Background
Federal law prohibits removal of noncitizens to countries where they face persecution based on race, religion, nationality, political opinion, or membership in a particular social group, or where they face torture. This protection—called “withholding of removal”—applies to most noncitizens. Separately, the Convention Against Torture (CAT) provides relief when removal would likely result in torture. Noncitizens subject to expedited removal orders, final administrative removal orders (FAROs), and reinstatement orders may seek “withholding-only” relief through asylum officers and immigration judges, though these proceedings operate outside the normal removal-hearing system.
Historically, courts of appeals required noncitizens to wait until withholding-only proceedings concluded before filing petitions for judicial review, reasoning that the 30-day deadline in 8 U.S.C. § 1252(b)(1) did not begin until all administrative proceedings finished. In Riley v. Bondi (2025), the Supreme Court reversed this approach, holding that the 30-day deadline runs from the date a final removal order is issued—even if withholding-only proceedings remain pending—because such orders become final when issued and are not subject to agency appeal.
After Riley’s June 26, 2025 decision, the Seventh Circuit received over a dozen petitions from noncitizens whose removal orders had been final for more than 30 days when Riley was decided, but whose withholding proceedings remained pending. E.E.V., a Salvadoran noncitizen with a 2015 reinstatement order and pending withholding proceedings, and M.C.C.-G., a Mexican noncitizen with a May 2025 FARO and a negative reasonable-fear determination under review, filed their petitions in late July 2025—within 30 days of Riley but decades after their removal orders issued. The government moved to dismiss both as untimely.
The Court’s Holding
The court held that petitioners are entitled to equitable tolling of the 30-day deadline. Although Riley established that the deadline runs from the final removal order regardless of pending withholding proceedings, the Supreme Court also recognized that the deadline is not “jurisdictional”—meaning courts retain equitable authority to overlook missed deadlines. The Seventh Circuit found equitable tolling appropriate here because (1) the Supreme Court’s Riley decision fundamentally changed the governing legal standard on June 26, 2025, (2) the government did not press the deadline argument before Riley abrogated prior circuit precedent, and (3) petitioners filed promptly after the new rule became clear. Following Riley’s suggestion that petitioners could file as “placeholder” petitions awaiting completion of withholding proceedings, the court determined that tolling serves judicial economy and fairness.
The court also rejected the government’s new jurisdictional arguments. First, the government contended that reinstatement orders are not “final orders of removal” subject to judicial review. The court reaffirmed decades of Seventh Circuit precedent—consistent with all other circuits—that reinstatement orders are final orders of removal under the definition supplied by Riley itself: orders that “conclude[] that the alien is deportable or order[] deportation.” Reinstatement orders meet this test because they declare a noncitizen “removable as an alien who has illegally reentered.” Allowing no judicial review would foreclose challenges to wrongful identity determinations, torture claims, and even citizenship claims—a constitutional deficiency the court emphasized.
Finally, the court clarified that the “zipper clause” in § 1252(b)(9)—which consolidates judicial review of “all questions of law and fact” arising from removal proceedings—requires courts of appeals to address withholding-only relief challenges in petitions for review of final removal orders. Judicial review of a reinstatement order itself is narrow (limited to the three determinations required for reinstatement), but withholding and CAT claims must be adjudicated alongside that review.
Key Takeaways
- Equitable tolling applies to the 30-day filing deadline in 8 U.S.C. § 1252(b)(1) after Riley v. Bondi disrupted established practice; prompt filing after the Supreme Court’s decision cures lateness.
- Reinstatement orders are final orders of removal subject to limited judicial review on the three statutory determinations (identity, prior removal, illegal reentry) and to broader zipper-clause review of withholding and CAT claims.
- Courts cannot be stripped of jurisdiction to review withholding-of-removal and CAT relief claims in petitions for review, even when removal orders issued years earlier.
- United States citizens wrongfully deported cannot be banished by reinstatement without access to federal judicial review of their nationality claims.
Why It Matters
This decision preserves access to federal courts for noncitizens seeking withholding of removal and CAT protection after Riley disrupted settled practice. By recognizing equitable tolling and rejecting the government’s sweeping jurisdictional arguments, the court prevents a technical procedural rule from eliminating judicial review of life-and-death removal decisions. Attorneys representing noncitizens in or after removal proceedings can file petitions within 30 days of a significant legal change (such as a Supreme Court decision altering the deadline) without fear of automatic dismissal for lateness.
Equally important, the decision affirms that executive removal power remains subject to judicial check. By holding that reinstatement orders are reviewable removal orders, the court ensured that federal courts retain authority to second-guess the government’s identity determinations, torture findings, and applications of withholding and CAT law—and to correct wrongful deportations of United States citizens. Without this judicial backstop, the government could theoretically detain and remove citizens labeled removable through reinstatement, with no avenue to contest the decision in federal court.