Jorge Oxlaj-Perez v. Todd Blanche

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0126p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

JORGE OXLAJ-PEREZ,

│

Petitioner, │

> No. 25-3337

│

v. │

│

TODD W. BLANCHE, Acting U.S. Attorney General, │

Respondent. │

┘

Appeal from the Board of Immigration Appeals.

No. A 208 759 263.

Decided and Filed: April 29, 2026

Before: SILER, MOORE, and BLOOMEKATZ, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Kevin Gardner, KBG IMMIGRATION LLC, Independence, Ohio, for Petitioner.

Raya Jarawan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

_________________

OPINION

_________________

BLOOMEKATZ, Circuit Judge. Jorge Oxlaj-Perez petitions for judicial review of a

Board of Immigration Appeals decision that affirmed the Immigration Judge’s denial of his

application for asylum, withholding of removal, and protection under the Convention Against

Torture. The government asks that we summarily dismiss the petition for review as untimely. It

argues that Oxlaj-Perez filed the petition after the 30-day limitations period in 8 U.S.C.

§ 1252(b)(1), and that the statutory provision is not subject to equitable tolling. We hold that the

No. 25-3337 Oxlaj-Perez v. Blanche Page 2

§ 1252(b)(1) deadline is subject to equitable tolling. But because Oxlaj-Perez is not entitled to

tolling on this record, we dismiss the petition as untimely.

BACKGROUND

Jorge Oxlaj-Perez is an indigenous Mayan Quiche man and citizen of Guatemala. In

December 2015, he entered the United States as an unaccompanied minor without admission or

inspection, and he was placed in removal proceedings. Oxlaj-Perez conceded removability and

then applied for asylum, withholding of removal, and protection under the Convention Against

Torture. At a removal hearing in February 2022, Oxlaj-Perez testified about the alleged

persecution he suffered because of his status as an Indigenous Quiche Mayan. The IJ determined

that Oxlaj-Perez was credible but concluded that he failed to meet the legal standards for his

claims of relief. The IJ then ordered that Oxlaj-Perez be removed to Guatemala. Oxlaj-Perez

timely appealed to the Board of Immigration Appeals, which affirmed the removal order on

February 10, 2025.

Oxlaj-Perez petitioned for our review on April 29, 2025.

ANALYSIS

Under 8 U.S.C. § 1252(b)(1), a “petition for review must be filed not later than 30 days

after the date of the final order of removal.” Oxlaj-Perez’s petition for review was filed 79 days

after the Board’s final order of removal, so it violated the 30-day statute of limitations.

Therefore, the government asks that we summarily deny Oxlaj-Perez’s petition for review as

untimely. Oxlaj-Perez, however, argues that he is entitled to equitable tolling, which would

pause the running of the statute of limitations if he had diligently pursued his rights but some

extraordinary circumstance prevented him from bringing a timely action. See Arellano v.

McDonough, 598 U.S. 1, 6 (2023) (citing Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)).

The government contends that § 1252(b)(1) is not subject to equitable tolling.

We begin with the antecedent question of whether § 1252(b)(1) is subject to equitable

tolling, and because we answer it in the affirmative, we then evaluate whether Oxlaj-Perez is

entitled to equitable tolling.

No. 25-3337 Oxlaj-Perez v. Blanche Page 3

I. Whether § 1252(b)(1) is Subject to Equitable Tolling

We previously interpreted § 1252(b)(1) as a jurisdictional deadline and therefore held that

it was not subject to equitable tolling. But the Supreme Court’s recent decision in Riley v. Bondi

held that the statutory deadline is not jurisdictional, 606 U.S. 259, 277 (2025), so it requires us to

revisit whether equitable tolling applies. To answer that question, we apply the standard

principles for interpreting statutory limitations periods. See Enbridge Energy, LP v. Nessel ex rel.

Mich., 608 U.S. ---, 2026 WL 1083312, at *5–6 (2026).

A. Recent Developments

We begin our analysis by explaining how Riley v. Bondi changed our law in this area.

Prior to Riley, we held that § 1252(b)(1)’s 30-day deadline was “mandatory and jurisdictional,”

Prekaj v. INS, 384 F.3d 265, 267 (6th Cir. 2004) (citation omitted), and that equitable tolling was

unavailable because federal courts have “no authority to create equitable exceptions to

jurisdictional requirements,” Bowles v. Russell, 551 U.S. 205, 214 (2007). But in Riley, the

Supreme Court explicitly rejected our jurisdictional interpretation. 606 U.S. at 277. The Court

clarified that the § 1252(b)(1) deadline is a “claims-processing rule” rather than a jurisdictional

one. Id. at 275. Therefore, the statutory deadline does not limit our jurisdiction but rather

“regulate[s] the timing of [requests] brought before the court.” Dolan v. United States, 560 U.S.

605, 610 (2010).

Because we previously deemed the statutory deadline jurisdictional, we always

considered it a “mandatory” deadline that we had no power to equitably toll. See Prekaj, 384

F.3d at 267. It is therefore unsurprising that our cases describing the deadline as “mandatory”

did not determine whether tolling would be appropriate if the deadline were not jurisdictional.

See, e.g., Perez-Aguilar v. Garland, No. 21-3757, 2022 WL 796109, at *2 (6th Cir. Mar. 16,

2022). And because we never conducted that analysis, we do not assume post-Riley that

§ 1252(b)(1) is a “mandatory” claims-processing rule in the sense that is it is “not susceptible” to

equitable tolling. See Nutraceutical Corp. v. Lambert, 586 U.S. 188, 192 (2019).

We recognize that some post-Riley decisions have continued to describe § 1252(b)(1)’s

30-day deadline as a “mandatory” one not subject to tolling. Unpublished decisions of our court

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and others have applied the “mandatory” label based on citations to Riley, without ever

examining whether the statute, when analyzed as a claims-processing rule, would permit tolling.

See, e.g., Aleman Garcia v. Bondi, No. 25-3666, 2025 LX 458035, at *5 (6th Cir. Oct. 3, 2025)

(order); Marroquin-Zanas v. Bondi, No. 22-1122, 2025 WL 2694111, at *1 (4th Cir. Sep. 23,

2025) (per curiam); Fuentes Aguilar De Perez v. Bondi, No. 24-4605, 2025 WL 3657596, at *2

(9th Cir. Dec. 17, 2025). The Fifth Circuit similarly viewed Riley as suggesting an answer to the

tolling question. Kun Liao v. Bondi, 162 F.4th 519, 524 (5th Cir. 2025). This confusion in our

and other courts is understandable, given that Riley queries at the outset whether the deadline is

“simply a mandatory claim-processing rule” or a “jurisdictional requirement.” 606 U.S. at 263.

But Riley then turns to an analysis of whether the deadline is jurisdictional or a “claims-

processing rule,” id. at 275, and concludes that “the better argument” is that § 1252(b)(1) is a

“quintessential claim-processing rule,” id. at 273–74 (citation modified)—without the mandatory

label. Therefore, we do not take the reference to a “mandatory claim-processing rule” in Riley to

resolve the tolling question.

Instead, as the government concedes, the Riley Court left open the question of whether

equitable tolling applies to § 1252(b)(1) because the government “chose[] not to seek dismissal

of Riley’s case” as untimely. Id. at 263; see also id. at 302–03 (Sotomayor, J., dissenting)

(“[T]he courts of appeals should consider applying standard principles of equitable tolling” now

that § 1252(b)(1)’s “deadline is not jurisdictional.”). We turn to that question now, following the

Supreme Court’s directions on how to determine whether the statutory deadline is subject to

equitable tolling.

B. Interpreting § 1252(b)(1)

Section 1252(b)(1) is a nonjurisdictional statute of limitations, so our analysis begins

with the “rebuttable presumption” that the deadline is subject to equitable tolling. Holland v.

Florida, 560 U.S. 631, 645–46 (2010) (quoting Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 95–

96 (1990)). The Supreme Court has explained that “Congress legislate[s] against a background

of common-law adjudicatory principles,” including the principle of “[e]quitable tolling, a long-

established feature of American jurisprudence.” Lozano, 572 U.S. at 10 (first alteration in

original) (internal quotation omitted). Because “Congress must be presumed to draft limitations

No. 25-3337 Oxlaj-Perez v. Blanche Page 5

periods in light of this background principle,” Young v. United States, 535 U.S. 43, 49–50

(2002), the Court has held that equitable tolling is “likely to be a realistic assessment of

legislative intent.” Irwin, 498 U.S. at 95. “It is hornbook law that limitations periods are

customarily subject to equitable tolling,” Young, 535 U.S. at 49 (internal quotation omitted), so

courts do not “understand Congress to alter that backdrop lightly,” Boechler, P.C. v.

Commissioner, 596 U.S. 199, 209 (2022). Indeed, “most” filing deadlines are subject to

equitable tolling, id. at 211, and “the simple fact that a deadline is phrased in an unqualified

manner does not necessarily establish that tolling is unavailable,” Nutraceutical, 586 U.S. at 193.

Instead, we look to see if there are “good reasons” to conclude that tolling should not be

available. Enbridge, 608 U.S. at ---, 2026 WL 1083312, at *8. The presumption is rebutted only

“if equitable tolling is inconsistent with the statutory scheme.” Arellano, 598 U.S. at 6–7.

Therefore, we begin with the presumption that § 1252(b)(1) is subject to equitable tolling and

analyze the statute’s “text, structure, and context” to determine whether it rebuts the

presumption. Enbridge, 608 U.S. at ---, 2026 WL 1083312, at *8.

First, we consider the text of § 1252(b)(1). The statute provides that the “petition for

review must be filed not later than 30 days after the date of the final order of removal.” 8 U.S.C.

§ 1252(b)(1). On its face, § 1252(b)(1) is a straightforward limitations period; it neither

explicitly permits nor prohibits equitable tolling. Given the presumption that Congress intends

for tolling, the fact that the statute “does not expressly prohibit equitable tolling” is critical.

Boechler, 596 U.S. at 209. Though it says the petition “must be filed” within 30 days, this

“mandatory language is not sufficient, on its own, to rebut the presumption of equitable tolling.”

Enbridge, 608 U.S. at ---, 2026 WL 1083312, at *6 (citing United States v. Kwai Fun Wong, 575

U.S. 402, 410–11, 420 (2015)). The text, to be sure, is “consistent with treating its deadline as

mandatory,” but the Supreme Court has recognized that statutes of limitation written in

unqualified terms may still be subject to equitable tolling. Id.; see also Kwai Fun Wong, 575

U.S. at 408 n.2, 410–12; Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 541 n.2, 559 (1974).

And the statutory “deadline is not written in ‘emphatic form’ or with ‘detailed’ and ‘technical’

language, nor is it reiterated multiple times.” Boechler, 596 U.S. at 210. Therefore, the plain

language of the statute does not displace the presumption of tolling.

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The language of § 1252(b)(1) mirrors the text of other statutes to which the Supreme

Court has held equitable tolling applies. In Boechler, for example, the Court held that a statutory

requirement that a “person may, within 30 days of a determination under this section, petition the

Tax Court for review of such determination” did not rebut the presumption of equitable tolling.

Id. at 204 (quoting 26 U.S.C. § 6330(d)(1)). In reaching that conclusion, the Court pointed to the

same elements of the statutory text that are present in § 1252(b)(1). Id. at 209. Specifically, the

Court focused on the fact that the statutory text did not “expressly prohibit” tolling, and that it

was a “short, 30-day time limit” that was “directed” at the petitioner, “not the court.” Id. So too

here, the text does not “expressly prohibit” tolling, it provides a “short, 30-day time limit,” and it

is “directed” at the petitioner, “not the court.”

Likewise, in Irwin, the Supreme Court held that a similar filing deadline in Title VII was

subject to equitable tolling. The statute provided that an individual seeking review of an EEOC

action “may file” a lawsuit “[w]ithin thirty days of receipt of notice of final action.” 498 U.S. at

94 (quoting 42 U.S.C. § 2000e–16(c)). The Court later explained that Irwin involved a

“statutory time limit with the same characteristics” as the one in Boechler—an unqualified

limitations period of 30 days that is directed at the employee petitioner, rather than the court.

Boechler, 596 U.S. at 209.

The Supreme Court has applied equitable tolling even when the statutory provision

contained more “strict [and] mandatory” language than here. Enbridge, 608 U.S. at ---, 2026

WL 1083312, at *6. In Kwai Fun Wong, for example, the Court held that a provision of the

Federal Tort Claims Act was subject to equitable tolling even though the text provided that “a

tort claim against the United States ‘shall be forever barred’” unless “brought to federal court

‘within six months’ after the agency acts on the claim.” 575 U.S. at 405 (quoting 28 U.S.C.

§ 2401(b)) (emphasis added). Although that statutory language was stringent, the Court held that

“nothing about § 2401(b)’s core language is special” and that it did “not preclude tolling.” Id. at

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420. Similarly, nothing in § 1252(b)(1)’s text “is special,” and the language instead mirrors that

of statutes the Court has held are subject to equitable tolling.1

Section 1252(b)(1)’s structure also lacks any of the traditional characteristics that the

Supreme Court has held rebut the presumption of tolling. Just last week, in Enbridge Energy, LP

v. Nessel ex rel. Michigan, the Supreme Court held that the “explicit listing of exceptions” to the

deadline to remove a case to federal court was the “decisive” consideration in determining that

the statute could not be equitably tolled. 608 U.S. at ---, 2026 WL 1083312, at *6 (citation

omitted). There, “[m]ore important” than the text was the “structure,” because Congress enacted

a “highly detailed scheme” that already provided “equitable, case-specific” exceptions to the

deadline within the removal statute and in external provisions. Id. at ---, 2026 WL 1083312, at

*6–7. As Enbridge recognized, the Court has “repeatedly held” that when Congress lists

exceptions to a deadline in a detailed manner, it “strongly indicates” that Congress did not intend

for additional “open-ended” equitable tolling. Id. at ---, 2026 WL 1083312, at *6 (citation

omitted).

Several other cases demonstrate this principle. In United States v. Brockamp, the Court

held that the statutory deadline for filing administrative claims for tax refunds was not

susceptible to equitable tolling. 519 U.S. 347, 350 (1997). The Court reasoned that the refund

statute’s “detail, its technical language, the iteration of the limitations in both procedural and

substantive forms, and the explicit listing of exceptions” demonstrated a congressional intent to

1We note, too, that whether Congress uses mandatory language in a statute of limitations tends to follow

from whether the subject of the limitations provision is the person filing or the filing itself. When Congress frames

the provision around the person filing, it typically uses permissive language. See, e.g., Boechler, 596 U.S. at 204

(“[A] person may, within 30 days . . . petition . . . .” (quoting 26 U.S.C. § 6330(d)(1))); Irwin, 498 U.S. at 94

(“Within thirty days of receipt of notice of final action . . . an employee or applicant . . . may file a civil action . . . .”

(quoting 42 U.S.C. § 2000e-16(c) (1990))); Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154 (2013) (“[A]

provider of services ‘may obtain a hearing’ . . . if ‘such provider files a request for a hearing within 180 days . . . .’”

(quoting 42 U.S.C. § 1395oo(a)(3))). By contrast, Congress tends to use more mandatory language when it

describes the deadline as a requirement of the filing itself. See, e.g., Enbridge, 608 U.S. at ---, 2026 WL 1083312, at

*3 (“[The] notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt” (quoting

28 U.S.C. § 1446(b)(1))); Arellano, 598 U.S. at 5 (“[T]he effective date of an award . . . shall not be earlier than the

date of receipt . . . .” (quoting 38 U.S.C. § 5110(a)(1))); Kwai Fun Wong, 575 U.S. at 410 (“[A] tort claim . . . shall

be forever barred . . . .” (quoting 28 U.S.C. § 2401(b))); Brockamp, 519 U.S. at 351 (“[A] ‘[c]laim for . . . refund . . .

shall be filed by the taxpayer within 3 years . . . .’” (quoting 26 U.S.C. § 6511(a))). That distinction makes sense

because a person is not required to file, but “may” do so within a given time period. Therefore, the use of

mandatory language may have more to do with the grammatical structure of the limitations period, rather than

demonstrating a meaningful difference in congressional intent.

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preclude equitable tolling. Id. at 352. Similarly, in Arellano, the statute contained “detailed

instructions” for calculating the effective date for a benefits award, including sixteen exceptions

to the default calculation rule that operated as both “time constraints” and “substantive

limitations” on benefit awards. 598 U.S. at 8. The benefits statute therefore mirrored Brockamp

in its detail, iteration of limitations in procedural and substantive forms, and explicit listing of

exceptions, and these features rebutted the presumption of equitable tolling. Id. at 9. For these

various statutes, “Congress specified the cases in which it wanted to authorize equitable tolling,”

so the Court held that their structures were “inconsistent” with the presumption of equitable

tolling. Enbridge, 608 U.S. at ---, 2026 WL 1083312, at *7–8.

By contrast, § 1252(b)(1) is an ordinary limitations statute that does not have any of the

structural features that the Supreme Court relied upon in Enbridge, Brockamp, and Arellano as

indications that Congress meant to preclude tolling. Unlike the statutes in those cases,

§ 1252(b)(1) “use[s] fairly simple language,” Brockamp, 519 U.S. at 350, and does not list any

exceptions to the deadline, equitable or otherwise. Therefore, the text and structure do not rebut

the equitable tolling presumption.

Next, we consider the provisions surrounding § 1252(b)(1) and the broader context of the

Immigration and Nationality Act. Section 1252(b), after establishing the 30-day filing deadline

at issue here, describes several other procedural rules, including the briefing schedule. See

8 U.S.C. § 1252(b)(1)–(3). In setting the parameters for briefing on the petition for review,

§ 1252(b)(3)(C) provides that the court may extend the briefing schedule “for good cause

shown,” but shall dismiss a late-filed brief “unless a manifest injustice would result.” We view

these provisions as consistent with recognizing that Congress, per usual, also expected that the

filing deadline in § 1252(b)(1) could be tolled for equitable reasons. As the Supreme Court

explained, we should not draw a “negative inference” against tolling a limitations period just

because there are express equitable provisions in other parts of the statute. Young, 535 U.S. at

52. Rather, the flexibility in the briefing schedule demonstrates that Congress viewed the statute

not as having unalterable rules, but as being susceptible to equitable considerations.

For instance, in allowing briefing extensions for “good cause,” Congress provided the courts

with “a broad, generally applicable power” to delay briefing. Enbridge, 608 U.S. at ---, 2026

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WL 1083312, at *7 (citation omitted). Likewise, by allowing courts to grant relief for “manifest

injustice” if a petitioner misses a briefing deadline, Congress preserved the possibility for relief

even if an individual was not diligently pursuing their rights. Congress accepted the possibility

of delay at the briefing stage—even for reasons that would not necessarily merit equitable

tolling—so it is hard to see why applying equitable tolling at the petition stage would be

inconsistent with the statutory scheme.

Looking beyond § 1252(b), the INA’s overall scheme provides even more support for

allowing equitable tolling. Like the broader regulatory scheme in Boechler, the immigration

system is one where “laymen, unassisted by trained lawyers, often initiate the process,” which

weighs in favor of equitable tolling. 596 U.S. at 209 (quoting Sebelius v. Auburn Reg’l Med.

Ctr., 568 U.S. 145, 160 (2013)). Accordingly, we have allowed equitable tolling for other

deadlines in the INA that similarly have unqualified language. For example, we have held that

equitable tolling applies to the 90-day deadline to file motions to reopen Board proceedings.

Sarkisov v. Bondi, 160 F.4th 696, 701 n.1 (6th Cir. 2025) (equitable tolling for 8 U.S.C.

§ 1229a(c)(7)(C)(i), which states “the motion to reopen shall be filed within 90 days”); Barry v.

Mukasey, 524 F.3d 721, 724 (6th Cir. 2008) (collecting cases). The Board has also applied

equitable tolling to late-filed motions to reopen, e.g., Matter of Khurram Jehangir Khan, No.

AXX XX2 144, 2007 WL 2074553, at *1–2 (BIA June 15, 2007), and it recently held that

equitable tolling applies to late-filed notices of appeal to the Board, Matter of Morales-Morales,

28 I. & N. Dec. 714, 716–17 (BIA 2023) (equitable tolling for 8 C.F.R. § 1003.38(b)). The

recognition of equitable tolling at other stages in the removal process suggests that, despite the

interest in expeditious proceedings, equitable tolling is consistent with the overall statutory

scheme of the INA.

Moreover, that equitable tolling is available elsewhere in the INA is unsurprising given

the “nature of the subject matter” at issue. See Enbridge, 608 U.S. at ---, 2026 WL 1083312, at

*7 (citation omitted). Petitions for review of Board decisions often raise humanitarian claims.

For example, petitioners may seek relief against deportation because they would likely be

tortured in their home country, e.g., Kamar v. Sessions, 875 F.3d 811, 821 (6th Cir. 2017), or

because deportation would result in “exceptional and extremely unusual hardship” to the

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petitioner’s child, e.g., Wilkinson v. Garland, 601 U.S. 209, 211–12 (2024) (quoting 8 U.S.C.

§ 1229(b)(1)(D)). Equitable tolling makes sense in this context, where the claims at issue require

a case-by-case evaluation of “individualized equities” to determine whether relief should be

granted. See Arellano, 598 U.S. at 13–14 (citation omitted); see also Burnett v. N.Y. Cent. R.R.

Co., 380 U.S. 424, 434 (1965) (observing that “humanitarian purpose” may weigh in favor of

tolling).

Therefore, because § 1252(b)(1)’s text, structure, and context are not inconsistent with

equitable tolling, we hold that the 30-day deadline is subject to equitable tolling.

C. Government’s Counterarguments

As an initial matter, we reject the government’s argument that Oxlaj-Perez waived any

challenge to the timeliness of his petition for review by failing to raise it in his opening brief. As

a claims-processing rule, the burden is on the government to raise timeliness under § 1252(b)(1);

if it fails to, we consider the limitations defense either waived or forfeited. Riley, 606 U.S. at

263, 272, 277; see also Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023). Thus, Oxlaj-Perez

was not required to make an argument for equitable tolling of the statutory deadline until the

government asserted that his petition for review was untimely. The government’s attempt to

fault Oxlaj-Perez for not raising tolling in his opening brief is not well taken. Since Oxlaj-Perez

raised his tolling arguments in a subsequent brief, he did not waive or forfeit them.

The government next makes several arguments for why § 1252(b)(1)’s text, structure, and

context rebut the presumption of equitable tolling, but none of its arguments are persuasive.

As to text, the government contends that the “unqualified language” of the statute

“‘express[es] a clear intent to compel rigorous enforcement.’” Resp. Br. at 18 (quoting

Nutraceutical, 586 U.S. at 193). We recognize that the Fifth Circuit too relied on § 1252(b)(1)’s

unqualified language in concluding that it could not toll the 30-day deadline. Kun Liao, 162

F.4th at 524. However, as we explained, the Supreme Court is clear that “the simple fact that a

deadline is phrased in an unqualified manner does not necessarily establish that tolling is

unavailable.” Nutraceutical, 586 U.S at 193; see also Enbridge, 608 U.S. at ---, 2026 WL

1083312, at *6. Given the presumption for tolling, we must find good reasons to believe that

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Congress intended to preclude tolling, not just unqualified language setting forth a deadline.

Indeed, neither the government nor Fifth Circuit identifies any case (and we are aware of none)

where statutory language like we have here was dispositive for rebutting the presumption.

Instead, as detailed above, the Supreme Court has repeatedly found that equitable tolling does

apply to statutory deadlines with similar or even more stringent language. See Kwai Fun Wong,

575 U.S. at 420; Am. Pipe, 414 U.S. at 559. So, the unqualified language of § 1252(b)(1) is

insufficient to rebut the presumption of equitable tolling.

As to context, the government turns not to provisions in the INA, but to the Federal Rules

of Appellate Procedure, to say that § 1252(b)(1) is not subject to equitable tolling. The

government relies on Nutraceutical which held that a class-action deadline in Federal Rule of

Civil Procedure 23(f) was not subject to equitable tolling because other provisions of the Federal

Rules “single[d] out Rule 23(f) for inflexible treatment” by prohibiting courts from granting

extensions to the deadline for interlocutory review. 586 U.S. at 193. Because the Rules

themselves provided that the “type of filing at issue [in Rule 23(f)] may not be extended,” the

Court held that the Rules “express[ed] a clear intent to compel rigorous enforcement of Rule

23(f)’s deadline.” Id. Here, the government points to Federal Rule of Appellate Procedure

26(b)(2), which states that an appellate court may not extend the time to file a petition for review

of an administrative agency order, such as the Board decision at issue in this case, “unless

specifically authorized by law.” Fed. R. App. P. 26(b)(2). The government contends that this

provision mandates inflexible treatment for all deadlines to petition for review of an

administrative agency order, including orders from the Board under § 1252(b)(1).

But Nutraceutical’s analysis of Rule 23(f) is inapposite here. There was no presumption

of tolling in Nutraceutical because the case involved only a Federal Rule of Civil Procedure.

But where “the relevant filing deadline is provided by a statute and not a Federal Rule,” we look

to that statute to determine tolling. Nelson v. SEC, 138 F.4th 514, 523 (D.C. Cir. 2025). And

there is a presumption of tolling for § 1252(b)(1). This presumption reflects the “legislative

intent” to allow for tolling, Irwin, 498 U.S. at 95, so it takes more evidence to rebut the

presumption than to hold that a Rule’s deadline is mandatory where no presumption exists.

Whereas the Supreme Court in Nutraceutical was asking “whether the text of the rule leaves

No. 25-3337 Oxlaj-Perez v. Blanche Page 12

room for [] flexibility” of equitable tolling given the context of the Rules as a whole, 586 U.S. at

192, the question here is whether equitable tolling is inconsistent with the statutory text and the

INA’s statutory scheme such that it rebuts the presumption of tolling, Arellano, 598 U.S. at 6–7.

And, as the D.C. Circuit noted, “the Supreme Court has yet to extend [Nutraceutical’s] constraint

on the Federal Rules to statutory deadlines.” Nelson, 138 F.4th at 523. Therefore, we decline to

hold that the language of Federal Rule of Appellate Procedure 26(b)(2) can overcome the

presumption of equitable tolling for a statutory deadline.

The government makes an additional contextual argument based on § 1252(b)(1)’s

location within the INA’s provision for judicial review and its linkage to “the adjacent

subsection granting courts of appeals exclusive authority to review immigration petitions.”

Resp. Br. at 18. The government argues that the provision’s placement “supports a description

of the time limit as a mandatory ‘requirement[] for appellate jurisdiction.’” Id. (alteration in

original) (quoting Dessouki v. Att’y Gen. of U.S., 915 F.3d 964, 966 (3d Cir. 2019)). However,

the Supreme Court in Riley explicitly rejected the characterization of § 1252(b)(1) as a

jurisdictional rule. 606 U.S. at 277. So, regardless of statutory placement, § 1252(b)(1) is not a

mandatory requirement for appellate jurisdiction.

Insofar as the government contends that the deadline’s placement otherwise matters, that

argument is unpersuasive. We stated in Enbridge that a statutory provision’s “placement near

and interrelation with the jurisdictional statutes suggests stricter enforcement,” but in affirming

our decision, the Supreme Court never mentioned this factor. Nessel ex rel. Mich. v. Enbridge

Energy, LP, 104 F.4th 958, 970 (6th Cir. 2024), aff’d, 608 U.S. ---, 2026 WL 1083312 (2026).

And we have never held that placement is enough to rebut the presumption of tolling. After all,

the Supreme Court has found that equitable tolling applies to a statutory deadline where “the

jurisdictional grant and filing deadline appear in the same provision, even the same sentence.”

Boechler, 596 U.S. at 206. Here, the Supreme Court noted that “[n]either the particular

subsection nor the broader section in which [§ 1252(b)(1)] is placed concerns jurisdiction,”

Riley, 606 U.S. at 274, so the proximity argument is even weaker. The government provides no

explanation for why it matters that the deadline is placed “within the INA’s ‘Judicial review’

provision and expressly linked to the adjacent subsection granting courts of appeals exclusive

No. 25-3337 Oxlaj-Perez v. Blanche Page 13

authority to review immigration petitions,” other than the jurisdictional argument Riley rejected.

Resp. Br. at 18. It is logical for a statute of limitations provision to be in the judicial review

provision of the statute, and the government does not explain why this logical placement is

inconsistent with tolling. We are therefore unpersuaded by the argument that § 1252(b)(1)’s

context rebuts the presumption of tolling.

Turning to the statutory scheme more broadly, the government contends that the nature of

administrative removal—including the concern for finality and expediency—is inconsistent with

case-specific exceptions like equitable tolling. As explained above, the humanitarian nature of

petitions for review instead militates in favor of tolling. But no matter how it cuts, “the nature of

the subject matter” factors in only to “garnish an already solid argument.” Enbridge, 608 U.S.

at ---, 2026 WL 1083312, at *7 (citation omitted). We note that the Supreme Court has never

used the “nature of the subject matter” alone to rebut the presumption of equitable tolling when

the text and structure of the statute do not point against the presumption. Cf. Arellano, 598 U.S.

at 14 (“[T]he nature of the subject matter cannot overcome text and structure that foreclose

equitable tolling.”); Brockamp, 519 U.S. at 352. Since the government fails to support its

argument that the nature of administrative removal can itself rebut the presumption of equitable

tolling, we decline to hold that the asserted public interest in the finality or speed of immigration

proceedings is enough to preclude tolling here.

As to the government’s concerns, any new administrability issues in the immigration

system were created by Riley and will not be significantly increased by the availability of

equitable tolling. Viewing § 1252(b)(1) as a jurisdictional rule, our court was required to dismiss

sua sponte any untimely petition for review of an order from the Board. In holding that

§ 1252(b)(1) is a claims-processing rule (and not jurisdictional), the Supreme Court required the

government to invoke the petition’s untimeliness, otherwise it would waive or forfeit the

argument. See Riley, 606 U.S. at 277; Santos-Zacaria, 598 U.S. at 423. Thus, irrespective of our

tolling decision, the government must move to dismiss an untimely petition for review or assert

that the petition is untimely in its merits briefing (as it did here), and we already allow and

consider any response by the petitioner. See Fed. R. App. P. 27(a)(3)(A); Fed. R. App. P. 28(c).

An appellate court’s consideration of a petitioner’s equitable tolling arguments in response to the

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government’s invocation of § 1252(b)(1)’s deadline will not significantly increase the

administrative burden, especially since “federal courts sparingly bestow equitable tolling.”

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000).

We do not expect many petitioners to meet the high burden of showing entitlement to equitable

tolling.

To the extent the government contends that additional untimely petitions for review will

stall the removal process, we note that unless the court grants a stay of removal, the statutory

scheme allows the government to remove a petitioner after an order of removal without waiting

to see whether the petitioner will file a late petition for review. See Johnson v. Guzman Chavez,

594 U.S. 523, 534–35 (2021). Therefore, unlike the “possibility of a late removal” in Enbridge,

the possibility of a belated petition does not “hang over a case” or “generat[e] uncertainty.”

Enbridge, 608 U.S. at ---, 2026 WL 1083312, at *7. Further, the concerns with delay here are

not meaningfully different than those with filing deadlines for motions to reopen or appeals to

the Board, which as described above are subject to equitable tolling. See supra p. 10. So we are

unpersuaded that recognizing the availability of equitable tolling will create significant

administrability issues that hamper removals.

The government’s final schematic argument is that the legislative history of § 1252(b)(1)

rebuts the presumption of tolling. The government notes that Congress shortened the time to

seek judicial review in the INA compared to the predecessor statute, Stone v. INS, 514 U.S. 386,

400 (1995), and changed the statutory language from “may be filed” to “must be filed,” 8 U.S.C.

§ 1105a(a)(1) (1994); now 8 U.S.C. § 1252(b)(1). See Resp. Br. at 20. But the previous version

said that the petition “may be filed not later than” the deadline, 8 U.S.C. § 1105a(a)(1) (1994)

(emphasis added), and we do not read that phrasing to be any more permissive than “must.”

Furthermore, as already discussed, these legislative changes do not rebut the presumption of

tolling because the Supreme Court has applied equitable tolling to similar 30-day filing

deadlines, Boechler, 596 U.S. at 209; Irwin, 498 U.S. at 94, and to statutory deadlines with

unqualified language, Kwai Fun Wong, 575 U.S. at 420.

Even so, the government contends that these changes bolster the conclusion that the

legislative intent was to preclude equitable tolling. Specifically, the government argues that

No. 25-3337 Oxlaj-Perez v. Blanche Page 15

these changes further Congress’s “fundamental purpose in adopting the original provisions,”

which was “to expedite both the initiation and the completion of the judicial review process.”

Resp. Br. at 20–21 (internal quotations omitted). We agree that the shortened filing period

demonstrates Congress’s intent to further expedite judicial review of removal proceedings, but

we disagree that it demonstrates that Congress sought to eliminate equitable tolling from that

review process. Congress did not make the deadline jurisdictional nor did it expressly eliminate

equitable exceptions, so the presumption of equitable tolling persists even after the legislative

changes. Recognizing equitable tolling does not undermine the congressional intent because

removal proceedings will still be expedited by the shortened filing period as compared to the

previous version of the statute. See Guerrero-Lasprilla v. Barr, 589 U.S. 221, 235–36 (2020).

Therefore, each of the government’s attempts to rebut the statutory presumption of

equitable tolling fails, and we hold that § 1252(b)(1) can be equitably tolled.

II. Whether Oxlaj-Perez is Entitled to Equitable Tolling

Having determined that the filing deadline in § 1252(b)(1) can be equitably tolled, we

turn to the question of whether Oxlaj-Perez is entitled to equitable tolling. Equitable tolling is

available if he shows “‘(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 560 U.S. at

649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). We consider five factors to

determine if Oxlaj-Perez has been diligent: (1) his “lack of notice of the filing requirement”;

(2) his “lack of constructive knowledge of the filing requirement”; (3) his “diligence in pursuing

[his] rights”; (4) the “absence of prejudice” to the government; and (5) his “reasonableness in

remaining ignorant of the legal requirement for filing his claim.” Jin Yin Zhou v. Bondi, 134

F.4th 946, 949 (6th Cir. 2025) (quoting Mezo v. Holder, 615 F.3d 616, 620 (6th Cir. 2010)).

Applying these factors, we hold that Oxlaj-Perez has not established that he is entitled to

equitable tolling. First, Oxlaj-Perez had actual notice of the filing requirement because it was

included with the Board’s decision. A.R. 2 (“[A]ny petition for review of the attached decision

must be filed with and received by the appropriate court of appeals within 30 days of the date of

the decision.”). Second, even if Oxlaj-Perez lacked actual notice, he had constructive knowledge

No. 25-3337 Oxlaj-Perez v. Blanche Page 16

of the filing requirement because the “existence of a publicly available statute setting forth a

filing deadline at the very least establishes constructive knowledge.” Wershe v. City of Detroit,

112 F.4th 357, 366 (6th Cir. 2024). Third, Oxlaj-Perez contends that “his limited education,

language barriers, and financial constraints prevented him from obtaining timely legal advice”

and that once he secured representation, he promptly appealed the Board’s decision. Supp. Br. at

3. But Oxlaj-Perez presents no details about his legal consultations, so he has not established

that he acted diligently during the 79 days before he filed his petition for review. We also

recognize that educational, language, and financial barriers are not “exceptional” in this context;

granting equitable tolling each time a petitioner relies on general assertions about these barriers

would let a narrow exception to the 30-day deadline swallow the rule. Fourth, the government

may be prejudiced by an untimely filing to the extent it extends removal proceedings and

requires the government to defend a Board decision on the merits. Though we note that in this

case, because the government did not raise timeliness until the briefing stage, the government has

already briefed the merits. Fifth, it was not reasonable for Oxlaj-Perez to remain ignorant of the

legal requirement for filing his claim when it was expressly stated in the letter sent with the

Board’s decision. Therefore, Oxlaj-Perez has not shown that he has been pursuing his rights

diligently, and he is not entitled to equitable tolling.

CONCLUSION

We dismiss Oxlaj-Perez’s petition for review as untimely.