dissenting. Nearly 20 years ago,
E.E.V. was deported under a removal order for being in this
country illegally. After she was caught reentering eight years
later, the Department of Homeland Security reinstated her re-
moval order, and she entered withholding-only proceedings.
She now petitions for review of her reinstatement order. But
federal courts have jurisdiction over “final” orders of re-
moval. 8 U.S.C. § 1252(b)(1). A reinstatement order is not a “fi-
nal” order of removal. So, we lack jurisdiction to review her
petition and any post-reinstatement decisions in her with-
holding-only proceedings.
Section 1252(b)(1) also requires a petition to be filed not
later than 30 days after a final order of removal. M.C.C.-G., a
Mexican citizen who entered this country illegally, filed a pe-
tition after the 30-day deadline. Although the deadline is not
jurisdictional, the Supreme Court recently indicated in Riley
v. Bondi, 606 U.S. 259 (2025), that it is a mandatory claims-pro-
cessing rule, precluding equitable tolling. Her petition there-
fore should be denied.
On both questions, the majority opinion holds to the con-
trary. Because I believe that conflicts with Riley and the statu-
tory text, I respectfully dissent.
I
E.E.V. is a citizen of El Salvador. Around March 2007, she
illegally entered this country. DHS detained her and issued a
removal order under 8 U.S.C. § 1225(b)(1). She was physically
removed to El Salvador. In 2015 she reentered the country and
was apprehended once again.
“Congress has created an expedited process for aliens who
reenter the United States without authorization after having

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50 Nos. 25-2256 & 25-2268
already been removed.” Johnson v. Guzman Chavez, 594 U.S.
523, 529 (2021). When “an alien has reentered the United
States illegally after having been removed … under an order
of removal, the prior order of removal is reinstated from its
original date.” 8 U.S.C. § 1231(a)(5). The alien cannot appeal
within the agency, and the decision to reinstate should not be
“reopened” or “reviewed.” Id.; see also F.J.A.P. v. Garland, 94
F.4th 620, 627–28 (7th Cir. 2024), abrogated by Riley, 606 U.S. at
259.
Following this streamlined process, DHS reinstated
E.E.V.’s order of removal in August 2015. Sometime later, she
expressed a fear of returning to El Salvador. See 8 C.F.R.
§ 1208.31. An asylum officer interviewed her in February 2017
and agreed that she had a reasonable fear of persecution or
torture in El Salvador. So, the officer referred E.E.V. for with-
holding-only proceedings—review of her case by an Immi-
gration Judge. Id. § 1208.31(e). The proceedings remain pend-
ing nearly a decade later.
After the Court decided Riley, E.E.V. petitioned for review
of the reinstatement order.
A
Federal courts must always evaluate their jurisdiction be-
fore the case’s merits. Chi. Tchrs. Union, Loc. 1 v. Educators for
Excellence, Inc., 159 F.4th 524, 528 (7th Cir. 2025). This court’s
jurisdiction is based on 8 U.S.C. § 1252(b)(1). Our review is
limited to petitions of a “final order of removal.” Id. The ques-
tion is whether E.E.V.’s reinstatement decision is a “final” or-
der of removal. I conclude that it is not.
The Immigration and Nationality Act does not define “or-
der of removal.” But Riley did. A “final order of removal” is

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Nos. 25-2256 & 25-2268 51
an order “concluding that the alien is deportable or ordering
deportation.” Riley, 606 U.S. at 267 (quoting 8 U.S.C.
§ 1101(a)(47)(A)). A final order of removal must “affect the va-
lidity” of a previously issued removal order or “render that
order non-final.” Id. at 269. So, for example, a Board of Immi-
gration Appeals order in a withholding-only proceeding is
not a “final order of removal.” Id. at 263. That is because a
grant of withholding-only relief does not prevent DHS from
removing an alien to a different country other than the one to
which removal has been withheld. Id. at 269; see also Guzman
Chavez, 594 U.S. at 537. As another example, an email from a
DHS field office declining to reopen a prior removal order is
not a “final order of removal.” Velazquez-Olais v. Blanche, 172
F.4th 536, 538 (7th Cir. 2026). By contrast, a final administra-
tive removal order (FARO)—an order removing an alien be-
cause he committed an aggravated felony—is a “final order of
removal” because that “order held that Riley was deportable
and directed that he be removed from the United States.” Ri-
ley, 606 U.S. at 267.
E.E.V.’s reinstatement order does not “affect the validity”
of her original deportation order. The reinstatement decision
does what it says: it reinstates a “prior order of removal.”
§ 1231(a)(5); see also F.J.A.P., 94 F.4th at 644 (Brennan, J., con-
curring in part and dissenting in part). In other words, a rein-
statement order “merely effectuates the original removal or-
der.” Laureano v. Att’y Gen. United States of Am., 177 F.4th 453,
472 (3d Cir. 2026) (Matey, J., dissenting); see also Ruiz-Perez v.
Garland, 49 F.4th 972, 982 (5th Cir. 2022) (Oldham, J., dissent-
ing); Bhaktibhai-Patel v. Garland, 32 F.4th 180, 195 (2d Cir.
2022), abrogated by Riley, 606 U.S. at 259. There is no new ra-
tionale for removing the alien, who was removable then and
is removable now. “The order of removal is the initial order

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52 Nos. 25-2256 & 25-2268
when the alien first illegally entered the country and was re-
moved, not the later decision to reinstate the prior order of
removal.” F.J.A.P., 94 F.4th at 644 (Brennan, J., concurring in
part and dissenting in part).
Consider, too, that an “alien subject to a reinstated order
of removal will not have any removal proceedings.” Guzman-
Chavez, 594 U.S. at 531. How, then, can a reinstatement deci-
sion from a non-removal proceeding be a reviewable “final or-
der of removal?” Put another way, “as a matter of ordinary
meaning, it would be odd for a reviewable removal order to
come from a non-removal proceeding.” Ruiz-Perez, 49 F.4th at
982 (Oldham, J., dissenting); see also Laureano, 177 F.4th at 473
(Matey, J., dissenting).
Because an alien’s original removal order is a “final order
of removal,” some have argued that a reinstatement order is
as well, because they are functionally the same. See Arevalo v.
Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003). But applicable statutes
expressly distinguish between original orders of removal and
reinstatement orders. As the Ninth Circuit recognized, “that
Congress placed reinstatement in a separate section from re-
moval suggests that reinstatement is a separate procedure,
not a species of removal.” Morales-Izquierdo v. Gonzales, 486
F.3d 484, 490 (9th Cir. 2007) (en banc). Reinstatement is a “far
more summary procedure than removal,” and is akin to a
“ministerial” act. Id. at 491. Such an order carries no “inde-
pendent validity.” United States v. Rodriguez, 162 F.4th 288, 294
(2d Cir. 2025). And regulations implementing the INA “repeat
this distinction.” F.J.A.P., 94 F.4th at 644 (Brennan, J., concur-
ring in part and dissenting in part) (citing 8 C.F.R. § 208.31(a)
(distinguishing between an alien who is “ordered removed”
and an alien whose “removal order is reinstated”).

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Nos. 25-2256 & 25-2268 53
I previously observed that this court’s precedent has “pre-
sume[d]” that a reinstatement decision is a “final order of re-
moval.” F.J.A.P., 94 F.4th at 644 (Brennan, J., concurring in
part and dissenting in part). In Riley, the Court abrogated the
analysis and conclusion to the contrary of the majority opin-
ion in F.J.A.P. Nonetheless, my colleagues here state that our
court has “consistently concluded” that reinstatement orders
fall under § 1252.
I read our caselaw differently. Torres-Tristan v. Holder, 656
F.3d 653, 656 (7th Cir. 2011), and Villa v. Barr, 924 F.3d 370, 373
(7th Cir. 2019), suggest there is jurisdiction, yet do not analyze
it. Dictum in Velazquez-Olais, 172 F.4th at 538, could be read to
support the majority. Id. (noting “the act of reinstatement is
reviewable under some circumstances”). The closest to a
holding this court has reached is one sentence in Lemos v.
Holder, 636 F.3d 365, 366 (7th Cir. 2011) (“Reinstatement of an
old removal order is reviewable in a court of appeals under 8
U.S.C. § 1252.”).
These “drive-by” jurisdictional statements carry little
weight, like in Riley, in which the Court disregarded such pre-
vious “loose” proclamations of jurisdiction. 606 U.S. at 275.
Our court has yet to independently examine this question,
and notably, the cases the majority opinion cites largely pre-
date Riley. To the extent this court has concluded that jurisdic-
tion exists over final orders of removal, in light of Riley I
would overrule that conclusion.
This issue is far from settled. Until Riley, courts—includ-
ing ours—debated and questioned their own precedent. See,
e.g., F.J.A.P., 94 F.4th at 643–44 (Brennan, J, concurring in part
and dissenting in part.); Ruiz-Perez, 49 F.4th at 982–83 (Old-
ham, J., dissenting); Bhaktibhai-Patel, 32 F.4th at 195 (prior

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54 Nos. 25-2256 & 25-2268
precedent holding “that a reinstatement decision itself quali-
fies as a final order of removal under § 1252” is “questionable”
and “unstable”); Martinez v. Garland, 86 F.4th 561, 568 n.4 (4th
Cir. 2023) (“The imperfect fit between this definition of final-
ity and a reinstatement decision … might suggest that a rein-
statement decision is not a final order of removal.”); Arostegui-
Maldonado v. Garland, 75 F.4th 1132, 1149 n.2 (10th Cir. 2023)
(Tymkovich, J., concurring) (“dubious” whether a reinstate-
ment order is a final order of removal”); Vega-Anguiano v. Barr,
982 F.3d 542, 557 (9th Cir. 2019) (Bennett, J., dissenting from
denial of rehearing en banc) (“The majority, apparently un-
happy with the statute Congress wrote, rewrites ‘order of re-
moval’ as ‘reinstatement order.’”). Since Riley, at least one
judge has recognized the importance of that Supreme Court
decision on this question. See Laureano, 177 F.4th at 472–73
(Matey, J., dissenting). This court should follow suit.
B
As I understand my colleagues’ reading of Riley, they be-
lieve it used “final order of removal” and “an order of depor-
tation” interchangeably, so the terms are synonymous. Be-
cause E.E.V.’s reinstatement order states she is “removable,”
she is therefore subject to an “order of deportation.” I read
Riley differently. That case explained that “final orders of re-
moval” are those orders that “affect the validity of a previ-
ously issued order of removal or render that order non-final.”
Riley, 606 U.S. at 269. A reinstatement decision does not inval-
idate her removal order; it gives effect to that order. Left un-
explained in the majority opinion is why E.E.V.’s reinstate-
ment order affects the validity of her 2007 order.
Nor does the majority opinion engage with the final part
of E.E.V.’s reinstatement order “that the above-named alien is

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Nos. 25-2256 & 25-2268 55
subject to removal through reinstatement of the prior order.”
Per this statement, E.E.V. is being deported because of her
original 2007 order of removal. So E.E.V.’s reinstatement or-
der supports a reading of § 1252(b)(1) that the “final order of
removal”—the order that concludes she is “deportable”—is
her original order.
E.E.V. makes a slightly different argument, apparently ac-
cepted in the majority opinion. Once the alien is physically
deported, her original removal order is “defunct,” and by is-
suing the reinstatement order, the latter “revive[s]” the for-
mer. Thus, a reinstatement decision “affect[s] the validity of a
previously issued order of removal.” Riley, 606 U.S. at 269.
Reinstatement orders are not defibrillators. I am aware of
no statute or case stating that original removal orders are de-
funct until given life by reinstatement orders. Nor does E.E.V.
cite any. Instead, her original removal order remains valid; a
reinstatement order restores that removal order. F.J.A.P., 94
F.4th at 641, 644 (Brennan, J., concurring in part) (citing
§§ 1101(a)(47)(A), 1231(a)(5)). Indeed, it seems that under my
colleagues’ reasoning, illegal reentry would not exist because
when E.E.V. reentered the country, her removal order was
“defunct.” 1
To be sure, as E.E.V. points out, the alien cannot “travel
back in time and challenge the prior removal order” to contest
his current withholding-only proceedings. Yet a reinstate-
1 For example, the majority opinion cites statutes concerning the At-
torney General’s consent for readmission. But both 8 U.S.C.
§§ 1182(a)(9)(A)(iii) and 1326(a)(2) provide that the Attorney General may
consent to an alien who has illegally reentered “reapplying for admis-
sion.” That presumes the alien’s removal order is valid, as there would be
no reason for the alien to reapply for admission.

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56 Nos. 25-2256 & 25-2268
ment proceeding does not allow for judicial review of a pre-
vious order to remove an alien. That is a feature, not a bug.
Congress may choose “to give fewer legal rights to aliens re-
moved previously than to those who face removal for the first
time.” Martinez v. Larose, 980 F.3d 551, 554–55 (6th Cir. 2020)
(Thapar, J., concurring in the denial of rehearing en banc).
The majority opinion includes a cautionary hypothetical
for why judicial review is appropriate. The opinion imagines
a U.S. citizen who was deemed illegal, deported, and then
reenters the country. After DHS again apprehends the citizen
and finds that he has already been deported, the agency rein-
states the citizen’s prior order of removal. No judicial review
of that last determination will again result in removal. An Ar-
ticle III federal court therefore must have jurisdiction to pre-
vent such a wrong.
The probability of this hypothetical occurring is vanish-
ingly small. A citizen who was wrongly ordered removed
under a FARO would have a chance to assert citizenship de-
fensively, and if denied, seek review in a court of appeals by
petitioning for review under § 1252(b). See Garza-Flores v.
Mayorkas, 38 F.4th 440, 443 (5th Cir. 2022). Then, “[i]f the peti-
tioner claims to be a national of the United States and the
court of appeals finds from the pleadings and affidavits that
no genuine issue of material fact about the petitioner’s nation-
ality is presented, the court shall decide the nationality
claim.” 8 U.S.C. § 1252(b)(5)(A). But if the appeals court be-
lieves there is a genuine dispute about his nationality, it can
transfer proceedings to a district court. Id. § 1252(b)(5)(B). If
those safeguards fail, and the citizen is wrongfully removed
and reenters, the asylum officer would again have to incor-
rectly deem him an alien. But the statute requires reinstate-

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Nos. 25-2256 & 25-2268 57
ment only when “the Attorney General finds that an alien has
reentered the United States illegally.” Id. § 1231(a)(5). The
odds of all these failures occurring are near zero.
The hypothetical also stresses a need for federal court re-
view when an alien reenters the country and the removal or-
der is reinstated. But the events here show that an alien’s
rights are protected at that juncture. Without this court’s re-
view, an asylum officer still found that E.E.V. had credible
concerns about returning to El Salvador. And for approxi-
mately the last eight years, she has been in withholding-only
proceedings.
In any event, we must follow Riley’s instructions. In the
face of “legitimate practical concerns,” our court “must nev-
ertheless follow the statutory text and our prior precedents.”
Riley, 606 U.S. at 272. At any time, Congress can revise the text
of § 1252(b)(1) to provide for more judicial review. Until then,
courts should apply the statute as written: E.E.V.’s “final or-
der of removal” is her 2007 order, not the order reinstating
that decision. E.E.V. does not challenge that 2007 order, so we
have no jurisdiction. Consequently, we cannot review deci-
sions made after the reinstatement order, like those in reason-
able fear or withholding-only proceedings, because they do
not relate to “judicial review of a final order.” 8
U.S.C. § 1252(b)(9).
II
The majority opinion holds next that equitable tolling is
available for these untimely petitions. I respectfully disagree.

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58 Nos. 25-2256 & 25-2268
A
M.C.C.-G. is a citizen of Mexico who entered the country
illegally at some unknown date. 2 In November 2018, she was
convicted of theft in Indiana and given a suspended sentence
of one year. In May 2025, DHS issued a FARO and ordered
her removed to Mexico. She expressed fear of persecution and
torture if she returned, but an asylum officer found her fears
not reasonable. An Immigration Judge reviewed her case and
agreed with her, overruling the asylum officer, and placed her
in withholding-only proceedings. In December 2025, she was
denied relief and she appealed to the Board of Immigration
Appeals. Her case remains pending.
Her FARO is a “final order of removal.” Riley, 606 U.S. at
267. So, under § 1252(b)(1), M.C.C.-G.’s petition for review of
that FARO must have been filed “not later than 30 days” after
it was issued. M.C.C.-G. filed her petition outside this 30-day
deadline. 3 The question is whether this 30-day deadline al-
lows for equitable tolling.
Statutory filing deadlines fall into different categories.
Some are “jurisdictional,” meaning if the filer misses the
deadline, the court lacks the power to hear the case. Harrow v.
Dept. of Def., 601 U.S. 480, 484 (2024). But by and large, filing
deadlines are “claims-processing rules.” United States v. John-
2 I agree with the majority that we have jurisdiction over M.C.C.-G.’s
petition. The Government’s argument, as I see it, runs counter to the path-
way that Riley established. To the extent my colleagues go beyond that
reasoning, I express no opinion.
3 If this court has jurisdiction over E.E.V.’s petition from her reinstate-
ment order, the equitable tolling analysis would apply to her petition just
the same as it does for M.C.C.-G.’s petition because her petition was also
filed outside the 30-day deadline.

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Nos. 25-2256 & 25-2268 59
ston, 158 F.4th 870, 875 (7th Cir. 2025). These requirements
“seek to promote the orderly progress of litigation by requir-
ing that parties take certain procedural steps at certain speci-
fied times.” Id. (citation modified). For a claims-processing
rule, equitable tolling is presumptively available, but the pre-
sumption can be rebutted. Holland v. Florida, 560 U.S. 631, 645–
46 (2010).
Some claims-processing rules are “mandatory.” Such
deadlines are “unalterable” and must be followed if a party
raises them as a defense. Nutraceutical Corp. v. Lambert, 586
U.S. 188, 192 (2019). Accordingly, equitable tolling of manda-
tory claims-processing rules is almost always unavailable. See
Enbridge Energy, LP v. Nessel, 146 S. Ct. 1074, 1081–82 (2026)
(“Enbridge argues that it is presumptively subject to equitable
tolling. … Some nonjurisdictional rules remain ‘mandatory’
and ‘are not susceptible of the equitable approach’ that
Enbridge urges.”). To be sure, the Court has “reserved
whether mandatory claim-processing rules may [ever] be
subject to equitable exceptions.” Fort Bend County v. Davis, 587
U.S. 541, 549 n.5 (2019). But “the Courtʹs recent decisions in
this area have consistently compelled enforcement of manda-
tory claim-processing rules.” In re Wade, 926 F.3d 447, 450 (7th
Cir. 2019).
Section 1252(b)(1)’s 30-day deadline is a mandatory
claims-processing rule. Riley confirmed this. There, the Court
characterized the issue on appeal as “whether the 30-day fil-
ing deadline … is a jurisdictional requirement or simply a
mandatory claim-processing rule.” 606 U.S. at 263 (emphasis
added). The Court chose the latter. Id. Further, the majority
opinion in Riley analogized to a case involving a “mandatory
time bar.” Id. at 277 (citing Wilkins v. United States, 598 U.S.

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60 Nos. 25-2256 & 25-2268
152, 159 (2023)). From these points, we can conclude the Court
took equitable tolling off the table.4
After Riley, another court has concluded that 8
U.S.C. § 1252(b)(1) is mandatory. As Liao v. Bondi, 162 F.4th
519 (5th Cir. 2025) explains, Riley “did not expressly conclude
that this rule was, in fact, mandatory. Nevertheless, its expo-
sition of the surrounding precedent strongly points us in that
direction.” Id. at 524. Like the Fifth Circuit, I would hold what
the Court in Riley acknowledged—the 30-day deadline is
mandatory and not subject to equitable tolling. Id.
There are more reasons to believe that the 30-day deadline
cannot be equitably tolled. The presumption in favor of equi-
table tolling is rebutted if “there is good reason to believe that
Congress did not want the equitable tolling doctrine to ap-
ply.” Enbridge, 146 S. Ct. at 1082 (citation modified). Congress
in § 1252(b)(1) used unequivocal language: “The petition for
review must be filed not later than 30 days after the date of the
final order of removal.” § 1252(b)(1) (emphasis added). The
Court has instructed that “strict phrasing” in a deadline “is at
least consistent with treating its deadline as mandatory and
not subject to equitable tolling.” Enbridge, 146 S. Ct. at 1082.
True, the Court also cautioned that mandatory language
alone does not rebut the presumption of equitable tolling. Id.
But this factor strongly indicates that Congress intended to
foreclose tolling. Because § 1252(b)(1) speaks in unqualified
terms, and Riley describes that deadline as “mandatory,” I
4 This argument was before the Court in Riley. The United States in-
cluded it in its reply brief. See Reply Brief for Respondent Supporting Pe-
titioner at 7–8, Riley v. Bondi, 606 U.S. 259 (2025) (No. 23-1270).

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Nos. 25-2256 & 25-2268 61
would hold that equitable tolling is unavailable. M.C.C.-G.
filed her petition after the 30-day deadline, so it is untimely.
B
My colleagues interpret § 1252(b)(1) differently. They ob-
serve that the dissent in Riley noted that equitable tolling
would be available, see 606 U.S. at 302–03 (Sotomayor, J., dis-
senting), and the majority opinion in Riley did not mention
equitable tolling. This, according to my colleagues, means the
majority in Riley did not decide the question.
But Riley stated the 30-day deadline is a “mandatory
claims-processing rule.” Id. at 263. If not dispositive, it follows
from that statement that equitable tolling should not be per-
mitted, as the rule is “unalterable” and equitable tolling in
that circumstance is almost always unavailable. Nutraceutical,
586 U.S. at 192; see also Enbridge, 146 S. Ct. at 1081–82. And the
fact that the majority opinion relies on a Supreme Court dis-
sent should suggest its position is unlikely to prevail. Cf. DHS
v. D.V.D., 145 S. Ct. 2627, 2629–30 (2025) (district court
wrongly ordered compliance with a stayed order because the
“only authority it cited was the dissent from the [Court’s] stay
order.”).
Granted, after Riley, circuits have disagreed on whether
§ 1252(b)(1) allows for equitable tolling. The majority opinion
agrees with Oxlaj-Perez v. Blanche, 174 F.4th 516, 520 (6th Cir.
2026), which held that § 1252(b)(1) is subject to equitable toll-
ing. But for several reasons Oxlaj-Perez is unpersuasive on this
question.
The first problem with Oxlaj-Perez and the majority opin-
ion here concerns statutory exceptions. The Supreme Court
recently explained that “‘an explicit listing of exceptions,’ set

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62 Nos. 25-2256 & 25-2268
forth in a detailed manner, strongly indicates that Congress
did not intend courts to read other unmentioned, open-ended
‘equitable’ exceptions into the statute that it wrote.” Enbridge,
146 S. Ct. at 1082–83 (quoting United States v. Brockamp, 519
U.S. 347, 352 (1997)). So the lack of exceptions in § 1252(b)(1),
my colleagues reason, shows that Congress intended for eq-
uitable tolling to be available. See also Oxlaj-Perez, 174 F.4th at
524. But that does not follow. That the presence of exceptions
forecloses tolling does not mean the absence of exceptions
permits tolling. Said another way, the lack of exceptions is not
dispositive.
Second, the majority opinion and Oxlaj-Perez give the text
of § 1252(b)(1) short shrift. My colleagues concede this statute
has mandatory language but then quickly observe that com-
pulsory language is not dispositive. But mandatory statutory
language still has great force. That is the rule of Enbridge, 146
S. Ct. at 1082, and Boechler v. Commissioner of Internal Revenue,
596 U.S. 199 (2022). In the latter case, the statutory provision
for the deadline at issue had non-mandatory language: “The
person may, within 30 days … .” Id. at 204 (quoting 26
U.S.C. § 6330). The Court’s analysis focused on how the text
was written in the statute. Id. at 210 (“This deadline is not
written in ‘emphatic form’ or with ‘detailed’ and ‘technical’
language, nor is it reiterated multiple times.”). Unlike the
compulsory statutory language in Enbridge, the statute in
Boechler used the permissive “may,” so equitable tolling could
be available. Enbridge, 146 S. Ct. at 1082.
Third, another factor when evaluating if equitable tolling
applies is whether “the nature of the [statute’s] subject mat-
ter” is consistent with tolling. Id. at 1084. The Court termed
this a “garnish” in the overall analysis. Id. (quoting Arellano v.

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Nos. 25-2256 & 25-2268 63
McDonough, 598 U.S. 1, 14 (2023)). Yet, the majority opinion
submits that the “expansive and grave” subject matter of
immigration means that Congress did not intend to foreclose
equitable tolling. See also Oxlaj-Perez, 174 F.4th at 528 (“[T]he
humanitarian nature of petitions for review instead militates
in favor of tolling.”). The majority opinion then lists several
recent immigration incidents, that “cannot be attributed” to
mistakes, as “examples of potential grounds for equitable toll-
ing and to illustrate the stakes if judicial review were cut off.”
This flips the test around. The question is whether Con-
gress wanted equitable tolling, not whether equitable tolling
vindicates the rights of alien petitioners. And from Congress’s
viewpoint, “the nature of the subject matter” cuts against eq-
uitable tolling. The Act, including § 1252(b)(1), exists to “ex-
pedite[] judicial review of final orders of removal.” Nasrallah
v. Barr, 590 U.S. 573, 580 (2020). And the plain text of the stat-
ute shows that Congress likely envisioned strict adherence to
the 30-day deadline. That would prevent the precise problem
here: aliens on a “supposedly streamlined” removal track
with claims that take nearly a decade to resolve. Riley, 606 U.S.
at 264. After all, Congress sought to “effect the quick removal
of dangerous aliens.” Id. at 272. Permitting equitable tolling,
then, undermines the statute.
The majority opinion looks for support in Holland, 560 U.S.
at 646. There, the Court reasoned that habeas corpus has “tra-
ditionally” been governed by equitable principles, so 28
U.S.C. § 2244(d) is subject to equitable tolling. Id. 645–46. The
majority opinion reasons that § 1252 “implicates habeas cor-
pus” because it channels judicial review of certain claims
away from habeas relief. But if anything, § 1252 is not related
because that statute expressly exempts claims from habeas re-

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64 Nos. 25-2256 & 25-2268
lief. § 1252(a)(4)–(5), (b)(5), (b)(9), (e)(2), (g). So Holland’s rea-
soning—which justified tolling based on the equitable princi-
ples of habeas—should have no bearing on a judicial review
statute that exempts claims from habeas.
My colleagues note that a petition for review may be the
only mechanism Congress has provided to argue before an
Article III court. But most appellate deadlines limit federal
court review. Take two examples. We have upheld filing
deadlines in the habeas context, depriving state prisoners of
review by a federal court. Taylor v. Michael, 724 F.3d 806, 810
(7th Cir. 2013) (Despite alleging a constitutional violation,
“we dismiss this case for the simple reason that Taylor did not
file his petition within the statutorily prescribed time limit.”).
And in Enbridge, the Court held that 28 U.S.C. § 1446(b)(1) did
not permit equitable tolling. 146 S. Ct. at 1079. The resulting
effect deprives untimely state-court parties of their ability to
remove their case to federal court, precluding review by an
Article III judge.
Some aliens may raise constitutional claims, my col-
leagues warn, and the “importance of such claims” cuts in fa-
vor of interpreting the 30-day deadline to permit equitable
tolling. But that a claim is constitutional does not mean a fed-
eral court must hear it. “The Constitution does not require
that courts hear all constitutional claims.” Mullin v. Doe, Nos.
25–1083 and 25–1084, 2026 WL 1825840, at *14 (2026)
(Thomas, J., concurring) (citation modified). Indeed, “the very
text of the Constitution refutes the principle that all constitu-
tional violations must be remediable in the courts.” Id. (quot-
ing Webster v. Doe, 486 U.S. 592, 613 (1988) (Scalia, J.,
dissenting) (citation modified)). For example, under the polit-
ical-question doctrine, federal courts cannot entertain those

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Nos. 25-2256 & 25-2268 65
constitutional claims committed solely to another branch.
Shiba v. Mullin, 173 F.4th 895, 901–02 (7th Cir. 2026). Nor can
courts resolve certain suits against federal officers, even if
they allege violation of constitutional rights. Egbert v. Boule,
596 U.S. 482, 493–94 (2022) (alleging excessive force, retalia-
tion, and infringement of rights); see also Nielsen v. Watanabe,
No. 25-417, 2026 WL 1780123, at *1 (2026) (cert. granted)
(whether Bivens action is available against prison official who
failed to treat prisoner’s chronic pain). In short, that some con-
stitutional claims may go unadjudicated is no reason to devi-
ate from the statute’s text in order to permit equitable tolling.
III
This case should be decided under Riley, the text of
§ 1252(b)(1), and that statute’s context. The majority opinion
marginalizes those considerations. The result is contrary to
Congress’s statutory arrangement of effectuating timely de-
portations.5
E.E.V. repeatedly violated our country’s immigration
laws, yet she has remained in this country for nearly a decade
after DHS placed her in “expedited” removal proceedings.
M.C.C.-G. was convicted of an aggravated felony, placing her
among the “dangerous aliens” Congress sought to “expedi-
tiously” remove. Riley, 606 U.S. at 272. The majority opinion
finds jurisdiction where there is none. The result is even more
delay for E.E.V., M.C.C.-G., and future petitioners. Because
those holdings are contrary to the statutes and fail to adhere
to the Supreme Court’s decision in Riley, I respectfully dis-
sent.
5 For this reason, I would not reach whether M.C.C.-G. is entitled to
equitable tolling.

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