From Jurisdictional Bar to Waivable Deadline: The Second Circuit Embraces Riley and Declares 8 U.S.C. § 1252(b)(1)’s 30-Day Limit a Non-Jurisdictional Claim-Processing Rule

1. Introduction

Castejon-Paz v. Bondi and Cerrato-Barahona v. Bondi (Nos. 22-6024 & 22-6349) presented the United States Court of Appeals for the Second Circuit with a straightforward but far-reaching question: does the statutory requirement that a petition for review of a removal order be filed “not later than thirty days after the date of the final order of removal,” 8 U.S.C. § 1252(b)(1), limit the court’s jurisdiction or merely set a procedural deadline that parties may waive?

Petitioners Vilma Esperanza Castejon-Paz and German Alejandro Cerrato-Barahona—Honduran nationals in “withholding-only” proceedings after their removal orders had been reinstated—sought review well outside the thirty-day window. Under binding Second Circuit precedent (Bhaktibhai-Patel v. Garland), the court previously lacked power to hear such untimely petitions. Between briefing and decision, however, the Supreme Court decided Riley v. Bondi, holding that § 1252(b)(1) is non-jurisdictional. The Government then waived reliance on the timing defect.

Faced with this changed landscape, the Second Circuit had to determine whether it now possessed authority to reach the merits. It unanimously held that Bhaktibhai-Patel is abrogated, accepted the Government’s waiver, denied a pending motion to dismiss, and sent both petitions forward for full merits briefing.

2. Summary of the Judgment

• Holding. In light of Riley v. Bondi, the 30-day filing deadline in 8 U.S.C. § 1252(b)(1) is a claim-processing rule, not a jurisdictional bar. Therefore, an untimely petition may proceed if the Government waives or forfeits the defense.
• Immediate Disposition. The motion to dismiss in Cerrato-Barahona was denied; both petitions were returned to ordinary course for merits briefing.
• Scope. The judgment addresses only the timing issue; it expresses no opinion on the substantive withholding-of-removal claims.

3. Analysis

3.1 Precedents Cited and Their Influence

1. Bhaktibhai-Patel v. Garland, 32 F.4th 180 (2d Cir. 2022).
   • Held two things: (i) adverse determinations in withholding-only proceedings are not “final orders of removal” for substantive review; (ii) § 1252(b)(1) is jurisdictional.
   • Result: Any late petition had to be dismissed ipso facto.
   • Significance here: Court expressly acknowledges that the jurisdictional prong is now overruled; it does not disturb (or endorse) Bhaktibhai-Patel’s separate holding on what qualifies as a “final order.”
2. Riley v. Bondi, No. 23-1270, 2025 WL 1758502 (U.S. June 26, 2025).
   • Supreme Court classified § 1252(b)(1) as non-jurisdictional under the modern “clear statement” rule for jurisdiction-stripping provisions.
   • Reinforced recent trend (Wilkins v. United States, Boechler v. Commissioner) viewing filing deadlines across several statutes as waivable claim-processing rules absent unmistakable Congressional intent to the contrary.
   • Bound the Second Circuit, compelling abandonment of its prior doctrine.
3. Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. 2008) and other circuit cases.
   • Provided earlier foundation for treating § 1252(b)(1) as jurisdictional; now implicitly overruled on that point.

3.2 Court’s Legal Reasoning

The panel applied a straightforward model of vertical stare decisis:

1. Step 1 – Identify conflict. Riley squarely contradicts the Second Circuit’s prior characterization of § 1252(b)(1) as jurisdictional.
2. Step 2 – Evaluate waiver. Because filing deadlines are claim-processing rules, they can be waived or forfeited by the government. The Department of Justice (through the Office of Immigration Litigation) affirmatively waived the timeliness objection in both cases.
3. Step 3 – Apply to facts. With waiver established, no statutory time bar inhibits the court from hearing the petitions. As only the jurisdictional question was before this panel, it denied dismissal and remanded for ordinary merits briefing.

Notably, the panel did not revisit whether the underlying agency decisions are “final orders of removal.” It implicitly assumed—for purposes of jurisdiction—that Bhaktibhai-Patel does not foreclose review once the filing-deadline obstacle is removed, because the petitions challenge the validity of withholding-only determinations that themselves stem from reinstated orders.

3.3 Potential Impact of the Judgment

• Re-opening of Judicial Review. Noncitizens whose petitions were previously dismissed as untimely may seek to reopen cases, invoking Riley and this decision.
• Government Strategy. The Attorney General can now — on a case-by-case basis — elect to waive or assert timeliness, potentially influenced by litigation posture, equities, or resource allocation.
• Equitable Tolling and Procedural Flexibility. Because the deadline is not jurisdictional, courts may entertain arguments for equitable tolling, nunc pro tunc filings, or other equitable doctrines previously unavailable.
• Ripple Across Circuits. Every circuit that once treated § 1252(b)(1) as jurisdictional must revise precedent; this opinion serves as an early, prominent example.
• Separation-of-Powers Messaging. Reinforces the Supreme Court’s insistence that Congress must speak clearly when stripping courts of subject-matter jurisdiction — a continuing theme in post-Arbaugh jurisprudence.

4. Complex Concepts Simplified

• Jurisdictional Rule: A requirement the court must enforce on its own. If absent, the court has no power to act.
• Claim-Processing Rule: A procedural directive governing litigation conduct. It can be waived, forfeited, or sometimes equitably tolled.
• Withholding-Only Proceedings: A limited process for individuals under reinstated removal orders to argue they cannot be sent to a particular country because of the treaties implementing non-refoulement (Refugee Convention) or anti-torture (CAT). They do not challenge the government’s basic authority to remove; only the destination.
• Reinstated Removal Order: When a previously issued removal order is “reactivated” after the noncitizen unlawfully re-enters. Statutorily, such individuals are “not eligible for any relief” except withholding or CAT protection.
• Waiver vs. Forfeiture: Waiver is the intentional relinquishment of a known right; forfeiture is the failure to raise an argument in time. Both can remove a claim-processing objection.

5. Conclusion

The Second Circuit’s brief but pivotal decision in Castejon-Paz / Cerrato-Barahona cements Riley’s sea change in immigration appellate procedure: the thirty-day deadline of § 1252(b)(1) no longer patrols the subject-matter jurisdiction gate. Instead, it resembles an ordinary statute-of-limitations defense, potent only if invoked.

Key takeaways:

1. § 1252(b)(1) is a waivable claim-processing rule.
2. Prior Second Circuit authority treating the deadline as jurisdictional is overturned.
3. The Government’s strategic waiver in these cases restored appellate review for two otherwise time-barred Honduran petitioners.
4. Future litigants must monitor, and perhaps negotiate, the Government’s position on timeliness while remaining mindful that courts may still dismiss late petitions when the defense is asserted.

In the broader legal context, this judgment reinforces a modern doctrinal trend: procedural deadlines, absent a clear jurisdiction-stripping mandate, will be treated flexibly to preserve access to judicial review—particularly salient in the high-stakes arena of immigration removal.