Pierre Riley, who has lived in the United States for decades and has seven children here, fears he will be tortured if he is forced to return to his country of origin, Jamaica. Because Riley was previously convicted of an aggravated felony, the Department of Homeland Security (DHS) issued a removal order against him in January 2021. Riley then filed a Convention Against Torture (CAT) claim to defer his removal. An Immigration Judge granted his CAT claim, but even though the BIA concluded that Riley’s fear of torture was credible, it ordered him removed in 2022 because, in its view, he did not have sufficient corroborating evidence of the threats against him. 

Riley promptly appealed the BIA’s decision. Instead of addressing the merits of his appeal, however, the Fourth Circuit dismissed for lack of jurisdiction, concluding that 8 U.S.C. § 1252(b)(1), which states that a “petition for review must be filed not later than 30 days after the day of the final order of removal,” is jurisdictional. The court held that Riley filed his petition too late because, in the court’s view, § 1252(b)(1)’s 30-day clock started the moment DHS initially issued its removal order in January 2021, not when the BIA finalized his administrative appeal in 2022. In other words, according to the Fourth Circuit, Riley’s deadline for appealing had expired before the Immigration Judge had even heard his claim.  

CAC and the National Immigration Litigation Alliance filed an amicus brief in support of Riley. It makes two central points.  

First, our brief explains that § 1252(b)(1) is not jurisdictional. This case, like many before it, concerns the distinction between provisions that limit the jurisdiction of a court and claim-processing rules that lay out when and how a litigant must file his claim. While claim-processing rules can be waived or forfeited, jurisdictional limits cannot. To ensure that this distinction is respected, the Supreme Court in the last two decades has repeatedly overturned lower courts that erroneously label statutory provisions jurisdictional when they are instead mere claim-processing rules.  

Most recently, in Santos-Zacaria v. Garland, the Supreme Court held that another immigration provision, 8 U.S.C. § 1252(d)(1)’s exhaustion requirement, is not jurisdictional because exhaustion requirements are quintessential claim-processing rules and Congress did not clearly state that § 1252(d)(1) is a limit on courts’ subject-matter jurisdiction. The same reasoning applies here. Deadlines are standard claim-processing rules and nowhere in § 1252(b)(1) did Congress state that it is jurisdictional. 

Because § 1252(b)(1) is a claim-processing rule, it can be waived. Here, the government has conceded that Riley’s petition was timely filed, and it has indicated that it intends to waive any objection to the timeliness of Riley’s petition for review in the future. The Supreme Court does not need to go any further to decide this case and reverse.   

Second, if the Court does reach the issue, it should hold that § 1252(b)(1) is subject to equitable tolling. The centuries-old doctrine of tolling allows courts to extend a deadline that a litigant is unable to meet because of circumstances out of his control. As the Supreme Court has held, all statutory time limits—including the one in § 1252(b)(1)—are presumptively subject to equitable tolling. Nothing in § 1252(b)(1) rebuts that presumption. 

The structure of § 1252(b) further suggests that Congress meant for courts to take into consideration equitable principles. After an immigrant files a petition for review, he also has to file an appellate brief within 40 days or seek an extension under § 1252(b)(3)(C). However, if the brief is late, a court may still hear the appeal if “a manifest injustice would result” from strict adherence to the deadline. So when an immigrant fails to file a timely appellate brief, Congress requires courts to weigh the equities of rigidly applying this filing deadline to someone who, like Riley, has expressed a fear of torture if removed. It would be odd, then, to read § 1252(b)(1) as prohibiting courts from ruling equitably when it is the initial petition for review, and not the appellate brief, that is late.   

The Fourth Circuit’s dismissal of Riley’s appeal for lack of jurisdiction should be reversed. And if the Court considers whether § 1252(b)(1) is subject to equitable tolling, it should hold that it is. Equitable tolling is a practice that has existed since the Founding to prevent courts from strictly applying deadlines where doing so would be inequitable or unjust. Because of its long history, the presumption that equitable tolling is available has become hornbook law, and nothing in the text or structure of § 1252(b)(1) rebuts that presumption.