Equitable Tolling for § 1252(b)(1) After Riley and Continued Reviewability of Reinstatement Orders

I. Introduction

In M. C. C.-G. v. Todd W. Blanche (consolidated with a companion petition by E.E.V.), the Seventh Circuit addressed a procedural shockwave created by the Supreme Court’s decision in Riley v. Bondi, 606 U.S. 259 (2025). Before Riley, Seventh Circuit precedent required noncitizens in “withholding-only” post-order processes (reinstatement orders, final administrative removal orders (FAROs), and certain credible/reasonable-fear pathways) to wait until those protection proceedings ended before filing a petition for review. Riley reversed that timing rule by holding the 30-day clock in 8 U.S.C. § 1252(b)(1) begins upon issuance of the final administrative removal order (or similar final order), even if withholding/CAT proceedings remain pending.

The government moved to dismiss these post-Riley petitions as untimely and also advanced broader jurisdictional theories that would have sharply curtailed judicial review, including claims that reinstatement orders are not “final orders of removal” and that placeholder petitions are “unripe.” The Seventh Circuit rejected those jurisdictional challenges, held that § 1252(b)(1) is subject to equitable tolling, and found tolling appropriate where petitioners relied on binding pre-Riley precedent and filed promptly after Riley.

II. Summary of the Opinion

  • Reinstatement orders remain reviewable final orders of removal. The court reaffirmed circuit precedent that a reinstatement order is a “final order of removal” reviewable by petition for review under § 1252 (albeit with narrow merits review of the reinstatement determination itself).
  • Placeholder petitions are not unripe. The court rejected the government’s “too early” ripeness argument as inconsistent with Riley’s own solution: file within 30 days of the final removal order and hold the petition pending until withholding-only proceedings conclude.
  • Equitable tolling is available for § 1252(b)(1). Applying the Supreme Court’s modern presumption favoring tolling for non-jurisdictional filing deadlines, the court held the government failed to rebut the presumption.
  • Equitable tolling was warranted here. Petitioners acted diligently by following then-binding Seventh Circuit precedent (which would have treated earlier petitions as premature), and by filing within 30 days after Riley changed the rule.
  • Venue transfer denied. The government’s request to transfer E.E.V.’s case to the Fifth Circuit was denied; the court retained the case and held both petitions in abeyance pending completion of agency withholding-only proceedings.

III. Analysis

A. Precedents Cited

1. Riley v. Bondi, 606 U.S. 259 (2025)

Riley supplied the central doctrinal pivot: withholding-only proceedings “do not disturb the finality of an otherwise final order of removal,” and the § 1252(b)(1) 30-day deadline runs from that final order’s issuance. Crucially, the Seventh Circuit leaned on Riley not only for the timing rule but also for its pragmatic instruction: the government can “alert the court of appeals to the pendency of a withholding-only proceeding so that review there can wait until that issue is decided.” The court used this language to defeat the government’s ripeness theory and to validate placeholder petitions.

2. F.J.A.P. v. Garland, 94 F.4th 620 (7th Cir. 2024) (abrogated by Riley)

F.J.A.P. represented the old Seventh Circuit rule: petitions were premature until withholding-only proceedings ended. The court treated reliance on F.J.A.P. as key to both diligence and “extraordinary circumstance” for tolling—petitioners acted exactly as the circuit required at the time, and the Supreme Court’s later change made timely filing under the new rule impossible (or effectively impracticable) without tolling.

3. Nasrallah v. Barr, 590 U.S. 573 (2020)

The government and dissent invoked Nasrallah’s discussion that CAT orders do not “merge into” final removal orders for certain jurisdiction-stripping purposes. The majority distinguished that “merger/validity” analysis from the zipper clause’s consolidation function under § 1252(b)(9), emphasizing that the relevant question is whether CAT/withholding issues are “questions of law and fact … arising from” removal actions, which remain reviewable via a petition for review of a final order.

4. Johnson v. Guzman Chavez, 594 U.S. 523 (2021)

The court used Johnson v. Guzman Chavez for two limited points: (i) asylum is not “withholding-only” relief (also noting Johnson v. Guzman Chavez, 594 U.S. 523, 536-37 (2021)), and (ii) detention/removal timing concepts do not resolve the distinct “final order” question under § 1252, particularly given Guzman Chavez’s footnote expressly leaving open whether reinstatement orders are final orders for judicial review.

5. Judicial-review and anti-jurisdiction-stripping backdrop

The opinion repeatedly invoked the strong presumption favoring review of administrative action, citing Salinas v. United States Railroad Retirement Bd., 592 U.S. 188 (2021), and relied on circuit-stare-decisis principles via United States v. Betts, 99 F.4th 1048 (7th Cir. 2024). It also engaged a broad set of equitable-tolling authorities, including Irwin v. Dep't of Veterans Affairs, Holland v. Florida, Boechler, P.C. v. Comm'r of Internal Revenue, Arellano v. McDonough, Harrow v. Department of Defense, and Enbridge Energy, LP v. Nessel ex rel. Michigan, to establish a presumption of tolling for nonjurisdictional deadlines.

B. Legal Reasoning

1. Reinstatement orders are “final orders of removal” in the Seventh Circuit

The court refused to overturn its line of reinstatement-review cases (including Villa v. Barr, Torres-Tristan v. Holder, and Lemos v. Holder), finding no “compelling reason” such as a statutory change or an intervening Supreme Court holding. Interpreting Riley’s “order of removal” definition, the majority concluded that reinstatement orders share the relevant statutory “characteristics” because they determine removability and operate to effect removal again after a prior order has already been executed.

A key structural consideration was the court’s rejection of the government’s position as producing a sweeping no-review regime, including for identity errors and nationality claims—an outcome the court deemed inconsistent with both the statutory channeling of review into petitions for review (and away from habeas/declaratory actions in many contexts) and the constitutional gravity of citizenship.

2. Ripeness: rejecting the government’s “too early” theory

The government argued that because withholding-only proceedings were pending, the petitions were unripe. The court answered that Riley itself contemplated and endorsed placeholder petitions that would be held until withholding-only issues concluded. It also highlighted the government’s internal contradiction: pressing “too late” and “too early” simultaneously, a position the court characterized as a legally suspect “heads I win, tails you lose” strategy (citing McCann v. Hy-Vee, Inc.).

3. Equitable tolling is available for § 1252(b)(1)

Building from Riley’s holding that § 1252(b)(1) is not jurisdictional, the Seventh Circuit applied the Supreme Court’s presumption that nonjurisdictional statutes of limitations are equitably tollable unless Congress clearly indicates otherwise. The court rejected the notion that calling a rule “mandatory” in the abstract ends the inquiry, emphasizing that Riley did not decide tolling and did not perform the usual tolling analysis. It also distinguished Nutraceutical Corp. v. Lambert as a rules-based (not statutory) deadline case driven by the Federal Rules’ express anti-extension language for certain discretionary appeals.

4. Equitable tolling is appropriate when binding precedent made timely filing impossible or impracticable

On diligence, the petitioners complied with then-binding Seventh Circuit law that treated pre-withholding petitions as premature. After Riley changed the rule, they filed within 30 days of that decision. On “extraordinary circumstance,” the court treated the Supreme Court’s abrupt change in binding timing law as a classic external barrier—akin to habeas cases where a new decision suddenly collapses a previously available filing window. The opinion drew persuasive analogies to Harris v. Carter and Sherwood v. Prelesnik (both involving equitable tolling following changes in binding precedent affecting filing timeliness).

C. Impact

1. Preserving post-Riley access to judicial review

The immediate practical effect is to prevent Riley from functioning as a mass forfeiture mechanism for noncitizens whose cases were pending under pre-Riley circuit regimes that required waiting. The decision supplies a clear route: equitable tolling can rescue petitions filed promptly after Riley when earlier filing would have been dismissed as premature under binding precedent.

2. Structural constraint on executive attempts to narrow review

By rejecting the government’s arguments that reinstatement orders are not reviewable final orders and that withholding/CAT claims require a separate “substantive” removability challenge, the court reinforced the zipper clause’s consolidating function and resisted a move that would de facto insulate many withholding-only denials from Article III review.

3. Litigation management: abeyance/placeholder practice becomes normalized

The court embraced Riley’s practical solution—holding petitions in abeyance pending the agency’s completion of withholding-only adjudication—thereby shaping how Seventh Circuit immigration review will be calendared post-Riley.

IV. Complex Concepts Simplified

  • “Final order of removal”: the government’s decisive removal order. After Riley, some orders (like FAROs and, in the Seventh Circuit, reinstatement orders) are “final” immediately upon issuance even if later protection proceedings continue.
  • “Withholding-only” proceedings: hearings that do not decide whether the person is removable, but whether removal may be carried out to a particular country because of persecution risk (statutory withholding) or torture risk (CAT).
  • “Zipper clause” (§ 1252(b)(9)): a consolidation rule directing that legal and factual challenges “arising from” removal actions be reviewed together through a petition for review, rather than scattered across separate lawsuits.
  • Equitable tolling: a safety valve that pauses or extends a filing deadline when a party acted diligently but an extraordinary, external obstacle prevented timely filing. Here, the obstacle was binding circuit precedent later overturned by Riley.
  • Mandatory vs. jurisdictional deadlines: a jurisdictional deadline deprives courts of power; a mandatory claim-processing rule must be enforced if raised, but (the Seventh Circuit held) can still be subject to equitable tolling unless Congress clearly forbids it.

V. Conclusion

The Seventh Circuit’s decision establishes two core principles for post-Riley immigration litigation in this circuit: (1) § 1252(b)(1)’s 30-day petition-for-review deadline is equitably tollable, and tolling is appropriate where petitioners diligently relied on binding pre-Riley precedent that would have made earlier petitions premature; and (2) reinstatement orders remain reviewable “final orders of removal,” preserving judicial review for critical issues that arise from reinstatement and withholding/CAT proceedings.

In broader context, the opinion is a strong statement against silent foreclosure of judicial review in high-stakes removal-to-persecution/torture cases. It operationalizes Riley’s placeholder-petition framework, prevents the government from using contradictory timing arguments to block review, and signals that major doctrinal shifts in filing rules will not be allowed to retroactively lock the courthouse doors on diligent litigants.