Vizguerra-Ramirez v. Blanche

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ JEANETTE VIZGUERRA-RAMIREZ, Petitioner,

v.

TODD BLANCHE, United States Attorney General,

Respondent.

No. 25-9559

_________________________________

Appeal from the Board of Immigration Appeals (Petition for Review)

_________________________________ Mark Robert Barr, Lichter Immigration, Denver, Colorado (Laura L. Lichter with him on the briefs), for Petitioner.

Jacob (Yaakov) M. Roth, United States Department of Justice, Civil Division, Washington, District of Columbia (Holly M. Smith, Assistant Director and David J. Schor, Senior Litigation Counsel, United States Department of Justice, Civil Division, Washington, District of Columbia, on the brief), for Respondent. _________________________________

Before PHILLIPS, McHUGH, and EID, Circuit Judges.

_________________________________

McHUGH, Circuit Judge. _________________________________

FILED

United States Court of Appeals Tenth Circuit

October 26, 2026

Christopher M. Wolpert Clerk of Court

Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 1

1

2

Petitioner Jeanette Vizguerra-Ramirez seeks review of a July 24, 2013 reinstated order of removal from the United States. Ms. Vizguerra¹argues that reinstatement was improper because she did not depart from the United States "under an order of removal"

within the meaning of the reinstatement statute at 8 U.S.C. § 1231(a)(5). The Government asserts that we lack jurisdiction to review reinstated orders of removal²and that Ms. Vizguerra's petition is untimely because it was not filed within thirty days after her reinstatement order became final, as required under 8 U.S.C. § 1252(b)(1).³In response, Ms. Vizguerra contends that we do have jurisdiction to review reinstated orders of removal. And although Ms. Vizguerra recognizes that her petition for review is untimely, she argues that § 1252(b)(1)'s deadline should be equitably tolled because her request for withholding of removal remains pending. Our precedent previously instructed that withholding-only proceedings must have concluded before an order of removal became final within the meaning of § 1252(b)(1). But the Supreme Court abrogated that

3

approach in Riley v. Bondi, 606 U.S. 259 (2025). Ms. Vizguerra filed her petition for review shortly after the Supreme Court's decision in Riley. Under controlling circuit precedent, we have jurisdiction to review Ms. Vizguerra's reinstatement order as a final order of removal under § 1252. See Duran- Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir. 2003). Riley emphasized that an order of removal must have the characteristics of either (1) finding that a noncitizen is removable or (2) ordering removal, pursuant to 8 U.S.C. § 1101(a)(47)(A). 606 U.S. at 267. Because reinstatement orders satisfy the plain-text definition of an order of removal under § 1101(a)(47)(A), Riley is not inconsistent with our jurisdiction to hear this matter. However, Ms. Vizguerra fails to demonstrate that extraordinary circumstances prevented timely filing of her petition. We therefore assume without deciding that the filing deadline in § 1252(b)(1) can be equitably tolled and dismiss Ms. Vizguerra's petition as untimely based on a failure to demonstrate that she is entitled to equitable tolling.⁴

I. BACKGROUND

A. Legal Background

The Immigration and Nationality Act ("INA") authorizes judicial review of "a final order of removal." 8 U.S.C. § 1252(a)(1). An order of removal is statutorily defined

4

as "the order of the special inquiry officer, or other such administrative officer . . . concluding that the [noncitizen] is deportable or ordering deportation." Id. § 1101(a)(47)(A).⁵We have previously held that "[a]n order reinstating a prior removal order is the functional equivalent of a final order of removal and, therefore, we have jurisdiction to review the reinstatement order" under § 1252(a)(1). Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 884 (10th Cir. 2005). When faced with a challenge to a reinstatement order, however, "our jurisdiction is limited to considering whether the reinstatement order was properly entered—we cannot consider the propriety of the underlying removal order." Garcia-Marrufo v. Ashcroft, 376 F.3d 1061, 1063-64 (10th Cir. 2004).

A "petition 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). The removal order "become[s] final upon the earlier of . . . (i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the [noncitizen] is permitted to seek review of such order by the Board of Immigration Appeals." Id. § 1101(a)(47)(B).

5

Noncitizens may also challenge removal through withholding-only proceedings.⁶ A withholding of removal proceeding requires the Attorney General, subject to limited exceptions, to withhold removal to a particular country under 8 U.S.C. § 1231(b)(3)(A), if the noncitizen's "life or freedom would be threatened in that country because of the [noncitizen's] race, religion, nationality, membership in a particular social group, or political opinion." The noncitizen might also receive protection under the Convention Against Torture, which prohibits removal to a particular country if the noncitizen proves it is more likely than not that the noncitizen will be tortured in that country. See 8 C.F.R. §§ 208.16-18. However, withholding of removal does not affect the validity of the order of removal. And because withholding of removal is country specific, nothing prevents a noncitizen from being removed "to a third country other than the country to which removal has been withheld." See id. § 208.16(f); Johnson v. Guzman Chavez, 594 U.S. 523, 531-32 (2021).

Prior to 2025, the operative law in this court was that, where the noncitizen was pursuing withholding-only proceedings, an order of removal became final for purposes of § 1252(b)(1) "upon the conclusion of withholding-only proceedings," not the order of removal. Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1140 (10th Cir. 2023). We first ruled on this question in 2015 in Luna-Garcia v. Holder, 777 F.3d 1182 (10th Cir. 2015). There, we reasoned that when a noncitizen pursues withholding-only

6

proceedings, the removal order "is not final in the usual legal sense because it cannot be executed until further agency proceedings are complete." Id. at 1185. But this approach was abrogated by Riley v. Bondi, 606 U.S. 259 (2025). In that case, the Supreme Court looked to the statutory definition of an order of removal, which is defined as an order "concluding that the [noncitizen] is deportable or ordering deportation." 8 U.S.C. § 1101(a)(47)(A). Thus, the Court reasoned that an order of removal "must have those same characteristics." Riley, 606 U.S. at 267. After identifying the order meeting that statutory definition, the Court held that, notwithstanding any withholding-only proceedings, an order of removal becomes final at the earlier of (1) a determination by the Board of Immigration Appeals ("BIA") affirming its order or (2) the expiration of the time to appeal the order of removal. Id. at 266-67. Because determinations in withholding-only proceedings do not affect the validity of an order of removal, the Court reasoned that ongoing withholding-only proceedings do not prevent an order of removal from becoming final. Id. at 268-70.

B. Factual Background

Ms. Vizguerra is a citizen of Mexico, who arrived in the United States without inspection in December 1997. In 2009, Ms. Vizguerra was placed in removal proceedings. As a defense, Ms. Vizguerra applied for cancellation of removal based on the hardship that would befall her three U.S. citizen children. Alternatively, she requested a grant of voluntary departure in lieu of a removal order.

On November 18, 2011, the Immigration Judge ("IJ") denied Ms. Vizguerra's application for cancellation of removal, finding that she had not met the high standard of Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 6

7

showing that her removal would constitute an exceptional and extremely unusual hardship to her U.S. citizen children. But the IJ granted Ms. Vizguerra's alternative request for voluntary departure. She was therefore granted sixty days in which to voluntarily depart from the country in lieu of a removal order. On December 16, 2011, Ms. Vizguerra timely appealed the denial of her cancellation application to the BIA. After learning that her mother was dying, Ms. Vizguerra traveled back to Mexico on September 8, 2012. Ms. Vizguerra's departure from the United States triggered an automatic withdrawal of her appeal to the BIA, pursuant to 8 C.F.R. § 1003.4.⁷ Ms. Vizguerra returned to the United States without inspection in April 2013. She was apprehended shortly after entry and charged with illegal entry under 8 U.S.C. § 1325(a)(1). On July 24, 2013, officials from the Department of Homeland Security ("DHS") issued a putative reinstatement order, reinstating a previous removal order. Ms. Vizguerra states that her removal was stayed on August 8, 2013. And she asserts that DHS granted numerous extensions of her stay of removal until the last one expired in

2024.⁸

On March 17, 2025, Ms. Vizguerra recounts that she was arrested by DHS and transported to the GEO Aurora ICE Processing Center, where she has remained in

8

custody since. Following her detention, Ms. Vizguerra filed a petition for review challenging her reinstatement order. She also expressed fear of persecution or torture if she were to return to Mexico based on her history of criticizing abuses of power by the Mexican government. After withholding-only proceedings had been initiated, Ms. Vizguerra voluntarily withdrew her petition for review because, at the time, Tenth Circuit case law required withholding-only proceedings to conclude before she could seek review of the underlying reinstatement order. Ms. Vizguerra represents that her withholding-only proceedings remain ongoing.

Shortly after the Supreme Court's decision in Riley, Ms. Vizguerra filed the petition for review at issue here, challenging the reinstatement of her removal order. She argues that her reinstatement order was both procedurally and substantively defective because, among other defects, her grant of voluntary departure meant that she did not depart "under an order of removal" and is thus not subject to reinstatement under 8 U.S.C. § 1231(a)(5).⁹The Government argues that the Supreme Court's reasoning in Riley overrules prior case law establishing our jurisdiction to review reinstatement of removal orders. Even if we retain jurisdiction after Riley, the Government maintains that Ms. Vizguerra's petition is untimely and must be dismissed. Although we disagree that

9

Riley overrules case law establishing our jurisdiction to review reinstatement orders, we agree that Ms. Vizguerra's petition must nonetheless be dismissed as untimely.

II. DISCUSSION

We begin with the Government's argument that Riley overruled prior case law establishing our jurisdiction to review reinstated orders of removal. After rejecting that argument, we proceed to Ms. Vizguerra's contention that § 1252(b)(1)'s deadline should be equitably tolled. Because we conclude that Ms. Vizguerra has failed to demonstrate extraordinary circumstances entitling her to equitable tolling, we do not address the merits of Ms. Vizguerra's case.

A. Jurisdiction To Review Reinstatement Orders

As a threshold matter, the Government argues that we lack jurisdiction to review the reinstatement of Ms. Vizguerra's removal order because "a reinstatement decision is not a final order of removal under 8 U.S.C. § 1252." Gov. Mot. Dismiss at 2. The Government maintains that our prior caselaw holding that we have jurisdiction to review reinstatement orders as the "functional equivalent" of an order of removal, see Fernandez-Vargas, 394 F.3d at 884, does not survive Riley. Although Riley did not involve a reinstatement order, the Government points to Riley's emphasis on the definition of an order of removal, which must include a determination that a noncitizen is removable or order that noncitizen be removed. See Riley, 606 U.S. at 267; 8 U.S.C. § 1101(a)(47)(A). Thus, the Government contends that jurisdiction to review functional Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 9

10

equivalents does not survive Riley, which requires a strict application of the definition in § 1101(a)(47)(A).

"[I]t is well established that one panel cannot overrule the judgment of another panel of this court absent en banc reconsideration or a superseding contrary decision by the Supreme Court." Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1229 (10th Cir. 2001) (internal quotation marks omitted). To justify a change in our precedent, a Supreme Court decision must "contradict[ ] or invalidate[ ] our prior analysis." Arostegui- Maldonado, 75 F.4th at 1142 (quotation marks omitted), abrogated on other grounds by Riley, 606 U.S. 259. "Such a case must clearly overrule our precedent—indirect tension between our precedent and a later Supreme Court opinion is not enough." Id. (internal quotation marks omitted).

When we first held that we had jurisdiction to review reinstatement orders, we joined every circuit to address the issue in holding that § 1252(a)(1) covered review of reinstatement orders. See Duran-Hernandez, 348 F.3d at 1162 n.3. Later decisions further explained that "[a]n order reinstating a prior removal order is the functional equivalent of a final order of removal," and § 1252(a)(1) therefore established our jurisdiction to review them. See Fernandez-Vargas, 394 F.3d at 884.

Riley did not clearly overrule this approach.¹⁰Section 1101(a)(47)(A) defines an order of removal by its function: an order "concluding that the [noncitizen] is deportable

11

or ordering deportation." See 8 U.S.C. § 1101(a)(47)(A). The Supreme Court in Riley emphasized this definition before stating that an order of removal "must have those same characteristics." 606 U.S. at 267.

A reinstatement order has the "same characteristics" emphasized in Riley, see id., and qualifies as an order of removal under a plain-text reading of the definition in § 1101(a)(47)(A). The reinstatement statute provides, "If the Attorney General finds that [a noncitizen] has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date." 8 U.S.C. § 1231(a)(5). For reinstatement to apply, an immigration officer must determine that the following criteria are met: (1) the noncitizen was subject to a prior order of removal, (2) the noncitizen is the same person who was previously removed or departed voluntarily under an order of removal, and (3) the noncitizen unlawfully reentered the United States. 8 C.F.R. § 241.8(a). In issuing a reinstatement order, the immigration officer must therefore "conclud[e] that the [noncitizen] is deportable" under the terms of the reinstatement statute. See 8 U.S.C. § 1101(a)(47)(A). "If a noncitizen reenters the country legally—for example, with the Ninth Circuit has likewise suggested in an unpublished order that Riley did not undermine its precedent holding that reinstatement orders are final orders of removal. See Acosta-Tapia v. Bondi, No. 25-2460, 2026 WL 115424, at *1 (9th Cir. Jan. 15, 2026) ("Under [Riley's] reasoning, Acosta-Tapia's reinstated removal order entered on November 18, 2022, is the qualifying order, because that order concluded that Acosta- Tapia is deportable and commanded his deportation." (internal quotation marks omitted)). And since Riley, the Fourth Circuit has held that reinstatement orders are final orders of removal under § 1252(a)(1). Navarro v. Blanche, No. 23-1897, 2026 WL 2317835, at *5 (4th Cir. Aug. 11, 2026).

Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 11

12

consent of the Attorney General," then the prior order of removal cannot be reinstated. E.E.V. v. Blanche, 180 F.4th 954, 967 (7th Cir. 2026). And because a noncitizen subject to reinstatement "shall be removed from the United States by reinstating the prior order,"

8 C.F.R. § 241.8(a), the reinstatement order operates to "order[ ] deportation,"¹¹see 8 U.S.C. § 1101(a)(47)(A).

Contesting this conclusion, the Government argues that, because the prior order of removal is simply reinstated, reinstatement is more akin to ministerial action and is not itself an order of removal. In support, it points to the different statutory treatment and procedures for reinstatement as opposed to "first-instance determinations of removability." Gov. Mot. Dismiss at 6-7. However, the plain text of § 1101(a)(47)(A) remains consistent with our precedent holding that reinstatement orders are judicially reviewable as orders of removal under § 1252. The streamlined nature of reinstatement proceedings does not change this analysis. Nor do procedural differences between initial removal determinations and reinstatement clearly answer the jurisdictional question. Because Riley does not clearly override our binding precedent, we retain jurisdiction to review Ms. Vizguerra's reinstatement order.

13

B. Timeliness Under 8 U.S.C. § 1252(b)(1)

Under our previous approach as articulated in Luna-Garcia, Ms. Vizguerra's petition for review would have been premature. But following the Supreme Court's decision in Riley, Ms. Vizguerra's petition should have been filed within thirty days of July 24, 2013—the date of her reinstatement order. Due to this change, Ms. Vizguerra asks us to hold that 8 U.S.C. § 1252(b)(1) is subject to equitable tolling and that she is entitled to tolling such that her petition for review may be treated as timely. The Supreme Court had previously characterized a predecessor statute of § 1252(b)(1) as "mandatory and jurisdictional." See Stone v. I.N.S., 514 U.S. 386, 405 (1995) (quoting Missouri v. Jenkins, 495 U.S. 33, 45 (1990)). However, the Court in Riley clarified that § 1252(b)(1) is not jurisdictional and is instead a claims-processing rule. Riley, 606 U.S. at 275-77. The Court explained that Stone "used the term 'jurisdictional' loosely and did not 'attend to the distinction between jurisdictional rules (as we understand them today) and nonjurisdictional but mandatory ones.'" Id. at 276 (brackets omitted) (quoting Santos-Zacaria v. Garland, 598 U.S. 411, 421 (2023)). The Court explained that it had determined several mandatory filing deadlines were not jurisdictional in recent years and that it had since "been more disciplined in [its] use of the term 'jurisdictional.'" Id. at 275. Because § 1252(b)(1) is not jurisdictional, a petition for review could go forward if the government did not insist on holding noncitizens to § 1252(b)(1)'s thirty-day timeline. Id. at 277.

But the "fact that a time limit lacks jurisdictional force . . . does not render it malleable in every respect." Nutraceutical Corp. v. Lambert, 586 U.S. 188, 192 (2019). Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 13

14

There are three categories of filing deadlines: (1) jurisdictional deadlines, which cannot be tolled or waived; (2) "mandatory claims-processing deadlines, which are subject to equitable tolling unless properly raised by an opposing party, in which case they are unalterable"; and (3) "nonmandatory claims-processing deadlines, which are both subject to equitable tolling and flexible when raised by an opposing party." Nava-Capilla v. Bondi, No. 24-9534, 2025 WL 1088136, at *2 (10th Cir. Apr. 11, 2025) (unpublished)¹² (quoting Young v. SEC, 956 F.3d 650, 654-55 (D.C. Cir. 2020)). Although mandatory rules can be waived or forfeited, Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 20 (2017), they are not susceptible to equitable tolling when properly raised by an opposing party. Nutraceutical Corp., 586 U.S. at 192.

In holding that § 1252(b)(1) was a nonjurisdictional claims-processing rule, Riley did not expressly say whether § 1252(b)(1) was mandatory or nonmandatory. Since Riley was decided, three circuit courts have held that the deadline in § 1252(b)(1) is nonmandatory and subject to equitable tolling. See Navarro v. Blanche, No. 23-1897, 2026 WL 2317835, at *12 (4th Cir. Aug. 11, 2026); Oxlaj-Perez v. Blanche, 174 F.4th 516, 520 (6th Cir. 2026); E.E.V., 180 F.4th at 979.

As the first circuit to substantively address this question, the Sixth Circuit noted that Riley had not applied the mandatory label to § 1252(b)(1) and had declined to answer the question. Oxlaj-Perez, 174 F.4th at 521. It then applied the "rebuttable presumption"

15

that a statute of limitations is subject to equitable tolling based on background common law. Id. at 522. And it concluded that neither the text nor the structure of § 1252(b)(1) was sufficient to overcome this presumption. Id. at 522-26. The Seventh and Fourth Circuits followed similar reasoning. See E.E.V., 180 F.4th at 973-79; Navarro, 2026 WL 2317835, at *8-12.

On the other hand, the Fifth Circuit appears to have gone the other way and held that "§ 1252(b)(1)'s thirty-day filing rule is a mandatory claim-processing rule that, if properly raised, must be enforced."¹³Liao v. Bondi, 162 F.4th 519, 524 (5th Cir. 2025). The Fifth Circuit reached this conclusion based primarily on Riley's explanation of a prior lack of discipline distinguishing jurisdictional rules from nonjurisdictional but mandatory ones. See id. at 523-24. Still, the Fifth Circuit did not specifically address equitable tolling. And a more recent opinion—while stating only that "[e]quitable tolling is not appropriate in this case"—indicates that the Fifth Circuit may be undecided on whether the deadline in § 1252(b)(1) may be equitably tolled. See Saravia Martinez v. Blanche, No. 25-60400, 2026 WL 2225274, at *1 (5th Cir. Aug. 3, 2026); id. (Ho, J., concurring) ("As I've previously written, equitable tolling is unavailable under 8 U.S.C. § 1252(b)(1)."); id. at *6 (Higginson, J., dissenting) ("I would respectfully disagree with my colleague, Judge Ho, and agree with my colleagues in other circuits that have

16

concluded equitable tolling is available under § 1252(b)(1) . . . . Again, no circuit post- Riley has deemed equitable tolling unavailable under § 1252(b)(1), nor do we here."). Here, we need not resolve this conflict. Whether or not § 1252(b)(1) is subject to equitable tolling, Ms. Vizguerra cannot show that her failure to timely file a petition for review in 2013 was caused by an extraordinary circumstance beyond her control.

"Equitable tolling is a rare remedy to be applied in unusual circumstances." Al- Yousif v. Trani, 779 F.3d 1173, 1179 (10th Cir. 2015) (quotation marks omitted). Such a remedy is appropriate where "the movant shows (1) that she has been pursuing her rights diligently, and (2) that some extraordinary circumstance stood in her way and prevented timely filing." Estrada-Cardona v. Garland, 44 F.4th 1275, 1287 (10th Cir. 2022). The extraordinary-circumstances prong "is met only where the circumstances that caused a litigant's delay are both extraordinary and beyond its control." Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 257 (2016) (emphasis in original). "[T]olling is appropriate when the defendant's conduct rises to the level of active deception; where a plaintiff has been lulled into inaction by a defendant, and likewise, if a plaintiff is actively misled or has in some extraordinary way been prevented from asserting his or her rights." Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1246 (10th Cir. 2012) (internal quotation marks omitted). But "'a garden variety claim of excusable neglect,' such as a simple 'miscalculation' that leads a lawyer to miss a filing deadline, does not warrant equitable tolling." Holland v. Florida, 560 U.S. 631, 651-52 (2010) (citations omitted) (first quoting Irwin v. Dep't of Veterans Affs., 498 U.S. 89, 96 (1990); then quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007)).

Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 16

17

The Supreme Court has not decided whether "binding precedent that is subsequently reversed" could merit tolling. Menominee Indian Tribe of Wis., 577 U.S. at 258 & n.4. But mistaken inferences about what the law requires do not meet the elements of equitable tolling because they are not outside of the litigant's control. See id. at 257-58 (declining to apply equitable tolling where a tribe mistakenly relied on a nonbinding district court decision, which concluded that presentment was unnecessary to participate in a class action, because its mistaken reliance "was not an obstacle beyond its control"). Ms. Vizguerra argues that the change in our case law following Riley—where her petition was previously premature but is suddenly more than twelve years late—is an extraordinary circumstance that prevented her from timely filing her petition. And she maintains that she has diligently pursued her rights by promptly filing her petition for review within thirty days of Riley.

Had our Luna-Garcia decision predated her order of removal, Ms. Vizguerra might have a valid argument.¹⁴But our case law did not preclude Ms. Vizguerra from filing a petition for review at the time that her order of removal was reinstated. Ms. Vizguerra's putative reinstatement order was issued on July 24, 2013—well before our 2015 decision in Luna-Garcia held as a matter of first impression that orders of removal were not final until completion of withholding-only proceedings. See Luna-

18

Garcia, 777 F.3d at 1183, 1186. Nor was there clear weight of authority from other jurisdictions holding the same at the time of Ms. Vizguerra's reinstatement order.¹⁵ Thus, Ms. Vizguerra's failure to timely file her petition was not in reliance on binding case law. Nor did our case law then bar her petition for review as premature. Ms. Vizguerra argues that, at the time of her reinstatement order, we had implicitly accepted jurisdiction over petitions for review filed after the denial of withholding relief. To be sure, in one case predating Ms. Vizguerra's reinstatement order, we stated that a petition for review following the denial of relief in withholding-only proceedings was

"timely." See Neri-Garcia v. Holder, 696 F.3d 1003, 1008 (10th Cir. 2012). And having considered § 1252(b)(1)'s time limit jurisdictional at the time of that order, see Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam), "we ha[d] an independent duty to examine our own jurisdiction," Amazon, Inc. v. Dirt Camp, Inc.,

273 F.3d 1271, 1274 (10th Cir. 2001). However, timeliness was not disputed in that case. Nor did timeliness form part of the panel's analysis. "When a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed." Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144 (2011); see also Webster v. Fall, 266 U.S. 507, 511 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.").

19

In sum, at the time of Ms. Vizguerra's reinstatement order, we had not directly ruled on whether ongoing withholding-only proceedings rendered an order of removal nonfinal under § 1252(b)(1). There was no clear weight of authority from other jurisdictions.¹⁶And we had not indicated that Ms. Vizguerra was precluded from filing

20

her petition for review immediately upon reinstatement.¹⁷Any "mistaken reliance" on implicit practice was not a circumstance beyond Ms. Vizguerra's control because nothing

"stood in [her] way" to prevent her from filing her claims earlier. See Menominee Indian Tribe of Wis., 577 U.S. at 256-57. Such a mistake is "fundamentally no different from 'a garden variety claim of excusable neglect,' . . . [a]nd it is quite different from relying on actually binding precedent that is subsequently reversed." Id. at 257-58 (internal citations and quotation marks omitted).

As applied to Ms. Vizguerra, the change in our law is not an extraordinary circumstance that prevented her from timely filing her petition for review. Because Ms. Vizguerra has not shown that her circumstances warrant equitable tolling, we assume without deciding that § 1252(b)(1)'s filing deadline can be tolled but dismiss her petition Because there was no clear weight of authority from other circuits at the time of Ms. Vizguerra's reinstatement order in 2013, we need not decide whether that would have been an extraordinary circumstance for purposes of equitable tolling.

21

for review as untimely. In so concluding, we express no view as to whether noncitizens whose orders of removal became final after our decision in Luna-Garcia meet the requirements of equitable tolling.

III. CONCLUSION

We DISMISS Ms. Vizguerra's petition for review as untimely. We GRANT Ms. Vizguerra's motion to proceed in forma pauperis. Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 21

25-9559, Vizguerra-Ramirez v. Blanche EID, J., concurring in part and concurring in the judgment. I agree with the majority that Vizguerra has not shown that she warrants equitable tolling here and join Part II-B of the majority opinion in full. Because I also agree with the majority that Riley v. Bondi, 606 U.S. 259 (2025), is not sufficient to overrule our precedent holding that we have jurisdiction to review reinstatement orders, I concur in the judgment. However, I write separately to explain why I believe it would be appropriate for the full en banc court to reanalyze whether we have jurisdiction to review reinstatement orders under the approach dictated by Riley.

I.

Riley made it clear that an order of removal "must have th[e] same characteristics" as an order of deportation, and that an order of deportation "is defined as 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)). Our jurisdiction to review orders of removal comes from 8 U.S.C. § 1252. Because § 1252 only grants jurisdiction to review orders of removal, not reinstatement orders, we only have jurisdiction to review reinstatement orders if we find that these orders meet the definition of orders of removal from § 1101(a)(47)(A).

Current Tenth Circuit precedent clearly holds that we have jurisdiction to review reinstatement orders. See Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir. 2003); Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 884 (10th Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 22

22

2

Cir. 2005). However, none of our precedents analyzed whether reinstatement orders are orders of removal under the definition in § 1101(a)(47)(A), as required by Riley. We first held that § 1252 gives us the authority to review reinstatement orders as well as orders of removal in Duran-Hernandez. Because we found that "every circuit to address the question has found § 1252 to cover review of reinstatement orders," we accordingly decided, with no additional analysis, to "follow the weight of authority in other circuits" and held that "we have jurisdiction to hear petitions for direct review of reinstatement orders under 8 U.S.C. § 1252." Duran-Hernandez,

348 F.3d at 1162 n.3. We later held in Fernandez-Vargas—again, with no additional analysis—that "[a]n order reinstating a prior removal order is the functional equivalent of a final order of removal and, therefore, we have jurisdiction to review

[a] reinstatement order." 394 F.3d at 884.¹

3

None of these cases defined what function an order of removal performs or explained how a reinstatement order performs that function. Nor did any of these cases engage with the statutory definition of an order of removal or analyze whether a reinstatement order fits this definition. Riley has made it clear that more analysis than exists in these cases is required to determine whether we have jurisdiction to review reinstatement orders.

However, it is not as clear that Riley sufficiently undermines our previous precedent to give us the authority to overturn this precedent without taking this case en banc. "Absent en banc consideration, we generally cannot overturn the decision of another panel of this court" but we can do so in limited cases if there is an intervening Supreme Court decision. United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014) (quotation omitted). We do not ask "whether an intervening Supreme Court case is on all fours with our precedent, but rather whether the subsequent Supreme Court decision contradicts or invalidates our prior analysis."

Id. at 1209-10 (emphasis in original). "Such a case must 'clearly overrule' our precedent—'indirect' 'tension' between our precedent and a later Supreme Court opinion is not enough." Arostegui-Maldonado v. Garland, 75 F.4th 1132, 1142 (10th Cir. 2023) (quoting Speidell v. Internal Revenue Serv., 978 F.3d 731, 738-39 (10th Cir. 2020)).

the duty to independently analyze whether reinstatement orders meet the definition of orders of removal as required by Riley.

Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 24

4

While Riley's text-based analysis is clearly in tension with the conclusory statements that comprise our precedent on reinstatement orders up to this point, this tension is too indirect to allow us to overturn this precedent without going en banc. Riley provided direct guidance on how to define an order of removal, which would help courts approach the question of whether a reinstatement order constitutes an order of removal in the first instance. However, while Riley's position on how to define orders of removal was clear, it was not the main holding of the case, and it involved a different context than the question we address here, since Riley did not address or even mention reinstatement orders. See generally Riley, 606 U.S. 259. At most, Riley has "seriously undermined [the] analytical structure" of our precedents holding that we have jurisdiction to review reinstatement orders, but it has not directly invalidated them. Arostegui-Mandonado, 75 F.4th at 1148 (Tymkovich, J., concurring). This is not enough to give us the authority to overrule circuit precedent.²

5

II.

If we did take this case en banc, I would hold that we do not have jurisdiction to review reinstatement orders because reinstatement orders are not orders of removal.

I start with the statutory definition. Section 1101(a)(47)(A) defines orders of removal as orders "concluding that the alien is deportable or ordering deportation."

It is clear that reinstatement orders do not order deportation because they have no independent power, and § 1231(a)(5) makes it clear "the alien shall be removed under the prior order." § 1231(a)(5) (emphasis added); see also Laureano v. Att'y Gen. United States of Am., 177 F.4th 453, 473 (3d Cir. 2026) (Matey, J., dissenting) (arguing that a reinstatement decision "merely effectuates the original removal order"

and "[s]ince there is no new command, there is no new order of removal" (internal quotation marks omitted)).

Whether a reinstatement order concludes an alien is deportable is a closer question. As part of the process for reinstating an order of removal, the Department of Homeland Security determines whether (1) "the alien has been subject to a prior order of removal"; (2) "the alien is in fact [the] alien who was previously removed [by the prior order]"; and (3) "the alien unlawfully reentered the United States." 8 C.F.R. § 241.8(a) (2026). Assuming these three criteria are met, the "alien is subject Ruiz-Perez v. Garland, 49 F.4th 972, 983 (5th Cir. 2022) (Oldham, J., dissenting) (arguing that referring to reinstatement orders "as the functional equivalent of a final order of removal" effectively "concede[s] that reinstatement decisions are not removal orders").

Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 26

6

to removal under this section." Id. § 241.8(b). If we construe "subject to removal"

as a synonym for "deportable," this process could be seen as equivalent to

"concluding that the alien is deportable." § 1101(a)(47)(A). However, the main determination has already been made by the initial order of deportation. The reinstatement order makes no new findings other than confirming that this is the person to whom the previous removal order applies. This does not fit the natural meaning of "conclude," which suggests exercising judgment and reasoning. See Conclude, Oxford English Dictionary (2d ed. 1989) (defining conclude as "[t]o arrive by reasoning at a judgement or opinion; to come to a conclusion, draw an inference, infer, deduce"). Reinstatement orders require neither judgment nor reasoning. The outcome is predetermined based on whether the three criteria are met. Any meaningful conclusion was made during the initial removal process. See E.E.V. v. Blanche, 180 F.4th 954, 984 (7th Cir. 2026) ("There is no new rationale for removing the alien, who was removable then and is removable now."). The statutory context supports this interpretation. Reinstatement orders and removal orders are covered by different provisions. Removal under a reinstatement order is a streamlined process by design. There are no new proceedings and the order is not subject to being reopened or reviewed. See § 1231(a)(5); see also Ruiz-Perez,

49 F.4th at 982 (Oldham, J., dissenting) ("[A]s a matter of ordinary meaning, it would be odd for a reviewable removal order to come from a non-removal proceedings [sic]."). If Congress wanted reinstatement orders to be treated as Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 27

7

equivalent to removal orders, it could have structured this statutory scheme differently.

Accordingly, if we were to take this case en banc, I would hold, like several of my colleagues in other circuits, that reinstatement orders are not orders of removal and we therefore do not have jurisdiction over such orders.³

III.

For the foregoing reasons, I would hold that we have jurisdiction over reinstatement orders under our precedent and the intervening Supreme Court decisions have not sufficiently undermined this precedent to give us authority to overturn it without going en banc. I would not go further, and, unlike the majority, I would not hold that our previous precedent is "consistent" with the Supreme Court's

8

new guidance in Riley. Maj. Op. at 12. I therefore concur only in the judgment as to Part II.A.

Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 29

No. 25-9559, Vizguerra-Ramirez v. Blanche PHILLIPS, Circuit Judge, concurring in part and dissenting in part. I concur with Judge McHugh's opinion on our jurisdiction to review reinstatement orders, and I respectfully dissent from its holding on Ms. Vizguerra's petition for review. The majority assumes without deciding that

8 U.S.C. § 1252(b)(1) allows for equitable tolling, then holds that Ms. Vizguerra hasn't shown an "extraordinary circumstance" necessary to toll the deadline. I would hold otherwise, reach the merits, and vacate the reinstatement order.

I. Equitable Tolling

To receive equitable tolling, a petitioner must show (1) that "some extraordinary circumstance . . . prevented timely filing" and (2) that she has diligently pursued her rights. Estrada-Cardona v. Garland, 44 F.4th 1275, 1287 (10th Cir. 2022). The extraordinary-circumstance element applies only to

"matters outside [the litigant's] control." Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 257 (2016). And a "mistake of law" within the litigant's control isn't an extraordinary circumstance. See id. at 257 n.3. Ms. Vizguerra's mistake of law was outside of her control because she wasn't the only one who was mistaken. So were we, and so was the government.

Start with us. In Neri-Garcia v. Holder, we wrote that a petitioner in Ms. Vizguerra's circumstances filed a "timely petition" after the BIA decided his Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 30

30

2

withholding claim. 696 F.3d 1003, 1008 (10th Cir. 2012). The majority is right that we confirmed this holding in Luna-Garcia v. Holder, long after Ms. Vizguerra received her reinstatement order. 777 F.3d 1182 (10th Cir. 2015). And though we said that the petitioner in Luna-Garcia presented "a question of first impression," id. at 1183, at that time, the answer was clear. To start, Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012), had held as much. Luna- Garcia, 777 F.3d at 1186. Nor did we shut our eyes to Neri-Garcia's use of

"timely petition" and other circuits that had "implicitly suggested" the same.

696 F.3d at 1008. Luna-Garcia, 777 F.3d at 1186. As in, we recognized that other circuits' and our own past practice was to hear petitions after withholding-only proceedings.

And past practice should be enough for an extraordinary circumstance. The Fourth Circuit recently relied on its past practice—not reasoned holdings— to hold that Riley's change of law was an extraordinary circumstance. See Navarro v. Blanche, No. 23-1897, 2026 WL 2317835, at *12 (4th Cir. Aug. 11, 2026). As did the Seventh Circuit. See E.E.V. v. Blanche, 180 F.4th 980-82 (7th Cir. 2026). As authority, that court cited an unpublished order and Eke v. Mukasey, 512 F.3d 372, 378 (7th Cir. 2008). E.E.V., 180 F.4th at 980. But in Luna-Garcia, we pointed to Eke as a case that only "implicitly suggested" as much. See Luna-Garcia, 777 F.3d at 1186 (also citing Garcia-Villeda v. Mukasey, 531 F.3d 141, 144 (2d Cir. 2008)). In sum, past practice was enough Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 31

3

for the Fourth and Seventh Circuits, and because of Neri-Garcia, it should be enough for us.

So while the majority calls Ms. Vizguerra's decision not to appeal in 2013 "excusable neglect," I'd call it reasonable reliance, and I'd hold that it clears the bar as an extraordinary circumstance.

Next, consider the government. It was Ms. Vizguerra's opposing party, and as the majority points out, when an opposing party actively misleads a litigant, or lulls that litigant into inaction, that's an extraordinary circumstance. See Chance v. Zinke, 898 F.3d 1025, 1035 (10th Cir. 2018). Well before Ms. Vizguerra received her administrative removal order, the government told us that such an order was unripe until the BIA concluded withholding-only proceedings. G.S. v. Holder, 373 F. App'x 836, 841-42 (10th Cir. 2010). It argued the same to other circuits, and it never lost the issue until 2022. See Riley v. Bondi, 606 U.S. 259, 266 (2025) (collecting cases); see Bhaktibhai- Patel v. Garland, 32 F.4th 180, 187, 191 (2d Cir. 2022). To put it metaphorically—for years, the government told us, other courts, and litigants like Ms. Vizguerra: "you can't appeal until the sun goes down." Now it's arguing, "Ms. Vizguerra needed to appeal before the sun came up." I wouldn't let it.

Turning to the diligence element of equitable tolling, Ms. Vizguerra need only show "reasonable"—not "maximum feasible"—diligence. Holland v. Florida, 560 U.S. 631, 653 (2010) (citations omitted). She promptly petitioned Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 32

4

within thirty days of Riley's publication, so I would hold that she was reasonably diligent.

Next, I'd decide whether 8 U.S.C. § 1252(b)(1) permits equitable tolling. As the majority explains, there's possibly a circuit split, with Oxlaj-Perez v. Blanche, 174 F.4th 516 (6th Cir. 2026); E.E.V., 180 F.4th 954; and Navarro, 2026 WL 2317835, on one side, and Liao v. Bondi, 162 F.4th 519 (5th Cir. 2025), on the other. I say "possibly" because the Fifth Circuit later

"[a]ssum[ed] without deciding that § 1252(b)(1)'s deadline is subject to equitable tolling," before ruling that "Liao . . . forfeited such a claim." See Order Denying Petition for Rehearing, at 1 n.1, Liao v. Bondi, No. 25-60427, Dkt. No. 138-1 (Feb. 11, 2026); see also Saravia Martinez v. Blanche, No. 25- 60400, 2026 WL 2225274 (5th Cir. Aug. 3, 2026) (discussing that circuit's uncertainty). I would follow the Fourth, Sixth, and Seventh Circuits' analysis.

II. Merits

Ms. Vizguerra argues that the government couldn't reinstate a removal order because there was no removal order to reinstate. I agree. By reinstating Ms. Vizguerra's order of removal when she wasn't subject to one before, DHS acted beyond its statutory authority.

Here's the text of the reinstatement provision:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed. . . .

Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 33

5

8 U.S.C. § 1231(a)(5) (emphasis added). Did Ms. Vizguerra depart voluntarily,

"under an order of removal?" The government says yes—in 2009, Ms. Vizguerra went through removal proceedings in which an IJ denied her cancellation of removal but granted her voluntary departure. But the voluntary-departure provision suggests that an order of voluntary departure isn't an order of removal:

The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal . . . .

8 U.S.C. § 1229c(b)(1) (emphasis added). And DHS's regulations imply that departing under a voluntary-departure order differs from departing under an order of removal. Those regulations require the IJ to enter, alongside the voluntary-departure order, "an alternate order [of] removal." 8 C.F.R. § 1240.26(d). And that alternate order only kicks in after being triggered. For instance, "[i]f, prior to departing the United States, the alien . . . petition[s] for review . . . voluntary departure shall terminate

. . . and the alternate order of removal . . . shall immediately take effect." Id. § 1240.26(i); see also id. § 1240.26(c)(4).

Finally, Ms. Vizguerra's order itself suggests that it's not an order of removal: "If the respondent fails to comply . . . there will be an automatic order of removal to Mexico which will automatically be entered against her."

Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 34

6

R. at 27. Ms. Vizguerra's order could trigger an order of removal; it's not itself that order of removal.¹

But don't take my word for it. Here's Justice Scalia's gloss: "Agree to depart voluntarily (within the specified period, of course) and . . . you will not suffer detention, you can depart at your own convenience rather than ours

. . . and you will not suffer the statutory restrictions upon reentry that accompany involuntary departure." Dada v. Mukasey, 554 U.S. 1, 24-25 (2008) (Scalia, J., dissenting) (emphasis added). What statutory restrictions accompany

"involuntary departure," i.e., removal? For one, reinstatement of removal. The government points to Gallo-Alvarez v. Ashcroft, which held that § 1231(a)(5) applies even if the alien left through voluntary departure. 266 F.3d 1123, 1128-29 (9th Cir. 2001). Gallo-Alvarez says that the INA's "plain language" shows that reinstatement "applies to aliens who are granted voluntary departure." Id. at 1128. I'd agree, if "under an order of removal"

weren't blaring out at me in the statute. But it is.

Finally, I would reject the government's argument that Ms. Vizguerra overstayed her voluntary-departure period. "The voluntary departure period typically does not begin to run until administrative appeals are concluded."

7

Dada, 554 U.S. at 10. Ms. Vizguerra's 60-day voluntary-departure period either began or resumed after she withdrew her appeal with the BIA by leaving the country.

For those reasons, I would grant the petition and vacate Ms. Vizguerra's reinstatement order. I respectfully concur in part and dissent in part from the majority's opinion.

Appellate Case: 25-9559 Document: 65-1 Date Filed: 10/26/2026 Page: 36