Sixth Circuit Holds 8 U.S.C. § 1252(b)(1)’s 30-Day Immigration Petition Deadline Is Subject to Equitable Tolling

Introduction

In Jorge Oxlaj-Perez v. Todd Blanche, the Sixth Circuit addressed a significant procedural question in immigration law: whether the 30-day deadline for filing a petition for review of a final removal order under 8 U.S.C. § 1252(b)(1) can be equitably tolled.

Jorge Oxlaj-Perez, an indigenous Mayan Quiche man from Guatemala, sought review of the Board of Immigration Appeals’ decision affirming the Immigration Judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture. The Board issued its final order on February 10, 2025, but Oxlaj-Perez filed his petition for review 79 days later, well beyond the statutory 30-day period.

The government argued that the petition was untimely and that the deadline was not subject to equitable tolling. The Sixth Circuit disagreed on the legal rule, holding that § 1252(b)(1) is subject to equitable tolling. But it ultimately dismissed Oxlaj-Perez’s petition because he failed to show that tolling was warranted on the facts.

Summary of the Opinion

Judge Bloomekatz, writing for the panel, held that the 30-day filing deadline in § 1252(b)(1) is a nonjurisdictional claims-processing rule and is therefore presumptively subject to equitable tolling.

The court relied heavily on the Supreme Court’s recent decision in Riley v. Bondi, which held that § 1252(b)(1) is not jurisdictional. Because the deadline is not jurisdictional, prior Sixth Circuit precedent treating it as an inflexible jurisdictional bar no longer controls.

Applying ordinary statutory-interpretation principles, the Sixth Circuit concluded that nothing in § 1252(b)(1)’s text, structure, or context rebuts the normal presumption that statutes of limitations are subject to equitable tolling. Still, Oxlaj-Perez did not qualify for tolling because he had actual notice of the deadline, constructive knowledge of the filing requirement, and offered only generalized explanations about educational, language, and financial barriers.

The petition for review was therefore dismissed as untimely.

Analysis

Precedents Cited

1. Jurisdictional Status of the Deadline

The court began with the doctrinal shift caused by Riley v. Bondi. Before Riley, the Sixth Circuit treated § 1252(b)(1)’s deadline as “mandatory and jurisdictional,” relying on cases such as Prekaj v. INS. Under that earlier approach, equitable tolling was unavailable because courts cannot create equitable exceptions to jurisdictional rules, a principle reflected in Bowles v. Russell.

Riley changed the landscape by holding that § 1252(b)(1) is a claims-processing rule, not a jurisdictional requirement. The Sixth Circuit therefore concluded that it had to revisit whether equitable tolling applies. The court also cited Dolan v. United States to explain that claims-processing rules regulate the timing and manner of litigation but do not limit the court’s adjudicatory power.

2. Presumption in Favor of Equitable Tolling

The court relied on Holland v. Florida, Irwin v. Dep't of Veterans Affs., Lozano v. Montoya Alvarez, and Young v. United States for the principle that limitations periods are generally presumed to be subject to equitable tolling unless Congress clearly indicates otherwise.

Boechler, P.C. v. Commissioner was especially important. There, the Supreme Court held that a short 30-day tax deadline was subject to equitable tolling because the statute did not expressly prohibit tolling and was directed at the petitioner rather than the court. The Sixth Circuit found § 1252(b)(1) materially similar.

The court also invoked United States v. Kwai Fun Wong and Am. Pipe & Constr. Co. v. Utah to show that even strict statutory language does not necessarily defeat equitable tolling. Mandatory phrasing alone is insufficient.

3. Cases Where Tolling Was Rejected

The government relied on decisions where equitable tolling was unavailable, but the Sixth Circuit distinguished them. In Enbridge Energy, LP v. Nessel ex rel. Mich., United States v. Brockamp, and Arellano v. McDonough, the statutes contained detailed schemes, specific exceptions, or technical provisions showing that Congress had already decided when exceptions should apply.

By contrast, § 1252(b)(1) is a simple filing deadline with no detailed list of exceptions. Therefore, the structural features that defeated tolling in those cases were absent.

4. Treatment of Contrary or Confusing Post-Riley Authority

The court acknowledged that some post-Riley decisions continued to describe § 1252(b)(1) as “mandatory,” including Aleman Garcia v. Bondi, Marroquin-Zanas v. Bondi, Fuentes Aguilar De Perez v. Bondi, and Kun Liao v. Bondi. But the Sixth Circuit reasoned that those cases did not fully analyze the equitable-tolling question after Riley.

The court expressly rejected the Fifth Circuit’s approach in Kun Liao v. Bondi, concluding that unqualified statutory language alone cannot rebut the presumption of tolling.

5. Immigration-Specific Context

The Sixth Circuit also found support in immigration law itself. It cited Sarkisov v. Bondi and Barry v. Mukasey, which recognized equitable tolling for deadlines governing motions to reopen. It also referenced Board decisions such as Matter of Khurram Jehangir Khan and Matter of Morales-Morales, where tolling was applied in immigration proceedings.

Cases such as Kamar v. Sessions, Wilkinson v. Garland, and Burnett v. N.Y. Cent. R.R. Co. supported the court’s view that humanitarian concerns can weigh in favor of equitable flexibility. Petitions for review often involve claims of torture, persecution, or serious hardship, making individualized equitable assessment appropriate.

6. Government Waiver and Claims-Processing Rules

The court cited Santos-Zacaria v. Garland and Riley v. Bondi to explain that because § 1252(b)(1) is a claims-processing rule, the government must invoke untimeliness. If the government fails to raise the issue, it may waive or forfeit the defense.

The court rejected the government’s argument that Oxlaj-Perez waived equitable tolling by not raising it in his opening brief. Because timeliness was the government’s defense to assert, Oxlaj-Perez could respond once the government raised it.

7. Equitable Tolling Applied to the Facts

For the tolling standard, the court relied on Holland v. Florida and Pace v. DiGuglielmo: a litigant must show diligent pursuit of rights and an extraordinary circumstance preventing timely filing.

The court then applied the five-factor diligence framework from Jin Yin Zhou v. Bondi and Mezo v. Holder. It also cited Wershe v. City of Detroit for the rule that a publicly available statute can establish constructive knowledge of a filing deadline.

Legal Reasoning

The court’s reasoning proceeded in two stages.

A. Section 1252(b)(1) Can Be Equitably Tolled

First, the court determined that § 1252(b)(1) is not jurisdictional after Riley. That meant the prior Sixth Circuit rule barring tolling could no longer stand.

Second, the court applied the ordinary presumption that statutes of limitations are subject to equitable tolling. It examined:

Text: Section 1252(b)(1) says a petition “must be filed” within 30 days, but it does not expressly prohibit tolling.
Structure: The statute contains no detailed list of exceptions suggesting Congress intended to exclude equitable tolling.
Context: The immigration system already recognizes equitable tolling in related procedural settings, and petitions for review often involve serious humanitarian claims.

The court rejected the government’s reliance on Federal Rule of Appellate Procedure 26(b)(2), explaining that a federal rule cannot overcome the statutory presumption of tolling where Congress has not clearly barred it.

B. Oxlaj-Perez Did Not Qualify for Tolling

Although the legal rule favored the possibility of tolling, the factual record did not. Oxlaj-Perez had actual notice of the 30-day deadline because the Board’s decision included that information. He also had constructive knowledge because the statute was publicly available.

His explanation—limited education, language barriers, and financial constraints—was too general. The court emphasized that such barriers are common in immigration cases and cannot automatically justify tolling. Without specific evidence showing diligent efforts during the 79-day period, he failed to meet the demanding standard.

Impact

This opinion establishes an important Sixth Circuit rule: the 30-day deadline in 8 U.S.C. § 1252(b)(1) is subject to equitable tolling.

The decision has several practical consequences:

Untimely immigration petitions for review are no longer automatically barred as jurisdictional defects in the Sixth Circuit.
The government must raise untimeliness, or it may waive or forfeit the defense.
Petitioners may seek equitable tolling, but they must provide detailed evidence of diligence and extraordinary circumstances.
General claims of poverty, language difficulty, or limited education will usually be insufficient without a specific factual showing.
The decision may deepen disagreement among circuits, particularly given the Fifth Circuit’s contrary approach in Kun Liao v. Bondi.

The ruling is therefore both petitioner-friendly in principle and strict in application. It opens the door to equitable relief but keeps that door narrow.

Complex Concepts Simplified

Jurisdictional Rule

A jurisdictional rule limits a court’s power to hear a case. If a deadline is jurisdictional, courts must enforce it even if no party raises it, and equitable exceptions generally are unavailable.

Claims-Processing Rule

A claims-processing rule governs how and when parties must act, but it does not limit the court’s power. Such rules can often be waived, forfeited, or equitably tolled.

Equitable Tolling

Equitable tolling pauses a filing deadline in rare cases where a person diligently pursued rights but an extraordinary circumstance prevented timely filing.

Constructive Knowledge

Constructive knowledge means the law treats a person as knowing something because it was publicly available or reasonably discoverable, even if the person claims not to have actually known it.

Final Order of Removal

A final order of removal is the agency’s final decision requiring a noncitizen to leave the United States. Under § 1252(b)(1), a petition for judicial review generally must be filed within 30 days of that order.

Conclusion

Jorge Oxlaj-Perez v. Todd Blanche is a significant immigration procedure decision. The Sixth Circuit held that the 30-day deadline for filing a petition for review under § 1252(b)(1) is subject to equitable tolling because it is a nonjurisdictional claims-processing rule and because Congress did not clearly prohibit tolling.

But the court also made clear that equitable tolling remains exceptional. Oxlaj-Perez’s generalized assertions of hardship did not establish diligence or extraordinary circumstances. His petition was therefore dismissed as untimely.

The key takeaway is that late immigration petitions for review may now be considered in rare equitable circumstances in the Sixth Circuit, but petitioners must present a concrete, well-supported record explaining why timely filing was impossible despite diligent efforts.