Reported / Citable
Background
Claudia Marilyn Saravia Martinez, a native of El Salvador, was removed after receiving a final removal order. She later reentered the United States without authorization, and the Department of Homeland Security reinstated that order. She sought Fifth Circuit review of the reinstatement.
Saravia Martinez conceded that her petition was filed outside the 30-day period imposed by 8 U.S.C. § 1252(b)(1), but requested equitable tolling. According to the dissent, Fifth Circuit precedent in effect when her order was reinstated required her to await completion of withholding-only proceedings before seeking review; after the Supreme Court’s decision in Riley v. Bondi, that approach left her petition untimely. An asylum officer had also found a reasonable fear that she would face persecution or torture in El Salvador.
The Court’s Holding
In a brief per curiam opinion, the Fifth Circuit held that equitable tolling was not appropriate in Saravia Martinez’s case. It therefore dismissed her petition for review as untimely.
The per curiam opinion did not hold that equitable tolling is categorically unavailable under § 1252(b)(1), nor did it explain why the circumstances failed to justify tolling. Judge James C. Ho concurred separately and argued that the statute’s 30-day deadline can never be equitably tolled. Judge Stephen A. Higginson dissented, reasoning that tolling was legally available and warranted because binding precedent had placed Saravia Martinez in an involuntary timing dilemma.
Key Takeaways
- A petition challenging a reinstated removal order remains subject to § 1252(b)(1)’s 30-day filing deadline.
- The panel dismissed Saravia Martinez’s petition because equitable tolling was not appropriate on the facts presented.
- The decision did not adopt Judge Ho’s broader position that equitable tolling is never available under § 1252(b)(1).
- The dissent would have tolled the deadline based on an intervening change in binding law and Saravia Martinez’s prompt filing after that change.
Why It Matters
The ruling underscores the substantial timing risk facing noncitizens who delayed filing petitions for review under pre-Riley circuit precedent while pursuing humanitarian proceedings. Even though the Supreme Court has classified § 1252(b)(1) as a nonjurisdictional claims-processing rule, this panel’s disposition shows that equitable tolling is not assured.
The separate opinions also expose an unresolved disagreement over whether the statutory deadline can ever be tolled. Because the per curiam majority resolved only this case, future Fifth Circuit panels may still need to address that broader legal question.