CINCINNATI (LN) — The Sixth Circuit ruled Tuesday that immigrants who miss the 30-day deadline to petition for judicial review of a removal order can invoke equitable tolling to save their case — but the indigenous Guatemalan man who brought the question to the court walked away with a dismissal anyway.
Writing for a unanimous three-judge panel in Jorge Oxlaj-Perez v. Todd Blanche, U.S. Circuit Judge Bloomekatz held that 8 U.S.C. § 1252(b)(1)'s 30-day filing deadline is a nonjurisdictional claims-processing rule subject to the same equitable tolling presumption that applies to ordinary statutes of limitations — a ruling on a question of first impression that creates binding Sixth Circuit precedent on one of the highest-volume procedural questions in immigration court.
The decision arrives in the wake of the Supreme Court's 2025 ruling in Riley v. Bondi, which stripped the deadline of its jurisdictional character but expressly declined to decide whether tolling was available, leaving circuit courts to work out the answer on their own. The Sixth Circuit had previously treated the deadline as "mandatory and jurisdictional" under its 2004 decision in Prekaj v. INS, which meant equitable exceptions were categorically off the table.
"Because we previously deemed the statutory deadline jurisdictional, we always considered it a 'mandatory' deadline that we had no power to equitably toll," Bloomekatz wrote. With Riley having "explicitly rejected our jurisdictional interpretation," the panel said it was required to start fresh.
The court applied the standard presumption that Congress drafts limitations periods against a background of equitable tolling, then walked through the statute's text, structure, and context to see whether anything rebutted it. Nothing did. The panel held that § 1252(b)(1)'s plain language — "petition for review must be filed not later than 30 days after the date of the final order of removal" — mirrors the kind of short, unqualified, petitioner-directed deadline the Supreme Court has repeatedly held is subject to tolling, pointing to Boechler P.C. v. Commissioner and Irwin v. Department of Veterans Affairs as the closest analogues. The statute, unlike the tax-refund and veterans-benefits provisions that defeated tolling in Brockamp and Arellano, contains no detailed exceptions, no iterative procedural and substantive limitations, and no language in emphatic form.
The panel also rejected the government's argument that Federal Rule of Appellate Procedure 26(b)(2) — which bars courts from extending the time to petition for review of an agency order "unless specifically authorized by law" — could override the statutory presumption. The panel cited the D.C. Circuit's observation that the Supreme Court has yet to extend the constraint Nutraceutical placed on Federal Rules to statutory deadlines.
The government's finality and expediency arguments fared no better. The panel pointed out that the INA already permits equitable tolling for the 90-day deadline to file motions to reopen Board proceedings, and that the Board itself has applied tolling to late-filed notices of appeal. "The recognition of equitable tolling at other stages in the removal process suggests that, despite the interest in expeditious proceedings, equitable tolling is consistent with the overall statutory scheme of the INA," Bloomekatz wrote.
The ruling split with the Fifth Circuit, which in Kun Liao v. Bondi concluded that the statute's unqualified language foreclosed tolling, and parted ways with unpublished decisions from the Fourth and Ninth Circuits that had applied the mandatory label without examining whether the statute, analyzed as a claims-processing rule, would permit tolling.
Oxlaj-Perez, however, got nothing from the new rule. The panel held that he had actual notice of the 30-day deadline — the Board's February 10, 2025 decision expressly stated that "any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision" — yet he waited 79 days to file. His arguments that limited education, language barriers, and financial constraints prevented him from obtaining timely legal advice failed because he offered no details about his legal consultations, leaving the court unable to find he had acted diligently during those 79 days. The panel also pushed back on the broader implications of his theory: "granting equitable tolling each time a petitioner relies on general assertions about these barriers would let a narrow exception to the 30-day deadline swallow the rule."
The panel was composed of U.S. Circuit Judges Eugene Siler, Karen Moore, and Bloomekatz, who authored the opinion.
The Sixth Circuit's holding now governs every future untimely petition case in the circuit — though the court's own assessment may be the most consequential line in the opinion: "We do not expect many petitioners to meet the high burden of showing entitlement to equitable tolling."