Date: Oct 28, 2026

Reinstatement Orders Remain Reviewable After Riley, but Equitable Tolling Requires an Extraordinary Obstacle to Timely Filing

Case: Vizguerra-Ramirez v. Blanche, No. 25-9559
Court: United States Court of Appeals for the Tenth Circuit
Decision date: October 26, 2026
Disposition: Petition for review dismissed as untimely.

1. Introduction

This published decision addresses two consequences of the Supreme Court’s decision in Riley v. Bondi, 606 U.S. 259 (2025): whether federal courts retain jurisdiction to review reinstatement orders, and whether a petitioner may obtain equitable tolling after Riley changes the understood deadline for seeking review.

Jeanette Vizguerra-Ramirez, a Mexican citizen, challenged the Department of Homeland Security’s July 24, 2013 reinstatement of a purported prior removal order. She maintained that her earlier voluntary departure did not constitute departure “under an order of removal,” as required by 8 U.S.C. § 1231(a)(5). The respondent, Attorney General Todd Blanche, argued both that reinstatement orders were outside the court’s review jurisdiction and that her petition was late.

The court rejected the jurisdictional objection but dismissed the petition on timeliness grounds. Its central distinction was temporal: the circuit precedent on which Ms. Vizguerra relied was established in 2015, after her original thirty-day filing period had expired in 2013. That later precedent therefore had not prevented timely filing when it was required.

The decision does not hold that § 1252(b)(1) is categorically immune from equitable tolling, nor does it resolve whether Ms. Vizguerra’s reinstatement order was substantively valid. Those limits are essential to understanding the precedent.

2. Background and Procedural History

Immigration proceedings and reinstatement

1997: Ms. Vizguerra entered the United States without inspection.
2009: Removal proceedings began. She sought cancellation of removal based on hardship to her three U.S.-citizen children, alternatively requesting voluntary departure.
November 18, 2011: An immigration judge denied cancellation of removal but granted sixty days for voluntary departure.
December 16, 2011: She appealed the cancellation ruling to the Board of Immigration Appeals.
September 8, 2012: She departed for Mexico after learning that her mother was dying. Under 8 C.F.R. § 1003.4, her departure automatically withdrew her administrative appeal.
April–July 2013: She returned without inspection, was apprehended, and received the challenged reinstatement order on July 24.

Ms. Vizguerra asserted that immigration authorities stayed her removal in August 2013 and repeatedly extended that stay until 2024. The court noted that the purported stay and extensions were not included in the record.

The 2025 litigation and intervening Supreme Court decision

After her detention in March 2025, Ms. Vizguerra petitioned for review and expressed fear of persecution or torture in Mexico because of her criticism of governmental abuses. Withholding-only proceedings followed. She then voluntarily withdrew her petition because existing Tenth Circuit law treated review as premature until those proceedings concluded.

The Supreme Court subsequently decided Riley v. Bondi, holding that withholding-only proceedings do not postpone the finality of a removal order. Ms. Vizguerra filed the present petition shortly afterward, while her withholding-only proceedings remained pending.

This sequence created the apparent procedural trap: under the circuit’s former approach, review was premature; under Riley, her reinstatement challenge should have been filed within thirty days of the 2013 order. The majority nevertheless required her to identify an extraordinary circumstance that actually prevented filing during that original period.

3. Statutory Framework

Judicial review and finality

Section 1252(a)(1) authorizes judicial review of a “final order of removal.” Section 1101(a)(47)(A) defines the relevant order by reference to an administrative determination concluding that a noncitizen is deportable or ordering deportation. Section 1101(a)(47)(B) supplies the rules governing administrative finality.

A petition for review must ordinarily be filed within thirty days after the final removal order. Under Riley, that deadline is nonjurisdictional, but its nonjurisdictional character does not itself establish that equitable tolling is available.

Reinstatement

Under § 1231(a)(5), authorities may reinstate a prior removal order when a noncitizen unlawfully reenters after removal or voluntary departure under that order. The implementing regulation, 8 C.F.R. § 241.8(a), requires determinations concerning:

The existence of a prior removal order;
The person’s identity as the individual previously removed or voluntarily departed under that order; and
Unlawful reentry.

Withholding-only proceedings

These proceedings concern protection against removal to a particular country, including statutory withholding of removal and protection under the Convention Against Torture. They do not invalidate the removal order itself. As the opinion explains, protection against removal to one country does not necessarily prohibit removal to another.

4. Summary of the Court’s Decision

Reinstatement orders remain reviewable. Existing circuit precedent survives Riley. The controlling jurisdictional analysis also concludes that reinstatement orders satisfy the statutory definition of removal orders.
The petition was untimely. Under Riley, the relevant thirty-day period ran from the July 24, 2013 reinstatement order, notwithstanding later withholding-only proceedings.
Equitable tolling was unavailable on these facts. Ms. Vizguerra did not establish an extraordinary circumstance that prevented filing in 2013. The circuit’s express contrary finality rule arose only in 2015.
The availability of tolling generally remains unresolved. The court assumed, without deciding, that § 1252(b)(1) permits equitable tolling.
The merits remain undecided. The court did not determine whether Ms. Vizguerra departed under a removal order or whether reinstatement was otherwise defective.

The court granted leave to proceed in forma pauperis. It also denied as moot the government’s motion for summary disposition and Ms. Vizguerra’s motion seeking a bifurcated decision.

The panel divided along different lines on the two principal questions. Judge Phillips joined Judge McHugh’s jurisdictional analysis but dissented from dismissal. Judge Eid joined the timeliness analysis and agreed that circuit precedent required jurisdiction, while declining to endorse the majority’s independent statutory justification.

5. Analysis: Precedents and Legal Reasoning

A. Riley v. Bondi: Finality Is Distinct from Country-Specific Protection

Riley v. Bondi supplies the controlling Supreme Court framework. It displaced the Tenth Circuit’s former view that withholding-only proceedings postpone finality for judicial-review purposes. Because those proceedings do not determine removability or issue the removal command, they do not prevent an otherwise final removal order from becoming final.

Before Riley, Luna-Garcia v. Holder, 777 F.3d 1182 (10th Cir. 2015), reasoned that a removal order was not final in the ordinary legal sense while further agency proceedings prevented its execution. Arostegui-Maldonado v. Garland, 75 F.4th 1132 (10th Cir. 2023), reaffirmed that review followed the conclusion of withholding-only proceedings. Riley abrogated that finality approach.

The present decision applies Riley rather than creating a new rule about withholding-only finality. Its distinctive contribution is explaining what that Supreme Court rule does—and does not do—to reinstatement jurisdiction and requests for equitable tolling.

Johnson v. Guzman Chavez, 594 U.S. 523 (2021), supports the distinction between a valid removal order and country-specific protection against its execution. Sosa-Valenzuela v. Gonzales, 483 F.3d 1140 (10th Cir. 2007), supplies a terminology point: although the statutory definition retains “order of deportation,” deportation and removal have the same relevant meaning within this statutory scheme.

B. Why Reinstatement Orders Remain Judicially Reviewable

Binding circuit precedent

Duran-Hernandez v. Ashcroft, 348 F.3d 1158 (10th Cir. 2003), first adopted the prevailing circuit position that § 1252 authorizes direct review of reinstatement orders. Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. 2005), described a reinstatement order as the “functional equivalent” of a final removal order.

The government argued that Riley displaced this functional-equivalence reasoning by requiring strict adherence to the statutory definition. The court rejected that argument under the law-of-the-circuit rule. Barber v. T.D. Williamson, Inc., 254 F.3d 1223 (10th Cir. 2001), prevents one panel from overruling another absent en banc reconsideration or a superseding contrary Supreme Court decision. Arostegui-Maldonado v. Garland further explains that indirect tension is insufficient: the intervening decision must clearly undermine the earlier analysis.

An independent textual justification

The majority did not rely exclusively on precedent. It concluded that reinstatement orders themselves possess the characteristics identified in Riley:

A removability determination: The officer must establish the statutory and regulatory predicates that make the person removable through reinstatement.
A removal command: The regulation directs removal through reinstatement of the prior order.

Either characteristic fits the disjunctive definition in § 1101(a)(47)(A). The government’s description of reinstatement as merely ministerial therefore did not persuade the majority. Streamlined procedures do not eliminate the legal determinations or operative consequences of the resulting order.

The petitioner’s own reinstatement document reinforced this analysis: it expressly determined that she was subject to removal through reinstatement. E.E.V. v. Blanche, 180 F.4th 954 (7th Cir. 2026), also illustrated why reinstatement entails a legally significant determination: lawful reentry would defeat reinstatement.

Supporting circuit decisions and the limits of review

The court aligned itself with Laureano v. Att'y Gen. United States of Am., 177 F.4th 453 (3d Cir. 2026), and E.E.V. v. Blanche, which likewise preserved review after Riley. It also cited the unpublished order in Acosta-Tapia v. Bondi and the Fourth Circuit’s Navarro v. Blanche as supporting the treatment of reinstatement orders as reviewable final removal orders.

That review remains limited. Under Garcia-Marrufo v. Ashcroft, 376 F.3d 1061 (10th Cir. 2004), a challenge to reinstatement permits examination of whether reinstatement was properly entered, not reconsideration of the underlying removal order. Preserving reviewability therefore does not reopen every issue resolved in the original proceedings.

C. A Nonjurisdictional Deadline Is Not Necessarily Tollable

Stone v. I.N.S., 514 U.S. 386 (1995), quoting Missouri v. Jenkins, 495 U.S. 33 (1990), had characterized a predecessor filing deadline as “mandatory and jurisdictional.” Riley explained that this language reflected an older, less precise use of “jurisdictional.” Drawing on Santos-Zacaria v. Garland, 598 U.S. 411 (2023), it treated § 1252(b)(1) as a claim-processing rule instead.

The distinction matters because a jurisdictional defect cannot be waived, whereas a nonjurisdictional objection may be waived or forfeited. But the government invoked the deadline here, so waiver did not resolve the case.

Nutraceutical Corp. v. Lambert, 586 U.S. 188 (2019), establishes that a nonjurisdictional deadline is not automatically flexible in every respect. Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17 (2017), distinguishes waiver and forfeiture from other forms of relief. The opinion also draws on the classification discussed in Nava-Capilla v. Bondi, quoting Young v. SEC, 956 F.3d 650 (D.C. Cir. 2020), to explain why identifying a rule as nonjurisdictional does not complete the tolling inquiry.

The developing circuit disagreement

Oxlaj-Perez v. Blanche, 174 F.4th 516 (6th Cir. 2026), applied a rebuttable presumption favoring equitable tolling and found neither the text nor the structure of § 1252(b)(1) sufficient to overcome it.
E.E.V. v. Blanche and Navarro v. Blanche reached similar conclusions permitting tolling.
Liao v. Bondi, 162 F.4th 519 (5th Cir. 2025), characterized the deadline as mandatory when properly invoked. The majority nevertheless recognized uncertainty about whether that characterization definitively foreclosed equitable tolling.
Saravia Martinez v. Blanche exposed that uncertainty through separate opinions debating tolling’s availability. Judge Phillips additionally noted that the rehearing order in Liao v. Bondi assumed tolling’s availability without deciding it.
The unpublished Fuentes Aguilar De Perez v. Bondi described the deadline as mandatory, but did not supply a developed resolution of the broader tolling question discussed here.

The Tenth Circuit declined to choose sides because Ms. Vizguerra could not satisfy the equitable standard even assuming tolling was legally available. Consistent with United States v. Ellis, 23 F.4th 1228 (10th Cir. 2022), the opinion treated unpublished authorities as persuasive rather than binding.

D. Equitable Tolling Requires Both Extraordinary Circumstances and Causation

Estrada-Cardona v. Garland, 44 F.4th 1275 (10th Cir. 2022), supplies the two-part test: a petitioner must diligently pursue her rights and show that an extraordinary circumstance prevented timely filing. Al-Yousif v. Trani, 779 F.3d 1173 (10th Cir. 2015), emphasizes that tolling is a rare remedy.

The decisive authority is Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250 (2016). It requires the circumstances causing delay to be both extraordinary and beyond the litigant’s control. Mistaken reliance on nonbinding legal authority does not ordinarily satisfy that requirement.

The majority’s reasoning turns on the word prevented. Ms. Vizguerra’s reinstatement order issued in July 2013. Luna-Garcia v. Holder did not establish the circuit’s express withholding-only finality rule until 2015. A rule announced in 2015 could not have barred a petition during the original 2013 filing period.

The court did not decide that reversal of binding precedent can never justify tolling. Indeed, it acknowledged that the argument might be materially different for an order becoming final after Luna-Garcia v. Holder. Nor did it decide whether a sufficiently clear consensus among other circuits could constitute an extraordinary circumstance.

Impact Energy Res., LLC v. Salazar, 693 F.3d 1239 (10th Cir. 2012), identifies potentially qualifying circumstances such as active deception or conduct that lulls a litigant into inaction. By contrast, Holland v. Florida, 560 U.S. 631 (2010), drawing on Irwin v. Dep't of Veterans Affs., 498 U.S. 89 (1990), and Lawrence v. Florida, 549 U.S. 327 (2007), excludes ordinary neglect and routine deadline miscalculations.

The majority placed Ms. Vizguerra’s reliance on implicit practice on the latter side of that divide. Because the extraordinary-circumstances requirement failed, it did not need to decide whether her conduct independently satisfied diligence.

E. Why an Earlier “Timely Petition” Statement Did Not Establish Binding Law

Ms. Vizguerra relied on Neri-Garcia v. Holder, 696 F.3d 1003 (10th Cir. 2012), which described a petition filed after withholding proceedings as timely. That statement mattered because it predated her reinstatement order.

The majority nevertheless distinguished an adjudicated legal holding from an assumption embedded in a decision. Timeliness was neither contested nor analyzed in Neri-Garcia v. Holder.

The court acknowledged the force of Nahatchevska v. Ashcroft, 317 F.3d 1226 (10th Cir. 2003), which then treated the deadline as jurisdictional, and Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271 (10th Cir. 2001), which recognizes an independent duty to examine jurisdiction. Nevertheless, that duty did not convert an unexplained statement into a holding resolving an unaddressed issue.

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011), and Webster v. Fall, 266 U.S. 507 (1925), supplied the governing principle: issues neither considered nor decided do not become precedent merely because they were potentially present in the case.

The majority also declined to infer an established circuit practice from Neri-Garcia v. Holder alone. Importantly, it did not categorically reject the possibility that reliance on a sufficiently demonstrated judicial practice could support tolling in another case.

F. Why the Broader Precedent Landscape Did Not Cure the 2013 Default

At the time of Ms. Vizguerra’s reinstatement, only Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012), had definitively adopted the relevant withholding-only finality rule. The majority therefore found no clear weight of circuit authority comparable to the later landscape.

That later consensus included Garcia v. Sessions, Bonilla v. Sessions, Ponce-Osorio v. Johnson, Martinez v. Larose, and Jimenez-Morales v. U.S. Atty. Gen., alongside Luna-Garcia v. Holder and Ortiz-Alfaro v. Holder. These decisions were significant to the majority’s distinction of Navarro v. Blanche, whose reinstatement order issued in 2021, when the legal environment was materially different.

The Fourth Circuit history discussed in that comparison included Tomas-Ramos v. Garland, Martinez v. Garland, and Guzman Chavez v. Hott. The latter had favorably discussed withholding-related finality decisions before being reversed in Johnson v. Guzman Chavez. These authorities helped explain why reliance in the later Fourth Circuit setting could differ from reliance in the Tenth Circuit in 2013.

The distinction is therefore not simply between successful and unsuccessful petitioners. It concerns what legal obstacles or authoritative signals existed when each petitioner’s own filing period ran.

6. The Separate Opinions

A. Judge Eid: Preserve Precedent Now, Reconsider Jurisdiction En Banc

Judge Eid agreed that existing precedent required recognition of jurisdiction and joined the timeliness analysis. She nevertheless urged the full court to reconsider reinstatement jurisdiction.

Her objection was textual. Section 1231(a)(5) directs removal under the prior order. On her reading, reinstatement supplies no new removal command and does not make a genuinely new removability judgment; it implements an earlier one after checking prescribed conditions.

United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014), and Speidell v. Internal Revenue Serv., 978 F.3d 731 (10th Cir. 2020), supported her agreement that tension with intervening Supreme Court reasoning was insufficient for a panel to discard circuit precedent.

She also addressed Lorenzo v. Mukasey, 508 F.3d 1278 (10th Cir. 2007), which relied on § 1252(a)(2)(D)’s preservation of review for constitutional claims and legal questions. In her view, that savings clause cannot independently establish jurisdiction; the petition must first fall within § 1252’s review framework.

Her proposed statutory interpretation drew support from Bhaktibhai-Patel v. Garland and separate opinions in Ruiz-Perez v. Garland, Laureano v. Att'y Gen. United States of Am., E.E.V. v. Blanche, and Saravia Martinez v. Blanche. Those opinions question whether functional equivalence can substitute for the statutory category itself. The discussion of United States v. Charleswell similarly illustrated how other circuits remained bound by earlier jurisdictional decisions.

These views are not the holding. The controlling jurisdictional analysis concludes that reinstatement orders satisfy the statutory definition, while Judge Eid would reconsider that conclusion en banc.

B. Judge Phillips: Judicial Practice and Government Positions Justified Tolling

Judge Phillips would have permitted tolling and reached the merits. He regarded reliance on Neri-Garcia v. Holder as reasonable reliance on judicial practice rather than ordinary legal error.

He cited Navarro v. Blanche and E.E.V. v. Blanche as examples of courts accepting reliance on past practice. Eke v. Mukasey and Garcia-Villeda v. Mukasey further illustrated the implicit practice discussed in Luna-Garcia v. Holder.

He also emphasized the government’s earlier position. In G.S. v. Holder, the government had argued that review was unripe until withholding proceedings concluded. Drawing on Chance v. Zinke, 898 F.3d 1025 (10th Cir. 2018), he considered the government’s historical position relevant to whether it had lulled litigants into inaction.

For diligence, he applied Holland v. Florida’s requirement of reasonable, not maximum feasible, diligence. Filing within thirty days of Riley satisfied that standard in his view. He would also have followed the Fourth, Sixth, and Seventh Circuits in holding that § 1252(b)(1) permits tolling.

C. Judge Phillips’s Merits Analysis: Voluntary Departure Is Not Necessarily Departure Under a Removal Order

Judge Phillips would have vacated reinstatement because, in his view, Ms. Vizguerra had not departed under an operative removal order. Section 1229c(b)(1) permits voluntary departure “in lieu of removal,” while the regulations distinguish a voluntary-departure grant from an alternate removal order that becomes effective upon specified events.

Her original order similarly stated that failure to comply would trigger an automatic removal order. For Judge Phillips, that language described a conditional future consequence, not an already operative removal order.

Dada v. Mukasey, 554 U.S. 1 (2008), played two distinct roles. Justice Scalia’s dissent described voluntary departure as avoiding restrictions associated with involuntary departure; separately, the Court’s discussion supported the proposition that the voluntary-departure period ordinarily does not begin until administrative appeals conclude. Judge Phillips therefore rejected the government’s assertion that Ms. Vizguerra had overstayed that period.

He disagreed with Gallo-Alvarez v. Ashcroft, 266 F.3d 1123 (9th Cir. 2001), insofar as it treated voluntary departure as sufficient for reinstatement without giving adequate effect to the phrase “under an order of removal.” He also distinguished Monsalvo v. Bondi, 604 U.S. 712 (2025): its assumption that the voluntary-departure order there was a removal order did not decide the specific argument presented here.

This merits discussion is dissenting reasoning, not a rule established by the court.

7. Potential Impact

Preservation of a review mechanism

The decision preserves direct judicial review of reinstatement orders in the Tenth Circuit after Riley. Its textual analysis strengthens that conclusion beyond reliance on the older “functional equivalent” formulation, although Judge Eid’s concurrence signals a possible subject for en banc reconsideration.

Greater importance of the original filing period

Petitioners cannot assume that pending withholding-only proceedings defer the deadline for challenging reinstatement. Finality of the removal order and proceedings concerning country-specific protection must be analyzed separately.

Fact-specific limits on transitional relief

The opinion makes the chronology of reliance central to post-Riley tolling claims. A petitioner must connect the alleged extraordinary circumstance to the missed deadline, not merely identify a later change in law.

It leaves open potentially different outcomes for orders becoming final after Luna-Garcia v. Holder, as well as arguments based on a clear inter-circuit consensus or a better-established judicial practice.

Important unresolved questions

Whether § 1252(b)(1) generally permits equitable tolling;
When reliance on subsequently overruled binding precedent satisfies the tolling requirements;
Whether established judicial practice or a strong consensus elsewhere may qualify as an extraordinary circumstance; and
When voluntary departure occurs “under an order of removal” for reinstatement purposes.

The decision therefore preserves judicial authority to review reinstatement while demonstrating that an enforceable filing deadline can prevent consideration of a substantial challenge to agency authority.

8. Complex Concepts Simplified

Reinstatement: Using a prior removal order again after a person unlawfully returns, rather than conducting ordinary removal proceedings anew.
Finality: The point at which an order is sufficiently complete to trigger judicial review and the applicable filing deadline. A separate proceeding limiting removal to one country does not necessarily delay that point.
Jurisdiction versus a filing rule: Jurisdiction concerns the court’s power to hear a category of cases. A claim-processing rule governs how that power is invoked. A court may possess jurisdiction but still have to dismiss a late petition.
Equitable tolling: Potential relief from a deadline when diligent efforts were thwarted by extraordinary circumstances outside the litigant’s control. The obstacle must actually explain the lateness.
Waiver and forfeiture: Waiver intentionally relinquishes an objection; forfeiture results from failing to raise it properly. Neither is the same as equitable tolling.
A holding versus an assumption: A holding resolves an issue necessary to the court’s decision. An unexplained assumption about an issue not presented usually does not establish binding precedent.
En banc review: Reconsideration by the court’s full eligible active membership, rather than an ordinary three-judge panel. It can permit reconsideration of circuit precedent that a panel must follow.
Voluntary departure: Permission to leave at one’s own expense instead of being removed. Whether a particular departure nevertheless occurred under an operative removal order was disputed here but not decided by the majority.

9. Conclusion

Vizguerra-Ramirez v. Blanche establishes that reinstatement orders remain reviewable after Riley, but reviewability does not excuse an untimely petition. Ms. Vizguerra’s reliance argument failed because the circuit’s express contrary rule arose after her original filing deadline had passed.

The holding is deliberately narrow: equitable tolling’s general availability, relief for petitioners who relied on later binding precedent, and the legality of reinstatement following this voluntary departure all remain unresolved.