Mandatory and Non-Tollable 30-Day Deadline for Petitions of Review under 8 U.S.C. § 1252(b)(1)

Introduction

In Nava-Capilla v. Bondi, the Tenth Circuit addressed whether an alien’s petition for review, filed 13 days after the 30-day statutory deadline under 8 U.S.C. § 1252(b)(1), could be salvaged by equitable tolling—or whether it was barred as untimely regardless of exceptional circumstances. The petitioner, Antonio Nava-Capilla, a Mexican national ordered removed after criminal proceedings, challenged the Board of Immigration Appeals’ (BIA) dismissal of his appeals. He conceded removability, sought asylum, withholding of removal and Convention Against Torture (CAT) relief, lost before both the Immigration Judge (IJ) and the BIA, and then filed his petition for review 43 days after the final order of removal. The Government moved to dismiss for lack of jurisdiction, arguing the statutory deadline is “mandatory and jurisdictional” or, in any event, not subject to equitable tolling. The key issues were:

Is the 30-day filing deadline in § 1252(b)(1) jurisdictional, or a mandatory claim-processing rule?
Even if non-jurisdictional, is it subject to equitable tolling?
What bearing do recent Supreme Court precedents—particularly Santos-Zacaria v. Garland—have on this deadline’s character?

Summary of the Judgment

The Tenth Circuit unanimously denied Nava-Capilla’s petition for review as untimely. It held that, under binding circuit precedent, the 30-day filing deadline of § 1252(b)(1) is “mandatory and jurisdictional” and thus not subject to equitable tolling (citing Nahatchevska v. Ashcroft). Even treating the deadline as a mere claim-processing rule, equitable tolling would still be unavailable because Nava-Capilla failed to demonstrate (1) diligent pursuit of his rights, and (2) extraordinary circumstances preventing timely filing. The court also acknowledged the Supreme Court’s decision in Santos-Zacaria v. Garland—which reclassified the exhaustion requirement under § 1252(d)(1) as non-jurisdictional—but concluded that whatever uncertainty exists about § 1252(b)(1) would not save this petition. The panel thus dismissed the petition for review, reaffirming the bright-line 30-day rule.

Analysis

1. Precedents Cited

Nahatchevska v. Ashcroft, 317 F.3d 1226 (10th Cir. 2003): Held § 1252(b)(1)’s 30-day deadline is “mandatory and jurisdictional,” unswayable by equitable tolling.
Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1140 (10th Cir. 2023): Reaffirmed § 1252(b)(1) as jurisdictional, refusing to apply equitable tolling.
Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Transformed the exhaustion requirement of § 1252(d)(1) into a non-jurisdictional, claim-processing rule; raised questions about whether § 1252(b)(1) likewise lacks jurisdictional character.
Riley v. Bondi, No. 23-1270 (argued Mar. 24, 2025): Pending Supreme Court case directly challenging whether § 1252(b)(1)’s filing deadline is jurisdictional.
Bowles v. Russell, 551 U.S. 205 (2007) & Nutraceutical Corp. v. Lambert, 586 U.S. 488 (2019): Supreme Court decisions framing the taxonomy of filing deadlines—jurisdictional, mandatory claim-processing, and non-mandatory claim-processing.
Young v. SEC, 956 F.3d 650 (D.C. Cir. 2020): Elaborated the three-fold classification of deadlines and tolling availability.
Holland v. Florida, 560 U.S. 631 (2010): Articulated the two-pronged test for equitable tolling—diligence and extraordinary circumstances.

2. Legal Reasoning

The court first reaffirmed the statutory text of 8 U.S.C. § 1252(b)(1): “A petition for review must be filed not later than 30 days after the date of the final order of removal.” Under binding precedent, the Tenth Circuit has treated that deadline as jurisdictional, meaning the court lacks authority to hear petitions filed beyond that period. The panel acknowledged that Santos-Zacaria blurred the lines by stripping § 1252(d)(1) of its jurisdictional label, but found no reason to extend that logic to the separate filing deadline in § 1252(b)(1). Even if § 1252(b)(1) were a non-jurisdictional, mandatory claim-processing rule, equitable tolling would still not apply here because:

No Diligent Pursuit: Nava-Capilla filed nothing for 13 days after learning the BIA’s decision, failing to show active efforts to meet the deadline.
No Extraordinary Circumstances: He identified no misleading conduct by officials, mental incapacity, or other impediment that “stood in his way.”

Consequently, regardless of the classification of the deadline, the petition was time-barred. The court also declined to hold the case pending the Supreme Court’s decision in Riley, reasoning that even a favorable outcome there could not alter the result because Nava-Capilla’s petition lacks any equitable tolling justification.

3. Impact

Nava-Capilla v. Bondi reaffirms a stringent timeline for aliens seeking appellate review and signals that the Tenth Circuit will continue to enforce § 1252(b)(1) as written, without leniency for late filings. Practitioners should note:

Absolute 30-Day Clock: The final removal order date—not service date—triggers the deadline. Filing even one day late is fatal.
No Equitable Tolling in Practice: Unless the Supreme Court alters the rule in Riley and the Tenth Circuit reconfigures its approach, litigants cannot rely on equitable tolling absent clear, court-crafted exceptions.
Strategic Advice: Counsel must calendar the 30-day period from issuance of the BIA’s decision, confirm client notification immediately, and file petitions with robust proof of mailing/receipt.

Complex Concepts Simplified

Jurisdictional vs. Claim-Processing Rules: Jurisdictional rules define a court’s power; missing them bars the court from acting. Claim-processing rules structure how proceedings unfold but can sometimes be tolled or waived.
Equitable Tolling: A judicial remedy allowing deadlines to be paused when (1) the litigant acts diligently, and (2) extraordinary barriers prevent timely filing.
Final Order of Removal: A removal order becomes “final” once the BIA dismisses an appeal, triggering the 30-day window under § 1252(b)(1).
Exhaustion Requirement (§ 1252(d)(1)): A separate provision requiring aliens to raise issues before the BIA before seeking judicial review; Santos-Zacaria held it non-jurisdictional.

Conclusion

Nava-Capilla v. Bondi cements the Tenth Circuit’s rigorous enforcement of the 30-day filing deadline in § 1252(b)(1), reaffirming that petitions filed even slightly late are dismissed without regard to equitable tolling. While Santos-Zacaria opened the door to re-examining jurisdictional labels in immigration statutes, the Tenth Circuit remains steadfast that § 1252(b)(1) is non-tolable—or at least mandatory in nature—and that litigants must comply with the deadline to secure appellate review. Until the Supreme Court definitively speaks in Riley v. Bondi, practitioners in the Tenth Circuit should treat the 30-day clock as an ironclad requirement.