CBP May Reopen/Reconsider Reinstatement Orders Under 8 C.F.R. § 103.5, and Denials Are Reviewable Under 8 U.S.C. § 1252(b)(6)

I. Introduction

Santos v. Blanche (2d Cir. Sept. 8, 2026) addresses two separate agency actions arising from a common immigration history. Petitioner Flavio Divino Santos, a Brazilian citizen, was expelled under an expedited removal order in 2004. After reentering the United States without inspection in 2017, he received a reinstatement order (Form I-871) under 8 U.S.C. § 1231(a)(5). Years later—after being detained in 2023—Santos sought administrative reopening/reconsideration/rescission of the 2017 reinstatement order, alleging that CBP failed to provide notice of his right to contest reinstatement in a language he understood, as required by 8 C.F.R. § 241.8(b).

The petition presented three core issues:

  1. Whether a reinstatement order is a judicially reviewable “final order of removal” under 8 U.S.C. § 1252(a)(1).
  2. Whether Santos’s 2023 petition could reach the 2017 reinstatement order given the 30-day deadline in 8 U.S.C. § 1252(b)(1) (and equitable tolling).
  3. Whether the Court had jurisdiction to review CBP’s denial of a motion to reopen/reconsider a reinstatement order, and whether CBP had authority to grant such a motion under 8 C.F.R. § 103.5(a).

The Second Circuit (Kahn, J.) denied review of the 2017 reinstatement order as untimely, but granted review of the 2023 motion denial, vacated it as legally erroneous, and remanded. Judge Sullivan concurred in part and dissented in part, rejecting reviewability and the applicability of § 103.5.

II. Summary of the Opinion

  • Reinstatement orders are reviewable final orders of removal. The Court reaffirmed that a reinstatement order qualifies as a “final order of removal” within 8 U.S.C. § 1252(a)(1).
  • The 30-day deadline is not jurisdictional, but Santos was not entitled to equitable tolling. Guided by Riley v. Bondi, the Court recognized 8 U.S.C. § 1252(b)(1) as a claims-processing rule (not a jurisdictional bar). Even assuming equitable tolling could apply, Santos failed to show reasonable diligence.
  • Jurisdiction exists to review CBP’s denial of a motion to reopen/reconsider a reinstatement order. The Court held that 8 U.S.C. §§ 1252(a) and 1252(b)(6) together provide jurisdiction to review and consolidate review of the motion denial with review of the removal order.
  • CBP has authority under 8 C.F.R. § 103.5(a) to reopen/reconsider/rescind reinstatement decisions. CBP’s contrary view was legal error; therefore, CBP abused its discretion by denying the motion on the ground it lacked authority.

III. Analysis

A. Precedents Cited

1. Finality, “orders of removal,” and reviewability

The Court’s determination that a reinstatement order is a reviewable “final order of removal” rests on statutory definition and Supreme Court guidance.

  • Riley v. Bondi, 606 U.S. 259 (2025): Used for two linked propositions. First, “order of removal” includes “order of deportation” (via IIRIRA’s definitional equivalence). Second—and crucial here—§ 1252(b)(1)’s deadline is claims-processing, undercutting the Second Circuit’s earlier view in Bhaktibhai-Patel v. Garland that untimeliness was jurisdictional.
  • Nasrallah v. Barr, 590 U.S. 573 (2020): Provided the Court’s analytical frame for what counts as an “order of removal” and what “merges” into it. The Court reasoned that reinstatement involves independent factual predicates and culminates in a new order “concluding that the alien is deportable [and] ordering deportation,” making reinstatement an order of removal rather than a mere continuation of the prior one.
  • Bhaktibhai-Patel v. Garland, 32 F.4th 180 (2d Cir. 2022), abrogated on other grounds by Riley: The Court acknowledged Bhaktibhai-Patel’s skepticism about the “foundation” of implicit jurisdictional holdings, but treated Riley as removing a key premise for doubt and then expressly reaffirmed jurisdiction.
  • Second Circuit reinstatement cases: Garcia-Villeda v. Mukasey; Herrera-Molina v. Holder; Miller v. Mukasey; Beekhan v. Holder. These cases were used to show the Circuit’s established practice of entertaining reinstatement challenges and recognizing review of predicate facts and procedural regularity.
  • Structural/administrative-finality support: Johnson v. Guzman Chavez (cited through Bhaktibhai-Patel) to tie finality to completion of agency review processes as the metric Congress chose.
  • Presumption of judicial review: Kucana v. Holder, 558 U.S. 233 (2010), invoked to require “clear and convincing evidence” before reading statutes to strip review.

2. Enforcement discretion and the nature of reinstatement

  • Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), and Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999): Used to emphasize the Executive’s enforcement discretion even in the presence of “shall remove” language—supporting the view that reinstatement is a consequential new order, not merely a mechanical relabeling of the prior order.
  • Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006): Recognized Congress “toe[d] a harder line” on illegal reentry through reinstatement, but the majority distinguished that policy from an implied repeal of judicial review.

3. Motions to reopen/reconsider and consolidation-based jurisdiction

  • Mata v. Lynch, 576 U.S. 143 (2015): Quoted for the proposition that § 1252(b)(6) “expressly contemplates” jurisdiction over refusals to reopen or reconsider.
  • Kucana v. Holder: Reinforced that denials of motions to reopen remain subject to judicial review; the Second Circuit extended this logic from BIA denials to CBP denials because § 1252(b)(6) does not distinguish between DHS-issued and BIA-issued removal orders.
  • The Court also situated § 1252(b)(6) in Congress’s consolidation/streamlining project discussed in Luna v. Holder.

4. Agency authority under 8 C.F.R. § 103.5 and the interpretive dispute

  • Text-first approach cases: Sw. Airlines Co. v. Saxon, Conn. Nat'l Bank v. Germain, United States v. Wiltberger supported the majority’s insistence on § 103.5’s plain breadth (“official having jurisdiction” may reopen/reconsider the “latest decision”).
  • Title/heading limits: Pa. Dep't of Corr. v. Yeskey was used to reject reliance on Part 103’s benefits-oriented title to narrow unambiguous text.
  • Out-of-circuit decisions: The Court disagreed with Lavery v. Barr (5th Cir.) and Aguilar-Aguilar v. Napolitano (10th Cir.) to the extent they treated § 103.5 as benefits-limited (the Second Circuit characterized their analysis as insufficiently text-based, and noted Aguilar-Aguilar’s discussion was dicta).
  • The Court found support—at least indirectly—in Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020), reading its statement that “Department officials and immigration judges may reopen cases or reconsider decisions” under § 103.5(a)(1) as inconsistent with a strict benefits-only limitation.

5. Reinstatement statute and the “no reopening” clause

The government argued that 8 U.S.C. § 1231(a)(5) (“the prior order of removal…is not subject to being reopened or reviewed”) bars reopening of reinstatement. The Court rejected that reading based on grammar and structure: “the prior order of removal” refers to the underlying order, not the subsequent reinstatement decision.

  • The Court declined to follow the implication in Tapia-Lemos v. Holder (7th Cir.) that § 1231(a)(5) bars reopening reinstatement orders; it reasoned that Tapia-Lemos relied on a surplusage rationale later undermined in the Seventh Circuit’s own Cordova-Soto v. Holder.
  • It also emphasized that the Second Circuit and multiple circuits have consistently applied § 1231(a)(5) to bar reopening of the original removal order (e.g., Garcia-Villeda v. Mukasey; Miller v. Mukasey; and other circuits’ cases listed in the opinion).

6. APA reviewability and “meaningful standards”

  • Heckler v. Chaney, 470 U.S. 821 (1985), and Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971): Established that § 701(a)(2) bars review only in the “rare” situation where there is “no law to apply” (no meaningful standard).
  • Salinas v. United States Railroad Retirement Board, 592 U.S. 188 (2021): Used to show that reopening decisions can be reviewable even if discretionary when the agency has promulgated substantive criteria. The majority analogized § 103.5’s “proper cause” and evidentiary requirements to such criteria.
  • Second Circuit “no standards” examples: Ali v. Gonzales (sua sponte reopening) and Vela-Estrada v. Lynch (self-certification) were used to distinguish truly standardless discretion from § 103.5’s articulated requirements.
  • Legal-error exception: even if discretion is broad, courts can remand where the agency “misperceives the law or misunderstands its jurisdiction,” relying on Vela-Estrada v. Lynch and similar cases from other circuits cited in the majority.

B. Legal Reasoning

1. Two separate agency actions; two separate jurisdictional paths

The opinion is methodical in separating (i) direct review of the 2017 reinstatement order and (ii) review of the 2023 motion denial. This separation matters because the first claim was defeated by timeliness, while the second was viable as a distinct final agency action and because the denial was based on a legal misconception.

2. Reinstatement orders as “final orders of removal”

The Court treated reinstatement as a new order grounded in DHS fact-finding required by statute and regulation (e.g., identity, prior removal, unlawful reentry). Drawing on Nasrallah v. Barr, it reasoned that these determinations affect the validity of the operative order authorizing removal and therefore qualify the reinstatement order as an “order of removal” within the meaning of the statutory definition.

On finality, the Court tied “final” to the completion (or absence) of further review within the agency, reaffirming the approach discussed in Bhaktibhai-Patel v. Garland while noting that Riley v. Bondi undermined the idea that lack of BIA appeal prevents finality.

3. Timeliness: claims-processing, equitable tolling assumed, diligence lacking

Following Riley v. Bondi, the Court treated § 1252(b)(1)’s 30-day deadline as a claims-processing rule, opening conceptual space for equitable tolling. But it denied tolling under the Second Circuit’s diligence framework (citing Perez v. Bondi): the Court found unexplained delays after Santos was on notice of the reinstatement order (including the gap between USCIS’s denial of the I-730-based effort and later steps like contacting ICE and pursuing FOIA).

Notably, the Court’s ruling does not adjudicate the underlying due process claim about language access; it simply holds that the petition was too late to reach the 2017 order.

4. Jurisdiction to review CBP’s motion denial under § 1252(b)(6)

The Court read 8 U.S.C. § 1252(b)(6) as a consolidation instruction that presupposes judicial review of reopening/reconsideration denials, and—critically—as applying to any “order under this section,” not merely BIA-issued orders. This is a functional holding: DHS-issued removal orders (like reinstatement) can generate motion practice whose denial is reviewable in the same petition-for-review channel.

5. CBP authority under § 103.5 and abuse of discretion for legal misperception

The linchpin of the remand is the Court’s conclusion that 8 C.F.R. § 103.5(a)—by its plain terms—authorizes the “official having jurisdiction” (the official who made the latest decision) to reopen or reconsider, and that reinstatement decisions are not among the regulation’s express exclusions. CBP’s denial rested solely on the assertion that no mechanism existed for CBP to reopen/reconsider/vacate reinstatement; that was legal error.

The Court therefore treated the denial as an abuse of discretion because it was “predicated on erroneous determinations of law” (citing Matthew Bender & Co. v. West Pub. Co.), and remanded for CBP to consider the motion on the merits “in the first instance.”

6. Reviewability despite discretion: meaningful standards and/or legal error

Anticipating the argument that reopening decisions are committed to agency discretion and thus unreviewable under 5 U.S.C. § 701(a)(2), the Court relied on § 103.5’s “proper cause” and evidentiary requirements as “meaningful standards” akin to those found sufficient in Salinas v. United States Railroad Retirement Board. Independently, the Court invoked the settled principle that courts may remand when an agency refuses to act based on a mistaken understanding of its authority.

C. Impact

1. A new, concrete procedural pathway in reinstatement cases

The most practical consequence is that, in the Second Circuit, noncitizens subject to reinstatement now have a recognized administrative mechanism—8 C.F.R. § 103.5(a)— to seek reopening/reconsideration/rescission directly from CBP, and a recognized judicial-review hook—8 U.S.C. §§ 1252(a) and 1252(b)(6)—to challenge denials. The remand posture encourages development of an administrative record on reinstatement-procedure defects (e.g., language-access compliance with 8 C.F.R. § 241.8(b)).

2. Circuit-level conflict on § 103.5’s scope

The decision expressly rejects the benefits-only limitation adopted (or suggested) in Lavery v. Barr and Aguilar-Aguilar v. Napolitano, while the partial dissent aligns with those readings. The result is an intensified interpretive split about whether § 103.5 is a general DHS reopening mechanism or a benefits-adjudication rule tethered to USCIS forms and Part 103’s organizational scheme.

3. Timeliness doctrine after Riley: more flexibility, but diligence remains decisive

By accepting Riley v. Bondi’s claims-processing characterization, the Second Circuit signals that late-filed petitions are not automatically jurisdictionally barred, but Santos illustrates the limiting principle: equitable tolling is difficult to obtain without documented, continuous diligence.

4. Potential downstream effects on reinstatement litigation strategy

Practitioners may be incentivized to pursue § 103.5 motions promptly upon learning of reinstatement, both to seek relief administratively and to preserve a reviewable agency denial in circumstances where direct review of the reinstatement order is time-barred.

IV. Complex Concepts Simplified

  • Expedited removal: A fast-track removal process (often at or near the border) with limited procedural protections, authorized by statute (here, 8 U.S.C. § 1225(b)(1)).
  • Reinstatement of removal: When DHS “reinstates” a prior removal order after finding a person unlawfully reentered (here, under 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8). The Second Circuit treats reinstatement as a distinct, reviewable order because it rests on new statutory fact-findings and authorizes current removal.
  • Withholding-only proceedings: A limited process available after reinstatement (and some other removal contexts) in which the person cannot seek broad relief like asylum, but can seek protection against removal to a particular country under withholding/CAT standards.
  • Claims-processing rule vs. jurisdictional bar: A jurisdictional rule limits the court’s power; a claims-processing rule is mandatory but can be waived/forfeited and may sometimes allow equitable tolling. Riley v. Bondi shifted § 1252(b)(1) into the latter category.
  • Equitable tolling: A doctrine that can excuse late filing when extraordinary circumstances prevent timely action and the litigant acts with reasonable diligence. Santos lost on diligence.
  • Motion to reopen / reconsider: A request that the agency revisit a decision—reopening typically based on new facts/evidence; reconsideration based on legal error. The key holding is that CBP may entertain such motions for reinstatement decisions under 8 C.F.R. § 103.5(a).
  • APA § 701(a)(2) (“committed to agency discretion”): Courts cannot review certain agency actions if there is no workable legal standard to apply. The majority found § 103.5 provides workable standards (“proper cause,” evidentiary support), and in any event courts can correct a refusal based on legal misunderstanding.

V. Conclusion

Santos v. Blanche does two important things at once. First, it reaffirms that reinstatement orders are reviewable final orders of removal under 8 U.S.C. § 1252(a)(1), while illustrating that post-Riley v. Bondi flexibility on timeliness will not rescue a petitioner who cannot demonstrate sustained diligence for equitable tolling. Second—and most precedentially—it holds that CBP has authority under 8 C.F.R. § 103.5(a) to reopen, reconsider, and rescind reinstatement orders, and that courts have jurisdiction under 8 U.S.C. §§ 1252(a) and 1252(b)(6) to review CBP’s denials of such motions.

The remand is narrow but consequential: it does not decide Santos’s due process claim, yet it compels CBP to evaluate the motion under the correct legal framework. In doing so, the Second Circuit opens a meaningful administrative and judicial avenue for challenging procedural defects in reinstatement—while squarely teeing up an inter-circuit dispute over the scope of § 103.5 highlighted by Judge Sullivan’s partial dissent.