Equitable Tolling for 8 U.S.C. § 1252(b)(1) After Riley and Functional “Final Order” Challenges in Withholding-Only Review

1. Introduction

This Fourth Circuit decision sits at the intersection of (i) post-Riley v. Bondi, 606 U.S. 259 (2025) appellate procedure in “withholding-only” cases triggered by DHS reinstatement, and (ii) merits standards for withholding of removal and Convention Against Torture (“CAT”) protection involving gang persecution in El Salvador.

Parties and posture. Petitioner Jaime Daniel Navarro Cerritos (“Navarro”) is a Salvadoran national who fled MS-13 violence, was removed, reentered, and in 2021 had his prior 2016 order reinstated by DHS. In withholding-only proceedings, the IJ and the Board of Immigration Appeals (“Board”) denied statutory withholding and CAT relief. Navarro filed a petition for review within 30 days of the Board’s decision—but not within 30 days of the reinstatement order.

Core procedural issues. The Government argued that, under Riley, (1) the court lacked jurisdiction because the petition did not properly challenge a “final order of removal,” and (2) in any event the petition was untimely under 8 U.S.C. § 1252(b)(1) because it was filed more than 30 days after the DHS reinstatement order.

Core merits issues. On withholding, Navarro advanced (a) an imputed anti-gang political opinion theory and (b) a particular social group (“PSG”)—“Individuals in El Salvador Who Witness and Report Crimes by MS-13 to the Police.” On CAT, he argued a likelihood of torture by MS-13 with government acquiescence and an inability to safely relocate.

2. Summary of the Opinion

• Jurisdiction: The court held that reinstatement orders are “final orders of removal” reviewable under 8 U.S.C. § 1252(a)(1), and that a petition may be jurisdictionally sufficient even if it does not expressly contest removability, so long as the intent to seek review of the final order can be fairly inferred.
• Timeliness / tolling: Following Riley’s classification of § 1252(b)(1) as non-jurisdictional, the court held the 30-day deadline is subject to equitable tolling and applied tolling here because Riley altered the filing framework while Navarro’s case was pending and Navarro acted diligently under the then-prevailing regime.
• Withholding—political opinion: The agency abused its discretion by ignoring legally significant evidence (including expert testimony) bearing on imputed anti-gang political opinion and by treating alternative motives (e.g., a dispute with Vallecillos) as negating nexus rather than potentially intertwined.
• Withholding—PSG: The court held the Board erred on social distinction (misapplying “public” visibility concepts and ignoring evidence such as El Salvador’s witness-protection law) and erred on particularity by conducting an impermissible piecemeal analysis rather than evaluating the group as defined.
• CAT: The agency failed to meaningfully engage with unrebutted affidavits, evidence of past torture, relocation history, and evidence relevant to acquiescence; the CAT denial was vacated.
• Dissent: Judge Wilkinson would have dismissed as untimely, reasoning § 1252(b)(1) is “mandatory,” equitable tolling is inconsistent with Stone v. INS, 514 U.S. 386 (1995) and Fed. R. App. P. 26(b)(2), and the majority undermines finality and Congress’s streamlining objectives.

3. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1) “Final order” and withholding-only review after Riley

The court’s jurisdictional roadmap is anchored in Riley v. Bondi, 606 U.S. 259 (2025) and Nasrallah v. Barr, 590 U.S. 573 (2020).

• Nasrallah v. Barr supplied the definitional baseline: a “final order of removal” is one “concluding that the alien is deportable or ordering deportation,” while CAT/withholding determinations do not themselves decide removability.
• Riley v. Bondi supplied the structural command: withholding-only decisions are not themselves final orders; review of withholding/CAT must be tethered to review of a final order so that “review of removability and withholding of removal should occur in a single appellate proceeding.”

From those premises, the Fourth Circuit answered two open questions left in Riley: (i) whether a DHS reinstatement order is a final order, and (ii) what counts as a “challenge” to that final order when the petitioner concedes removability.

2) Reinstatement orders as final orders of removal

The court treated its own recent approach in Rivas de Nolasco v. Bondi, 150 F.4th 350 (4th Cir. 2025) as suggestive, then expressly held reinstatement orders are final orders, aligning with uniform circuit practice and relying by analogy on Riley’s treatment of a DHS-issued FARO.

Notably, the opinion catalogs sister-circuit authority exercising jurisdiction over reinstatement orders: Arevalo v. Ashcroft, Laureano v. Att'y Gen., Garcia v. Holder, Moreno-Martinez v. Barr, E.E.V. v. Blanche, Lara-Nieto v. Barr, Ruiz v. Bondi, Arostegui- Maldonado v. Garland (abrogated on other grounds by Riley), and Avila v. U.S. Att'y Gen. This survey functions as both validation and a signal that the Fourth Circuit is formalizing what was previously assumed.

3) Functional compliance with petition-identification rules (Rule 15) and “no express removability challenge”

On whether Navarro needed to expressly challenge removability, the court sided with the Third Circuit’s post-Riley approach in Laureano and rejected the stricter approach seen in Navarrete v. Bondi and Hayles v. U.S. Att'y Gen..

The doctrinal mechanism is a “functional” reading of designation requirements—imported from Clark v. Cartledge and Smith v. Barry (Rule 3) and applied to Rule 15 via Gottesman v. Immigr. & Naturalization Serv., reinforced by D.C. Circuit administrative-law cases such as Am. Rivers v. FERC and Sinclair Broad. Grp., Inc. v. FCC. The court distinguished Entravision Holdings, LLC v. FCC, where filings showed a clear intent to challenge only an unreviewable order.

The Fourth Circuit also leveraged its own post-remand procedural guidance in Riley v. Blanche, 180 F.4th 187 (4th Cir. 2026) (“Riley II”)—especially the concept of “placeholder” or “nominal challenges” to the underlying removal order to preserve review of withholding-only rulings.

4) Equitable tolling of § 1252(b)(1)

The equitable-tolling analysis is built around the Supreme Court’s modern tolling canon:

• Holland v. Florida and Irwin v. Dep't of Veterans Affs. (presumption that non-jurisdictional federal limitations periods are tollable)
• Boechler, P.C. v. Comm'r (application of the presumption to a short 30-day deadline directed at claimants, often lay filers)
• Nutraceutical Corp., Fort Bend County v. Davis, and the later “text/structure/context” focus reflected in Arellano v. McDonough and Enbridge Energy, LP v. Nessel
• United States v. Kwai Fun Wong and Young v. United States (illustrating that even emphatic language may not suffice to rebut tolling absent structural indicators)

Critically, the Fourth Circuit joined the published holdings of Oxlaj-Perez v. Blanche (Sixth Circuit) and E.E.V. v. Blanche (Seventh Circuit) that § 1252(b)(1) is tollable, and rejected the Government’s Rule 26(b)(2) argument by aligning with Nelson v. SEC and the distinction between tolling statutes vs tolling rules (as in Nutraceutical).

For case-specific tolling, the court applied the two-part diligence/extraordinary-circumstance test from Warfaa v. Ali and Menominee Indian Tribe of Wis. v. United States, while emphasizing “reasonable diligence” per Justus v. Clarke.

5) Merits: standards for agency review and error

• Scope and standards: Barahona v. Holder (review of both IJ and Board when adopted/supplemented); de novo legal review per Hernandez- Avalos v. Lynch; substantial evidence per Ayala-Osegueda v. Garland; abuse of discretion framing per Rodriguez-Arias v. Whitaker, Tassi v. Holder, and “wholesale failure” per Alvarez Lagos v. Barr.
• Nexus and mixed motives: The court invoked Cruz v. Sessions, Lopez Ordonez v. Barr, and Cortez- Mendez v. Whitaker to reject the agency’s tendency to treat one motive (Vallecillos) as displacing others (anti-gang political opinion).
• Imputed political opinion: The governing lens comes from Alvarez Lagos v. Barr (focus on persecutor’s perception) and Abdel-Rahman v. Gonzales (must show persecutors actually imputed the opinion). The court favorably cited the Ninth Circuit’s broader conception in Rodriguez Tornes v. Garland.
• PSG doctrine: The court treated particularity as a legal question per Amaya v. Rosen and invoked Temu v. Holder and Matter of M-E-V-G-. It distinguished Fourth Circuit cases rejecting vague witness/crime formulations—Herrera-Martinez v. Garland and Morales v. Garland—based on how Navarro’s definition narrowed boundaries when read as a whole.
• Social distinction: The court relied on Nolasco v. Garland (no ocular visibility requirement) and faulted the agency for demanding “public” nature; it also leaned on Henriquez- Rivas v. Holder for the probative value of witness-protection legislation as evidence of social recognition.
• CAT doctrine: The court applied regulatory factors in 8 C.F.R. § 1208.16(c), acquiescence standards from Lizama v. Holder and Cabrera Vasquez v. Barr, aggregation guidance from Ibarra Chevez v. Garland, and relocation relevance per Funez-Ortiz v. McHenry. It held the agency’s treatment of affidavits and relocation history mirrored the reversible selectivity condemned in Ai Hua Chen v. Holder and reiterated in Marquez v. Bondi.

B. Legal Reasoning (What New Rules the Court Announced and Why)

1) Reinstatement is the “final order of removal” for § 1252(a)(1)

The court crystallized a rule the Fourth Circuit had treated as assumed: a DHS reinstatement order is a final order of removal because it (i) “commands” removal and (ii) becomes final immediately upon issuance given the regulatory absence of administrative appellate review (mirroring Riley’s reasoning about FAROs).

2) A petition can “challenge” the final order without a merits attack on removability

The court adopted a pragmatic jurisdictional approach: where a petitioner seeks review of withholding/CAT denials and references the reinstatement order and “final order of removal,” the petition satisfies Rule 15’s order-specification function so long as intent can be fairly inferred and the Government is not prejudiced. This is especially important post-Riley, where “nominal” challenges may be necessary even when removability is conceded.

3) § 1252(b)(1)’s 30-day deadline is equitably tollable—and tolling can be warranted by a midstream change in filing regime

The court held the statutory text and structure do not rebut the background presumption of equitable tolling for non-jurisdictional deadlines. It rejected the idea that Fed. R. App. P. 26(b)(2) bars tolling because tolling is applied to statutes under Congress’s presumed drafting backdrop, not an “extension” granted under the Rules’ discretionary enlargement mechanism.

On application, the court treated Riley as an extraordinary circumstance because it altered what “timely” meant in withholding-only cases (final order date vs Board decision date) while Navarro’s case was in process, and found diligence because Navarro filed within 30 days of the Board decision consistent with then-prevailing practice and the Board’s notice.

4) Merits: the opinion’s error-correction themes

• Evidence engagement is not optional. Across political opinion nexus, PSG social distinction, and CAT likelihood/acquiescence, the court treated failure to address expert declarations, corroborating affidavits, and relocation history as an abuse of discretion.
• Mixed motives do not defeat nexus. The court emphasized doctrinal space for intertwined motives; a “personal dispute” does not negate political imputation when the dispute itself arises from anti-gang activity and the gang operates quasi-governance functions.
• PSG analysis must be holistic. Particularity errors arose from parsing words (“witness,” “report,” “crimes”) in isolation rather than evaluating whether the composite definition provides objective boundaries.

C. Impact (Likely Effects on Future Litigation)

• Procedural stabilization post-Riley: The Fourth Circuit’s holdings reduce the risk that withholding-only petitioners lose review due to technical misdesignation or conceded removability, provided the petition signals intent to seek review connected to the final order.
• Expanded access via tolling: By holding § 1252(b)(1) is equitably tollable and applying tolling in a transitional-law context, the court opens a path for similarly situated petitioners whose filing decisions were shaped by pre-Riley circuit practice. The decision will likely prompt intensive litigation over what qualifies as an “extraordinary circumstance,” with this case supplying a benchmark for “change-in-regime” scenarios.
• Agency adjudication discipline: The merits portions reinforce that “reasoned explanation” requires engagement with key evidence; conclusory statements that risk is “speculative” are vulnerable where past torture, corroboration, and failed internal relocation are documented.
• PSG framing in gang-reporting cases: The court’s willingness to find particularity in a carefully bounded “witness and report” PSG may influence how advocates draft PSGs—using self-limiting features (specific gang, specific jurisdiction, specific conduct) to avoid the pitfalls identified in Herrera-Martinez v. Garland and Morales v. Garland.
• Inter-circuit tension: The opinion deepens a split with circuits requiring an express removability challenge and those resistant to tolling (as reflected in the dissent’s emphasis on Stone v. INS and Rule 26(b)(2)). This increases the chance of further Supreme Court clarification.

4. Complex Concepts Simplified

5. Conclusion

Navarro Cerritos v. Blanche is a major Fourth Circuit post-Riley decision with two headline procedural holdings: (1) DHS reinstatement orders are “final orders of removal” under § 1252(a)(1), and (2) § 1252(b)(1)’s 30-day deadline is a non-jurisdictional limitations rule that may be equitably tolled, including where a change in the governing filing framework would otherwise strip review from a diligent petitioner.

On the merits, the opinion reinforces a consistent administrative-law theme in immigration adjudication: courts will not defer to outcomes reached by ignoring legally significant evidence, fragmenting PSG definitions into word-by-word vetoes, or collapsing mixed-motive nexus analysis into a single-cause narrative. The decision both expands procedural pathways to appellate review and tightens expectations for reasoned agency decision-making in gang-based withholding and CAT claims.