Equitable Tolling for § 1252(b)(1) After Riley When Petitioners Relied on Binding Circuit Precedent; Reinstatement Orders Remain Reviewable Final Orders

Commentary on E.E.V. and M.C.C.-G. v. Todd W. Blanche, Nos. 25-2256 & 25-2268 (7th Cir. July 6, 2026)

I. Introduction

This consolidated Seventh Circuit decision addresses a procedural shockwave created by the Supreme Court’s Riley v. Bondi, 606 U.S. 259 (2025) for noncitizens in “withholding-only” and Convention Against Torture (CAT) pathways. Petitioners E.E.V. (subject to a reinstatement order) and M.C.C.-G. (subject to a final administrative removal order or FARO) sought judicial review while their withholding-only/CAT-related administrative processes were still pending.

The government moved to dismiss on timeliness grounds under 8 U.S.C. § 1252(b)(1), arguing that—after Riley—the 30-day clock runs from issuance of the removal order even if withholding-only proceedings continue. The government also raised broader jurisdictional objections that, if accepted, would substantially curtail judicial review of reinstatement orders and CAT/withholding denials.

The Seventh Circuit (Hamilton, J.) denies dismissal, holding (1) reinstatement orders remain reviewable as “final orders of removal,” (2) placeholder petitions filed before withholding-only proceedings conclude are not “unripe,” and (3) the § 1252(b)(1) deadline is equitably tollable and is tolled here because petitioners relied on the Seventh Circuit’s then-binding, pre-Riley timing rule.

II. Summary of the Opinion

A. Core holdings

  • Reinstatement orders are “final orders of removal” subject to petitions for review under 8 U.S.C. § 1252, consistent with longstanding Seventh Circuit precedent (e.g., Villa v. Barr, 924 F.3d 370 (7th Cir. 2019); Torres-Tristan v. Holder, 656 F.3d 653 (7th Cir. 2011); Lemos v. Holder, 636 F.3d 365 (7th Cir. 2011); Velazquez-Olais v. Blanche, 172 F.4th 536 (7th Cir. 2026)).
  • Placeholder petitions are permissible; ongoing withholding-only proceedings do not render a petition for review “unripe,” tracking Riley v. Bondi’s instruction that courts may “wait until that issue is decided.”
  • Equitable tolling is available for § 1252(b)(1) and is warranted where petitioners diligently relied on binding pre-Riley circuit precedent requiring them to wait until withholding-only proceedings ended (notably F.J.A.P. v. Garland, 94 F.4th 620 (7th Cir. 2024), later abrogated by Riley).
  • Venue transfer denied; the court retains E.E.V.’s petition and holds both petitions in abeyance pending completion of agency proceedings.

B. Practical disposition

The court denies the government’s motions to dismiss (or summarily deny) and denies the alternative motion to transfer venue. It then holds the petitions in abeyance until the agency issues final decisions on withholding-only relief, preserving judicial review without forcing merits litigation prematurely.

III. Analysis

A. Precedents Cited

1. Riley v. Bondi, 606 U.S. 259 (2025): the trigger and the template

Riley v. Bondi supplies the new timing rule: the 30-day petition-for-review deadline runs from issuance of a FARO (or similarly non-appealable removal order) even if withholding-only/CAT proceedings remain pending, because “withholding-only proceedings do not disturb the finality of an otherwise final order of removal.” The Seventh Circuit treats Riley as fully controlling on when the clock starts, but equally important is Riley’s endorsed procedural mechanism: 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 opinion leverages this language to reject the government’s ripeness U-turn and to justify holding these petitions in abeyance.

The court also draws from Riley’s determination that § 1252(b)(1) is non-jurisdictional, which unlocks equitable doctrines. The opinion treats Riley as having left open equitable tolling, rather than having silently foreclosed it.

2. F.J.A.P. v. Garland, 94 F.4th 620 (7th Cir. 2024): reliance interest and “impossibility”

Pre-Riley, F.J.A.P. v. Garland represented binding Seventh Circuit law that petitioners must wait to file petitions for review until withholding-only proceedings were complete (a position once widely shared across circuits). The court makes F.J.A.P. do heavy work: it establishes that filing earlier would have been dismissed as premature, meaning the later change in law made timely filing effectively impossible for those who followed the then-mandatory rule.

3. Nasrallah v. Barr, 590 U.S. 573 (2020) and Johnson v. Guzman Chavez, 594 U.S. 523 (2021): limits that do not undo review

The government invoked Nasrallah v. Barr and Johnson v. Guzman Chavez to argue for reduced reviewability, especially regarding reinstatement orders and the relationship between CAT/withholding decisions and “final orders.” The Seventh Circuit distinguishes them:

  • Nasrallah v. Barr is treated as addressing the “criminal alien bar” and clarifying that a CAT order is not itself a final order and does not “merge” into a removal order for certain jurisdiction-stripping purposes—without suggesting that CAT/withholding questions cannot be reviewed via a petition for review of a final removal order under the “zipper clause.”
  • Johnson v. Guzman Chavez is treated as a detention-statute case that expressly left open (in a footnote) whether a reinstatement order is a final order for judicial review purposes, and that uses different statutory language; it therefore does not compel overruling the Seventh Circuit’s reinstatement review precedents.

4. Stare decisis and circuit practice on reinstatement orders

To resist the government’s late-breaking claim that reinstatement orders are not reviewable, the court relies on: United States v. Betts, 99 F.4th 1048 (7th Cir. 2024) (strong reasons required to overrule circuit precedent), plus a line of Seventh Circuit reinstatement cases: Velazquez-Olais v. Blanche, Villa v. Barr, Torres-Tristan v. Holder, and Lemos v. Holder. It also cites a broad cross-circuit consensus (e.g., Garcia-Villeda v. Mukasey, Garcia v. Holder, Moreno-Martinez v. Barr, Lara-Nieto v. Barr, Arostegui-Maldonado v. Garland, Avila v. U.S. Attorney General), emphasizing that the government’s theory would extinguish judicial review of identity and citizenship disputes in reinstatement contexts.

5. Equitable tolling framework: the Supreme Court’s “rebuttable presumption” line

The opinion situates § 1252(b)(1) within the Supreme Court’s modern approach: non-jurisdictional filing deadlines are presumed equitably tollable absent clear congressional displacement. The court cites (among others): Enbridge Energy, LP v. Nessel ex rel. Michigan, Harrow v. Department of Defense, Arellano v. McDonough, Boechler, P.C. v. Comm'r of Internal Revenue, United States v. Wong, Lozano v. Montoya Alvarez, Holland v. Florida, Young v. United States, and Irwin v. Dep't of Veterans Affairs. These cases support the majority’s bottom line: once the deadline is non-jurisdictional, tolling is generally available unless Congress clearly says otherwise.

6. Rules-based analogies rejected: Nutraceutical Corp. v. Lambert, 586 U.S. 188 (2019) and Fed. R. App. P. 26(b)

The government relied on Nutraceutical Corp. v. Lambert to suggest “mandatory” claim-processing rules foreclose tolling. The Seventh Circuit distinguishes Nutraceutical as a case about a deadline created by the Federal Rules (Rule 23(f)) and reinforced by a specific no-extension directive in the Appellate Rules, whereas § 1252(b)(1) is a statute of limitations enacted by Congress. It further reads Fed. R. App. P. 15(a)(1) (“within the time prescribed by law”) as incorporating statutory tolling principles rather than excluding them.

7. Diligence/extraordinary circumstance analogies from habeas: Harris v. Carter and Sherwood v. Prelesnik

For the “extraordinary circumstance” prong, the court borrows persuasively from AEDPA contexts where a change in binding precedent retroactively destroyed a litigant’s previously reasonable filing strategy: Harris v. Carter and Sherwood v. Prelesnik. Those cases illustrate that reliance on binding precedent can be “extraordinary” when the law changes in a way that makes timely filing effectively impossible or impracticable.

B. Legal Reasoning

1. Reinstatement orders as “final orders of removal”

The opinion adopts a functional, text-anchored view, using Riley’s definition: an “order of removal” must have the characteristics of concluding removability/deportability and ordering removal. A reinstatement order, on its face, declares the person “removable” under 8 U.S.C. § 1231(a)(5) and triggers the operative authority to remove again after the original order has already been executed.

The court’s reasoning is also structural: the government’s position would create a review black hole. Because Congress channels many nationality claims and CAT questions into the petition-for-review process (8 U.S.C. § 1252), stripping reinstatement orders from § 1252 review would risk leaving even U.S. citizenship claims without an effective forum—an outcome the court views as constitutionally alarming and contrary to the presumption favoring judicial review.

2. Ripeness and placeholder petitions after Riley

The government’s “too early” argument is rejected as inconsistent with Riley’s own solution and internally contradictory given its “too late” position. The Seventh Circuit embraces an administrative-law management approach: keep the petition alive, stay/abey it, and complete judicial review once the withholding-only record is final.

The court also rejects a broader theory advanced via Navarrete v. Bondi, 170 F.4th 1214 (9th Cir. 2026) and Hayles v. U.S. Attorney General that would require a substantive challenge to removability as a condition for obtaining review of CAT/withholding. The Seventh Circuit reads the “zipper clause” (8 U.S.C. § 1252(b)(9)) as consolidating review, not restricting it, and notes that Riley itself involved a petitioner who did not contest removability but sought CAT protection.

3. Equitable tolling: availability and application

Availability. Having treated § 1252(b)(1) as a non-jurisdictional limitations period, the court applies the Supreme Court’s presumption that such deadlines are equitably tollable unless Congress clearly displaced tolling. It finds no such displacement in § 1252(b)(1), distinguishes rule-based no-extension regimes, and emphasizes the subject matter (risk of persecution/torture; citizenship claims) as counseling against silently closing the courthouse door.

Application. Using Pace v. DiGuglielmo, 544 U.S. 408 (2005), the court finds:

  • Diligence: petitioners pursued withholding-only processes and, once Riley changed the timing rule, filed within 30 days of the decision.
  • Extraordinary circumstance: binding Seventh Circuit law would have made a pre-Riley petition premature and dismissible; Riley then abruptly made the petition “late.” This “no win” window—created by an intervening change in controlling law—qualifies as extraordinary.

4. Venue and litigation-efficiency

Under 8 U.S.C. § 1252(b)(2), venue is tied to where the immigration judge completed proceedings. Because merits review will not occur until withholding-only proceedings end—and those proceedings began and remained within the Seventh Circuit at relevant times—the court denies transfer, emphasizing fairness to pro bono counsel and judicial economy under Cordova-Soto v. Holder, 732 F.3d 789 (7th Cir. 2013).

C. Impact

1. Restoring workable access to review after Riley

Riley created a practical trap: a 30-day clock that expires long before withholding-only proceedings end in many cases. This decision supplies a critical “bridge” for petitioners whose filing strategy was dictated by now-abrogated precedent: equitable tolling can preserve their day in court.

2. Keeping reinstatement orders within Article III supervision

By reaffirming reinstatement orders as reviewable final orders of removal, the Seventh Circuit prevents a major contraction of judicial oversight over reinstatement determinations—identity, legality of reentry, existence of a prior removal, and associated CAT/withholding questions consolidated via § 1252(b)(9).

3. Doctrinal signal to future litigants and the government

  • For petitioners: “placeholder” petitions are viable; courts may hold them in abeyance pending completion of withholding-only adjudication.
  • For the government: post-Riley motions that alternately claim “too late” and “too early” face skepticism; the court expects coherent positions aligned with Riley’s procedural guidance.
  • For circuit splits: the opinion explicitly disagrees with readings reflected in Navarrete v. Bondi and Hayles v. U.S. Attorney General to the extent they require a substantive removability challenge as a gateway to CAT/withholding review.

IV. Complex Concepts Simplified

  • Withholding of removal: a statutory bar on sending someone to a country where they would likely face persecution on protected grounds (8 U.S.C. § 1231(b)(3)(A)). It does not erase the removal order; it restricts the destination country.
  • CAT relief: protection under the Convention Against Torture preventing transfer to a country where torture is more likely than not. Like withholding, it can be “withholding-only” relief—limiting where removal may occur rather than whether removal may occur.
  • Withholding-only proceedings: proceedings that decide only whether removal to a particular country is barred; removal itself is “not at issue.”
  • FARO (final administrative removal order): a DHS-issued removal order for certain aggravated felonies (8 U.S.C. § 1228(b)) that becomes final upon issuance because it is not appealable within the agency.
  • Reinstatement order: DHS’s order applying an earlier removal order to someone who reenters unlawfully after removal (8 U.S.C. § 1231(a)(5)), based on identity, prior removal, and unlawful reentry.
  • “Zipper clause” (8 U.S.C. § 1252(b)(9)): a consolidation rule channeling all questions “arising from” removal actions into a single petition for review of a final order, avoiding fragmented litigation.
  • Jurisdictional vs. claim-processing: a jurisdictional deadline cannot be waived or tolled; a claim-processing deadline generally can be waived and may be equitably tolled depending on congressional intent.
  • Equitable tolling: a court-made doctrine that can pause a filing deadline when the litigant acted diligently but an extraordinary obstacle prevented timely filing.
  • Ripeness: whether a dispute is sufficiently final and concrete for judicial decision. Here, the court holds a petition can be filed and held while withholding-only issues complete.

V. Conclusion

The Seventh Circuit’s decision operationalizes Riley v. Bondi without allowing it to become a mass foreclosure of judicial review. It announces two particularly significant principles: (1) § 1252(b)(1)’s 30-day deadline is equitably tollable and will be tolled where petitioners diligently relied on then-binding circuit precedent later abrogated by Riley; and (2) reinstatement orders remain reviewable final orders of removal, preserving a vital channel for Article III oversight in high-stakes persecution/torture and even citizenship-adjacent disputes.

Chief Judge Brennan’s dissent frames the case as a strict-text reaction to Riley, arguing reinstatement orders are not “final orders of removal” and that “mandatory” claim-processing rules foreclose equitable tolling. The majority, however, reads Riley as changing timing but not extinguishing review, and it uses equitable tolling to prevent the abrupt change in law from converting compliance with binding precedent into forfeiture.