Romero-Lozano v. Garland, 150 F.4th 375

Jose Ernesto Romero-Lozano was removed from the U.S. in 2014 and illegally reentered eight years later, leading DHS to reinstate his prior removal order in 2022.
He sought withholding of removal, but the Immigration Judge denied his application in January 2024; the Board of Immigration Appeals (BIA) affirmed this in November 2023.
Within 30 days of the BIA’s decision, Romero-Lozano petitioned the Fifth Circuit for review; the case was remanded back to the BIA for reconsideration.
Pending the BIA’s new decision, Romero-Lozano moved to recall the Fifth Circuit's mandate, arguing that a new Supreme Court decision (Riley v. Bondi) affected the timeliness of his petition.
The Fifth Circuit evaluated if the Supreme Court’s holding in Riley justified reopening and holding the petition in abeyance.
Ultimately, the court denied the motion, concluding extraordinary circumstances were not present.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA’s withholding-only order is a “final order of removal” triggering the 30-day filing deadline	Romero-Lozano argued his timely petition from the BIA’s order was sufficient, as prior precedent allowed it	The government pointed to Riley, arguing only petitions from the DHS’s reinstatement order are timely	Not a final order; Riley controls, making Romero-Lozano’s petition untimely
Whether Riley v. Bondi should cause the court to recall its mandate and reinstate Romero-Lozano’s petition	Argued Riley is an intervening decision altering the timeliness standard, justifying extraordinary relief	Contended that recalling the mandate is not justified absent extraordinary circumstances; not met here	Denied motion to recall; issue can be addressed in a new petition if needed
If Riley should apply retroactively to pending petitions filed under prior precedent	Sought retroactive application so his petition would remain pending	Did not take position, but noted retroactivity is unsettled	Court did not decide; said question is for future merits panel
Whether the 30-day deadline is jurisdictional or waivable under Riley	Argued deadline might be waived or reconsidered by future panels	Noted court's hands are tied unless government waives deadline	Deadline is not jurisdictional; possible for gov’t to waive, but not for recalling mandate

United States v. Emeary, 773 F.3d 619 (5th Cir. 2014) (sets standard for recalling a mandate – requires extraordinary circumstances)
Argueta-Hernandez v. Garland, 87 F.4th 698 (5th Cir. 2023) (addressed timeliness of petitions from withholding-only BIA orders)