Amicus Curiae Brief — Pierre Yassue Nashun Riley, Petitioner v. Pamela Bondi, Attorney General

Supreme Court briefJan 10, 2025

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No. 23-1270

IN THE

Supreme Court of the United States

PIERRE YASSUE NASHUN RILEY,

Petitioner,

MERRICK GARLAND, ATTORNEY GENERAL,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Fourth Circuit

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER & NATIONAL

IMMIGRATION LITIGATION ALLIANCE AS

AMICI CURIAE IN SUPPORT OF PETITIONER

TRINA REALMUTO

KRISTIN MACLEOD-BALL

NATIONAL IMMIGRATION

LITIGATION ALLIANCE

10 Griggs Terrace

Brookline, MA 02446

(617) 819-4447

ELIZABETH WYDRA

BRIANNE J. GOROD*

SMITA GHOSH

ANA BUILES

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th St. NW, Ste. 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

January 10, 2025

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICI CURIAE ..........................

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

ARGUMENT .........................................................

Under this Court’s Precedents,

§ 1252(b)(1) Is a Claim-Processing Rule ...

II.

Section 1252(b)(1)’s 30-day Deadline Is

Subject to Equitable Tolling ......................

CONCLUSION .....................................................

TABLE OF AUTHORITIES

Cases

Page(s)

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) .......................... 3, 4, 9, 10

Arellano v. McDonough,

598 U.S. 1 (2023) ..............................

20, 21

Bailey v. Glover,

88 U.S. 342 (1875) .................................... 16, 17

Boechler, P.C. v. Comm’r,

596 U.S. 199 (2022) ... 5, 8, 9, 11, 17, 20, 22, 23

Bowen v. City of New York,

476 U.S. 467 (1986) ....................................

Braun v. Sauerwein,

77 U.S. 218 (1869) ......................................

Bridges v. Wixon,

326 U.S. 135 (1945) ....................................

Burnett v. N.Y. Cent. R.R. Co.,

380 U.S. 424 (1965) ................................

Clementson v. Williams,

12 U.S. 72 (1814) ........................................

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) .................................... 7, 8

First Mass. Tpk. Corp. v. Field,

3 Mass. 201 (1807) .....................................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Fort Bend County v. Davis,

587 U.S. 541 (2019) .................................. 6, 7, 9

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) ....................................

Hamer v. Neighborhood Hous. Servs. of

Chi.,

583 U.S. 17 (2017) ...................................... 5, 9

Hanger v. Abbott,

73 U.S. 532 (1867) ......................................

Harrow v. Dep’t of Def.,

601 U.S. 480 (2024) ...........................

9, 11, 23

Hazel-Atlas Glass Co. v.

Hartford-Empire Co.,

322 U.S. 238 (1944) ....................................

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) ....................... 3, 5, 7, 9, 11

Holland v. Florida,

560 U.S. 631 (2010) ....................... 6, 17, 21, 24

Holmberg v. Armbrecht,

327 U.S. 392 (1945) .................................. 17, 18

Honda v. Clark,

386 U.S. 484 (1967) ...................................

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ...................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Irwin v. Dep’t of Veteran Affs.,

498 U.S. 89 (1990) ......................... 5, 17, 18, 23

Johnson v. Diversey,

82 Ill. 446 (1879) ........................................

Kontrick v. Ryan,

540 U.S. 443 (2004) ....................................

Martinez v. Garland,

86 F.4th 561 (4th Cir. 2023) .................. 10, 11

McQuiggin v. Perkins,

569 U.S. 383 (2013) ....................................

Moncrieffe v. Holder,

569 U.S. 184 (2013) ....................................

Nutraceutical Corp. v. Lambert,

586 U.S. 188 (2019) ...............................

22, 23

Padilla v. Kentucky,

559 U.S. 356 (2010) ....................................

Rotella v. Wood,

528 U.S. 549 (2000) ...................................

Sanchez-Llamas v. Oregon,

548 U.S. 331 (2006) ...................................

Santos-Zacaria v. Garland,

598 U.S. 411 (2023) ...............

3-5, 8-12, 24

Sebelius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145 (2013) ................................

9, 20

TABLE OF AUTHORITIES – cont’d

Page(s)

Sherwood v. Sutton,

21 F. Cas. 1303 (C.C.D.N.H.

1828) ...........................................

13, 15, 16, 18

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) .....................................

Stone v. INS,

514 U.S. 386 (1995) ............................

4, 10, 22

United States v. Kwai Fun Wong,

575 U.S. 402 (2015) ............................

7, 9, 17

Walden v. Heirs of Gratz,

14 U.S. 292 (1816) ......................................

Wall v. Robson,

11 S.C.L. 498 (S.C. Const. App. 1820) ...... 13, 15

Wilkins v. United States,

598 U.S. 152 (2023) ................................... 3, 12

Young v. United States,

535 U.S. 43 (2002) ............................. 17, 21, 24

Statutes and Legislative Material

Bankruptcy Act of Mar. 2, 1867, 14 Stat.

518 ..............................................................

H.R. Rep. No. 104-828 (1996) .......................

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No.

104-208, 110 Stat. 3009-608 .....................

TABLE OF AUTHORITIES – cont’d

Page(s)

8 U.S.C. § 1252(a)(2)(A) ............................

4, 11

8 U.S.C. § 1252(a)(2)(B) ............................

4, 11

8 U.S.C. § 1252(a)(2)(C) ............................

4, 11

8 U.S.C. § 1252(b)(3)(C) ............................ 21, 22

8 U.S.C. § 1252(b)(9) ................................... 4, 11

8 U.S.C. § 1252(g) ........................................ 4, 11

42 U.S.C. § 2000e-16(c) (1988) ......................

Books, Articles, and Other Authorities

J.K. Agnell, A Treatise on the Limitations

of Actions at Law (2d ed. 1846).................

4 John Bouvier, Institutes of American Law

(1851) ..........................................................

Robert A. Katzmann, Study Group on Immigrant Representation: The First Decade, 87 Fordham L. Rev. 485 (2018) .........

1 Joseph Story, Commentaries on Equity

Jurisprudence (1836) .................................

2 Joseph Story, Commentaries on Equity

Jurisprudence (1843) ....................... 14, 17, 24

James John Wilkinson, A Treatise on the

Limitation of Action (1829) ...................

12, 13

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

1 H.G. Wood, Statutes of Limitations (2d

ed. 1893) .................................................

12-14

INTEREST OF AMICI CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and to preserve the

rights and freedoms it guarantees. CAC also has a

strong interest in meaningful access to courts, in accordance with constitutional text and history, and thus

has an interest in ensuring that statutory prerequisites to filing suit are treated as jurisdictional and

mandatory only when Congress clearly requires that

result.

The National Immigration Litigation Alliance

(NILA) is a not-for-profit membership organization

that seeks to realize systemic change in the immigrant

rights arena through litigation—by engaging in impact litigation to eliminate systemic obstacles that

noncitizens routinely face and by building the capacity

of immigration attorneys to litigate in federal courts

through its strategic assistance and co-counseling programs. NILA and its members have a direct interest

in ensuring that noncitizens are not unduly prevented

from obtaining judicial review of removal orders.

1 Under Rule 37.6 of the Rules of this Court, amici state that

no counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other

than amici or their counsel made a monetary contribution to its

preparation or submission.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioner Pierre Riley, who has lived in the

United States for almost thirty years and has seven

children here, seeks to defer his removal from the

United States because he fears persecution and torture in his country of origin. Pet. 11-12. Because Riley

was previously convicted of an aggravated felony, the

Department of Homeland Security (DHS) issued a Final Administrative Removal Order against him in January 2021 under 8 U.S.C. § 1228(b). Id. at 11.

DHS subsequently referred Riley for an interview

with an asylum officer due to Riley’s fear that he would

be tortured if returned to Jamaica. Although the asylum officer initially determined that Riley’s fear was

not reasonable, id. at 2a, an Immigration Judge (IJ)

reversed, id. at 3a. Riley then filed a Convention

Against Torture (CAT) claim for deferral of removal.

Id. at 12. After an evidentiary hearing, the IJ found

credible Riley’s testimony that a former police officer

with connections in the Jamaican government killed

two of Riley’s cousins and had threatened to murder

him if he ever returned to Jamaica. For that reason,

the IJ granted Riley CAT protection. Id.

The Board of Immigration Appeals (BIA) agreed

that Riley’s testimony was credible, but nevertheless

reversed and vacated the IJ’s decision for lack of corroboration in May 2022. Id. Riley promptly petitioned

for review of the BIA’s decision. Instead of addressing

the merits of his petition, the court below dismissed for

lack of jurisdiction. After holding that 8 U.S.C.

§ 1252(b)(1), which provides that a “petition for review

must be filed not later than 30 days after the date of

the final order of removal,” is “mandatory and jurisdictional,” id. at 4a, the court concluded that Riley had

not timely filed because, in its view, § 1252(b)(1)’s

deadline for filing a petition for review commenced in

January 2021 when DHS issued its Final Administrative Removal Order. Thus, according to the court below, it was irrelevant that Riley filed his petition for

review within 30 days of the BIA’s 2022 order vacating

the IJ’s grant of CAT protection—Riley’s deadline for

filing his petition of review expired well before the IJ

even adjudicated his CAT claim. Id. at 4a-5a.

The lower court’s treatment of § 1252(b)(1) as

mandatory and jurisdictional conflicts with the last

two decades of this Court’s precedents, as well as the

text and structure of § 1252(b)(1). This Court should

reverse.

I. This case, like many before it, “concerns the distinction between two sometimes confused or conflated

concepts: federal-court ‘subject-matter’ jurisdiction

over a controversy; and the essential ingredients of a

federal claim for relief.” Arbaugh v. Y&H Corp., 546

U.S. 500, 503 (2006). While “subject-matter jurisdiction” places “limits on the classes of cases a court may

entertain,” Wilkins v. United States, 598 U.S. 152, 157

(2023) (internal quotations omitted), claim-processing

rules merely “seek to promote the orderly progress of

litigation by requiring that the parties take certain

procedural steps at certain specified times,” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435

(2011).

To ensure courts “attend to the distinction between” jurisdictional bars and claim-processing rules,

this Court has sought to “bring some discipline to the

use of th[e] term ‘jurisdictional.’” Santos-Zacaria v.

Garland, 598 U.S. 411, 421 (2023) (internal quotations

omitted). A provision is only jurisdictional if Congress

“clearly states” that it “shall count as jurisdictional.”

Arbaugh, 546 U.S. at 515. Indeed, just a year ago, this

Court reiterated in Santos-Zacaria v. Garland that

“jurisdiction . . . is a word of many, too many meanings, and courts have more than occasionally used it to

describe rules beyond those governing a court’s adjudicatory authority.” 598 U.S. at 421 (internal citation

omitted). To address this problem, this Court has instructed that “drive-by jurisdictional rulings . . .

should be accorded no precedential effect.” Arbaugh,

546 U.S. at 511 (internal citation omitted).

While

this

Court

previously

classified

§ 1252(b)(1)’s 30-day deadline as jurisdictional, see

Stone v. INS, 514 U.S. 386, 406 (1995), both Petitioner

and the government agree that this holding is untenable after Santos-Zacaria. In Santos-Zacaria, this

Court held that § 1252(d)(1)’s exhaustion requirement

is a nonjurisdictional claim-processing rule. It did so

for two reasons: first, because exhaustion requirements are quintessential claim-processing rules and,

second, because § 1252(d)(1) lacks the clear “jurisdictional language” that Congress included in neighboring provisions, which state explicitly that “no court

shall have jurisdiction” to review certain matters. See

598 U.S. at 418, 419 n.5 (citing, for example, 8 U.S.C.

§ 1252(a)(2)(A), (a)(2)(B), (a)(2)(C), (b)(9), and (g)).

Those same reasons apply here. Time limits like the

one in § 1252(b)(1) are garden-variety claim-processing rules that stand in “linguistic contrast” to the

explicitly jurisdictional provisions discussed in Santos-Zacaria, see id. at 419. Santos-Zacaria also rejected attempts to rely on Stone v. INS, which had previously categorized a predecessor of § 1252(d)(1) as a

limit on subject-matter jurisdiction. See id. at 421

(noting that “Stone predates our cases . . . that ‘bring

some discipline to the use of th[e] term’ ‘jurisdictional’”

(quoting Henderson, 562 U.S. at 435)).

Because § 1252(b)(1) is nonjurisdictional, “it is

subject to waiver and forfeiture.” Id. at 423. Here, in

addition to conceding that Riley’s petition for review

was timely filed, Resp. Br. 24 n.7, the government has

also indicated it would waive any objection to the timeliness of Riley’s petition, BIO 16. This Court should

reverse.

II. This Court need not address whether

§ 1252(b)(1) is mandatory, and it should not address it

because doing so would raise the question whether

§ 1252(b)(1) is subject to equitable tolling. See Hamer

v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 20

n.3 (2017) (noting that the Court has “reserved

whether mandatory claim-processing rules may be

subject to equitable exceptions”). But if it does reach

the issue, this Court should conclude that equitable

tolling is available under § 1252(b)(1). The doctrine of

equitable tolling is “centuries old,” McQuiggin v. Perkins, 569 U.S. 383, 409 (2013) (Scalia, J., dissenting),

and has become a “traditional feature of American jurisprudence,” Boechler P.C. v. Comm’r, 596 U.S. 199,

208-09 (2022). Tolling permits courts to extend a deadline “because of an event or circumstance that deprives

the filer, through no fault of his own, of the full period

accorded by the statute.” McQuiggin, 569 U.S. at 409

(Scalia, J., dissenting). As this Court has recognized,

equitable tolling is presumptively available in the context of all “statutory time limits.” Irwin v. Dep’t of Veteran Affs., 498 U.S. 89, 95-96 (1990).

Consistent with this long history, § 1252(b)(1)’s

30-day time limit is subject to equitable tolling.

“[N]onjurisdictional limitations periods are presumptively subject to equitable tolling,” Boechler, 596 U.S.

at 208-09, and nothing in the text or structure of

§ 1252(b)(1) rebuts that presumption.

Section

1252(b)(1) simply states that a “petition for review”

must be filed “within thirty days after the date of the

final order of removal,” and other subsections of that

provision emphasize that courts should weigh the equities of rigidly applying this time limit to noncitizens

like Riley who fear removal to their country of origin.

In short, § 1252(b)(1) is a nonjurisdictional claimprocessing rule, and the government has both conceded that Riley’s petition was timely filed and indicated that it would waive any objection to the timeliness of his petition in any event. Thus, this Court need

decide no other issue to resolve this case and reverse.

If this Court nevertheless decides to address whether

§ 1252(b)(1) is subject to equitable tolling, it should be

sure to leave courts the discretion to consider the equities of applying § 1252(b)(1)’s time limit to deny judicial review to noncitizens who face torture and persecution in their country of origin. “Created to avert

the evils of archaic rigidity,” equitable tolling has existed since the Founding to “relieve hardships which,

from time to time, arise from a hard and fast adherence to more absolute rules.” Holland v. Florida, 560

U.S. 631, 650 (2010) (internal citation omitted). It

should be available here.

ARGUMENT

Under this Court’s Precedents, § 1252(b)(1) Is

a Claim-Processing Rule.

A. This Court has repeatedly “stressed the distinction between jurisdictional prescriptions and nonjurisdictional claim-processing rules.” Fort Bend County v.

Davis, 587 U.S. 541, 548 (2019). Subject-matter jurisdiction refers to “prescriptions delineating the classes

of cases a court may entertain,” id., and “the courts’

statutory or constitutional power to adjudicate the

case,” Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 89 (1998) (emphasis omitted). Claim-processing

rules are entirely different. They “seek to promote the

orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified

times.” Henderson, 562 U.S. at 435. Though these

rules are “important,” this Court has repeatedly stated

they “should not be given the jurisdictional brand.” Id.

Requiring Congress to state clearly that a particular prerequisite is jurisdictional makes sense given the

significant consequences that attach. See id. at 434

(calling a requirement jurisdictional “is not merely semantic but [a question] of considerable practical importance for judges and litigants”). Our justice system

“relies chiefly on the parties to raise significant issues

and present them to the courts in the appropriate

manner at the appropriate time for adjudication.”

Sanchez-Llamas v. Oregon, 548 U.S. 331, 356 (2006).

And failure to “raise a claim for adjudication at the

proper time” generally results in “forfeiture of that

claim.” Id. at 356-57. These “waiver and forfeiture

rules . . . ensure that parties can determine when an

issue is out of the case, and that litigation remains, to

the extent possible, an orderly progression.” Exxon

Shipping Co. v. Baker, 554 U.S. 471, 487 n.6 (2008).

Indeed, as this Court has noted, “harsh consequences”

attend the jurisdictional label, United States v. Kwai

Fun Wong, 575 U.S. 402, 409 (2015), precisely because

“[b]randing a rule as going to a court’s subject-matter

jurisdiction alters the normal operation of our adversarial system,” Henderson, 562 U.S. at 434. “Jurisdictional requirements cannot be waived or forfeited,

must be raised by courts sua sponte, and . . . do not

allow for equitable exceptions.” Boechler, 596 U.S. at

203.

The costs of departing from this “orderly progression,” Baker, 554 U.S. at 487 n.6, are particularly severe for noncitizens in removal proceedings who frequently have limited English proficiency, “are not

guaranteed legal representation[,] and are often subject to mandatory detention,” Moncrieffe v. Holder, 569

U.S. 184, 201 (2013); Robert A. Katzmann, Study

Group on Immigrant Representation: The First Decade, 87 Fordham L. Rev. 485, 486 (2018) (reporting

that sixty-three percent of noncitizens in deportation

proceedings lack representation). As this Court has

recognized, the consequences of removal are “grave,”

Bridges v. Wixon, 326 U.S. 135, 165 (1945), and “severe,” Padilla v. Kentucky, 559 U.S. 356, 365 (2010)

(internal citation omitted), because removal is a “drastic measure” that is “‘the equivalent of banishment or

exile,’” id. at 360, 373 (internal citation omitted). And

for noncitizens, like Riley, with fear-based claims, judicial review may literally mean the difference between life in the United States and persecution, torture, or death abroad. INS v. Cardoza-Fonseca, 480

U.S. 421, 449 (1987) (“Deportation is always a harsh

measure; it is all the more replete with danger when

the [noncitizen] makes a claim that he or she will be

subject to death or persecution if forced to return to his

or her home country.”).

B. To ensure that courts “attend to the distinction

between” jurisdictional bars and claim-processing

rules, this Court, “starting principally with Arbaugh

in 2006,” has sought to “bring some discipline to the

use of th[e] term ‘jurisdictional.’” Santos-Zacaria, 598

U.S. at 421 (internal quotations omitted). Arbaugh set

out a “readily administrable bright line [test]”: A

statutory limitation is not jurisdictional unless “the

Legislature clearly states that . . . [it] shall count as

jurisdictional.” 546 U.S. at 515-16. The Court

“adopted this clear-statement principle in Arbaugh ‘to

leave the ball in Congress’ court,’ ensuring that courts

impose harsh jurisdictional consequences only when

Congress unmistakably has so instructed.” SantosZacaria, 598 U.S. at 416-17 (quoting Arbaugh, 546

U.S. at 515-16). By contrast, “[w]hen Congress does

not rank a prescription as jurisdictional, courts should

treat the restriction as nonjurisdictional in character.”

Fort Bend, 587 U.S. at 550 (internal citation and

brackets omitted); see also Boechler, 142 U.S. at 206

(“[t]o satisfy the clear-statement rule, the jurisdictional condition must be just that: clear”).

Applying the clear-statement rule, this Court has

time and time again “made plain that most time bars

are nonjurisdictional.” See Wong, 575 U.S. at 410 (the

Federal Tort Claims Act’s statute of limitations is not

jurisdictional); Henderson, 562 U.S. at 431 (the 120day deadline for a veteran whose claim is denied to file

an appeal to the United States Court of Appeals for

Veterans Claims is not jurisdictional); Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 148 (2013) (deadline to “file an administrative appeal from the initial

determination of the reimbursement due them for inpatient services rendered to Medicare beneficiaries” is

not jurisdictional); Hamer, 583 U.S. at 27 (Federal

Rule of Appellate Procedure 4(a)(5)(C)’s “30-day limitation on extensions of time to file a notice of appeal”

is not jurisdictional); Boechler, 596 U.S. at 211 (the

“30-day time limit to file a petition for review of a collection due process determination is an ordinary, nonjurisdictional deadline subject to equitable tolling”);

Harrow v. Dep’t of Def., 601 U.S. 480, 483 (2024) (the

“60-day deadline to appeal” a claim denied by the

Merit Systems Protection Board to the Federal Circuit

is not jurisdictional).

In Arbaugh, this Court also sought to correct for

past decisions that too lightly labeled statutory requirements jurisdictional. These “drive-by jurisdictional rulings,” this Court said, “should be accorded no

precedential effect on the question whether the federal

court had authority to adjudicate the claim in suit.”

Arbaugh, 546 U.S. at 511 (internal citation omitted).

C. This case involves another drive-by jurisdictional ruling. Relying on Stone v. INS, a case predating Arbaugh where this Court labeled a predecessor of

§ 1252(b)(1) “jurisdictional,” the court below categorized § 1252(b)(1)’s 30-day filing deadline as a limit on

its subject-matter jurisdiction. See Martinez v. Garland, 86 F.4th 561, 567 (4th Cir. 2023) (quoting Stone,

514 U.S. at 405); see also Pet. App. 4a (relying on Martinez, 86 F.4th at 566). That ruling is untenable under

two decades of this Court’s precedents, including most

recently Santos-Zacaria, as both Petitioner and the

government agree.

In Santos-Zacaria, this Court held that

§ 1252(d)(1)’s exhaustion requirement was a claimprocessing rule for two reasons, 598 U.S. at 417, both

of which apply here.

First, “express language” is required to transform

an exhaustion requirement, “a quintessential claimprocessing rule,” into a jurisdictional rule. Id. at 41718. “When faced with a type of statutory requirement

that ordinarily is not jurisdictional,” the Court explained, “we naturally expect the ordinary case, not an

exceptional one.” Id. (internal citation omitted).

Given this, “to be confident Congress took that

unexpected tack,” the Court concluded, it “would need

unmistakable evidence, on par with express language

addressing the court’s jurisdiction.” Id. at 418.

The same is true here. “[M]ost time bars,” even

“emphatic” ones, Kontrick v. Ryan, 540 U.S. 443, 454

(2004), are “nonjurisdictional,” Harrow, 601 U.S. at

484 (internal citation omitted); see also Henderson, 562

U.S. at 435-36 (“Filing deadlines . . . are quintessential claim-processing rules.”). That includes deadlines

to file a petition for review of an agency action. See

Boechler, 596 U.S. at 202; Harrow, 601 U.S. at 485. To

conclude that Congress meant for § 1252(b)(1) to be jurisdictional, there would need to be unmistakable evidence addressing the court’s jurisdiction. Nothing of

the sort appears in the statute—§ 1252(b)(1) simply

states that a “petition for review must be filed not later

than 30 days after the date of the final order of removal.”

Second, § 1252(d)(1)’s “language differs substantially from more clearly jurisdictional language in related statutory provisions.” Santos-Zacaria, 598 U.S.

at 418. “Elsewhere in the laws governing immigration

cases, Congress specified that ‘no court shall have jurisdiction’ to review certain matters.” Id. at 418-19

(citing neighboring provisions including 8 U.S.C.

§ 1252(a)(2)(A), (a)(2)(B), (a)(2)(C), (b)(9), (g)). “The

contrast between the text of § 1252(d)(1) and the unambiguous jurisdictional terms in related provisions

show[s] that Congress would have spoken in clearer

terms if it intended for § 1252(d)(1) to have similar jurisdictional force.” Id. (internal citation omitted). The

same is true of § 1252(b)(1).

In ignoring these principles, the court below

largely relied on this Court’s earlier decision in Stone.

See Pet. App. 4a (relying on Martinez, 86 F.4th at 567

(finding that Santos-Zacaria is limited to § 1252(d)(1)

and Stone is still binding precedent)). But in SantosZacaria, this Court made clear that Stone did not address “‘jurisdictional’ rules (as we understand them today),” and emphasized that it “predate[d]” cases, including Arbaugh, that sought to “bring some discipline

to the use of th[e] term ‘jurisdictional.’” Santos-Zacaria, 598 U.S. at 421 (internal quotations omitted); Wilkins, 598 U.S. at 159-60 (“[t]he mere fact that this

Court previously described something ‘without elaboration’ as jurisdictional therefore does not end the inquiry”). Stone, then, “cannot be read to establish the

predecessor exhaustion requirement,” or the limit to

file a petition for review, “as jurisdictional.” SantosZacaria, 598 U.S. at 422.

***

Because § 1252(b)(1) is nonjurisdictional, “it is

subject to waiver and forfeiture.” Id. at 423. Here, the

government has indicated it would waive any objection

to the timeliness of Riley’s petition, BIO 16, and regardless has conceded that Riley’s petition for review

was timely filed, Resp. Br. 24 n.7. This Court should

therefore reverse. If, however, the Court decides to address whether § 1252(b)(1) is subject to equitable tolling, it should conclude that it is, as the next Section

discusses.

II. Section 1252(b)(1)’s 30-day Deadline Is Subject to Equitable Tolling.

A. Originally at common law, “there was no limitation as to the time within which an action might be

brought,” although actions at tort were limited to the

“duration of the life of either party.” 1 H.G. Wood,

Statutes of Limitations § 1, at 2-3 (2d ed. 1893); James

John Wilkinson, A Treatise on the Limitation of Action

2 (1829) (“It was a maxim that a right never dies

. . . .”). But over time, the “abuses from stale demands

became so great as to be unendurable,” 1 Wood, supra,

§ 2, at 6, and English legislators created statutes of

limitations—statutory periods in which “certain rights

may be enforced,” id. § 1, at 1. When forming their legal systems, American colonists “founded” their own

statutes of limitations using these English statutes as

a guide. Walden v. Heirs of Gratz, 14 U.S. 292, 297

(1816).

On both sides of the Atlantic, courts and legislators developed a set of justifications for their decision

to “abridge[] the common law” by setting limitations

periods. Wilkinson, supra, at 12. Statutes of limitations “requir[ed] parties to settle their business matters within certain reasonable periods,” 1 Wood, supra,

§ 4, at 8, “quiet[ed] men in the enjoyment of their estates and possessions,” Wall v. Robson, 11 S.C.L. 498,

499 (S.C. Const. App. 1820), and punished the “indolence of those who [we]re dilatory in . . . claiming what

is due to them,” J.K. Agnell, A Treatise on the Limitations of Actions at Law 5 (2d ed. 1846). They also

“guard[ed] against suspicious and ill-founded claims,”

id., by “compel[ling] the settlement of claims . . . while

the evidence . . . is yet fresh in the minds of the parties

or their witnesses,” 1 Wood, supra, § 5, at 7; Sherwood

v. Sutton, 21 F. Cas. 1303, 1307 (C.C.D.N.H. 1828)

(Story, J.) (“The statute of limitations was mainly intended to suppress fraud, by preventing fraudulent

and unjust claims from starting up at great distances

of time.”).

Despite the justifications for these limitation periods, courts of equity quickly began permitting exceptions to them, even when those exceptions were not

within “the letter” of the statute. Id. at 1308; 1 Wood,

supra, § 6, at 9. As an initial matter, when considering

purely equitable matters, courts recognized that the

“lapse of time, however long, [did] not deprive a party

of his remedy thereon if there [wa]s a reasonable excuse for the delay.” Id. § 59, at 146. And this was true

even after “a considerable lapse of time.” 1 Joseph

Story, Commentaries on Equity Jurisprudence § 529,

at 503 (1836). As Joseph Story instructed, “Courts of

Equity [should] not refuse their aid in furtherance of

the rights of the party,” when there are “peculiar circumstances . . . excusing or justifying the delay.” Id.

at 503-04. Indeed, when a defendant raised a plaintiff’s laches or delay as a defense to a claim, courts of

equity considered factors specific to the plaintiff that

might excuse the late filing, including a plaintiff’s service in the army, 4 John Bouvier, Institutes of American Law 214 n.b (1851); an office fire, 1 Wood, supra,

§ 59, at 146 (citing Johnson v. Diversey, 82 Ill. 446

(1879)); and any other “reasonable excuse for the delay” that was put forward, id. at 146 n.2.

Moreover, when courts sitting in equity enforced

statutes of limitation by “analogy”—that is, when

those statutes would bar similar actions at law—they

would still “interfere in many cases, to prevent the bar

of the statutes, where it would be inequitable or unjust.” 2 Story, supra, § 1521, at 906. In other words,

despite a relevant statute of limitations, equity courts

permitted plaintiffs to bring claims, however “long outstanding,” when they “perceive[d] that a party ha[d]

equitable rights.” 1 Wood, supra, § 58, at 140. As long

as a plaintiff could show “good faith[] and reasonable

diligence,” a court could still give relief. 2 Story, supra,

§ 896, at 210.

For example, courts tolled the statute of limitations when “inevitable necessity” prevented the

plaintiff from filing suit. Wall, 11 S.C.L. at 499. In

Wall, a South Carolina court considered a British subject’s claim against an American citizen for non-payment of debt. Id. In defense, the defendant raised the

statute of limitations, which had clearly run, and the

plaintiff responded that the limitations period should

be tolled for the duration of the War of 1812 during

which courts were “shut up against British creditors.”

Id. at 509.

The court concluded that the statute contained an

implied exception for “act[s] of God,” including

“storms, tempests, earthquakes, and other casualties

of nature,” id. at 500, as well as the “declaration of

war,” id. at 505. According to the court, statutes of

limitations were not intended to “prevent a man who

had never been guilty of any wilful[l] laches or delay . . . from pursuing his just rights.” Id. at 499. Tolling would enable the court to “preserve the plaintiff’s

right” in this extraordinary circumstance. Id. at 509;

see Braun v. Sauerwein, 77 U.S. 218, 222-23 (1869)

(noting that when “the creditor has been disabled to

sue, by a superior power, without any default of his

own,” the “running of a statute of limitation may be

suspended”); Hanger v. Abbott, 73 U.S. 532, 538-39

(1867) (concluding that tolling the limitations period

during the Civil War would not “encourage laches or

. . . promote negligence” and to do otherwise would

make a “mockery” of the plaintiff’s right to sue).

Similarly, courts suspended the application of

statutes of limitations when the plaintiff did not recognize that he had a cause of action due to the defendant’s “fraudulent concealment.” Sherwood, 21 F. Cas.

at 1303-05. In Sherwood, Justice Story, when riding

circuit, considered a case involving a defendant who

had defrauded the plaintiff when selling a ship, and

managed to conceal the fraud for several years after

the sale. Id. The applicable statute of limitations had

expired, but Justice Story invoked the equitable exception for cases of fraud and mistake. Id. at 1304-07.

Adopting this exception would be, in Story’s words,

consistent with “legislative intention” because the

statute of limitations was enacted to “suppress,” and

not encourage, fraud. Id. at 1307; First Mass. Tpk.

Corp. v. Field, 3 Mass. 201, 207 (1807) (when the “delay of bringing the suit is owing to the fraud of the defendant,” the statute could be tolled “until the plaintiff

could obtain the knowledge that he had a cause of action”); Clementson v. Williams, 12 U.S. 72, 74 (1814)

(noting that the defendant’s belated “acknowledgement of a debt” could “take the case out of that statute

of limitations”).

Although the tolling doctrine originated in equity,

courts later made clear that tolling is also available in

actions at law. See Sherwood, 21 F. Cas. at 1308; Bailey v. Glover, 88 U.S. 342, 349 (1875) (“[T]he weight of

judicial authority, both in this country and in England,

is in favor of the application of the rule to suits at law

as well as in equity.”). In Bailey, the plaintiff sought

to set aside an allegedly fraudulent conveyance that he

had received from the defendant before the defendant’s bankruptcy, and that the defendant had “kept secret and concealed.” 88 U.S. at 348. The Bankruptcy

Act required certain suits to be brought “within two

years from the time [when] the cause of action accrued,” id. at 344 (quoting Bankruptcy Act of Mar. 2,

1867, ch. 176, § 2, 14 Stat. 518), with no exception for

fraudulent concealment. Nonetheless, this Court

tolled the two-year period, relying on the principle that

the period would not run when the “party injured by

the fraud remains in ignorance of it without any fault

or want of diligence or care on his part.” Id. at 348.

In more recent cases, this Court has reiterated

that tolling is available in cases in which “hardships

. . . arise from a hard and fast adherence to more absolute legal rules.” Holland, 560 U.S. at 650 (quoting

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

U.S. 238, 248 (1944)); see, e.g., id. at 631 (tolling oneyear limitation for filing application for writ of habeas

corpus); Young v. United States, 535 U.S. 43, 50 (2002)

(tolling three-year “lookback period” in bankruptcy

proceedings); Rotella v. Wood, 528 U.S. 549 (2000)

(tolling four-year period for filing civil suit under Racketeer Influenced and Corrupt Organizations Act);

Wong, 575 U.S. at 405 (time limitations under the Federal Tort Claims Act are subject to equitable tolling).

In sum, there is a long history of courts recognizing that tolling is appropriate when situations beyond

a plaintiff’s control make it difficult or impossible to

meet a statutory deadline, even with the exercise of

due diligence, such that it would be “inequitable or unjust” for the “bar of the statute” to apply. 2 Story, supra, § 1521, at 738.

B. As this history demonstrates, the doctrine permitting tolling in equitable circumstances is “a traditional feature of American jurisprudence,” Boechler,

596 U.S. at 208-09, against which Congress drafts

statutory time limits. For that reason, “nonjurisdictional limitations periods are presumptively subject to

equitable tolling.” Id. at 209 (citing Irwin, 498 U.S. at

95); see also Holmberg v. Armbrecht, 327 U.S. 392, 397

(1946) (equitable tolling doctrine should be “read into

every federal statute of limitation[s]”).

For instance, in Holmberg, several creditors sued

a shareholder of a land bank under the Federal Farm

Loan Act. 327 U.S. at 393. Anticipating the defendant’s statute of limitations defense, the creditors alleged that they did not learn of the defendant’s ownership of the stock until 1942 because his ownership had

been “concealed” under another name. Id. This Court

agreed with the creditors. Citing Bailey and Sherwood, it described the “old chancery rule” permitting

tolling when “a plaintiff has been injured by fraud and

remains in ignorance of it without any fault or want of

diligence or care on his part.” Id. at 397 (internal quotations omitted). Because that equitable doctrine “is

read into every federal statute,” this Court reasoned,

it should apply to the Federal Farm Loan Act as well.

Id.; Sherwood, 21 F. Cas. at 1307 (noting that the exception for fraud or mistake would have been “well

known” to the lawmakers who framed the limitations

period).

In Irwin, this Court extended the presumption of

tolling to “suits against the United States.” Irwin, 498

U.S. at 95-96. Irwin considered whether a 30-day period for filing suit against a federal agency under Title

VII of the Civil Rights Act of 1964 was subject to equitable tolling. Id. at 94 (citing 42 U.S.C. § 2000e-16(c)

(1988)). In deciding that the deadline was subject to

tolling, this Court affirmed the “rebuttable presumption of equitable tolling” applicable to any “time requirements in lawsuits between private litigants,” id.

at 95, and concluded that “the same rebuttable presumption of equitable tolling applicable to suits

against private defendants should also apply to suits

against the United States,” id. at 95-96.

This Court has explained that this presumption is

doubly applicable to statutory deadlines contained in

“humane and remedial Act[s],” Burnett v. N.Y. Cent.

R.R. Co., 380 U.S. 424, 427-28 (1965), that are

designed to “aid claimants,” Honda v. Clark, 386 U.S.

484, 496 (1967). In Honda, claimants of property held

under the Trading with the Enemy Act, which had permitted the seizure of assets from businesses owned by

Japanese nationals during WWII, sought to toll the

Act’s 60-day deadline for appealing an administrative

claim schedule. Id. at 493. This Court tolled the limitations period during the pendency of related litigation

because it was consistent with the statutory scheme

and equitable principles to do so. Id. at 501. Specifically, the statute “was intended to provide a method

for the fair and equitable distribution of vested enemy

assets,” and the limitations period was “designed to

further this end—to aid claimants by expediting a final distribution,” rather than to act “primarily as a

shield for the Government.” Id. at 495-96. Further,

this Court emphasized, tolling the limitations period

for some claims would not affect the “amount of others’

claims” because other claimants had no interest in “the

time of proof.” Id. at 497. Finally, the history of the

statute made clear that “the overall congressional purpose”—to address the country’s “moral obligation” to

compensate Japanese nationals with “proper

claims”—was consistent with the application of tolling.

Id. at 501.

Similarly, in Bowen v. City of New York, plaintiffs

challenging a Social Security policy sought to toll the

60-day deadline for appealing the Social Security administrator’s denial of a claim for the period in which

an allegedly illegal policy was “operative but undisclosed.” 476 U.S. 467, 478 (1986). This Court held that

the “application of a ‘traditional equitable tolling principle’” to the deadline was “consistent with the overall

congressional purpose” of the Social Security Act, id.

at 480 (citing Honda, 386 U.S. at 501), to be “unusually

protective of claimants” seeking benefits, id. at 480 (internal quotation marks omitted).

And in Boechler, this Court held that the 30-day

deadline for filing a petition to review the Internal

Revenue Service’s decision to seize and sell a taxpayer’s property to pay off his tax debts can be equitably tolled. 596 U.S. at 209. Keeping in mind that “nonjurisdictional limitations periods are presumptively

subject to equitable tolling,” this Court found “nothing” in § 6330(d)(1) “to rebut that presumption” because the statute “does not expressly prohibit equitable tolling” and is contained in a section of the Tax

Code that is “‘unusually protective’ of taxpayers and a

scheme in which ‘laymen, unassisted by trained lawyers,’ often ‘initiate the process.’” Id. (quoting Sebelius, 568 U.S. at 160).

C. Because “[e]quitable tolling is a traditional feature of American jurisprudence and a background

principle against which Congress drafts limitations

periods,” this Court has recently reiterated that “nonjurisdictional limitations periods are presumptively

subject to equitable tolling.” Id. at 208-09. Section 1252(b)(1) does not rebut that presumption.

“Start with the text.” Arellano v. McDonough, 598

U.S. 1, 8 (2023). Nothing in the text of § 1252(b)(1)—

which simply states that noncitizens must file a “petition for review within thirty days after the date of the

final order of removal”—suggests that Congress intended to preclude equitable exceptions. Section

1252(b)(1) “does not expressly prohibit equitable tolling, and its short, 30-day time limit is directed at”

noncitizens, who are often uncounseled, rather than

courts. Boechler, 596 U.S. at 209. Nor is it part of a

“comprehensive scheme” of “detailed instructions”

with many specific exceptions detailing when and for

whom the clock should be tolled. Arellano, 598 U.S. at

7-8. In each of these respects, § 1252(b)(1) is remarkably similar to the 30-day limit for filing a petition for

review of an agency action at issue in Boechler, which

this Court recently recognized is subject to equitable

tolling. Moreover, the INA’s subject matter, review of

deportation orders, “pertains to an area of the law

where equity finds a comfortable home.” Holland, 560

U.S. at 647; Guerrero-Lasprilla v. Barr, 589 U.S. 221,

236 (2020) (§ 1252’s “basic purpose [is] providing an

adequate substitute for habeas review”).

The structure of § 1252(b) further suggests that

Congress meant for courts to take into consideration

equitable principles. Once a noncitizen files a petition

for review, he must file “a brief in connection with”

that petition within 40 days of the government filing

the administrative record. 8 U.S.C. § 1252(b)(3)(C).

But that deadline can be extended “upon motion for

good cause shown.” Id.; see H.R. Rep. No. 104-828, at

219 (1996) (noting that § 1252(b)’s “deadlines may be

extended for good cause”). Moreover, even though the

statute requires a court to dismiss the appeal if a

noncitizen files his petition for review late, the court

need not dismiss the petition if “a manifest injustice

would result.” Id. (emphasis added). That is, even if a

noncitizen fails to file a timely brief, Congress requires

courts to weigh the equities of rigidly applying this filing deadline to someone who, like Riley, has expressed

a fear of torture if removed. It would be odd, then, to

read § 1252(b)(1) as prohibiting courts from ruling equitably when it is the initial petition for review that is

not timely filed. Section 1252(b)(3)(C) thus demonstrates that § 1252(b) as a whole “incorporates traditional equitable principles.” Young, 535 U.S. at 53; cf.

id. (an “express tolling provision” in one limitations

period in a subsection supports conclusion that another provision in the same subsection allows equitable tolling, even though that provision does not contain

an express tolling provision).

D. Nothing in this Court’s prior cases requires a

different result. In Stone, this Court described a portion of the INA that contained the predecessor of

§ 1252(b)(1)’s time limit as “mandatory,” Stone, 514

U.S. at 405 (internal citation omitted), but that ruling

predated Irwin’s presumption that statutory time provisions are subject to equitable tolling, see Boechler,

596 U.S. at 209 (“[N]onjurisdictional limitations periods are presumptively subject to equitable tolling.”).

Stone also predated this Court’s cases clarifying the

line between provisions that are jurisdictional and

those that are not, see supra at 8-10, and thus concluded that a statutory provision specifying the timing

for review from a final order of deportation was a jurisdictional provision. See supra at 9 (citing cases noting that equitable tolling was not available because

the provision was jurisdictional). Perhaps most importantly, Stone predated the 1996 amendments to the

INA that baked equitable considerations into

§ 1252(b). See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,

110 Stat. 3009-608 (codified at 8 U.S.C.

§ 1252(b)(3)(C)); supra at 21.

More recently, in Nutraceutical Corp. v. Lambert,

this Court concluded that the 14-day window to file a

petition for interlocutory review of a district court’s decision granting or denying class-action certification

under Federal Rule of Civil Procedure 23(f) is not subject to equitable tolling. 586 U.S. 188, 192 (2019). Significantly, though, that case involved a Federal Rule of

Civil Procedure—not a statutory time limit to which

the Irwin presumption applies. See Irwin, 498 U.S. at

95 (emphasizing the importance of “fidelity to the intent of Congress”). Indeed, even though the government raised Nutraceutical in Boechler, this Court did

not rely on it at all in that decision. Compare Resp.

Br. 40-41, Boechler, 596 U.S. 199 (No. 20-1472), with

Boechler, 596 U.S. at 199.

And even in Nutraceutical, this Court made explicit that equitable tolling should be available unless

the “pertinent rule or rules invoked show a clear intent

to preclude tolling.” 586 U.S. at 192 (emphasis added);

id. at 193 (noting that the governing Rules “make

clear” that equitable tolling is not available); id. (noting that the Rules “express a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline”). Against

that backdrop, this Court concluded that Rule 23(f) did

not permit equitable tolling because the “Federal

Rules of Appellate Procedure single out” that particular Rule “for inflexible treatment,” id. at 193, but it did

nothing to suggest that the Irwin presumption no

longer applies to statutory deadlines more broadly. Indeed, earlier this year, this Court again reiterated that

“nonjurisdictional timing rules”—in that case, the 60day time limit to file a petition for review of an agency

action to the Federal Circuit—“are presumptively subject to equitable tolling.” Harrow, 601 U.S. at 489 (internal citation omitted). As this Court put it then,

“‘Because we do not understand Congress to alter’ ageold procedural doctrines lightly, ‘nonjurisdictional

[timing rules] are presumptively subject to equitable

tolling.’” Id. That same presumption applies here.

***

As this Court recently said, a rule “is jurisdictional

only if Congress clearly states that it is.” Santos-

Zacaria, 598 U.S. at 416 (internal citation omitted).

Here, both Petitioner and the government agree that

it has not done so, and they are right: § 1252(b)(1) is

not jurisdictional. Because nonjurisdictional rules are

“subject to waiver and forfeiture,” the Court can stop

there—the government has indicated it would waive

any objection to the timeliness of Riley’s petition and,

regardless, both parties agree that Riley timely filed

his petition. But if this Court chooses to address

whether § 1252(b)(1) is mandatory, it should make

clear that equitable tolling, a practice that has existed

since the Founding to prevent the application of statutory deadlines when doing so “would be inequitable or

unjust,” 2 Story, supra, § 1521, at 738, applies here.

Because of tolling’s “long history,” Holland, 560 U.S.

at 651, the presumption that equitable tolling is available has become “hornbook law,” Young, 535 U.S. at

49, and nothing in the text or structure of § 1252(b)(1)

rebuts that presumption.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

SMITA GHOSH

ANA BUILES

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

TRINA REALMUTO

KRISTIN MACLEOD-BALL

NATIONAL IMMIGRATION

LITIGATION ALLIANCE

10 Griggs Terrace

Brookline, MA 02446

(617) 819-4447

Counsel for Amici Curiae

January 10, 2025

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.