M. C. C.-G. v. Todd W. Blanche

In the United States Court of Appeals For the Seventh Circuit ____________________

Nos. 25-2256 & 25-2268 E.E.V. and M.C.C.-G., Petitioners,

v.

T ODD W. BLANCHE,

Acting Attorney General of the United States, Respondent.

____________________

On Petitions for Review of Orders of the Department of Homeland Security. Nos. A000-000-000 & A000-000-000. ____________________

ARGUED APRIL 15, 2026 — DECIDED JULY 6, 2026 ____________________

Before BRENNAN, Chief Judge, and HAMILTON and KOLAR. HAMILTON, Circuit Judge. Federal law prohibits removal of a noncitizen from the United States to a country where he or she will be persecuted because of a protected ground or sub- jected to torture. In most circumstances, agency denials of such relief are subject to judicial review.

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2 Nos. 25-2256 & 25-2268 We consider here the federal government's motions to dis- miss petitions for review brought by noncitizens who seek withholding of removal or relief under the Convention Against Torture (CAT). Petitioners E.E.V. and M.C.C.-G. are two of a larger group of noncitizens who seek judicial review of removal orders because they fear persecution and torture if they are removed. Before the Supreme Court decided Riley v. Bondi, 606 U.S. 259 (2025), binding circuit precedent required petitioners like E.E.V. and M.C.C.-B. to wait to file their peti- tions for judicial review until all their administrative proceed- ings had concluded. E.g., F.J.A.P. v. Garland, 94 F.4th 620, 628- 29 (7th Cir. 2024); see 8 U.S.C. § 1252(b)(9) (so-called "zipper clause" consolidating review of all questions of law and fact arising from removal proceedings). The Court held in Riley that the statutory thirty-day deadline to seek judicial review in such cases runs from the date of a final administrative re- moval order even though a noncitizen's requests for with- holding of removal and CAT relief may still be pending. Un- less the Riley treatment of that deadline is subject to equitable tolling, these petitions for review were filed too late. The government has moved to dismiss these petitions as untimely. It has also raised new jurisdictional arguments that seek more broadly to block judicial review of many nonciti- zens' requests for withholding of removal or CAT relief. We reject the government's attempts to limit such judicial review, both as applied to these petitioners and more broadly. We in- stead follow the path mapped out in Riley itself and find these petitioners are entitled to equitable tolling of the thirty-day deadline. We deny these motions to dismiss.

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Nos. 25-2256 & 25-2268 3

I. Factual and Procedural Background A. Withholding-Only Relief The government may not remove involuntarily a nonciti- zen from the United States to a country: (1) where her "life or freedom" would be threatened due to her race, religion, na- tionality, membership in a particular social group, or political opinion; or (2) where it is more likely than not that she would be subjected to torture. The first is a statutory prohibition known as "withholding of removal" or sometimes "statutory withholding of removal." 8 U.S.C. § 1231(b)(3)(A); see 8 C.F.R. §§ 208.1(a)(1), 208.16(a) (terminology). The second is an inter- national treaty obligation under the Convention Against Tor- ture and Other Cruel, Inhuman or Degrading Treatment or Punishment, often referred to as "CAT relief." Dec. 10, 1984, Senate Treaty Doc. No. 100-20, 1465 U.N.T.S. 85; see also Au- guste v. Ridge, 395 F.3d 123, 130-34 (3d Cir. 2005) (discussing ratification and congressional reservations); 8 C.F.R. § 208.18 (implementing regulations). With five narrow exceptions, nearly all noncitizens present in the United States are eligible to seek these forms of relief. Foreign Affairs Reform and Re- structuring Act of 1998 (FARRA), § 2242(c), Pub. L. No. 105- 277, 112 Stat. 2681-822, citing 8 U.S.C. § 1231(b)(3). Because

"removal from the United States is not at issue" in such pro- ceedings—only the country where a noncitizen may be sent is at issue—these limits are forms of "withholding-onlyʺ relief. Riley, 606 U.S. at 263.¹

A noncitizen may seek withholding-only relief during re- moval proceedings before an immigration judge and the

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4 Nos. 25-2256 & 25-2268 Board of Immigration Appeals. However, not all noncitizens go through such plenary removal proceedings. Three alterna- tive removal processes are implicated in these petitions for ju- dicial review. First, the Department of Homeland Security may issue an "expedited removal order" to a noncitizen who lacks valid entry documents and cannot demonstrate contin- uous physical presence in the United States for the past two years. 8 U.S.C. § 1225(b)(1)(A); 8 C.F.R. § 235.3(b)(7) (terminol- ogy). Second, the agency may issue a "final administrative re- moval order" (sometimes known as a "FARO") to a nonciti- zen convicted of an "aggravated felony." 8 U.S.C. § 1228(b); 8 C.F.R. § 238.1(b)(2)(i) (terminology). Third, the agency may

"reinstate" a prior order of removal against a noncitizen who was previously removed and who then illegally reenters the country. 8 U.S.C. § 1231(a)(5). Expedited removal orders, final administrative removal orders, and reinstatement orders may not be reviewed by an immigration judge or appealed to the Board. 8 U.S.C. §§ 1225(b)(1)(C), 1231(a)(5); 8 U.S.C. § 1228(b)(3) (challenge to a FARO goes straight to court of ap- peals without review by immigration judge or Board).² Nonetheless, noncitizens subject to these orders are still entitled to seek withholding-only relief. A noncitizen subject to a final administrative removal order or reinstatement order who expresses fear of returning to the country of removal will

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Nos. 25-2256 & 25-2268 5 be interviewed by an asylum officer to determine if the noncit- izen has a "reasonable fear" of persecution or torture, mean- ing a reasonable possibility exists that he will be persecuted on the basis of a protected ground or tortured in the country of removal. 8 C.F.R. § 208.31(b)-(c).

If the asylum officer makes a positive determination, the noncitizen is referred to an immigration judge for withhold- ing-only proceedings. § 208.31(e). If the officer makes a nega- tive determination, the noncitizen may have that determina- tion reviewed by an immigration judge based on the record before the asylum officer. § 208.31(g); § 1208.31(g) (2020). If the immigration judge upholds the negative determination, that decision may not be appealed to the Board. The immigra- tion judge may also vacate the negative determination and place the noncitizen in withholding-only proceedings in which the final decision may be appealed to the Board. § 1208.31(g)(1)-(2) (2020).³

For an expedited removal order, the process is slightly dif- ferent. A noncitizen who asserts a fear of persecution or tor- ture in the country of removal will be interviewed by an asy- lum officer to determine if the noncitizen has a "credible fear"

of persecution or torture, meaning there is a "significant pos- sibility" the noncitizen is eligible for withholding of removal or CAT protection. 8 C.F.R. § 208.30(b), (e)(2)-(3). If the officer makes a positive determination, the noncitizen will be re- ferred to an immigration judge for withholding-only proceed- ings (or for plenary removal proceedings), and again the final

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6 Nos. 25-2256 & 25-2268 decision may be appealed to the Board. § 208.30(f); Grace v. Barr, 965 F.3d 883, 887-88 (D.C. Cir. 2020).⁴ A negative determination must be reviewed by a supervi- sory asylum officer, and if the supervisor concurs with the of- ficer, the noncitizen may have the determination reviewed by an immigration judge, who must provide the noncitizen with an opportunity to be heard and questioned. § 208.30(g)(1). If the immigration judge concludes that the noncitizen lacks a credible fear of persecution or torture, the noncitizen cannot appeal to the Board. § 1208.30(g)(2)(iv)(A). Critical to this case, any "final order of removal" other than an expedited removal order is subject to judicial review in the court of appeals through a petition for review. 8 U.S.C. § 1252(a)(1)-(2). The term "final order of removal" is not de- fined in the United States Code, although the Illegal Immigra- tion Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that "any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation."

§ 309(d)(2), Pub. L. No. 104-208, 110 Stat. 3009-627. An "order of deportation" means an order "concluding that the alien is deportable or ordering deportation." 8 U.S.C. § 1101(a)(47)(A). The "zipper clause" consolidates judicial re- view of all questions of law and fact arising out of removal proceedings into a single judicial proceeding through a peti- tion for review of a final order of removal. § 1252(b)(9) ("Judi-

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Nos. 25-2256 & 25-2268 7 cial review of all questions of law and fact, including interpre- tation and application of constitutional and statutory provi- sions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.").

The motions to dismiss we consider here are based on the statutory deadline for filing a petition for review: "The peti- tion for review must be filed not later than 30 days after the date of the final order of removal." 8 U.S.C. § 1252(b)(1). Until recently, every court of appeals, including this court, held that the clock for that deadline started upon the conclusion of withholding-only proceedings. F.J.A.P. v. Garland, 94 F.4th 620, 628-29 (7th Cir. 2024) (collecting cases and noting Second and Fourth Circuits had recently departed from this view), ab- rogated by Riley v. Bondi, 606 U.S. 259.

The Supreme Court held last year in Riley v. Bondi, how- ever, that because a final administrative removal order may not be appealed within the agency—which is also true of a reinstatement order—it becomes final and starts the clock for the thirty-day deadline upon issuance even if withholding proceedings remain pending. 606 U.S. 259, 266-67, 272 (2025) ("withholding-only proceedings do not disturb the finality of an otherwise final order of removal"). The Court recognized the "legitimate practical concerns" posed by needing to file a petition for review before withholding-only proceedings con- clude. Id. at 272. The solution to that problem, the Court wrote, is for the government to "alert the court of appeals to the pendency of a withholding-only proceeding so that re- view there can wait until that issue is decided." Id.

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8 Nos. 25-2256 & 25-2268 The Riley Court also held that the thirty-day deadline is not a jurisdictional bar. Id. at 277. That conclusion is important because "[a] litigant's failure to comply with a jurisdictional bar deprives a court of all authority to hear a case, regardless of waiver or equitable considerations." Id. at 273, quoting 33 Wright & Miller, Federal Practice & Procedure § 8316, p. 50 (2018). The Court concluded: "In sum, we hold that § 1252's 30-day filing rule is not jurisdictional, but because the Gov- ernment does not wish to press that ground for dismissal, it does not preclude this case from proceeding on remand." Ri- ley, 606 U.S. at 277. An opinion dissenting in part noted that in such cases, equitable tolling is "likely available now that the Court has recognized that § 1252(b)(1)'s appeal deadline is not jurisdictional." Id. at 302-03 (Sotomayor, J., dissenting in part).

B. These Petitions for Review

Shortly after the Supreme Court decided Riley on June 26, 2025, this court received over a dozen petitions for review from noncitizens whose orders of removal had been final for more than thirty days when Riley was decided, but whose withholding-only proceedings were still pending or whose negative credible-fear determinations were pending before immigration judges. Unlike in Riley itself, however, the gov- ernment has moved to dismiss or deny each of these petitions as untimely. Because the government and each petitioner raised substantially similar arguments in each motion, we di- rected the parties to identify suitable lead cases for briefing and argument on the common issues presented in these mo- tions. After receiving their selections, we consolidated these

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Nos. 25-2256 & 25-2268 9 two petitions for briefing and argument on the motions to dis- miss.⁵

E.E.V. is a citizen of El Salvador. She entered the United States unlawfully and was removed to El Salvador under an expedited removal order issued in March 2007 and executed two months later. Years later, in August 2015, Border Patrol agents apprehended her after she reentered the United States near Rio Grande City, Texas. The agency issued a reinstate- ment order the next day in McAllen, Texas. At some later time, E.E.V. expressed fear of returning to El Salvador. An asylum officer conducted a reasonable-fear interview in February 2017. The officer determined that E.E.V. showed a reasonable fear of persecution or torture in El Salvador and referred her to an immigration judge for withholding-only proceedings. Her proceedings began in Chicago and were later reassigned to another immigration judge in Indianapolis, where they re- main pending as of this decision. E.E.V. filed her petition for review on July 24, 2025, less than thirty days after the Su- preme Court issued its decision in Riley.

M.C.C.-G. is a citizen of Mexico who entered the United States on an unknown date. In November 2018, she was con- victed of theft in a municipal court in Goshen, Indiana, and given a suspended sentence of 365 days in custody. She was later detained by immigration officials after a traffic stop. The agency notified her of its intent to issue a final administrative

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10 Nos. 25-2256 & 25-2268 removal order on May 11, 2025, and issued it the next day. She expressed fear of returning to Mexico, but an asylum officer found that she did not have a reasonable fear of persecution or torture. She requested review of that determination by an immigration judge. That request was still pending when she filed her petition for review on July 26, 2025, also within thirty days after Riley was issued. On August 7, 2025, the immigra- tion judge vacated the negative reasonable-fear determination and placed her in withholding-only proceedings. Those pro- ceedings were before an immigration judge during the brief- ing of these motions, but the judge later denied relief on De- cember 8, 2025. She appealed to the Board, where her pro- ceedings remain pending as of this decision.

II. Jurisdictional Challenges Before we turn to the equitable tolling issues at the center of these cases, we must address two new arguments challeng- ing this court's jurisdiction. The first challenge—raised for the first time in the government's reply brief—is that a reinstate- ment order is not subject to judicial review because it is not a final order of removal. That argument asks us to overrule binding precedents in this circuit and is contrary to prece- dents in all other circuits as well. If we were to adopt the gov- ernment's position, we would foreclose judicial review of questions of law and fact arising from reinstatement orders, including entitlement to CAT protection and even claims of mistaken identity and United States citizenship. The second challenge, that these petitions were filed too early, is irrecon- cilable with the government's primary position—that they were filed too late—and runs counter to the course charted in Riley itself for placeholder petitions for review like these. We reject both jurisdictional challenges.

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Nos. 25-2256 & 25-2268 11 A. Reviewability of Reinstatement Orders This court has consistently concluded that a reinstatement order is a final order of removal subject to judicial review un- der 8 U.S.C. § 1252. E.g., Velazquez-Olais v. Blanche, 172 F.4th 536, 538 (7th Cir. 2026); F.J.A.P., 94 F.4th at 633; Villa v. Barr,

924 F.3d 370, 373 (7th Cir. 2019); Torres-Tristan v. Holder, 656 F.3d 653, 656 (7th Cir. 2011); Lemos v. Holder, 636 F.3d 365, 366 (7th Cir. 2011). Though the dissenting opinion calls these con- clusions "'drive-by' jurisdictional statements," neither that opinion nor the government has identified any precedential decision from any circuit holding otherwise. See post at 53. And while Riley abrogated some of the analysis in F.J.A.P., the Court said nothing about reinstatement orders. That's not surprising because Riley did not involve a reinstatement order in the first place.

Judicial review of a reinstatement order is limited to the reinstatement order itself. Villa, 924 F.3d at 372-73. To issue a reinstatement order, an immigration official must make three determinations: (1) the identity of the noncitizen; (2) that the noncitizen was removed or departed voluntarily under a prior order of removal; and (3) that the noncitizen unlawfully reentered the United States. Id. at 373, citing 8 C.F.R. § 241.8(a). Those three determinations, not the validity of the original order of removal that is "reinstated," are what may be reviewed. See id.

Although judicial review of a reinstatement order is nar- row, the zipper clause both allows and requires a petition for judicial review of a final order of removal to raise a peti- tioner's challenges to the denial of withholding-only relief. See F.J.A.P., 94 F.4th at 635 ("Section 1252(b)(9)'s zipper clause consolidates our review of withholding proceedings with our

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12 Nos. 25-2256 & 25-2268 review of final orders of removal; it does not limit that re- view."); see also id. at 641 (opinion of Brennan, J.) ("With a final order of removal, we can review all questions of law and fact … arising from any action taken or proceeding brought to remove [the] alien from the United States.") (internal quo- tation marks omitted and alterations in original).⁶ The government argues now that a reinstatement order is not a final order of removal. If that position were accepted, courts of appeals would lack jurisdiction to consider through a petition for review any questions of law and fact arising from a reinstatement order. There would be no judicial review of whether the government has the right person, whether the person is likely to be subjected to torture, whether the person reentered the country illegally, and even whether the person subject to the order is or is not actually a United States citizen with a constitutional right to remain in the United States. We do not overrule circuit precedent without a "compel- ling reason," such as statutory changes or intervening Su- preme Court decisions that have undermined our prior case law. United States v. Betts, 99 F.4th 1048, 1055-56 (7th Cir. 2024), quoting Wilson v. Cook County, 937 F.3d 1028, 1035 (7th

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Nos. 25-2256 & 25-2268 13 Cir. 2019) (per curiam). Three cases warrant discussion here:

Nasrallah v. Barr, 590 U.S. 573 (2020), Johnson v. Guzman Chavez, 594 U.S. 523 (2021), and Riley. None provides a sound reason, let alone a compelling one, to overrule circuit prece- dent and restrict judicial review in such cases. Nasrallah did not undermine this court's precedents. The

"narrow" question presented in Nasrallah was whether the so- called "criminal alien bar" stripping the courts of appeals of jurisdiction to review factual challenges, but not legal or con- stitutional challenges, to a final order of removal for a noncit- izen convicted of certain criminal offenses extends to the de- nial of CAT relief. The Court's answer hinged on analysis that is not relevant here. 590 U.S. at 576; see 8 U.S.C. § 1252(a)(2)(C); F.J.A.P., 94 F.4th at 627 (terminology). The Court concluded that it does not, for two reasons. "A CAT or- der is not itself a final order of removal because it is not an order 'concluding that the alien is deportable or ordering de- portation.'" 590 U.S. at 582, quoting 8 U.S.C. § 1101(a)(47)(A). It also does not "merge into" a final order of removal since it does not "affect the validity" of the removal order, as the noncitizen still may be removed to a different country. Id. Nasrallah itself recognized the narrow scope of its "merge into" analysis when it wrote that "FARRA and § 1252(b)(9) simply establish that a CAT order may be re- viewed together with the final order of removal, not that a CAT order is the same as, or affects the validity of, a final or- der of removal." Id. at 583. In other words, whether an order merges into a final order of removal for purposes of the crim- inal alien bar is a distinct question from whether it is subject to judicial review through a petition for review of a final order of removal.

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14 Nos. 25-2256 & 25-2268 Guzman Chavez also did not undermine circuit precedent. There, the Court discussed two immigration detention provi- sions not relevant to these petitions. 594 U.S. at 526, 533, citing

8 U.S.C. §§ 1226(a), 1231(a)(1)(A)-(B), (2). As both the majority and the separate opinion in F.J.A.P. recognized, the Court ex- pressly left open in a footnote whether a reinstatement order is a final order of removal and noted that § 1252 "uses differ- ent language than § 1231 and relates to judicial review of re- moval orders rather than detention." Id. at 535 n.6, cited in F.J.A.P., 94 F.4th at 632 (majority), 643-44 (Brennan, J.). Further, in F.J.A.P., which was decided in 2024, after Nasrallah and Guzman Chavez, we reaffirmed that a reinstate- ment order is a final order of removal subject to (limited) ju- dicial review. 94 F.4th at 633. A separate opinion questioned that holding and drew particular attention to Nasrallah and Guzman Chavez, so we are confident the majority did not simply overlook this issue. See id. at 643-44 (Brennan, J.). The separate opinion noted that "caution counsels against" over- ruling precedent and wrote: "So, as does the majority opinion, I conclude that a reinstatement decision is a final order of re- moval subject to judicial review under § 1252(b)(9)." Id. at 644 (Brennan, J.).

That leaves only Riley as a possible candidate for overrul- ing circuit precedent. But Riley clearly supports our prece- dents on the reviewability of reinstatement orders. In con- cluding that a denial of withholding-only relief is not a final order of removal, the Court wrote as follows on the definition of the term "order of removal":

While the Immigration and Nationality Act

does not define the term "order of removal,"

any statutory reference to "an order of removal"

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Nos. 25-2256 & 25-2268 15 is "deemed to include a reference to … an order of deportation." Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 309(d)(2), 110 Stat. 3009-627. An "order of de- portation," in turn, is defined as an order "con- cluding that the alien is deportable or ordering deportation." 8 U.S.C. § 1101(a)(47)(A). So an

"order of removal" must have those same char- acteristics.

We must therefore identify which order con- cluded that Riley is "deportable" and com- manded his deportation, and it is clear that the qualifying order is the FARO issued by DHS on January 26, 2021. That order held that Riley was deportable and directed that he be removed from the United States.

Id. at 267. The Court had already used § 1101(a)(47)(A) to de- fine the term "order of removal" in Nasrallah. 590 U.S. at 579. Riley, if anything, expanded the definition of "order of re- moval" to encompass not only an "order of deportation" as defined in the statute but also an order with the "same char- acteristics."⁷

Notably, Riley used the terms "removable" and "re- moved" interchangeably with "deportable" and "deported."

Compare id. at 264 ("If the immigration officer finds that the alien is removable … the officer issues a FARO specifying the country to which the alien must be deported.") (emphasis

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16 Nos. 25-2256 & 25-2268 added), with id. at 267 ("[The FARO] held that Riley was de- portable and directed that he be removed from the United States.") (emphasis added). That choice is consistent with the

"statute-wide change in terminology" made by IIRIRA. Cal- cano-Martinez v. INS, 533 U.S. 348, 350 n.1 (2001); see also Per- alta-Cabrera v. Gonzales, 501 F.3d 837, 839 n.1 (7th Cir. 2007) ("[O]ne of the many changes made was the substitution of the term 'deportation' with 'removal.'").⁸

On its face, E.E.V.'s reinstatement order fits that definition. It is an "order" that declares: "In accordance with [8 U.S.C. § 1231(a)(5)], you are removable as an alien who has illegally reentered the United States after having been previously re- moved or departed voluntarily while under an order of exclu- sion, deportation or removal and are therefore subject to re- moval by reinstatement of the prior order." (Emphasis added). The next sentence of the order informs E.E.V. how she can "contest this determination." (Emphasis added). Her rein- statement order is therefore a "final order of removal" under the definition given in Riley. See Laureano v. Attorney General,

177 F.4th 453, 457 (3d Cir. 2026) ("[T]he reinstatement order … itself operates to remove [petitioner] from the United States, meeting the definition of a final order of removal."), citing Riley, 606 U.S. at 267. After all, E.E.V. cannot again be removed under her original expedited removal order without that order being reinstated. "Once an order has been exe- cuted, it cannot be re-executed." Velazquez-Olais, 172 F.4th at

538.

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Nos. 25-2256 & 25-2268 17 The dissenting opinion contends otherwise: "Reinstate- ment orders are not defibrillators. I am aware of no statute or case stating that original removal orders are defunct until given life by reinstatement orders." See post at 55. That is es- sentially what happens, though. A noncitizen who is removed and reenters the country is not removable through reinstate- ment unless and until an immigration officer determines that she reentered illegally. See 8 U.S.C. § 1231(a)(5). If a nonciti- zen reenters the country legally—for example, with the con- sent of the Attorney General, see Mendoza v. Sessions, 891 F.3d 672, 679-80 (7th Cir. 2018) and §§ 1182(a)(9)(A)(iii), 1326(a)— then the prior order of removal remains defunct. There is nothing unusual about our exercising jurisdiction over reinstatement orders. Even the government acknowl- edges that "the courts of appeals have unanimously exercised jurisdiction over petitions for review of reinstatement or- ders." Respondent's Reply Br. at 3. Indeed. See Arevalo v. Ash- croft, 344 F.3d 1, 9 (1st Cir. 2003); Garcia-Villeda v. Mukasey, 531 F.3d 141, 150 (2d Cir. 2008); Laureano, 177 F.4th at 457; Tomas- Ramos v. Garland, 24 F.4th 973, 980 & n.3 (4th Cir. 2022) (treat- ing negative reasonable-fear determination as relevant re- moval order); Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014); Moreno-Martinez v. Barr, 932 F.3d 461, 463 (6th Cir. 2019); Lara- Nieto v. Barr, 945 F.3d 1054, 1059 (8th Cir. 2019); Ruiz v. Bondi,

172 F.4th 673, 676 (9th Cir. 2026); Arostegui-Maldonado v. Gar- land, 75 F.4th 1132, 1139-40 (10th Cir. 2023); Avila v. U.S. At- torney General, 560 F.3d 1281, 1284 (11th Cir. 2009).⁹

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18 Nos. 25-2256 & 25-2268 Against this weight of authority, the government and the dissenting opinion suggest there is a recent trend challenging that conclusion. Each one of the cited authorities either agreed with our holding, did not squarely decide the issue, was not a majority opinion, is no longer in force, or some combination of the four. See F.J.A.P., 94 F.4th at 644 (Brennan, J.); Martinez

v. Garland, 86 F.4th 561, 568 & n.4 (4th Cir. 2023) ("[W]e leave that question for another day."), vacated and remanded, 145 S. Ct. 2836 (2025) (in light of Riley); Ruiz-Perez v. Garland, 49 F.4th 972, 976 (5th Cir. 2022) ("But today is not the day."); Bhak- tibhai-Patel v. Garland, 32 F.4th 180, 195 (2d Cir. 2022) ("[W]e recognize that an illegal reentrant may obtain judicial review of DHS's decision to reinstate a prior order of removal …."), abrogated in part on other grounds by Riley, 606 U.S. 259; Vega- Anguiano v. Barr, 982 F.3d 542, 559 (9th Cir. 2019), as amended (2020) (Bennett, J., dissenting from denial of rehearing en banc) ("An alien subject to reinstatement may petition for ju- dicial review of the reinstatement order."); Arostegui-Maldo- nado, 75 F.4th at 1149 (Tymkovich, J., concurring) ("[L]ike most circuits, we treat the reinstatement order as the func- tional equivalent of an order of removal and therefore retain jurisdiction to review it."); Laureano, 177 F.4th at 472-73 (Matey, J., dissenting).¹⁰

Under the government's and the dissenting opinion's the- ory, a reinstatement order is not subject to any judicial review through a petition for review, including even a challenge based on citizenship. That jurisdictional prohibition would apply equally to a petition for review that is indisputably timely. If the government were correct on this point, then a

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Nos. 25-2256 & 25-2268 19 United States citizen wrongfully deported in the past and sub- sequently detained by immigration authorities might lack any way to vindicate in federal court his constitutional right to re- main in the United States.

After all, immigration statutes limit the availability of the writ of habeas corpus, the historical mechanism for United States citizens to assert so-called "nationality claims," in favor of consolidating such questions into a single petition for re- view in the court of appeals. 8 U.S.C. § 1252(a)(2), (4)-(5), (b)(9); cf. United States v. Wong Kim Ark, 169 U.S. 649, 653, 696, 705 (1898) (affirming grant of habeas relief to birthright citizen wrongfully refused reentry to United States), citing Quock Ting v. United States, 140 U.S. 417 (1891). Notably, for an expe- dited removal order, which is the only kind of removal order excluded from the petition for review procedure, judicial re- view of a nationality claim is available through habeas corpus. § 1252(e)(2). Not so for a reinstatement order, though. Nor may a person in removal proceedings or one ordered re- moved seek a declaratory judgment of citizenship in a district court. § 1503(a). Indeed, the statutory provision authorizing the court of appeals to decide a nationality claim on the plead- ings or to transfer it to a district court for factual development presupposes the existence of a "petitioner" who "may have such nationality claim decided only as provided in this para- graph," meaning through a petition for review of a final order of removal. § 1252(b)(5).

Wrongful deportation of United States citizens is not merely a "hypothetical" concern with "vanishingly small"

odds, as the dissenting opinion asserts. See post at 56. Case reports show that the government has on several occasions sought to deport citizens through reinstatement and rejected

19

20 Nos. 25-2256 & 25-2268 their nationality claims at every stage until a court stepped in on a petition for review. See Iracheta v. Holder, 730 F.3d 419, 421-22, 427 (5th Cir. 2013) (granting United States citizen's pe- tition for review challenging reinstatement of a removal or- der); Minasyan v. Gonzales, 401 F.3d 1069, 1072-74, 1080 (9th Cir. 2005) (same); Garza-Flores v. Mayorkas, 38 F.4th 440, 443, 446 (5th Cir. 2022) (ordering hearing on nationality claim on petition for review from reinstatement order); Batista v. Ash- croft, 270 F.3d 8, 10-12, 17 (1st Cir. 2001) (habeas corpus peti- tion challenging reinstatement order transferred from district court for treatment as petition for review; ordering hearing on nationality claim). In Gastelum Chavez v. Barr, the government pursued reinstatement against a person who had already been acquitted of illegal reentry after presenting a citizenship defense. 773 F. App'x 427, 427-28 (9th Cir. 2019) (non-prece- dential) (affirming district court's citizenship finding). In other words, the government's new jurisdictional argu- ment asserts a power for the executive branch to banish, with- out any access to judicial review, wrongfully deported United States citizens who return to this country. See Duarte-Ceri v. Holder, 630 F.3d 83, 89 (2d Cir. 2010) ("The most precious right of citizenship is at stake. The stakes are indeed high and mo- mentous, for deportation is a drastic measure and at times the equivalent of banishment or exile.") (cleaned up), quoting first Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 (1963), then Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947), and then Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). In fact, if not even a person's identity or the existence of the prior order of re- moval were subject to judicial review, then the government's jurisdictional theory would allow the executive to banish an- yone. We are concerned not merely with clerical errors that the "safeguards" identified by the dissent might sometimes—

20

Nos. 25-2256 & 25-2268 21 but not always—catch. See post at 56. Indeed, various govern- ments across the world have sought ways to select at will the

"right" people to ship off to the "right" places.¹¹Such breath- taking power for the executive branch in the United States would fly in the face of both the constitutional allocation of authority between the branches of government and the mean- ing of United States citizenship. See Trump v. Barbara, 609 U.S. —, —, 146 S. Ct.—, —, No. 25-365, slip op. at 26 (U.S. June 30, 2026) ("Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that prom- ise to 'every free-born person in this land.' We keep that promise today.") (citation omitted).

We would not easily be persuaded that Congress has im- plicitly granted the government that power, if it even could grant such a power. Nothing in Riley or any other Supreme Court decision convinces us to overrule circuit precedent to do so. We conclude once again that a reinstatement order is a final order of removal.

B. Ripeness

The government's next jurisdictional argument makes a U-turn, saying these petitions for review should be dismissed as not yet ripe. That argument asks us to reject the path charted in Riley itself for dealing with the new practical real- ity, after Riley, that a petition for review will almost always

21

22 Nos. 25-2256 & 25-2268 need to be filed before withholding-only proceedings have finished:

The Government's final submission concerns the practical problems that it fears will arise if a removal order becomes final before the issue of withholding-only relief is decided. The Govern- ment worries that aliens like Riley who wish only to contest removal to their native country will not file a petition for review until their re- quest for withholding of removal to that desti- nation is denied. And if an alien files a petition for review before the question of withholding- only relief is settled, the Government fears that the proceeding in the court of appeals may be wrapped up before the BIA denies withholding- only relief, and the alien may thus be deprived of any judicial review of that denial.

606 U.S. at 271-72. The Court then offered a solution to this procedural dilemma posed by its holding:

In a case like this, the Government can inform aliens of the need to file a petition within 30 days after the issuance of a FARO, and it can alert the court of appeals to the pendency of a with- holding-only proceeding so that review there can wait until that issue is decided.

606 U.S. at 272 (emphasis added). That is, Riley itself recog- nized and provided a solution for the problem that the gov- ernment now claims defeats this court's jurisdiction: hold the petitions pending until withholding-only proceedings con-

22

Nos. 25-2256 & 25-2268 23 clude. So, these petitions are not unripe simply because with- holding-only proceedings remain ongoing.

The government's fallback position, as we understand it, is that these petitions are unripe because withholding-only proceedings have not concluded and these petitioners have not (yet) raised substantive challenges to their final orders of removal, meaning at present there is nothing for this court to decide. This argument fails for three independent reasons. First, even if the government were correct that a challenge to the final order of removal is required, these petitioners may well have one. These petitions are not yet at the merits stage. Petitioners have not yet been required to lay out the argu- ments they intend to pursue. Counsel indicated in the briefing and again at oral argument that either or both petitioners may challenge their final orders of removal. The government offers no reason not to credit those assertions.

Second, and more fundamental, we are considering here the government's motions to dismiss these petitions because they were supposedly filed too late—the opposite of unripe. The government's self-contradictory arguments signal that something is seriously amiss with the government's theories. Its position amounts to "a heads I win, tails you lose, propo- sition, which the law would be unlikely to countenance."

McCann v. Hy-Vee, Inc., 663 F.3d 926, 931 (7th Cir. 2011) (also concerning timing for bringing court action). Third, nothing in Riley suggested that its approval of placeholder petitions for review depended on the petitioner challenging the final order of removal itself. Riley himself

"did not contest his removal from the United States"—that is,

"it was undisputed that Riley had been convicted of an aggra-

23

24 Nos. 25-2256 & 25-2268 vated felony"—"but he resisted return to Jamaica under the [CAT]." 606 U.S. at 264. While addressing the "practical prob- lems" posed by removal orders becoming final before with- holding-only proceedings conclude, the Court offered a path forward for noncitizens "like Riley who wish only to contest removal to their native country." Id. at 271 (emphasis added). And then the Court remanded for further proceedings. Id. at

277. Whether these statements amount to an implicit holding or not, we cannot distinguish Riley based on a factor present in Riley itself. As the Third Circuit wrote in Laureano, "the Su- preme Court [in Riley] had no doubt that courts of appeals have jurisdiction to review withholding-only rulings inde- pendent of any substantive review of final orders of removal."

177 F.4th at 458 (footnote omitted).¹² The government relies on two cases in support of its posi- tion. Neither provides persuasive support. In Navarrete v.

24

Nos. 25-2256 & 25-2268 25 Bondi, the petitioner incorrectly filed a petition for review from a negative reasonable-fear determination, not the rein- statement order under which he was to be removed. 170 F.4th 1214, 1219 (9th Cir. 2026). Then he sought the court's leave to amend his petition to raise a "nominal" challenge to his re- moval order, which the court denied as futile. Id. at 1224. We do not disagree with the outcome of Navarrete. Riley clearly requires a would-be petitioner to file a petition for review of a final order of removal, not from the denial of withholding- only relief. By contrast, the petitioners before us properly filed their petitions for review from their final orders of removal. Insofar as certain statements in Navarrete could be read to require a challenge to a final order of removal in order to se- cure judicial review of withholding-only relief in all circum- stances—a position adopted by the other case the government cites, Hayles v. U.S. Attorney General, ___ F.4th ___, 2026 WL 1782580 (11th Cir. 2026)—that analysis rests on shaky ground. To start, the petitioner in Riley itself raised no such challenge, and at least this court and the Ninth and Eleventh Circuits have exercised jurisdiction over petitions challenging only the denial of withholding-only relief. See F.J.A.P., 94 F.4th at 624- 25; De Leon v. Garland, 51 F.4th 992, 998, 1008 (9th Cir. 2022); Rodriguez v. U.S. Attorney General, 735 F.3d 1302, 1305 (11th Cir. 2013).¹³

Some language in Navarrete seems, with respect, to go astray insofar as it overreads the conclusion in Nasrallah that a denial of CAT relief "does not affect the validity of the final

25

26 Nos. 25-2256 & 25-2268 order of removal and therefore does not merge into the final order of removal." 170 F.4th at 1221, quoting 590 U.S. at 582.

"Merger" and "validity" are not the relevant questions under the zipper clause, as we explained above. A claim of entitle- ment to CAT relief presents "questions of law and fact … aris- ing from" removal proceedings, which both Navarrete and Hayles acknowledged. 170 F.4th at 1220; ___ F.4th at ___, 2026 WL 1782580, at *3.

The missing analytical step is that both Navarrete and Hayles assumed that judicial review of a final order of removal requires a substantive challenge to a removal order even if the real focus of the petitioner's case is withholding-only relief. Navarrete, 170 F.4th at 1221-22 ("[W]e have not been granted any jurisdiction to hear CAT claims independent of challenges to final orders of removal."); Hayles, ___ F.4th at ___, 2026 WL 1782580, at *3-4 ("[O]ur review of CAT claims may come only through a review of [a] final order."). That proposition is not supported by Nasrallah or Riley. And neither Navarrete nor Hayles explains the assumption. Navarrete seemed to be searching for a justification when it cited a leading treatise on federal procedure for the proposition that "the only jurisdic- tion to review CAT orders is a 'pendent jurisdiction' requiring 'an independent basis of federal subject matter jurisdiction' under 8 U.S.C. § 1252(a)(1)—specifically, a petition for review of a final order of removal." 170 F.4th at 1222, quoting 13 Wright & Miller, Federal Practice & Procedure § 3523 (3d ed. 2025). Then, Navarrete concluded that the substantive chal- lenge to the removal order must be "colorable" because a friv- olous claim is insufficient to invoke a federal court's jurisdic- tion. Id. at 1224; see also In re African-American Slave Descend- ants Litig., 471 F.3d 754, 757-58 (7th Cir. 2006) (no supple- mental jurisdiction based on frivolous federal law claim).

26

Nos. 25-2256 & 25-2268 27 Equating pendent jurisdiction in a multi-claim civil action with jurisdiction over a petition for review in immigration law does not follow. That logical leap was elided in Navarrete by the careful use of a "cf." signal to cite a section of the Wright & Miller treatise that concerns neither immigration law in general nor the zipper clause in particular. Navarrete cited no authorities explicitly drawing that analogy. Congress has confirmed more than once that CAT orders are subject to judicial review. See Nasrallah, 590 U.S. at 585. It has done so through legislation drafted against the backdrop that, until only a few years ago, courts uniformly treated the denial of withholding-only relief as the triggering event for the deadline to file a petition for review. See F.J.A.P., 94 F.4th at 628-29. That means ripeness was not relevant then in the way it now could be after Riley. Petitioners here represent that

"[p]ractically speaking, th[e] deadline will pass long before applications for protection will have been adjudicated, and of- ten before withholding-only proceedings have even begun."

Petitioners' Br. at 2. That looks to be true. The fastest resolu- tion to a claim for CAT relief is when the immigration judge affirms a negative reasonable-fear determination. In M.C.C.- G.'s case, however, the judge took over two months to decide. And if the noncitizen receives a positive determination, with- holding-only proceedings will not conclude even close to the deadline. E.E.V.'s withholding-only proceedings began in February 2017 and remain pending today.

Congress knows how to exclude certain noncitizens from eligibility for seeking CAT relief. It has done so only for a few narrow categories. FARRA, § 2242(c), 112 Stat. 2681-822. Those categories are, essentially, "serious" criminals, spies, persecutors, and Nazi concentration camp guards. See 8

27

28 Nos. 25-2256 & 25-2268 U.S.C. §§ 1182(a)(3)(E), 1227(a)(4)(D), 1231(b)(3)(B). Congress also knows how to foreclose judicial review of orders denying CAT relief for certain classes of noncitizens. It has done so for noncitizens subject to expedited removal orders. They cannot seek judicial review of negative credible-fear determinations or, if referred to an immigration judge for withholding-only proceedings, denials of relief by the Board. See Nasrallah, 590 U.S. at 586 n.5 ("In expedited removal proceedings, the immi- gration laws do not provide for any judicial review of CAT claims. Our ruling today does not affect that law.") (citations omitted). Congress has certainly not foreclosed judicial re- view for noncitizens subject to reinstatement orders and final administrative removal orders. But because such individuals often (but not always) lack any basis on which to contest re- moval, the government's rule would exclude many of them from seeking judicial review too, regardless of timing. Accordingly, we decline the government's invitation, con- trary to Riley and inconsistent with the practice of this and every other circuit, to conclude that Congress has silently foreclosed judicial review of the denial of withholding-only relief to a noncitizen who does not also challenge substan- tively a final order of removal.

III. Timeliness So we have jurisdiction over these petitions for judicial re- view. We now arrive at the original heart of the matter. The government argues that these petitions for review should be dismissed as untimely. To recall, § 1252(b)(1) says that a "pe- tition for review must be filed not later than 30 days after the date of the final order of removal." E.E.V.'s reinstatement or- der was issued on August 27, 2015, and M.C.C.-G.'s final ad- ministrative removal order was issued on May 12, 2025. They

28

Nos. 25-2256 & 25-2268 29 did not file petitions for review until July 24 and July 26, 2025, respectively, so neither filed within the thirty-day deadline as measured in Riley. The government contends that, even though Riley held the deadline is not jurisdictional, it is none- theless not subject to equitable tolling and must be enforced if properly raised. Petitioners argue that equitable tolling is available under the statute and appropriate in these circum- stances. We agree with petitioners on both points. A. Availability of Equitable Tolling

Riley did not address the availability of equitable tolling because it did not need to. Instead, the Court noted that "be- cause the Government does not wish to press that ground for dismissal, it does not preclude this case from proceeding on remand." 606 U.S. at 277. In other words, the government waived the deadline, so the Riley case itself could proceed. And the Riley majority did not respond to the partial dissent's prediction that "standard principles of equitable tolling … are likely available." 606 U.S. at 302-03 (Sotomayor, J., dissenting in part).¹⁴

Simply put, Riley left open the availability of equitable toll- ing. The dissenting opinion relies on language in Riley de- scribing the question presented as whether § 1252(b)(1) "is a jurisdictional requirement or simply a mandatory claim-pro-

29

30 Nos. 25-2256 & 25-2268 cessing rule," 606 U.S. at 263, to conclude that the Court has already foreclosed equitable tolling. See Nutraceutical Corp. v. Lambert, 586 U.S. 188, 192 (2019) (suggesting "mandatory"

rules are never subject to equitable tolling); but see Fort Bend County v. Davis, 587 U.S. 541, 549 n.5 (2019) (noting court has reserved whether mandatory rules could ever allow equitable exceptions).

The government's reasoning is not persuasive. The Court used the phrase "claim[s]-processing rule" two other times in Riley, in neither instance attached to the word "mandatory."

See 606 U.S. at 273-74 (Riley and government have "better ar- gument" that § 1252(b)(1) is a "quintessential claim-pro- cessing rule") (alteration omitted); id. at 275 ("Our precedents extending back nearly 20 years support classifying § 1252(b)(1)'s filing deadline as a claims-processing rule."). More critically, the majority opinion in Riley did not engage in any of the analysis the Court has used in the past to decide when equitable tolling is available. See id. at 272-77. The Sixth Circuit has since addressed the issue in Oxlaj- Perez v. Blanche, 174 F.4th 516, 520 (6th Cir. 2026), and found equitable tolling available. The Fifth Circuit in Liao v. Bondi,

162 F.4th 519, 524 (5th Cir. 2025), characterized § 1252(b)(1) as

"a mandatory claim-processing rule that, if properly raised, must be enforced," though as in Riley, the opinion did not ex- pressly address equitable tolling. We agree with the Sixth Cir- cuit that equitable tolling is—indeed must be—available here.¹⁵

30

Nos. 25-2256 & 25-2268 31 The Supreme Court has taught consistently for decades that non-jurisdictional statutes of limitations are subject to a rebuttable presumption in favor of allowing equitable tolling in appropriate cases. E.g., Enbridge Energy, LP v. Nessel ex rel. Michigan, 608 U.S. ___, ___, 146 S. Ct. 1074, 1082 (2026); Harrow

v. Department of Defense, 601 U.S. 480, 489 (2024); Arellano v. McDonough, 598 U.S. 1, 6-7 (2023); Boechler, P.C. v. Comm'r of Internal Revenue, 596 U.S. 199, 208-09 (2022); United States v. Wong, 575 U.S. 402, 407-08 (2015); Lozano v. Montoya Alvarez,

572 U.S. 1, 10-11 (2014); Holland v. Florida, 560 U.S. 631, 645- 46 (2010); Young v. United States, 535 U.S. 43, 49-50 (2002); Ir- win v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990). The thirty-day deadline for filing a petition for review of a final order of removal is a statute of limitations because it "pre- scribes a period within which certain rights … may be en- forced." Young, 535 U.S. at 47.

The presumption is not overcome in this case. We start with petitioners' observations that the deadline is quite short and directed at them, not at the court, both of which do "noth- ing to rebut the presumption" in favor of equitable tolling. Boechler, 596 U.S. at 209. In line with the Court's recent deci- sion in Enbridge, we also acknowledge but give less weight to the government's observation that the statute speaks in man- (relying on pre-Riley precedent treating deadline as jurisdictional and ac- knowledging only that the Court granted certiorari in Riley, even though the opinion had already been released); In re Asemani, No. 25-1513, 2025 WL 1823953, at *1 (4th Cir. July 2, 2025) (relying on pre-Riley precedent vacated and remanded same day Riley was decided); Zeledon v. Bondi, No. 24-4763, 2025 WL 2375227, at *1 (9th Cir. Aug. 15, 2025) (not deciding issue since not sufficiently raised); Rodriguez-Novoa v. Bondi, No. 24-1153, 2026 WL 617096, at *1 (2d Cir. Mar. 5, 2026) (not deciding issue since petition was meritless).

31

32 Nos. 25-2256 & 25-2268 datory terms. Such language "is at least consistent with treat- ing its deadline as mandatory and not subject to equitable toll- ing," but Enbridge makes clear that such language is "not suf- ficient, on its own, to rebut the presumption." 608 U.S. at ___,

146 S. Ct. at 1082 (emphasis added). We therefore view the

"plain language of the statute" as equivocal with respect to equitable tolling, and certainly not enough on its own to "dis- place the presumption of tolling." Oxlaj-Perez, 174 F.4th at 523. We look next to the expansive and grave "nature of the subject matter," which makes it unlikely that Congress meant to forbid equitable tolling. See Enbridge, 608 U.S. at ___, 146 S. Ct. at 1084, quoting Arellano, 598 U.S. at 14. Although Enbridge and Arellano used the subject matter of the statutes in those cases merely as "garnish," that factor is far stronger here. In Holland, the Court noted that the presumption in favor of eq- uitable tolling applied with special force in the context of ha- beas corpus, which has traditionally been governed by equi- table principles. 560 U.S. at 646. Section 1252 implicates ha- beas corpus because it channels judicial review of CAT deni- als and nationality claims away from habeas and into a peti- tion for review of a final order of removal. 8 U.S.C. § 1252(a)(4)-(5), (b)(5), (b)(9), (e)(2), (g). The stakes in these cases are whether a person will be re- moved to a country where she faces persecution, torture, or worse. In some cases the issue will be United States citizen- ship. In many of these circumstances, a petition for review is the only mechanism Congress has provided for a person to argue her claims before Article III judges. The government contends that executive branch "employees" who handle many immigration cases are bound to obey the personal legal opinions of the President and the Attorney General, and it

32

Nos. 25-2256 & 25-2268 33 considers immigration judges to be removable at will. See Exec. Order No. 14215, § 7, 90 Fed. Reg. 10447, 10448-49 (Feb. 18, 2025) ("The President and the Attorney General's opinions on questions of law are controlling on all employees in the conduct of their official duties."); Jackler & Jaroch Consolidation

v. Dep't of Justice, 2026 MSPB 3, ¶ 21 (Mar. 20, 2026) (conclud- ing immigration judges lack civil service protections), petition for review docketed sub nom. and hearing en banc granted, Jackler

v. MSPB, No. 26-1575 (Fed. Cir.). As in Holland, the constitu- tional and human importance of such claims "counsels hesi- tancy before interpreting … statutory silence as indicating a congressional intent to close courthouse doors that a strong equitable claim would ordinarily keep open." 560 U.S. at

649.¹⁶

The government asserts that practical interests specific to immigration law cut against recognizing "case-specific excep- tions and individualized equities." It also warns that recog- nizing equitable tolling will invite spurious untimely peti- tions filed merely to delay removal. Respondent's Br. at 43. We are not persuaded.

33

34 Nos. 25-2256 & 25-2268 First, because Congress provided for judicial review of CAT claims and did not extinguish review through habeas of nationality claims challenging expedited removal orders (which are excluded from petitions for review), we know it

"did not seek to end every possible delay at all costs." See Hol- land, 560 U.S. at 649 (making this point in habeas context). True, E.E.V. has remained in this country for nearly a decade after her reinstatement order was issued. Such delays may be mystifying for those outside the nation's immigration bureau- cracies, but we have no reason to think E.E.V. is responsible for the delays. And the government need not wait for an un- timely petition before effectuating removal. Johnson v. Guzman Chavez, 594 U.S. 523, 534-35 (2021). Further, the government's argument is undercut by the availability of equitable tolling for other immigration law deadlines. The thirty-day statutory deadline to file a motion to reconsider with the Board is sub- ject to equitable tolling. Hernandez-Alvarez v. Barr, 982 F.3d 1088, 1095 (7th Cir. 2020); see 8 U.S.C. § 1229a(c)(6)(B). So is the ninety-day statutory deadline to file a motion to reopen with the Board. Hernandez-Alvarez, 982 F.3d at 1096; see § 1229a(c)(7)(C). The Board's own precedents allow equitable tolling of the thirty-day regulatory deadline to file a notice of appeal of an immigration judge's decision. Matter of Morales- Morales, 28 I. & N. Dec. 714, 716-17 (BIA 2023); see 8 C.F.R. § 1003.38(b).

As for practical concerns specific to withholding-only pro- ceedings, the new reality after Riley is that a petition for re- view will almost always come due long before withholding- only proceedings end. Under those circumstances, tolling the deadline to a date when the agency still has not decided the claim leads to no additional delay. For untimely petitions that may actually cause delay, the appropriateness of equitable

34

Nos. 25-2256 & 25-2268 35 tolling might be resolved quickly through a motion to dis- miss, which need not address any other issues. Moreover, and in stark contrast to the "decisive" feature of the statute in Enbridge, where the presumption of equitable tolling was rebutted, the thirty-day deadline at issue here lacks not only exceptions sounding in equity, but any excep- tions at all. See 608 U.S. at ___, 146 S. Ct. at 1082; see also Arel- lano, 598 U.S. at 7 ("[38 U.S.C. § 5110] contains detailed in- structions for when a veteran's claim for benefits may enjoy an effective date earlier than the one provided by the default rule. It would be inconsistent with this comprehensive scheme for an adjudicator to extend effective dates still fur- ther through the doctrine of equitable tolling."). Congress did not specifically provide relief from the dead- line if, for example, immigration authorities unlawfully delay, frustrate, or prevent a noncitizen from filing a timely petition for review. Federal courts have recently found that immigra- tion officials engaged in the following examples of conduct that might warrant equitable tolling of missed deadlines:

 Denying access to an attorney during detention, including by denying visits, phone calls, mail,

or email, shuffling detainees between various

facilities across the country without notice, and coercing detainees into signing voluntary re-

moval forms before consulting an attorney. See

Perdomo v. Noem, 815 F. Supp. 3d 1057, 1067-71

(C.D. Cal. 2025), appeal docketed, No. 26-209 (9th Cir.); Advocates for Human Rights v. U.S. Dep't of Homeland Security, 825 F. Supp. 3d 858, 868-74

(D. Minn. 2026), appeal docketed, No. 26-2064 (8th Cir.).

35

36 Nos. 25-2256 & 25-2268  Dumping the noncitizen onto the street hun- dreds of miles from home without her personal property or identification documents. See S.J. v. Bondi, ___ F. Supp. 3d ___, 2026 WL 490104, at *1 (D. Minn. Feb. 20, 2026), appeal docketed sub nom., Jimenez v. Isihara, No. 26-1327 (8th Cir.).  Designating removal to a third country over thirty days after a final order of removal because the noncitizen obtained withholding-only relief as to his home country, but doing so without no- tice and without informing him of the right to undergo another reasonable-fear interview. See, e.g., Abrego Garcia v. Noem, 811 F. Supp. 3d 741, 746-54 (D. Md. 2025) (recounting government's

"extraordinary" attempts to remove El Salva- doran national to Uganda, Eswatini, Ghana, and Liberia), appeal docketed, No. 26-6466 (4th Cir.); Kumar v. Wamsley, 817 F. Supp. 3d 1059, 1065-67 (W.D. Wash. 2025) (granting habeas relief; gov- ernment attempted to remove Indian national, an HIV-positive gay man, to Uganda); Mbaba v. Perez, No. 26-cv-00070, 2026 WL 917484, at *1-3 (S.D. Tex. Feb. 13, 2026) (enjoining removal to Equatorial Guinea of Mauritanian national who escaped chattel slavery).¹⁷

36

Nos. 25-2256 & 25-2268 37 The last group of cases cannot be attributed to mistakes.

"The Department of Homeland Security has adopted a policy whereby it may take people and drop them off in parts un- known—in so-called 'third countries'—and, 'as long as the Department doesn't already know that there's someone standing there waiting to shoot … that's fine." D.V.D. v. U.S. Dep't of Homeland Security, 821 F. Supp. 3d 102, 117 (D. Mass. 2026) (alteration in original), appeal docketed, No. 26-1212 (1st Cir.), prior order stayed, 145 S. Ct. 2153, and clarification granted,

145 S. Ct. 2627. Nor is the deadline incorporated into other statutes with specific allowances for exceptions, as the United States Code does three times with the thirty-day deadline for removal of civil actions to federal court at issue in Enbridge. 608 U.S. at ___, 146 S. Ct. at 1083. The only equitable-seeming exception to any related statutory deadline cited by the government here applies to statutory briefing deadlines. The court "may not extend these deadlines except upon motion for good cause shown" and, if they are not met, the petition must be dismissed "unless a manifest injustice would result." 8 U.S.C. § 1252(b)(3)(C).

This solitary provision concerning briefing schedules does not persuade us that Congress meant to prohibit equitable tolling of the time to file a petition for review, regardless of the equities in a particular case. Section 1252 sets bespoke stat- utory briefing deadlines and makes them subject to extension by the court based on "good cause." That is the same standard cause it was made after his removal proceedings had ended." Ibarra-Perez

v. United States, 154 F.4th 989, 1000 (9th Cir. 2025). We cite these cases to show examples of potential grounds for equitable tolling and to illustrate the stakes if access to judicial review were cut off by such actions.

37

38 Nos. 25-2256 & 25-2268 for extending the default briefing deadline provided by the federal rules in other cases. See Fed. R. App. P. 2(a), 31(a). Granting the court the authority to change briefing deadlines for petitions for review on the same standard as it may alter briefing deadlines set by the federal rules suggests nothing about equitable exceptions for the deadline to file the petition in the first place.

Careful attention to the differences between rules and stat- utes, and between the interaction of different rules with stat- utes, is also why we find unconvincing the government's re- liance on Nutraceutical Corp. v. Lambert, 586 U.S. 188 (2019). In Nutraceutical, the Court held that the fourteen-day deadline to seek a discretionary interlocutory appeal of a grant or denial of class certification under Rule 23(f) is not subject to equita- ble tolling. Id. at 189-90. The Court began by noting where the deadline comes from: "Because Rule 23(f)'s time limitation is found in a procedural rule, not a statute, it is properly classi- fied as a nonjurisdictional claim-processing rule." Id. at 192. Then, the Court noted that "some claim-processing rules are 'mandatory'—that is, they are '"unalterable"' if properly raised by an opposing party." Id., quoting Manrique v. United States, 581 U.S. 116, 121 (2017), quoting in turn Eberhart v. United States, 546 U.S. 12, 15 (2005). Critical to the Court's con- clusion that Rule 23(f) is such a mandatory rule not subject to equitable tolling is that "the Federal Rules of Appellate Pro- cedure single out Civil Rule 23(f) for inflexible treatment." Id. at 193. That is:

While Appellate Rule 2 authorizes a court of ap- peals for good cause to "suspend any provision of these rules in a particular case," it does so with a conspicuous caveat: "except as otherwise

38

Nos. 25-2256 & 25-2268 39 provided in Rule 26(b)." Appellate Rule 26(b), which generally authorizes extensions of time, in turn includes this express carveout: A court of appeals "may not extend the time to file … a petition for permission to appeal." Fed. Rule App. Proc. 26(b)(1). In other words, Appel- late Rule 26(b) says that the deadline for the precise type of filing at issue here may not be extended. The Rules thus express a clear intent to compel rigorous enforcement of Rule 23(f)'s deadline, even where good cause for equitable tolling might otherwise exist.

Id. (alteration in original).

Appellate Rule 26(b) reads in full:

Extending Time. For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. But the court may not extend the time to file:

(1) a notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal; or

(2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or other- wise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law.

To begin, if any part of Rule 26(b) is relevant to this case, it is not Rule 26(b)(1)'s absolute prohibition on extensions of time to file discretionary interlocutory appeals that was ad-

39

40 Nos. 25-2256 & 25-2268 dressed in Nutraceutical. Here we address instead the quali- fied prohibition in Rule 26(b)(2), which allows extension when "specifically authorized by law."

The presumption in favor of equitable tolling of statutes of limitation drafted by Congress is law. It applies to petitions for review of agency action. See Boechler, 596 U.S. at 202-03, 209 (petition for review of tax levy); Harrow, 601 U.S. at 482 (petition for review of Merit System Protection Board order); Nelson v. SEC, 138 F.4th 514, 517, 523 (D.C. Cir. 2025) (petition for review of whistleblower award; "As we have previously stressed, however, the presumption of equitable tolling ap- plies to deadlines pertaining to petitions for review."). We agree with both the Sixth and D.C. Circuits that Rule 26(b)(2)'s

"specifically authorized" language does not override the pre- sumption in favor of equitable tolling for statutory deadlines. Oxlaj-Perez, 174 F.4th at 527; Nelson, 138 F.4th at 523. Moreover, we need not read either part of Rule 26(b) to apply to statutory deadlines for petitions for review in the first place. See Oxlaj-Perez, 174 F.4th at 527 ("But Nutraceuti- cal's analysis of Rule 23(f) is inapposite here. There was no presumption of tolling in Nutraceutical because the case in- volved only a Federal Rule of Civil Procedure."). Rule 26(b) is an exception to Rule 2(a), which authorizes the court of ap- peals, in order "to expedite its decision or for other good cause—[to] suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b)." (Emphasis added.) Rule 26(b) clari- fies that the power to suspend the rules includes the power to

"extend the time prescribed by these rules or by its order to perform any act" or to "permit an act to be done after that time expires," with the two exceptions given above. Once

40

Nos. 25-2256 & 25-2268 41 again, however, § 1252(b)(1) is a statute, not a deadline pre- scribed by the Federal Rules of Appellate Procedure or by the order of the court. The only rules-based deadline applicable to petitions for review itself incorporates whatever deadline is set by the statute: "Review of an agency order is com- menced by filing, within the time prescribed by law, a petition for review …." Fed. R. App. P. 15(a)(1) (emphasis added). The

"time prescribed by law" includes the time during which the statute of limitation may be tolled, if the statute itself allows equitable tolling.

Rule 26(b)(2) prohibits a court from suspending the rules under Rule 2(a) to grant an extension of time for a petition for review under the more forgiving standard of "good cause,"

regardless of whether equitable tolling is available under the statute or appropriate under the circumstances. In the absence of Rule 26(b)(2) the court would seem to have the power to apply the more lenient "good cause" standard. But suspen- sion of the rules for "good cause" is unnecessary if equitable tolling is available under the statute and therefore available under Rule 15(a) as well. Nor would we expect an exception to the court's authority to suspend the rules to override some- how both the statute and Rule 15(a).

The thirty-day deadline to file a petition for review under § 1252(b)(1) is subject to equitable tolling.¹⁸

41

42 Nos. 25-2256 & 25-2268 B. Appropriateness of Tolling A party seeking equitable tolling must meet the high bar of showing that it is appropriate in her particular case. "Gen- erally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circum- stance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). These petitions for review are among the rare cases where those conditions are met.¹⁹

Both petitioners have diligently pursued their rights, in- cluding their rights to judicial review. The government has not suggested that either petitioner has failed to participate diligently in withholding-only proceedings. Petitioners have also acted diligently in this court since filing their petitions for review, including responding to the government's motions and meeting all briefing deadlines in these consolidated pro- ceedings. The only question is whether they acted diligently between receiving their final orders of removal and filing the petitions.

If petitioners had filed these petitions for judicial review within thirty days of their final orders of removal in August 2015 and May 2025, circuit precedent would have required this court to dismiss them as unripe. F.J.A.P., 94 F.4th at 636, citing Order, Delgado-Arteaga v. Lynch, No. 15-1810 (7th Cir. petitioners to file fresh petitions after the conclusion of withholding-only proceedings—exactly what the government would have asked us to do if they had filed timely petitions before Riley was decided. See F.J.A.P., 94 F.4th at 636. That is not what we have done.

42

Nos. 25-2256 & 25-2268 43 Aug. 7, 2015), Dkt. No. 11 (granting motion to dismiss); see also Eke v. Mukasey, 512 F.3d 372, 377-78 (7th Cir. 2008) ("We are satisfied that the Attorney General is correct that the im- migration authorities were not finished with Eke's case until the BIA's final decision [on withholding-only relief] …."). Then, when Riley abrogated F.J.A.P. and immediately put E.E.V. and M.C.C.-G. outside the thirty-day window, both filed their petitions for review within thirty days. Both peti- tioners acted with the necessary diligence.²⁰ The Supreme Court appears to have left open whether re- liance on binding precedent that is later overruled can qualify as an extraordinary circumstance to justify equitable tolling. See Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250, 253, 257-58, 258 n.4 (2016) (noting litigant's mistake in relying on district court decision that was not appealed is

"quite different from relying on actually binding precedent that is subsequently reversed," but not deciding if the latter may justify equitable tolling), aff'g 764 F.3d 51, 62 (D.C. Cir. 2014) (suggesting availability of equitable tolling for reliance on binding precedent for "deciding when and how to file"

claims). This court's discussion of Menominee Indian Tribe in Evans v. United States also seems to leave this question open:

What is more, as the Supreme Court stated

in Menominee Indian Tribe of Wisconsin v. United States, misreading case precedent is "funda- mentally no different from a garden variety

claim of excusable neglect[.]" 577 U.S. 250, 257-

43

44 Nos. 25-2256 & 25-2268 58 (2016) (internal quotation marks omitted) (distinguishing cases in which a party relies on binding precedent that is subsequently re- versed).

132 F.4th 473, 480 (7th Cir. 2025) (alteration in original). Other circuits have addressed similar issues about when to file claims in habeas corpus cases, and we find their think- ing instructive. In Harris v. Carter, when the petitioner was convicted, then-binding circuit precedent held that an un- timely state court post-conviction petition was "properly filed" and therefore tolled the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d). 515 F.3d 1051, 1052-53 (9th Cir. 2008), citing Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001). The Supreme Court abrogated Dictado in Pace, but Pace himself had not acted with the necessary diligence. The Court did not decide if its holding created an extraordinary circumstance for prisoners who "detrimentally relied" on prior circuit case law. 544 U.S. at 418. The Ninth Circuit noted in Harris that such reliance was "not the result of oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling." 515 F.3d at 1055. Rather, the court wrote:

The Supreme Court's overruling of the Dic-

tado rule made it impossible for Harris to file a timely petition. Harris' petition became time- barred the moment that Pace was decided. Fi- nally, Harris had no control over the operative fact that caused his petition to become un- timely—the Supreme Court's decision

in Pace. These are precisely the circumstances in

44

Nos. 25-2256 & 25-2268 45 which equitable principles justify tolling of the statute of limitations.

Id. at 1056 (emphasis added).

Similarly, in Sherwood v. Prelesnik, the Sixth Circuit ad- dressed another change in the law concerning the same stat- ute at issue in Harris that also led to an untimely habeas cor- pus petition. 579 F.3d 581 (6th Cir. 2009). In Sherwood, a new Supreme Court decision abrogated a Sixth Circuit precedent and held that filing a petition for certiorari after the state court of last resort denied relief did not toll the federal statute of limitations. Id. at 583-84, 588, citing Lawrence v. Florida, 549 U.S. 327, 337 (2007), abrogating Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir. 2003) (en banc). Sherwood had relied on Abela in waiting 363 days after his conviction became final to file his application for state post-conviction relief, meaning he went from having ninety days after the Michigan Supreme Court denied reconsideration to having just two days. See id. at 584,

588. The Sixth Circuit concluded that equitable tolling was ap- propriate because Abela had "assured" Sherwood of an addi- tional ninety days when he made the "crucial decision" to seek state post-conviction relief rather than file a habeas peti- tion in federal court. Id. at 588-89. The court quoted Sher- wood's brief: "By the time the rules changed, counsel had ef- fectively no opportunity to alter the course of Mr. Sherwood's 'ship.'" Id. at 588.

We agree with the reasoning of Harris and Sherwood and find it applies here. A change in binding case law that makes it impracticable, as in Sherwood, or impossible, as in Harris, for a party ever to have timely sought relief can constitute an ex- traordinary circumstance for the purpose of equitable tolling. A person who relies in good faith on binding precedent in de-

45

46 Nos. 25-2256 & 25-2268 ciding when to bring a claim or to seek judicial review would have no discernible reason to challenge settled case law just to advance the timing of a case that he reasonably expected to be able to bring later.

In the government's view, however, E.E.V. should have re- alized that her reinstatement order became final upon issu- ance back in 2015. That would have been contrary to then-set- tled case law in this circuit and in every other circuit. See F.J.A.P., 94 F.4th at 628-29. Then she should have filed a peti- tion for review and tried to convince this court we were wrong about the deadline. In fact, at that time, the government itself would have moved to dismiss her premature petition, and we would have granted the motion. See, e.g., Order, Baa- tarjav v. Garland, No. 21-1191 (7th Cir. Apr. 9, 2021), ECF 14; Order, Lorenzo-Avila v. Whitaker, No. 18-3589 (7th Cir. Dec. 14, 2018), ECF 5; Order, Atisele v. Lynch, No. 15-1183 (7th Cir. July 22, 2015), ECF 29. And even if E.E.V. had won that then-im- probable argument, in the best-case scenario she would have ended up with a placeholder petition for review pending the conclusion of withholding-only proceedings. That's the same situation she is in now. For someone in her position, that was not a fight worth picking.

Moreover, by the logic of the government's argument, every other noncitizen in the same situation in the years before Riley was decided should have done the same thing: file a pe- tition for review that would have been premature under bind- ing precedent, asking us to reconsider that precedent. And to what end? Parties are of course free to urge us to reconsider circuit precedent, but we do not respond with limitless pa-

46

Nos. 25-2256 & 25-2268 47 tience to repeated, futile efforts to overturn circuit prece- dent.²¹

The equities here are clear-cut. E.E.V. and M.C.C.-G. relied on this court's binding precedent in deciding when to seek judicial review. Then, the Supreme Court decided Riley, and, according to the government, they suddenly found the court- house doors barred. Cf. Holland, 560 U.S. at 649. Not so. These petitioners are entitled to equitable tolling, so these petitions for review are timely.

IV. Venue In the alternative to dismissal as untimely, the government moved to transfer E.E.V.'s petition to the Fifth Circuit because her reinstatement order was issued in Texas. See 28 U.S.C. § 41.²²Venue is proper in "the court of appeals for the judicial

47

48 Nos. 25-2256 & 25-2268 circuit in which the immigration judge completed the pro- ceedings." 8 U.S.C. § 1252(b)(2). Merits briefing will not begin unless and until E.E.V. is denied withholding-only relief. Her proceedings began before an immigration judge in Chicago and are now pending in Indianapolis. If proceedings conclude there or elsewhere in this circuit, venue is proper here. Even if venue would also be proper in the Fifth Circuit or eventually becomes proper elsewhere, we would not transfer her petition unless doing so would be in the interests of jus- tice. Cordova-Soto v. Holder, 732 F.3d 789, 792 (7th Cir. 2013); 28 U.S.C. § 1631. We see three relevant considerations. First, E.E.V. acted reasonably by filing in the circuit where her with- holding-only proceedings began and remained ongoing at the time of filing. Second, she is represented by pro bono counsel based in Chicago (and elsewhere outside the Fifth Circuit). Third, this court has already invested considerable resources in ruling on the government's motion to dismiss, which has been fully briefed—with a sur-reply brief from petitioners, several letters of supplemental authority, and two amicus briefs—and argued before a three-judge panel, leading to this opinion. See Cordova-Soto, 732 F.3d at 792. Transfer is not war- ranted.

Accordingly, the government's motions to dismiss or summarily deny these petitions are DENIED. The govern- ment's motion to transfer E.E.V.'s petition is DENIED. The court will hold these petitions for review in abeyance pending the agency's final decisions in petitioners' withholding-only proceedings.

final administrative removal order in this case is the August 27, 2015, re- instatement order."

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Nos. 25-2256 & 25-2268 49 B RENNAN, Chief Judge, dissenting. Nearly 20 years ago, E.E.V. was deported under a removal order for being in this country illegally. After she was caught reentering eight years later, the Department of Homeland Security reinstated her re- moval order, and she entered withholding-only proceedings. She now petitions for review of her reinstatement order. But federal courts have jurisdiction over "final" orders of re- moval. 8 U.S.C. § 1252(b)(1). A reinstatement order is not a "fi- nal" order of removal. So, we lack jurisdiction to review her petition and any post-reinstatement decisions in her with- holding-only proceedings.

Section 1252(b)(1) also requires a petition to be filed not later than 30 days after a final order of removal. M.C.C.-G., a Mexican citizen who entered this country illegally, filed a pe- tition after the 30-day deadline. Although the deadline is not jurisdictional, the Supreme Court recently indicated in Riley

v. Bondi, 606 U.S. 259 (2025), that it is a mandatory claims-pro- cessing rule, precluding equitable tolling. Her petition there- fore should be denied.

On both questions, the majority opinion holds to the con- trary. Because I believe that conflicts with Riley and the statu- tory text, I respectfully dissent.

I

E.E.V. is a citizen of El Salvador. Around March 2007, she illegally entered this country. DHS detained her and issued a removal order under 8 U.S.C. § 1225(b)(1). She was physically removed to El Salvador. In 2015 she reentered the country and was apprehended once again.

"Congress has created an expedited process for aliens who reenter the United States without authorization after having

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50 Nos. 25-2256 & 25-2268 already been removed." Johnson v. Guzman Chavez, 594 U.S. 523, 529 (2021). When "an alien has reentered the United States illegally after having been removed … under an order of removal, the prior order of removal is reinstated from its original date." 8 U.S.C. § 1231(a)(5). The alien cannot appeal within the agency, and the decision to reinstate should not be

"reopened" or "reviewed." Id.; see also F.J.A.P. v. Garland, 94 F.4th 620, 627-28 (7th Cir. 2024), abrogated by Riley, 606 U.S. at

259.

Following this streamlined process, DHS reinstated E.E.V.'s order of removal in August 2015. Sometime later, she expressed a fear of returning to El Salvador. See 8 C.F.R. § 1208.31. An asylum officer interviewed her in February 2017 and agreed that she had a reasonable fear of persecution or torture in El Salvador. So, the officer referred E.E.V. for with- holding-only proceedings—review of her case by an Immi- gration Judge. Id. § 1208.31(e). The proceedings remain pend- ing nearly a decade later.

After the Court decided Riley, E.E.V. petitioned for review of the reinstatement order.

A

Federal courts must always evaluate their jurisdiction be- fore the case's merits. Chi. Tchrs. Union, Loc. 1 v. Educators for Excellence, Inc., 159 F.4th 524, 528 (7th Cir. 2025). This court's jurisdiction is based on 8 U.S.C. § 1252(b)(1). Our review is limited to petitions of a "final order of removal." Id. The ques- tion is whether E.E.V.'s reinstatement decision is a "final" or- der of removal. I conclude that it is not.

The Immigration and Nationality Act does not define "or- der of removal." But Riley did. A "final order of removal" is

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Nos. 25-2256 & 25-2268 51 an order "concluding that the alien is deportable or ordering deportation." Riley, 606 U.S. at 267 (quoting 8 U.S.C. § 1101(a)(47)(A)). A final order of removal must "affect the va- lidity" of a previously issued removal order or "render that order non-final." Id. at 269. So, for example, a Board of Immi- gration Appeals order in a withholding-only proceeding is not a "final order of removal." Id. at 263. That is because a grant of withholding-only relief does not prevent DHS from removing an alien to a different country other than the one to which removal has been withheld. Id. at 269; see also Guzman Chavez, 594 U.S. at 537. As another example, an email from a DHS field office declining to reopen a prior removal order is not a "final order of removal." Velazquez-Olais v. Blanche, 172 F.4th 536, 538 (7th Cir. 2026). By contrast, a final administra- tive removal order (FARO)—an order removing an alien be- cause he committed an aggravated felony—is a "final order of removal" because that "order held that Riley was deportable and directed that he be removed from the United States." Ri- ley, 606 U.S. at 267.

E.E.V.'s reinstatement order does not "affect the validity"

of her original deportation order. The reinstatement decision does what it says: it reinstates a "prior order of removal."

§ 1231(a)(5); see also F.J.A.P., 94 F.4th at 644 (Brennan, J., con- curring in part and dissenting in part). In other words, a rein- statement order "merely effectuates the original removal or- der." Laureano v. Att'y Gen. United States of Am., 177 F.4th 453, 472 (3d Cir. 2026) (Matey, J., dissenting); see also Ruiz-Perez v. Garland, 49 F.4th 972, 982 (5th Cir. 2022) (Oldham, J., dissent- ing); Bhaktibhai-Patel v. Garland, 32 F.4th 180, 195 (2d Cir. 2022), abrogated by Riley, 606 U.S. at 259. There is no new ra- tionale for removing the alien, who was removable then and is removable now. "The order of removal is the initial order

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52 Nos. 25-2256 & 25-2268 when the alien first illegally entered the country and was re- moved, not the later decision to reinstate the prior order of removal." F.J.A.P., 94 F.4th at 644 (Brennan, J., concurring in part and dissenting in part).

Consider, too, that an "alien subject to a reinstated order of removal will not have any removal proceedings." Guzman- Chavez, 594 U.S. at 531. How, then, can a reinstatement deci- sion from a non-removal proceeding be a reviewable "final or- der of removal?" Put another way, "as a matter of ordinary meaning, it would be odd for a reviewable removal order to come from a non-removal proceeding." Ruiz-Perez, 49 F.4th at 982 (Oldham, J., dissenting); see also Laureano, 177 F.4th at 473 (Matey, J., dissenting).

Because an alien's original removal order is a "final order of removal," some have argued that a reinstatement order is as well, because they are functionally the same. See Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003). But applicable statutes expressly distinguish between original orders of removal and reinstatement orders. As the Ninth Circuit recognized, "that Congress placed reinstatement in a separate section from re- moval suggests that reinstatement is a separate procedure, not a species of removal." Morales-Izquierdo v. Gonzales, 486 F.3d 484, 490 (9th Cir. 2007) (en banc). Reinstatement is a "far more summary procedure than removal," and is akin to a

"ministerial" act. Id. at 491. Such an order carries no "inde- pendent validity." United States v. Rodriguez, 162 F.4th 288, 294 (2d Cir. 2025). And regulations implementing the INA "repeat this distinction." F.J.A.P., 94 F.4th at 644 (Brennan, J., concur- ring in part and dissenting in part) (citing 8 C.F.R. § 208.31(a) (distinguishing between an alien who is "ordered removed"

and an alien whose "removal order is reinstated").

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Nos. 25-2256 & 25-2268 53 I previously observed that this court's precedent has "pre- sume[d]" that a reinstatement decision is a "final order of re- moval." F.J.A.P., 94 F.4th at 644 (Brennan, J., concurring in part and dissenting in part). In Riley, the Court abrogated the analysis and conclusion to the contrary of the majority opin- ion in F.J.A.P. Nonetheless, my colleagues here state that our court has "consistently concluded" that reinstatement orders fall under § 1252.

I read our caselaw differently. Torres-Tristan v. Holder, 656 F.3d 653, 656 (7th Cir. 2011), and Villa v. Barr, 924 F.3d 370, 373 (7th Cir. 2019), suggest there is jurisdiction, yet do not analyze it. Dictum in Velazquez-Olais, 172 F.4th at 538, could be read to support the majority. Id. (noting "the act of reinstatement is reviewable under some circumstances"). The closest to a holding this court has reached is one sentence in Lemos v. Holder, 636 F.3d 365, 366 (7th Cir. 2011) ("Reinstatement of an old removal order is reviewable in a court of appeals under 8 U.S.C. § 1252.").

These "drive-by" jurisdictional statements carry little weight, like in Riley, in which the Court disregarded such pre- vious "loose" proclamations of jurisdiction. 606 U.S. at 275. Our court has yet to independently examine this question, and notably, the cases the majority opinion cites largely pre- date Riley. To the extent this court has concluded that jurisdic- tion exists over final orders of removal, in light of Riley I would overrule that conclusion.

This issue is far from settled. Until Riley, courts—includ- ing ours—debated and questioned their own precedent. See, e.g., F.J.A.P., 94 F.4th at 643-44 (Brennan, J, concurring in part and dissenting in part.); Ruiz-Perez, 49 F.4th at 982-83 (Old- ham, J., dissenting); Bhaktibhai-Patel, 32 F.4th at 195 (prior

53

54 Nos. 25-2256 & 25-2268 precedent holding "that a reinstatement decision itself quali- fies as a final order of removal under § 1252" is "questionable"

and "unstable"); Martinez v. Garland, 86 F.4th 561, 568 n.4 (4th Cir. 2023) ("The imperfect fit between this definition of final- ity and a reinstatement decision … might suggest that a rein- statement decision is not a final order of removal."); Arostegui- Maldonado v. Garland, 75 F.4th 1132, 1149 n.2 (10th Cir. 2023) (Tymkovich, J., concurring) ("dubious" whether a reinstate- ment order is a final order of removal"); Vega-Anguiano v. Barr,

982 F.3d 542, 557 (9th Cir. 2019) (Bennett, J., dissenting from denial of rehearing en banc) ("The majority, apparently un- happy with the statute Congress wrote, rewrites 'order of re- moval' as 'reinstatement order.'"). Since Riley, at least one judge has recognized the importance of that Supreme Court decision on this question. See Laureano, 177 F.4th at 472-73 (Matey, J., dissenting). This court should follow suit.

B

As I understand my colleagues' reading of Riley, they be- lieve it used "final order of removal" and "an order of depor- tation" interchangeably, so the terms are synonymous. Be- cause E.E.V.'s reinstatement order states she is "removable,"

she is therefore subject to an "order of deportation." I read Riley differently. That case explained that "final orders of re- moval" are those orders that "affect the validity of a previ- ously issued order of removal or render that order non-final."

Riley, 606 U.S. at 269. A reinstatement decision does not inval- idate her removal order; it gives effect to that order. Left un- explained in the majority opinion is why E.E.V.'s reinstate- ment order affects the validity of her 2007 order. Nor does the majority opinion engage with the final part of E.E.V.'s reinstatement order "that the above-named alien is

54