Unreported / Non-Citable
Background
DHS issued Nestor Alexander Cortez-Mejia an expedited removal order in 2015 and removed him to El Salvador. After he returned to the United States, DHS reinstated that order in 2018 and again removed him. Following a January 2025 arrest in Texas, DHS reinstated the 2015 order once more.
Cortez-Mejia expressed fear of returning to El Salvador. An asylum officer found no reasonable fear, and Cortez-Mejia sought Immigration Judge review. While that review was pending, he petitioned the Fifth Circuit on August 19, 2025—more than seven months after the January reinstatement. An IJ later vacated the reasonable-fear determination and placed him in withholding-only proceedings, but another IJ denied relief in February 2026. Cortez-Mejia did not appeal and was removed approximately three months later.
The Court’s Holding
The Fifth Circuit dismissed the petition as untimely under 8 U.S.C. § 1252(b)(1). After the Supreme Court’s decision in Riley v. Bondi, the 30-day filing requirement is a nonjurisdictional but mandatory claim-processing rule. Because the government expressly invoked that rule, the court was required to enforce it.
Cortez-Mejia filed more than seven months after the January 2025 reinstatement order and did not answer the government’s timeliness argument or seek equitable tolling. The panel declined to decide whether Riley undermined circuit precedent treating reinstatement orders as reviewable final removal orders, and it likewise did not address whether Cortez-Mejia’s removal made the petition moot.
Key Takeaways
- The 30-day deadline for filing a petition for review under § 1252(b)(1) is mandatory when the government properly raises it.
- A petitioner cannot rely on the completion of withholding-only proceedings to restart the filing period after Riley.
- The court left unresolved whether reinstatement orders remain reviewable final removal orders and whether equitable tolling is available under § 1252(b)(1).
Why It Matters
The decision reinforces the need to seek appellate review promptly after an administratively final removal action, even when reasonable-fear or withholding-only proceedings remain pending. Waiting for those humanitarian proceedings to conclude may leave a later petition subject to dismissal.
The opinion also preserves important open questions in the Fifth Circuit concerning Riley’s effect on review of reinstatement orders and the availability of equitable tolling.