Reinstatement Order Appeals: Tenth Circuit Denies Tolling

The Tenth Circuit says a reinstatement order had to be challenged within 30 days of its issue date, even when settled practice told people to wait. For anyone holding an old order in six Western states, that window may already be gone.

A federal appeals court in Denver ruled on Oct. 26 that a person who wants to challenge a reinstatement order must file in court within 30 days of the order itself, and that years of waiting in reliance on old practice is no excuse. The published decision in Vizguerra-Ramirez v. Blanche dismissed Colorado activist Jeanette Vizguerra-Ramirez’s petition, filed about 12 years after DHS reinstated her 2011 removal order, and closes off a route many people with reinstated orders believed the Supreme Court had just opened.

The deadline problem comes from Riley v. Bondi, a Supreme Court decision issued June 26, 2025. Most removal orders come from an immigration judge and can be appealed to the Board of Immigration Appeals, but a reinstatement order is different: a DHS officer simply revives an earlier removal order, with no judge involved and no appeal to the Board. A person who fears persecution or torture can still pursue withholding-only proceedings before an immigration judge and the Board, but those decide only where the person can be sent, not whether the removal order stands. Federal law (8 U.S.C. 1252(b)(1)) gives people 30 days to ask a federal appeals court to review a removal order, and for years many assumed that clock started when the Board ruled in those protection proceedings. Riley said no: it starts with the removal order itself, which in these cases is the DHS reinstatement order. The Court also called the deadline a procedural rule rather than a limit on which cases courts may hear, which means a late filing can, in principle, be excused. The Tenth Circuit’s ruling shows how rarely that is likely to happen.

How a 2013 reinstatement order became a 2025 deadline problem

An immigration judge denied Vizguerra-Ramirez cancellation of removal in November 2011 but granted voluntary departure, and she appealed. In September 2012 she left for Mexico to be with her dying mother, which automatically withdrew the appeal. She came back in April 2013, was caught at the border and released, and DHS reinstated the 2011 order on July 24, 2013. ICE nonetheless let her stay under a series of stays of removal. When it refused to extend one in February 2017, she moved into a Denver church, relying on a since-rescinded ICE policy of generally avoiding arrests at churches, and left 86 days later with a new stay. She returned to sanctuary when that stay expired in 2019, then left in 2020 to pursue a U visa for crime victims. After her arrest in March 2025 she sought protection from return to Mexico in withholding-only proceedings, which she says are still pending, and filed a petition for review shortly after Riley.

Under Riley, Judge Carolyn McHugh wrote, the petition “should have been filed within thirty days of July 24, 2013.” McHugh assumed, without deciding, that equitable tolling is available, then found none was earned. No binding Tenth Circuit precedent stopped a filing in 2013; the circuit’s 2015 Luna-Garcia decision treating such orders as not yet final came two years later. Her belief that she had to wait was, in the court’s words, among the “mistaken inferences about what the law requires” that “do not meet the elements of equitable tolling.” The court never reached her main argument, that leaving under a voluntary departure grant is not departing “under an order of removal.” The court has already shown it reads Riley‘s opening narrowly, as when it dismissed asylum seekers whose petition FedEx failed to deliver on time.

Two separate opinions point in opposite directions

Judge Gregory Phillips would have tolled the deadline and vacated the reinstatement order. He noted that the government itself had long argued such orders were unripe until withholding-only proceedings ended and that she filed within 30 days of Riley, and he pointed to the Fourth, Sixth and Seventh Circuits, which he said allow tolling. On the merits, he agreed a voluntary departure order is not a removal order.

Judge Allison Eid joined the tolling ruling but wrote that the full court should reconsider whether reinstatement orders can be reviewed at all after Riley. Her view, if adopted en banc, would hold that they are not orders of removal and that the court lacks jurisdiction over them, a far larger change than a single dismissal.

What it means for people with reinstated orders

When DHS reinstates a removal order, there are two separate ways to fight it, and they answer different questions. The first is a fear claim. A person who fears returning gets a reasonable fear interview with a USCIS asylum officer, who decides whether there is a reasonable possibility of persecution or torture. If the officer finds no reasonable fear, the person can ask an immigration judge to review that screening decision; if the judge agrees with the officer, the decision is final and cannot be appealed to the Board of Immigration Appeals. If the officer finds a reasonable fear, or the judge overturns a negative finding, the case moves to full withholding-only proceedings before an immigration judge, which decide only whether the person can be sent back to the country where they fear persecution or torture. That ruling can be appealed to the Board. The second route is a challenge to the reinstatement order itself, which can be brought only by a petition for review filed directly in a federal court of appeals, and which this ruling says must be filed within 30 days of the order. That review is narrow: the court checks only whether DHS got the basics right, such as whether there really was an earlier removal order that the person left under before returning illegally. It cannot reopen the original order, and it cannot hear evidence about danger back home, which is why a fear claim must go through the immigration courts. The two routes are not alternatives, and a person with both a fear of return and a legal flaw in the reinstatement can pursue them at the same time. Vizguerra-Ramirez’s argument that leaving under a voluntary departure grant is not leaving under a removal order is exactly the kind of flaw a court petition is meant to raise, and her 12-year delay cost her the chance to make it. Voluntary departure is not an option for people in this position, because the law bars those with reinstated orders from nearly all forms of relief.

Reinstatement is the fast track DHS uses when someone returns illegally after removal: no new hearing, only a reasonable-fear screening and, if that is passed, withholding-only proceedings limited to protection claims. For years, many people in that position treated the court clock as starting when those proceedings ended, a view the government itself had pressed, as Phillips noted. In the Tenth Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, the practical effect of this ruling is that an old reinstatement order that was never challenged within 30 days is likely beyond review, however strong the legal argument behind it.

The lesson for new cases is plainer: a petition challenging a reinstatement order should be filed within 30 days of the order, even while a fear screening or withholding-only case is still running. Meeting the 30-day deadline can be hard for people who lack money or a lawyer. The appeals court charges a filing fee of about $600, though people with little income, including many in detention, can ask the court to waive it. Lawyers are the bigger cost, and because immigration cases are civil, there is no right to a government-appointed attorney. Nonprofit legal service providers, law school clinics and volunteer lawyers from private firms do take these cases, but demand far exceeds what they can handle, especially for people in detention. A person can also file a petition on their own, and the initial filing is a short document; the costly legal briefing comes later. That makes filing on time, with or without a lawyer, the most important step, since a timely petition keeps the challenge alive while the person looks for help.

An en banc petition is the obvious next step, and Eid’s opinion all but invites one. Elsewhere, the full Third Circuit is weighing whether courts can review torture claims from people with reinstated orders. The Tenth Circuit has been active on removal procedure this month, also ruling that ICE cannot reset the detention clock on re-arrest. Whether the 30-day deadline can be tolled is a question Riley left open, and a clear circuit split is how such questions return to the Supreme Court.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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