Riley: The Deadline to Appeal Ran Out Before the Decision Existed

Immigration officers have reinstated an old removal order against you, or issued one without a hearing because of a conviction. You told them you are afraid to go back. Your fear claim goes to an immigration judge, and months or years later you lose. You have 30 days to go to federal court, you think.

You may have run out of time about a month after the removal order was issued. The clock runs from the order that says you can be removed, and a later decision denying protection does not restart it. So a person in this position has to act on the removal order right away, usually while the fear claim is still pending.

That is the rule of Riley v. Bondi, 606 U.S. 259 (2025), No. 23-1270, decided June 26, 2025. Pierre Riley asked the Supreme Court to treat his petition as timely because he filed it three days after he lost his torture claim. The Court said no, 5–4. It then held, with all nine justices in agreement on the point, that the 30-day deadline does not limit a court’s power, and it sent his case back because the government had chosen not to enforce the deadline against him. Riley involved a final administrative order; the Ninth Circuit has recognized that the decision displaced its earlier rule for reinstated orders.

Sixteen months between two orders

Riley came from Jamaica on a tourist visa in 1995 and stayed. In 2008 he was convicted of conspiring to distribute more than 1,000 kilograms of marijuana and of possessing a firearm in furtherance of the crime. He received 25 years. He was released in January 2021, the dissent explains, on compassionate release, based on his diabetes and the pandemic.

Immigration authorities took him into custody soon after. Because he had an aggravated felony, his case went on what the Court called “the supposedly streamlined track.” There was no hearing on whether he could be removed. The Court described a process with an officer’s notice and a 10-day period for a written response. On January 26, 2021, the Department of Homeland Security issued a final administrative order directing that he be sent to Jamaica. The Supreme Court’s majority called it a final administrative review order. The paper itself is titled Final Administrative Removal Order, and both are known as a FARO.

Riley did not fight the removal itself. He fought going to Jamaica. He said a drug kingpin with ties to police and politicians had killed two of his cousins and would kill him too. An asylum officer found no reasonable fear, but an immigration judge disagreed, believed him and granted deferral of removal under the Convention Against Torture in what is called a withholding-only proceeding, where the only question is whether a person can be sent to a particular country. The government appealed. On May 31, 2022, the Board of Immigration Appeals vacated that order. The Board found no clear error in the credibility finding but said the claim rested on “the stringing together of a series of suppositions.”

Three days later Riley filed a petition for review in the Fourth Circuit. That court dismissed it on its own motion. The final order, it said, was the FARO from 16 months earlier. Thirty days from that date had passed long before the Board ruled, and the deadline was jurisdictional, so nothing could save him.

The government agreed with Riley

The circuits were split on both points. The government told the Supreme Court that Riley was right on both. Because no party would defend the Fourth Circuit, the Court appointed a lawyer, Stephen Hammer, to do it. Riley argued that the Board’s order marked the final order because it came last. The government argued that a removal order cannot become final until the fear case ends. Both said the deadline is an ordinary claim-processing rule.

Why the first order was the final order

Justice Alito’s majority began with definitions. An order of removal is one “concluding that the alien is deportable or ordering deportation.” The FARO did both. The Board’s order about torture did neither.

Finality came next. A removal order becomes final at the earlier of a Board ruling affirming it or the end of the time allowed to ask the Board to review it. Riley could not take a FARO to the Board at all. So, the Court reasoned, the period for review expired when the order issued, “meaning that the order becomes final immediately upon issuance.”

The Court then relied on two recent decisions. Nasrallah v. Barr held that an order about torture protection is not a final order of removal and does not affect its validity. Johnson v. Guzman Chavez held that a withholding-only case does not make a reinstated order non-final for detention purposes. “That teaching,” the Court wrote, “dooms Riley’s argument here.”

The government said Guzman Chavez was about detention under different language, and that review should work like one appeal from a final judgment. The Court replied that this conflates two separate issues, when a petition must be filed and what can be decided in it, and that different purposes do not necessarily change what finality means.

The government also made a practical case, and the Court took it seriously. People who want only to contest the country of removal will wait until they lose that claim, it warned, and anyone who files earlier might see the court finish before the Board rules, leaving no review of the denial. The majority called these “legitimate practical concerns” and followed the text anyway. It offered four responses. The government can tell people they must file within 30 days of the FARO. It can alert the court of appeals so that review waits for the fear decision. If withholding requests are decided quickly, as Congress intended, petitions “should not linger long,” though a footnote acknowledges that such proceedings have often lasted months and even years. And if the government keeps declining to press the deadline, as it did here, mistaken petitioners “will not be hurt.” The Court described these as things the government can do. It did not order any of them.

What “final” does not mean

That line decides how these cases are handled. When a petition must be filed is one question. What a court can hear is another. The Court agreed that “there can be only one review proceeding in a case like Riley’s,” and that review of a torture denial “cannot take place until the BIA has denied such relief.” So the torture question cannot be decided until the fear case ends, and a petition filed within 30 days of the FARO can be held for it. A court still has to agree to wait.

A deadline, not a limit on power

All nine justices joined the second holding. The label matters. If a rule is jurisdictional, a court must enforce it even if no one objects. If it is a claim-processing rule, a party can give it up.

The statute says the petition “must be filed not later than 30 days” after the final order. That language, the Court said, tells noncitizens what to do. It gives no directive to courts and never mentions jurisdiction. It also sits outside the parts of the statute that define what courts may review. The older statement in Stone v. INS calling a predecessor deadline jurisdictional used the word loosely, the Court said.

Because the government did not ask for dismissal on timing, the deadline was no barrier, and the Court vacated the Fourth Circuit’s judgment. That was not a win on the torture claim. Justice Thomas wrote separately to say the Fourth Circuit might still lack power to hear the case for a different reason: Congress allows review of torture claims only “as part of the review of a final order of removal,” and Riley had never challenged his.

The dissent: An appeal before the order exists

Justice Sotomayor, joined by Justices Kagan and Jackson and, except for one part, Justice Gorsuch, put it in one sentence: “One should not be required to appeal an order before it exists.”

Her argument was about what finality has always meant. Congress required that removal orders and torture claims be reviewed together in a single petition. Orders that must be appealed together, she wrote, must become final together. A criminal conviction is not final for appeal until sentencing, even though the verdict is complete. The majority had treated a nonexistent appeal period as one that runs out the moment it starts, and that, she added, made no sense.

The majority’s reliance on Guzman Chavez, she added, ignored that the decision had expressly set aside the question of finality for appeal. She also warned that everyone facing expedited removal will now have to file immediate protective petitions.

In a part of her opinion that Justice Gorsuch did not join, she laid out the remedies she thinks remain: The government must, as a matter of due process, give adequate notice, courts should not arbitrarily refuse to hold early petitions, and equitable tolling, an extension for fairness reasons, is “likely available” now that the deadline is not jurisdictional. The majority described notice and waiting as options. It did not say they are required, and it did not discuss tolling. Those further points are the dissent’s.

The Ninth Circuit made it harder

Justice Thomas raised a further question in his separate opinion: Can a court review a torture claim at all when the petitioner has not sought review of the removal order? The Ninth Circuit, which includes California, took up that question in 2026. Its November amendment retained the rule against petitions challenging only the torture decision.

The March opinion was Navarrete v. Bondi, 170 F.4th 1214 (9th Cir. 2026), No. 24-2776, filed March 23, 2026. Jose Guadalupe Navarrete Pelagio tried to enter at San Luis, Arizona, in 2003 on someone else’s resident card and was removed that day under an expedited order. He came back. In January 2024, after an employer reported him, DHS reinstated the old order. An asylum officer found no reasonable fear, and an immigration judge agreed on April 30, 2024. That meant no withholding-only case and no Board appeal. He filed a petition the next day challenging only the torture ruling.

The government waived the timing objection. It did not matter. The Ninth Circuit held that “a petition advancing a standalone claim for review of a CAT order is not sufficient to invoke our jurisdiction,” CAT being the Convention Against Torture. A torture claim can be considered only as part of review of a final removal order, which the court said “presupposes the existence of a claim for review of the final order of removal.” The court addressed Monsalvo Velázquez v. Bondi, where the Supreme Court had rejected the idea that a person must bundle a legal question with a challenge to removability. It admitted some tension, and said the argument for jurisdiction would be more compelling if that case stood alone. Its answer was that a voluntary-departure order limits whether a person can be removed at all, while a torture order limits only where.

Navarrete asked to apply the rule only going forward, since earlier Ninth Circuit law had told people to file as he did. The court accepted that his reliance was reasonable and refused anyway: A jurisdictional ruling cannot be made prospective only. He also asked to add a nominal challenge to his removal order, while acknowledging at argument that any such challenge would be a “red herring” and “frivolous.” The court denied that as futile: To invoke its jurisdiction, a petitioner must assert at least a colorable claim, one with some possible validity. In a footnote the court added that his decision not to contest the reinstatement before the agency, after being told he could, would likely have produced the same result even without that concession.

The March opinion required at least a colorable challenge to the removal order. The November amendment kept the rule that a petition challenging only the torture decision is insufficient, and denied amendment because of the concessions and waivers in Navarrete’s record. Riley also makes the removal-order deadline urgent: Waiting for the fear decision does not restart it. The January 2026 memorandum in our Acosta-Tapia analysis shows the timing half: The government invoked the deadline, and a petition filed the day of the fear ruling was dismissed.

What to do when the removal order comes first

These steps are our practical reading of the decisions above. They apply to reinstated orders and administrative orders, where the removal order comes before the fear decision. In an ordinary removal case decided by an immigration judge and the Board, the two questions usually end together.

• Raise any challenge with the officer first. Read the notice and seek advice immediately about its response deadline and how to contest the determination. In a reinstatement you can contest the determination in a written or oral statement. Do not let that chance pass in silence. Navarrete did not contest his reinstatement when told he could, and the court said that alone would likely have produced the same result.
• Find the date on the removal order, today. Look for the reinstatement notice or FARO and count 30 days from it. The date of the fear interview or the judge’s review does not move that count.
• File the petition before the fear case ends if you can. Tell the court that fear proceedings are pending and ask it to hold the case. Filing a petition does not by itself stop removal, so ask about a stay separately. Detention follows its own rules under Guzman Chavez.
• Name the removal order in the petition. In the Ninth Circuit, a petition aimed only at the torture decision is not enough. The amended Navarrete opinion treated the petitioner’s admitted frivolity and waivers as making amendment futile. Raise any challenge that has a legal or factual basis. One you admit is baseless will not work. If you have both a withholding claim and a torture claim, keep both in the petition.
• When the fear decision arrives, get it before the court quickly. Ask promptly how to add the later decision to the court case. Riley’s Fourth Circuit amendment, described under Later developments, was allowed after the government gave up its timing objection. Do not assume that the fear decision starts a new 30-day filing period.
• If the date has passed, file as soon as possible anyway. The government can enforce the deadline, and whether it does is up to the government. Whether the deadline can be extended for fairness reasons is unresolved at the Supreme Court. Collect the facts about why you could not file, such as what you were told, by whom and when. Acosta-Tapia shows that an argument not properly briefed will not be considered.

Later developments

The courts have moved since May 26, 2026, on the question Justice Thomas raised. On May 29, 2026, the Third Circuit reached the opposite answer from the Ninth. In Laureano v. Att’y Gen. U.S., 177 F.4th 453 (3d Cir. 2026), as the Fourth Circuit describes it, the court found jurisdiction over a torture claim where the petitioner did not also challenge her removal order. The Fourth Circuit counts the Second and Eleventh Circuits on the Ninth Circuit’s side.

On July 2, 2026, Riley’s own case came out differently from Navarrete. On remand, in Riley v. Blanche, No. 22-1609 (4th Cir. July 2, 2026), a divided panel did not decide whether a torture claim must be paired with a challenge to the removal order. It let him amend his petition to include the FARO, which cured any defect. Nominal challenges, it said, “are exactly what is contemplated” by the Supreme Court’s decision: “There is no further requirement that they invent a challenge to a removal order that they would otherwise forgo.” The panel distinguished the March opinion in Navarrete because the petitioner there had never been in withholding-only proceedings, and it said it was not persuaded by the Ninth Circuit’s requirement of a colorable claim. It added that a person who misses the 30 days may not have this route in another case. It then held that the Board had misapplied clear-error review, vacated the Board’s order and sent the case back. That was still not a grant of protection. Judge Quattlebaum dissented, writing that the amendment does not actually challenge the removal order.

On November 6, 2026, the Ninth Circuit amended its opinion, now Navarrete v. Blanche, No. 24-2776 (9th Cir. Mar. 23, 2026, amended Nov. 6, 2026), amending 170 F.4th 1214. The holding stayed the same, in the same words, and a person in California is governed by it. The reasoning changed. The amended opinion no longer says the rule “presupposes” a claim against the removal order, and its discussion of colorable claims moved to a footnote. It denied the request to add a nominal challenge as futile for three reasons: He signed a statement that he did not wish to contest the reinstatement, he never argued the point in his briefs and raised it first at oral argument, and he conceded that any challenge would be a “red herring” and “frivolous.” It declined to decide whether an order reinstating an expedited removal is itself a final order of removal, which the government called unsettled. The order amending the opinion denied as moot a call by the court itself for review by a larger panel, and says petitions for rehearing may still be filed.

These decisions add to the steps above. In the Ninth Circuit, do not sign anything saying you do not contest the reinstatement, because Navarrete’s signed statement counted against him. Ask to add any challenge to the removal order in your briefs, not for the first time at oral argument. A person who has given up any challenge to the removal order may have no court review of the denial at all.