Mandatory Nature and Tolling Limits of the 30-Day Petition Deadline under INA § 1252(b)(1)

Introduction

The case Nava-Capilla v. Bondi arose when Antonio Nava-Capilla, a Mexican national subject to removal proceedings, sought appellate review of a Board of Immigration Appeals (BIA) order dismissing his appeal from an Immigration Judge’s denial of asylum, withholding of removal, Convention Against Torture (CAT) relief, and voluntary departure. The core issue before the Tenth Circuit was whether Mr. Nava-Capilla’s petition for review, filed 43 days after the BIA’s final removal order, could be considered timely under 8 U.S.C. § 1252(b)(1) or whether equitable tolling could rescue the late filing. The government contended the 30-day deadline is mandatory and jurisdictional, while petitioner argued for a more flexible, tollable claim-processing approach.

Summary of the Judgment

On April 11, 2025, the Tenth Circuit, in an unpublished per curiam opinion, denied Mr. Nava-Capilla’s petition for review. The court held:

The 30-day filing deadline in INA § 1252(b)(1) is either jurisdictional or a mandatory claims-processing rule.
Under existing circuit precedent (notably Nahatchevska v. Ashcroft), the deadline is not subject to equitable tolling.
Even if the deadline were deemed a non-mandatory claim-processing rule, Mr. Nava-Capilla had not shown the requisite diligence or extraordinary circumstances to warrant equitable tolling.
The petition was therefore untimely and the court lacked authority to review the removal order.

Analysis

1. Precedents Cited

Nahatchevska v. Ashcroft, 317 F.3d 1226 (10th Cir. 2003): Held that § 1252(b)(1)’s 30-day deadline is “mandatory and jurisdictional” and not subject to equitable tolling.
Arostegui-Maldonado v. Garland, 75 F.4th 1132 (10th Cir. 2023): Reaffirmed the Tenth Circuit’s strict view of the filing deadline but acknowledged the Supreme Court’s questioning of related jurisdictional bars.
Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Though addressing the exhaustion requirement of § 1252(d)(1), the Supreme Court treated it as a non-jurisdictional claim-processing rule, casting doubt on the jurisdictional character of other immigration deadlines.
Young v. SEC, 956 F.3d 650 (D.C. Cir. 2020): Offered a tripartite framework for categorizing deadlines as jurisdictional, mandatory claims-processing, or non-mandatory claims-processing.
Holland v. Florida, 560 U.S. 631 (2010): Defined the two-prong test for equitable tolling—diligence and extraordinary circumstances.

2. Legal Reasoning

The court’s reasoning unfolded in two steps:

Characterization of the Filing Deadline. Under § 1252(b)(1), “[a] petition for review . . . must be filed not later than 30 days after the date of the final order of removal.” The Tenth Circuit’s binding precedent labels this rule “mandatory and jurisdictional.” While recognizing that the Supreme Court in Santos-Zacaria and the pending Riley v. Bondi, No. 23-1270, may cast doubt on this characterization, the court declined to depart from its own circuit’s rule without controlling authority to the contrary.
Equitable Tolling Inquiry. Even if the deadline were a non-mandatory claims-processing rule, equitable tolling requires (1) diligent pursuit of rights and (2) extraordinary circumstances. Mr. Nava-Capilla’s petition was filed 13 days late, and he made no factual showing that either prong was met: he offered no explanation for his delay after his attorney received the BIA’s order, nor any extraordinary obstacle preventing timely filing.

Accordingly, the court concluded it lacked jurisdiction to entertain an untimely petition.

3. Impact

This decision reaffirms the Tenth Circuit’s strict stance on the 30-day deadline under § 1252(b)(1). Key consequences include:

Practitioners in the Tenth Circuit must treat the 30-day window as non-waivable and non-tollable unless and until the Supreme Court definitively overrules Nahatchevska or Riley resolves the jurisdictional question differently.
Immigration petitioners will face heightened pressure to monitor deadlines and file petitions promptly, recognizing that equitable excuses are unlikely to succeed.
Other circuits may look to this decision for persuasive value as the Supreme Court considers Riley and continues to delineate jurisdictional boundaries in immigration law.

Complex Concepts Simplified

Jurisdictional Deadline: A rule that defines a court’s power to hear a case. If missed, the court must dismiss for lack of jurisdiction.
Claims-Processing Rule: A procedural requirement that can be waived by the parties or excused by equitable tolling, provided it is not jurisdictional.
Equitable Tolling: A judicially created doctrine allowing deadlines to be extended if (1) the petitioner has diligently pursued relief and (2) extraordinary circumstances prevented timely filing (e.g., fraud or government misconduct).
Final Order of Removal: A removal decision that is no longer subject to administrative appeal and triggers the 30-day window for seeking judicial review.

Conclusion

The Nava-Capilla v. Bondi decision underscores the Tenth Circuit’s unwavering application of the 30-day filing deadline in INA § 1252(b)(1) as non-tollable under current circuit precedent. Petitioners must file within 30 days of a final removal order or risk automatic loss of judicial review. While the Supreme Court’s upcoming decision in Riley may reshape this landscape, immigration practitioners within the Tenth Circuit today must continue to treat the deadline as both mandatory and jurisdictional.

— End of Commentary —