143 F.4th 116
2d Cir.2025Background
- 8 U.S.C. § 1252(b)(1) requires petitions for judicial review in immigration proceedings to be filed within thirty days of a final order of removal.
- The Second Circuit previously held in Bhaktibhai-Patel v. Garland that this thirty-day deadline was jurisdictional, and that missing it divested the court of jurisdiction to hear the petition.
- The Supreme Court’s recent decision in Riley v. Bondi clarified that § 1252(b)(1) is not jurisdictional, but a claim-processing rule that can be waived by the government.
- Petitioners Castejon-Paz and Cerrato-Barahona filed untimely petitions, both challenging adverse rulings in "withholding-only" immigration proceedings after their final removal orders were reinstated.
- The government expressly waived the thirty-day rule in both cases.
- The panel was tasked with deciding whether the thirty-day deadline still barred the court from considering these cases after the Supreme Court’s decision in Riley.
Issues
| Issue | Petitioner’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Is the thirty-day deadline in § 1252(b)(1) jurisdictional? | Not jurisdictional, per Riley. | Previously argued it was jurisdictional, but now waived. | Not jurisdictional under Supreme Court precedent. |
| Can the court hear untimely petitions if the government waives the deadline? | Yes, because the deadline is now waivable. | Agrees to waive the deadline for these cases. | Yes; waiver by the government permits review. |
| Does Bhaktibhai-Patel v. Garland remain good law on this point? | No, abrogated by Riley v. Bondi. | Concedes Riley abrogates prior Circuit law. | No; Circuit law changed by Riley v. Bondi. |
| Should the cases proceed to consideration on the merits? | Yes. | No jurisdictional bar remaining. | Yes; briefing on the merits ordered. |
Key Cases Cited
- Bhaktibhai-Patel v. Garland, 32 F.4th 180 (2d Cir. 2022) (previously held thirty-day deadline for petition for review was jurisdictional)
- Johnson v. Guzman Chavez, 594 U.S. 523 (2021) (defines withholding-only proceedings in the immigration context)
- Wilkins v. United States, 598 U.S. 152 (2023) (distinguishes jurisdictional from claim-processing rules)