Filing Deadlines After Riley v. Bondi

The 30-Day Petition-for-Review Deadline After Riley v. Bondi

Section 1252(b)(1) of Title 8 provides that "[t]he 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. The consequence of filing outside that window, however, changed in June 2025. Riley v. Bondi, 145 S.Ct. 2190 (U.S. 2025) held that "the 30-day filing deadline is not jurisdictional." The Court explained that "[b]ecause jurisdictional rules have a unique capacity to disrupt the orderly adjudication of disputes," it is "reluctant to label a rule ‘jurisdictional’ unless Congress has clearly signaled that the rule is meant to have that status," and that its "pattern of recent decisions shows that [it] will not categorize a provision as ‘jurisdictional’ unless the signal is exceedingly strong." Riley also clarified what starts the thirty-day period: "a BIA order in a withholding-only proceeding is not a ‘final order of removal,’" and for a noncitizen in streamlined proceedings "the period to seek review ‘expir[es]’ as soon as the FARO is issued—meaning that the order becomes final immediately upon issuance." The disposition itself illustrated the consequence of the reclassification: "[b]ecause the Government has chosen not to seek dismissal of Riley’s case on that ground, we vacate the judgment below and remand for further proceedings."

The courts of appeals have treated their contrary jurisdictional precedent as abrogated, and government waiver or forfeiture now determines whether an untimely petition receives merits review. Castejon-Paz v. Bondi, 143 F.4th 116 (2d Cir. 2025) held that "Bhaktibhai-Patel’s jurisdictional holding has been abrogated by Riley," reading Riley to establish that "§ 1252(b)(1)’s thirty-day filing deadline is a ‘claim-processing rule’ ... that can be subject to waiver or forfeiture," and reached the merits because "the Government waived application of the thirty-day filing rule as to both petitions[,] ... § 1252(b)(1) poses no bar to our court resolving these petitions on their merits." Yasmin Rivas De Nolasco v. Pamela Bondi, 150 F.4th 350 (4th Cir. 2025) reached the same result. The Fourth Circuit observed that "the Supreme Court altered the state of play and held that § 1252(b)(1) is ‘not jurisdictional,’" and, because "[a] court will not enforce a procedural rule against a non-complying party if his opponent has forfeited or waived an objection," the panel proceeded to review the petition, explaining that "[b]ecause the government does not press this basis for declining to review the petition, we will consider the merits of the petition." The Fourth Circuit also addressed the finality question, confirming that orders denying withholding and CAT relief, "standing alone, also do not constitute final orders of removal" because "neither concludes a noncitizen is deportable or orders their deportation."

When the government raises the deadline promptly, it remains enforceable, and the circuits have divided over whether equitable tolling can excuse an untimely filing. Liao v. Bondi, 162 F.4th 519 (5th Cir. 2025) denied a detained petitioner’s untimely petition, reasoning that Riley "left open the door for the government to raise untimeliness as a ground for dismissal," that the deadline is a "paradigmatic mandatory claim-processing rule," and that "§ 1252(b)(1)’s thirty-day filing rule is a mandatory claim-processing rule that, if properly raised, must be enforced"; forfeiture runs against the government only "if the party asserting the rule waits too long to raise the point." By contrast, M. C. C.-G. v. Todd W. Blanche, No. 25-2268 (7th Cir. Jul 6, 2026) held, in agreement with the Sixth Circuit, that "equitable tolling is—indeed must be—available here," reasoning that "non-jurisdictional statutes of limitations are subject to a rebuttable presumption in favor of allowing equitable tolling in appropriate cases" and that "[t]he presumption is not overcome in this case." The court concluded that "[a] change in binding case law that makes it impracticable ... or impossible ... for a party ever to have timely sought relief can constitute an extraordinary circumstance for the purpose of equitable tolling," and it endorsed the protective-petition practice that Riley described, confirming that "petitions are not unripe simply because withholding-only proceedings remain ongoing."

The practical framework that emerges from these decisions turns on two variables: the order from which the thirty-day period runs, and the government’s response to a late filing. Because the period runs from the final administrative review order or other final order of removal rather than from the conclusion of withholding-only proceedings, a protective petition filed within thirty days of the underlying order, paired with a motion to hold the case in abeyance while withholding-only or CAT proceedings continue, preserves review in a way that a later filing standing alone does not; the Supreme Court itself described that sequence in Riley, and the Seventh Circuit has now rejected the government’s ripeness objection to it. For a petition that is already untimely, the government’s litigation conduct has become as consequential as the filing date itself: a waived or unpressed timeliness objection removes the issue from the case, while a prompt motion to dismiss results in enforcement of the deadline in the Fifth Circuit and, in the Sixth and Seventh Circuits, presents the question whether equitable tolling applies, since those courts treat good-faith reliance on since-overruled circuit precedent as an extraordinary circumstance. The disagreement over tolling remains unresolved and is a plausible candidate for Supreme Court review, which makes preservation of the tolling argument significant wherever the issue arises.