Think Immigration: Riley v. Bondi – Riley’s Silver Lining

The Supreme Court released its decision in Riley v. Bondi today and the Justices made it easier for the Trump Administration to deport people who may have a reasonable fear of torture in their home country. The Riley decision is poised to reshape how non-citizens navigate judicial review in immigration proceedings – especially those involving protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Background on the Case

Pierre Riley was convicted of drug charges in 2008. After his release from prison in 2021, the U.S. government took him into immigration custody and sought his removal under a final administrative removal order (FARO). Mr. Riley did not contest his removal from the U.S. before an Immigration Judge (IJ), but claimed that his removal to Jamaica would result in his torture by a drug kingpin. He asked that he not be removed under CAT.

The IJ sent his case to a “withholding-only proceeding,” where it was decided that his removal to Jamaica should be deferred. The U.S. Department of Homeland Security (DHS) appealed this decision to the Board of Immigration Appeals (BIA), which decided to enforce the earlier FARO removal order. Mr. Riley filed a petition for review (PFR) with the U.S. Circuit Court for the Fourth Circuit of Appeals three days later, but that court found that the PFR was filed more than thirty (30) days after the FARO was issued.

Two Issues Before the Supreme Court

The Supreme Court was asked to decide whether Mr. Riley’s PFR was filed timely or not. The Court was also asked to decide if the 30-day deadline for a PFR was jurisdictional or not. The majority of the Supreme Court found that the FARO, not the BIA ruling, was the final order of removal and the order that had to be appealed within 30 days.

Justice Gorsuch and the Dissent

Justice Gorsuch and the three “liberal justices,” Justices Sotomayor, Elena Kagan, and Ketanji Brown Jackson, wrote that the FARO removal order did not become final until after the BIA issued its decision on Mr. Riley’s CAT appeal. The dissent wrote that, “One should not be required to appeal an order before it exists.” Justice Sotomayor wrote that the majority’s opinion rendered the statute in question “incoherent” and that it required Mr. Riley to appeal the removal order “one year and three months before the [BIA] entered it.”

All Nine Justice Agree on Jurisdiction

All nine justices agreed that 8 U.S.C. § 1252(b)(1)’s 30-day clock is merely a claims-processing rule. This means that the deadline can be equitably tolled, and a late PFR is no longer an “automatic death sentence” to the non-citizen’s removal defense.

What Comes Next

The Supreme Court remanded the case without prejudice to the Fourth Circuit, which must still decide whether Mr. Riley’s PFR survives under the new, non-jurisdictional framework announced today. This means that the Fourth Circuit could determine that his PFR was not “dead on arrival” for being more than fourteen months late.

Application to Defective Notices to Appear

The Supreme Court’s analysis in Riley lines up with the BIA’s own precedent that defects in Notices to Appear (NTAs) are also claim-processing problems, and not jurisdictional flaws. These decisions include Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022) (time-and-place requirement is not jurisdictional), Matter of R-T-P, 28 I&N Dec. 828 (BIA 2024) (DHS must satisfy four specific criteria before an IJ may “white-out” a deficient NTA, the burden is on DHS and IJs cannot shift it to respondents), and Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023) (The BIA now tolls its own 30-day appeal deadline on the same equitable-tolling standard).

Taken together, the Riley decision reinforces what some immigration attorneys have consistently argued – if a deadline or document requirement is claim-processing, the agency (or DHS) must also meet the rule, or explain why equity excuses it. In particular, this applies to curing a bad NTA under Fernandes/R-T-P and the government should be held to their burden to establish why equitable tolling allows for the deficient NTA to be cured years after the fact. The Riley decision clarifies that the party invoking the claims processing exception bears the burden of meeting the threshold requirement.

Practical Takeaways

• Riley creates a procedural trap for the unwary and may lead to more dismissals of otherwise valid claims on timeliness grounds.
• Non-citizens may now be compelled to file “protective” PFRs immediately after the issuance of a FARO – even before their CAT claims are resolved.
• Legal representation of non-citizens will be more important than ever. Pro se litigants may face steeper legal hurdles.
• In every defective NTA challenge, demand that DHS satisfy the R-T-P four-factor remedy test on the record. If DHS cannot, move to terminate the proceeding or, at a minimum, suppress the NTA.
• When outside of the 30-day PFR window, plead equitable tolling – diligence plus extraordinary circumstances – citing Riley. This potentially mitigates the mandatory bar complaint requirements under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).
• Preserve the burden-shifting objection in Fernandes situations: the IJ may not force the non-citizen to prove DHS’s defect in the NTA.

Bottom Line

Besides creating an unintended wave of premature PFRs, Riley not only salvages one PFR, it strengthens the claim-processing playbook that immigration attorneys have been using since Pereira v. Sessions, 138 S. Ct. 2105 (2018), Niz-Chavez v. Garland, 593 U.S. 155 (2021), and Fernandes. Use it.