Santos v. Blanche

23-7191-ag Santos v. Blanche In the United States Court of Appeals For the Second Circuit ___________ August Term 2024 No. 23-7191-ag FLAVIO DIVINO SANTOS, Petitioner, V. TODD BLANCHE, UNITED STATES ATTORNEY GENERAL, Respondent.∗ ___________ ARGUED: DECEMBER 11, 2024 DECIDED: SEPTEMBER 8, 2026 ___________ Before: LOHIER, Chief Judge, SULLIVAN, and KAHN, Circuit Judges. ________________ Petitioner Flavio Divino Santos, a citizen of Brazil, attempted to enter the United States in 2004, was issued an expedited removal order, and was deported. In 2017, Santos reentered the United States without inspection and was issued a reinstatement order based on his 2004 expedited removal order. Santos was not removed at the time but, in 2023, was detained pursuant to his reinstatement order. Santos subsequently filed a motion to reopen, reconsider, and rescind his reinstatement order with U.S. Customs and Border Protection (“CBP”), which the agency denied. Santos seeks review of two distinct agency actions: (1) a July 2, ∗ The Clerk of Court is respectfully directed to amend the caption accordingly. 2017 order reinstating his 2004 expedited removal order and (2) an August 23, 2023 order denying his motion to reopen, reconsider, and rescind that reinstatement order. As to the 2017 reinstatement order, we reaffirm our precedent that a reinstatement order is a final order of removal under 8 U.S.C. § 1252(a) such that we have jurisdiction to review his claims. Guided by the Supreme Court’s recent decision in Riley v. Bondi, 606 U.S. 259 (2025), we acknowledge that the 30-day filing deadline at 8 U.S.C. § 1252(b)(1) is a claims-processing rule rather than a jurisdictional bar. However, even assuming that deadline is subject to equitable tolling, we find that Santos did not exercise the requisite diligence to warrant tolling in this case. As to the 2023 denial of Santos’s motion, we conclude that 8 U.S.C. §§ 1252(a) and 1252(b)(6) together grant us jurisdiction to review CBP’s denial of Santos’s motion to reopen. We further hold that 8 C.F.R § 103.5(a) authorizes CBP to reopen, reconsider, and rescind its decisions to reinstate removal orders. We hold that CBP denied Santos’s motion on the erroneous understanding that it had no authority to reopen or reconsider its reinstatement decision, that it therefore misperceived the law and, as such, that it abused its discretion. Accordingly, we DENY Santos’s petition for review as to his 2017 reinstatement order. We GRANT Santos’s petition as to the 2023 denial of his motion to reopen, reconsider, and rescind the 2017 reinstatement order, VACATE that denial, and REMAND for CBP to consider Santos’s motion in the first instance. The government’s motion to dismiss Santos’s petition for review is DENIED as moot. Judge Sullivan concurs in part and dissents in part in a separate opinion. ________________ ANNELISE M.J. DE ARAUJO, Araujo & Fisher, LLC, Boston, MA, for Petitioner. TIM RAMNITZ, Senior Litigation Counsel (Brian M. Boynton, Principal Deputy Assistant Attorney General and Shelley R. Goad, Assistant Director, on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Respondent. 2  TRINA REALMUTO (Kristin Macleod-Ball, on the brief), National Immigration Litigation Alliance, Brookline, MA, for Amicus Curiae National Immigration Litigation Alliance, in support of Petitioner. ________________ MARIA ARAÚJO KAHN, CIRCUIT JUDGE: Petitioner Flavio Divino Santos (“Santos”), a citizen of Brazil, attempted to enter the United States in 2004, was issued an expedited removal order, and was deported. In 2017, Santos reentered the United States without inspection and was issued a reinstatement order based on his 2004 expedited removal order. Santos was not removed at the time but, in 2023, was detained pursuant to his reinstatement order. Santos subsequently filed a motion to reopen, reconsider, and rescind his reinstatement order with U.S. Customs and Border Protection (“CBP”), which the agency denied. Santos seeks review of two distinct agency actions: (1) the July 2, 2017 reinstatement of his 2004 expedited removal order and (2) the August 23, 2023 denial of his motion to reopen, reconsider, and rescind that reinstatement order. Each of the two orders that Santos challenges raises several issues for this Court. As to his 2017 reinstatement order, we must consider: (1) whether we have jurisdiction to review reinstatement orders, (2) whether Santos’s petition for 3 review was timely, and (3) if Santos’s petition was untimely, whether equitable tolling cures that defect. In Part I of this opinion, we hold that reinstatement orders are final orders of removal, such that we have jurisdiction to review them under 8 U.S.C. § 1252(a)(1). We further hold that Santos’s petition for review was untimely and that, even assuming that equitable tolling applies to the thirty-day deadline in 8 U.S.C. § 1252(b)(1), Santos is not entitled to tolling. We therefore deny Santos’s petition for review as to his 2017 reinstatement order. As to the 2023 denial of Santos’s motion to reopen, reconsider, and rescind his 2017 reinstatement order, we must consider: (1) whether we have jurisdiction to review a motion to reopen a reinstatement order, (2) whether CBP has the authority to reopen reinstatement orders under 8 C.F.R § 103.5, and (3) if CBP does have that authority, whether it erred in denying Santos’s motion. In Part II of this opinion, we hold that we have jurisdiction to review Santos’s motion to reopen under 8 U.S.C. § 1252(b)(6). We further hold that CBP is authorized to reopen, reconsider, and rescind reinstatement orders and that it misapprehended its authority to do so when it denied Santos’s motion. We therefore grant Santos’s petition for review as to his 2023 motion to reopen, vacate the agency’s decision, and remand for further proceedings consistent with this opinion. 4  FACTUAL AND PROCEDURAL BACKGROUND A. INITIAL ENTRY Santos is a citizen of Brazil who first entered the United States without inspection in 1995. He lived in the United States for several years, during which time he had a U.S. citizen child. Santos then left the country and, in 2004, sought reentry on a B-2 visitor visa. The U.S. Department of Homeland Security (“DHS”) denied Santos entry and issued him an expedited removal order pursuant to 8 U.S.C. § 1225(b)(1). In late 2016 and early 2017, Santos arranged to return to the United States with the help of a smuggling network. While en route to the United States, the smugglers warned Santos and his wife that they had previously broken the legs of a client who had not paid his smuggling debt and that they would kill anyone who revealed their identities to U.S. law enforcement. B. REENTRY AND REINSTATEMENT On or about July 1, 2017, Santos entered the United States without inspection at the border in Vermont, where he was apprehended by CBP agents shortly after crossing. These agents served Santos with a Form I-871 Notice of Intent/Decision to Reinstate his 2004 expedited removal order pursuant to 8 U.S.C. 5 § 1231(a)(5) and 8 C.F.R. § 241.8. CBP informed Santos of his right to contest the decision to reinstate his removal order in English. Santos represents that he does not speak English and therefore did not understand that he had a right to contest that order. This reinstatement order is the first of two agency actions that Santos challenges in his petition for review. Santos was transferred to the custody of the U.S. Marshal and charged with unlawful entry under 8 U.S.C. § 1325(a) in the United States District Court for the District of Vermont. Both Santos and his wife cooperated with the investigation into the smuggling network that had arranged for their entry into the United States, providing detailed information on the arrangements that the network used and other evidence, including financial documents. Thereafter the government dismissed the criminal complaint against Santos. C. WITHHOLDING-ONLY PROCEEDINGS While he was still in CBP custody, Santos expressed a fear of returning to Brazil and was referred to an asylum officer for a “reasonable fear interview” pursuant to 8 C.F.R. § 208.31. At that interview, which took place on September 14, 2017, Santos claimed that, because of his cooperation with U.S. law enforcement, he feared retaliation from the smugglers who had transported him 6 into the United States. The asylum officer found Santos credible, but also found that he had not established a reasonable fear of persecution or torture. Santos requested that an immigration judge review the asylum officer’s determination pursuant to 8 C.F.R. § 208.31(g). On September 28, 2017, Santos appeared for a hearing at the Boston Immigration Court and testified before an immigration judge (“IJ”) who vacated the asylum officer’s reasonable fear decision and ordered a “withholding-only” hearing on Santos’s claims. 1 Santos submitted evidence to support his fear claims, including police reports of threatening calls his relatives continued to receive, and photos depicting his sister-in-law’s home, which had been ransacked, riddled with bullet holes, and vandalized with graffiti bearing death threats related to Santos’s cooperation with law enforcement. The IJ held an individual merits hearing on January 22, 2018, and denied Santos’s applications for withholding of removal. Santos appealed to the Board of Immigration Appeals (“BIA”), which adopted and affirmed the IJ’s decision on October 2, 2020. Santos was released from DHS custody in April 2018, during the pendency of his withholding-only proceedings. 1 When in withholding-only proceedings, noncitizens may only seek withholding of removal under 8 U.S.C. § 1231(b)(3)(A) or under the regulations that implement the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See 8 C.F.R. §§ 208.16–208.17, 1208.16–1208.17. 7  D. MORE RECENT PROCEEDINGS In early 2020, Santos’s wife was granted asylum by an IJ in the San Francisco Immigration Court. According to Santos, she was granted asylum on the same facts and circumstances he alleged in his own asylum petition. On May 18, 2020, Santos’s wife filed an I-730 Asylee Relative Petition on Santos’s behalf. U.S. Citizenship and Immigration Services (“USCIS”) denied that petition on May 18, 2022 due to Santos’s outstanding reinstatement order. Santos represents that, on August 1, 2022, he sent a request for a stay of removal and rescission of his reinstatement order to the U.S. Immigration and Customs Enforcement (“ICE”) field office in San Francisco, to which he was regularly reporting at the time. He further represents that ICE denied that motion by phone on April 20, 2023. Santos also submits that, on April 25, 2023, his counsel filed a Freedom of Information Act (“FOIA”) request for the entirety of his immigration file in order to assess his reinstatement order, and that his counsel received a response to the FOIA request on June 1, 2023. Meanwhile, on August 4, 2023, Santos filed a motion to reopen, reconsider, and rescind his 2017 reinstatement order with CBP in Boston, arguing that DHS violated his due process rights by failing to advise him of his rights to contest the 8 reinstatement order at the time it was issued. Specifically, he claims that he was not advised in a language he understood of his right to make an oral or written statement challenging the reinstatement decision in violation of 8 C.F.R. § 241.8(b). On August 23, 2023, CBP denied Santos’s motion. This denial is the second of the two agency actions that Santos challenges in his petition for review. E. PROCEEDINGS BEFORE THIS COURT Santos filed the instant petition for review on September 22, 2023. Santos then filed a motion for a stay of removal, and the government filed a motion to dismiss the petition for lack of jurisdiction. Following argument, a motions panel of this Court granted the motion for a stay and referred the motion to dismiss to a merits panel. The motions panel further ordered the parties to brief the following questions: [W]hether (1) a decision to reinstate a removal order is a final order of removal subject to judicial review under 8 U.S.C. § 1252(a); (2) the CBP has statutory or regulatory authority to reopen or rescind a reinstated removal order; (3) if so, whether this Court has jurisdiction to review such a ruling; and (4) this Court can review the 2017 reinstated removal order if Respondent does not invok[e] the 30-day filing deadline in 8 U.S.C. § 1252(b)(1). Certified Order, Dkt. No. 33. Following briefing and argument, Santos moved to withdraw his motion for a stay of removal. This panel granted that request, and 9 then ordered supplemental briefing on the issue of equitable tolling, which the parties duly filed. DISCUSSION Santos’s challenges to the two agency actions at issue present questions of statutory construction, which we review de novo. See Fisher v. Aetna Life Ins. Co., 32 F.4th 124, 135 (2d Cir. 2022). I. 2017 REINSTATEMENT ORDER Santos urges this Court to review his 2017 reinstatement order. The gist of his challenge to that order is that CBP did not comply with the regulations for reinstating his removal order because it failed “to provide actual notice of his right to make a statement contesting the [agency’s] determination . . . in a language he could understand” and “fail[ed] to provide him with an interpreter in order to allow a response.” Petitioner’s Reply Br. at 22; see also 8 C.F.R. § 241.8(b) (requiring immigration officers to provide noncitizens with notice of the reinstatement decision and of the opportunity to contest it and requiring that officers consider that challenge). Specifically, Santos represents that he speaks only Portuguese but was notified of his rights in English, which forms the basis of his due process claim. See Certified Administrative Record at 495, 505; Petitioner’s Br. at 26; see also 10 Bergamo v. Commodity Futures Trading Comm'n, 192 F.3d 78, 79 (2d Cir. 1999) (“An agency is bound to follow procedures required by its own regulations, even if these regulations were not statutorily or constitutionally mandated.” (citing United States v. Nixon, 418 U.S. 683, 694–95 (1974))). A. JURISDICTION OVER SANTOS’S 2017 REINSTATEMENT ORDER UNDER 8 U.S.C. § 1252(A)(1) Our analysis begins with our jurisdiction to review Santos’s 2017 reinstatement order. See Juras v. Garland, 21 F.4th 53, 58–59 (2d Cir. 2021). Judicial review of immigration orders is circumscribed by statute. As relevant here, 8 U.S.C. § 1252(a)(1) vests the circuit courts of appeal with jurisdiction to review “final order[s] of removal.” Chupina v. Holder, 570 F.3d 99, 103–04 (2d Cir. 2009) (alteration in original). Therefore, our ability to review Santos’s 2017 reinstatement order turns on whether that order is a “final order of removal” within the meaning of 8 U.S.C. § 1252(a)(1). Although the government took the contrary position in its main brief, it argues in supplemental briefing that Santos’s reinstatement order is not a final order of removal and that we therefore lack jurisdiction to hear his appeal. For the reasons set forth below, we disagree. 11  “[A]ny statutory reference to ‘an order of removal’ is deemed to include a reference to an order of deportation,” Riley v. Bondi, 606 U.S. 259, 267 (2025) (cleaned up), which Congress defined in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). 2 That definition reads: (A) The term “order of deportation” means the order of the special inquiry officer, or other such administrative officer to whom the Attorney General has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation. (B) The order described under subparagraph (A) shall become final upon the earlier of— (i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals. 8 U.S.C. § 1101(a)(47). We must therefore determine whether Santos’s 2017 reinstatement order is (1) an order of removal and (2) final. Santos’s reinstatement order is an order of removal. In Nasrallah v. Barr, the Supreme Court decided that an IJ’s order granting or denying protection under 2 Following the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRAIRA”) of 1996, Pub. L. 104-828, the terms “order of removal” and “order of deportation” are used to the same effect in different sections of Title 8. See IIRAIRA § 309(d)(2) (“[A]ny reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.”). Though this opinion uses “removal,” the terms are interchangeable. 12 the Convention Against Torture (“CAT”)—one issued in “withholding-only” proceedings—is not an “‘order of deportation’ because it is not an order ‘concluding that the alien is deportable or ordering deportation.’” 590 U.S. 573, 584 (2020) (quoting 8 U.S.C. § 1101(a)(47)). It further held that orders on CAT relief do not “merge into final orders of removal”—unlike, for instance, an IJ’s “evidentiary rulings”—because “final orders of removal encompass only the rulings made by the immigration judge or Board of Immigration Appeals that affect the validity of the final order of removal.” Id. at 582 (emphasis added). Reinstatement orders are new and distinct agency decisions from the removal orders on which they are predicated. The statute requires that DHS make factual determinations prior to reinstatement of the sort contemplated by Nasrallah. See 8 U.S.C. § 1231(a)(5) (requiring findings that an individual is a noncitizen, that they do not have authorization to reenter the United States, and that they have previously been removed or granted voluntary departure while subject to a removal order); 8 C.F.R. § 241.8(a) (same); see also Beekhan v. Holder, 634 F.3d 723, 725 (2d Cir. 2011) (reviewing whether petitioner’s reentry was actually unlawful); Miller v. Mukasey, 539 F.3d 159, 164 (2d Cir. 2008) (contemplating review of “the predicate facts underlying the reinstatement order”); Ochoa-Carrillo v. 13 Gonzales, 437 F.3d 842, 845–48 (8th Cir. 2006) (reviewing both reinstatement procedures and their factual and legal underpinnings); Vega-Anguiano v. Barr, 982 F.3d 542, 544–45 (9th Cir. 2019) (reviewing challenge to the legal underpinning of a reinstatement order). These factual determinations are independent of those the agency is required to make for the underlying removal order because a reinstatement order “conclud[es] that the alien is deportable [and] order[s] deportation.” Nasrallah, 590 U.S. at 584 (internal quotation marks omitted); see Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir. 2010). 3 Although the reinstatement statute states that “the prior order of removal is reinstated,” that reinstatement is explicitly predicated on agency findings of fact. 8 U.S.C. § 1231(a)(5) (“If the Attorney general finds . . . .”) (emphasis added). The Supreme Court has explained that “law-enforcement discretion” is so fundamental that it endures “even in the presence of seemingly mandatory legislative commands.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005). The Court has specifically stated that the Executive may, in its discretion, abandon 3 The government’s reliance on United States v. Rodriguez is misplaced. In Rodriguez, this Court did not address whether reinstatement orders are “final orders of removal.” Rodriguez was a criminal case in which the defendant moved to dismiss an indictment for aggravated illegal reentry based on the alleged invalidity of his original removal order. See 162 F.4th 288, 291, 294 (2d Cir. 2025). The discussion of reinstatement orders in Rodriguez has no bearing on the issue before us: whether such orders are “orders of removal” under 8 U.S.C. §§ 1101(a)(47) and 1252(a)(1). 14 removal, including after issuing a removal order, despite the statute’s directive that the agency “shall remove” noncitizens with removal orders. 8 U.S.C. § 1231(a)(1)(A); see Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999). As such, we conclude that Santos’s 2017 reinstatement order is an “order of removal.” Having determined that reinstatement orders are distinct orders of removal, we turn to whether they are “final,” and, as such, subject to judicial review. 8 U.S.C. § 1252(a)(1). The issue of when a reinstatement order becomes final came before this Court in Bhaktibhai-Patel v. Garland, 32 F.4th 180 (2d Cir. 2022), abrogated on other grounds by Riley, 606 U.S. at 299. In that case, we assumed that a reinstatement order is a judicially reviewable final order of removal and concluded that such orders become final when the reinstatement decision “is definitive and not subject to further review within the agency.” Id. at 192–93 & n.18. The definition of finality we delineated in Bhaktibhai-Patel makes sense because § 1101(a)(47)(B) “ties finality to the final stage of agency review available as of right . . . .” Id. at 192. The immigration statutes focus on completion of agency review as the measure of finality beyond the definition at 8 U.S.C. § 1101(a)(47)(B). See Bhaktibhai-Patel, 32 F.4th at 194 (“Thus, in § 1231(a)(1) [removal periods] and 15 § 1252 [judicial review] alike, ‘Congress focused our attention on the agency’s review proceedings’ as the decisive metric for determining the finality of a removal order.” (quoting Johnson v. Guzman Chavez, 594 U.S. 523, 534 (2021))). Our holding that reinstatement orders are judicially reviewable final orders of removal is consistent with Congress’s scheme. At the time that Congress defined orders of deportation, that definition encompassed reinstatement orders because they could be appealed to the BIA. The enactment of a new reinstatement statute did not change this. In 1996, when Congress enacted § 1101(a)(47), a prior version of the reinstatement statute was in effect. See 8 U.S.C. § 1252(f) (repealed 1996). Under the regulations implementing that statute, reinstatement authority was vested exclusively in immigration judges and their reinstatement orders were appealable to the BIA. See 8 C.F.R. §§ 242.8(a) (repealed 1997) (reinstatement authority), 242.23(d) (repealed 1997) (same), 242.21 (allowing appeal of IJ reinstatement orders to the BIA); see also Luna v. Holder, 637 F.3d 85, 95 (2d Cir. 2011) (recognizing noncitizens’ prior ability to move to reopen before the BIA); Castro-Cortez v. I.N.S., 239 F.3d 1037, 1048 (9th Cir. 2001) (noting that noncitizens could appear before IJs to contest reinstatement); Dinnall v. Gonzales, 421 F.3d 247, 16 253 (3d Cir. 2005) (describing the prior regime, including the “right to appeal an adverse [reinstatement] decision to the Board”). Neither party has presented evidence, nor has this Court found any, to suggest that Congress’s subsequent amendments to the reinstatement statute intended to exclude reinstatement orders from the provision that defines what constitutes a final order of removal. 4 See Oklahoma v. Castro-Huerta, 597 U.S. 629, 645 (2022) (“This Court does not infer that Congress, in revising and consolidating the laws, intended to change their policy, unless such an intention be clearly expressed.” (internal quotation marks omitted)). True, the Supreme Court has described Congress’s intent in enacting the new reinstatement statute as “toe[ing] a harder line” by subjecting all illegal reentrants to reinstatement and “foreclos[ing] discretionary relief from the terms of the reinstat[ment] order,” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006), but imposing harsher consequences for illegal reentry is a separate and distinct policy goal from an indirect curtailment of judicial review. 4 In Bhaktibhai-Patel, we also noted the “seemingly odd result” that reinstatement orders are reviewable but that, under its holding, reentrants “generally may not obtain judicial review of subsequent withholding-only proceedings.” 32 F.4th at 195. The Supreme Court has since addressed that oddity in Riley, writing that the timing and reviewability of withholding-only proceedings have no bearing on the finality of a removal order. 606 U.S. at 270–72. 17  When presented with a similar question about appellate jurisdiction over the BIA’s denials of motions to reopen, the Supreme Court wrote that “[a]ny lingering doubt . . . [is] dispelled by a familiar principle of statutory construction: the presumption favoring judicial review of administrative action.” Kucana v. Holder, 558 U.S. 233, 251 (2010). “We have consistently applied that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction.” Id. at 251–52 (further requiring “’clear and convincing evidence’ to dislodge the presumption” (citations omitted)). Our own precedent supports the conclusion that reinstatement orders constitute final orders of removal subject to our review. In Garcia-Villeda v. Mukasey, this Court considered, among other things, a due process challenge to the reinstatement procedure under 8 C.F.R. § 241.8. 531 F.3d 141, 149–50 (2d Cir. 2008). We entertained the challenge via a petition for review of a reinstatement order, id. at 144, and so appeared to have assumed jurisdiction sub silentio. However, we also wrote that, among the procedural safeguards available under 18 the scheme, noncitizens “may also challenge the reinstatement order in a court of appeals.” Id. at 150 (citing 8 U.S.C. § 1252(a)). 5 Later, in Herrera-Molina v. Holder, we also took up a petition for review of a reinstatement order. 597 F.3d at 131–32. Even though the initial petition for review was filed prior to the BIA’s decision, we explained “that the reinstatement of his prior deportation order [became] a reviewable final order . . . .” Id. at 132. We then proceeded to address the merits of the petitioner’s due process challenge to the agency’s reinstatement of his order. Id. at 132–40. These opinions were followed by a number of cases in which we, once again, sub silentio exercised jurisdiction over challenges to reinstatement orders. See, e.g., Miller, 539 F.3d at 162; Amos v. 5 Each of our sister circuits to consider this issue has agreed that reinstatement orders may be judicially reviewed. See Ponta-Garca v. Ashcroft, 386 F.3d 341, 342 (1st Cir. 2004) (“An order reinstating an earlier order of deportation is subject to review under 8 U.S.C. § 1252.”); Dinnall, 421 F.3d at 251 n.6 (“Because an order reinstating a prior removal order is the functional equivalent of a final order of removal, we have jurisdiction to hear [the] petition.” (internal citation and quotation marks omitted)); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir. 2001) (“First, we note that, as the INS concedes, we clearly have subject matter jurisdiction in this case.”); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002) (“[R]einstatement of [petitioner’s] previous deportation order is a final order of the INS. A fair interpretation of [§ 1252] grants this court the authority to review the lawfulness of the reinstatement order.”); Avila v. U.S. Att’y Gen., 560 F.3d 1281, 1284 (11th Cir. 2009) (“An order of reinstatement is a final order of removal under § 1252(a)(1).”). But see Ruiz-Perez v. Garland, 49 F.4th 972, 976 (5th Cir. 2022) (noting that Ojeda-Terrazas’s holding “may require reassessment”). 19 Holder, 358 F. App’x 261, 262 (2d Cir. 2009) (summary order); Familia v. Holder, 600 F. App’x 23, 24 (2d Cir 2015) (summary order). 6 We recognize that our dicta in Bhaktibhai-Patel questioned the limited reasoning underpinning our prior holdings that reinstatement orders are final orders of removal subject to judicial review. In Bhaktibhai-Patel, we referred to our precedents as only “implicitly hold[ing]” that reinstatement orders are “final order[s] of removal” and described that holding as “rest[ing] on an unstable foundation.” Id. at 195. We nevertheless refrained from ruling on our jurisdiction under § 1252(a), see id. at 192 n.18, because we found the petition untimely under § 1252(b)(1) and held that such a defect was jurisdictional, id. at 193. But the Riley Court subsequently rejected the logic that an agency order “may never become final” in view of § 1101(a)(47)(B) if “it cannot be appealed to the BIA.” Id. at 195 (internal quotation marks omitted); see Riley, 606 U.S. at 267. As discussed above, there is a sound statutory basis to reaffirm our prior holdings, and we expressly hold that a reinstatement order is a final order of removal subject to judicial review under 8 U.S.C. § 1252(a). 6See also Villegas de la Paz v. Holder, 640 F.3d 650, 653 (6th Cir. 2010) (exercising jurisdiction to review a reinstatement order); Lopez v. Heinauer, 332 F.3d 507, 510 (8th Cir. 2003) (same); Duran- Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.5 (10th Cir. 2003) (same). 20  For these reasons, this Court has jurisdiction under 8 U.S.C. § 1252(a) to review Santos’s challenge to his 2017 reinstatement order. B. TIMELINESS AND EQUITABLE TOLLING Section § 1252(b)(1) provides that a “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). Santos filed this petition for review on September 22, 2023, more than six years after his reinstatement order became “final” on July 2, 2017. Santos argues that we should apply equitable tolling and deem his petition timely. Even assuming equitable tolling applies, the record reveals that Santos is not entitled to tolling. We have held that equitable tolling is warranted where “the party seeking tolling was prevented from timely filing in some extraordinary way and passes with reasonable diligence through the period it seeks to have tolled.” Perez v. Bondi, 166 F.4th 327, 330 (2d Cir. 2026) (per curiam) (internal quotation marks omitted). A review of the record in the light most favorable to Santos fails to show that he exercised reasonable diligence during the time period he seeks to toll. Santos provides no explanation, nor is one readily apparent, for the delay of more than two months between the May 18, 2022 USCIS denial of his Asylee 21 Relative Petition, which he claims placed him on notice of his reinstatement order, and his August 1, 2022 request to the San Francisco ICE field office to rescind that order. Moreover, Santos’s failure to file the FOIA request until eleven months after he was indisputably on notice of his reinstatement order is incompatible with any argument that he exercised due diligence. As such, Santos’s petition for review of the 2017 reinstatement order is untimely. II. 2023 DENIAL OF SANTOS’S MOTION TO REOPEN, RECONSIDER, AND RESCIND Having determined that Santos’s petition for review of his 2017 reinstatement order is untimely, we next consider his petition for review of CBP’s 2023 denial of his motion to reopen, reconsider, and rescind the 2017 reinstatement order. A. JURISDICTION OVER CBP’S DENIAL OF SANTOS’S MOTION UNDER 8 U.S.C. § 1252(B)(6) As before, we begin by determining whether we have jurisdiction to review CBP’s denial of Santos’s 2023 motion to reopen, reconsider, and rescind his reinstatement order. We hold that we do. 22  Section 1252(b)(6) provides that “[w]hen a petitioner seeks review of a [final order of removal], any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.” 8 U.S.C. § 1252(b)(6). Section 1252(b)(6) “expressly contemplates” appellate jurisdiction over “decisions refusing to reopen or reconsider” final orders of removal. Mata v. Lynch, 576 U.S. 143, 147 (2015). The Supreme Court has further held that circuit courts have jurisdiction to review the denials of motions to reopen, in a case involving a denial by the BIA. Kucana v. Holder, 558 U.S. 233, 242, 253 (2010) (“Action on motions to reopen . . . therefore remain subject to judicial review.”). The government seeks to limit § 1252(b)(6) to petitions for review of BIA-issued removal orders. Yet § 1252(b)(6) provides that “[w]hen a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.” 8 U.S.C. § 1252(b)(6). The statute draws no distinction between final removal orders issued by the BIA and by DHS. Exercising jurisdiction here gives effect to Congress’s purpose to channel multiple agency actions into the petition for review process. Section 1252(b)(6) is one of several provisions in the IIRAIRA that sought to consolidate and streamline judicial review of agency action in the courts of appeals. See generally Luna, 637 23 F.3d at 93, 95–96 (discussing how AEDPA and IIRAIRA amendments “consolidated all judicial review” and “reject[ed] the existing dual tracks of review” (cleaned up)). As such, we hold that 8 U.S.C. §§ 1252(a) and 1252(b)(6) provide us with jurisdiction to review CBP’s denial of Santos’s motion to reopen. Accordingly, we turn to the merits. B. CBP’S AUTHORITY UNDER 8 C.F.R. § 103.5 CBP denied Santos’s motion because it believed that “there is no prescribed mechanism for CBP to reopen, reconsider, or vacate . . . a reinstatement order.” Special App’x at 36. Because we conclude that 8 C.F.R. § 103.5 vests CBP with authority to reopen, reconsider, and rescind Santos’s reinstatement order, we vacate and remand for the agency to consider his motion in the first instance. “As always, we begin with the text.” Sw. Airlines Co. v. Saxon, 596 U.S. 450, 457 (2022). Section 103.5 is quite broad: where “the affected party files a motion,” § 103.5 grants the “official having jurisdiction” authority to “reopen the proceeding or reconsider the prior decision.” 8 C.F.R. § 103.5(a)(1)(i). The “official having jurisdiction is the official who made the latest decision in the proceeding.” Id. § 103.5(a)(1)(ii). 24  On its face, then, the plain language of § 103.5 contemplates that immigration officials, like CBP officers, have the authority to consider and grant motions to reopen and reconsider so long as those CBP officers were the officials who made the latest decision in the proceeding. See id. § 103.5(a)(1). “Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words . . . in search of an intention which the words themselves did not suggest.” United States v. Wiltberger, 18 U.S. 76, 95–96 (1820) (Marshall, C.J.); see also Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992). The regulation’s exclusion of several categories of decisions from its reach, see id. § 103.5(a)(1)(i), does not alter or undermine our conclusion because none of these exclusions apply to removal orders issued by DHS, such as reinstatement orders. See Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 794 (2d Cir. 1999); N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 302 (2017). Specifically, § 103.5 expressly excludes all those matters over which the BIA has authority. See 8 C.F.R. § 103.5(a)(1)(i) (“Except where the Board has jurisdiction . . . .”). It further excludes all matters relating to “Special Agricultural Workers” over which the Executive Office of Immigration Review has jurisdiction, and matters relating to 25 adjustment of status. See id. Section 103.5 could have added to its list of exclusions motions to reopen reinstated removal orders. The fact that it does not supports our conclusion. 7 The government raises two distinct arguments as to why we should not interpret § 103.5 to grant CBP the authority to consider Santos’s motion to reopen. First, it claims that § 103.5 should be cabined to the benefits context. Second, it claims that the reinstatement statute, see 8 U.S.C. § 1231(a)(5), itself bars motions to reopen reinstatement orders. We address each argument in turn. 1. SECTION 103.5 IS NOT LIMITED TO THE BENEFITS CONTEXT Irrespective of the clear answer that the text of the regulation provides, the government, relying on the title of the regulation and its references to USCIS Form I-290B, argues that 8 C.F.R. § 103.5 is limited to the benefits context. We do not find these arguments persuasive. More specifically, the government argues that § 103.5 provides only for reopening and reconsidering benefits applications before USCIS because § 103.5 is housed within Part 103, titled “Immigration Benefit 7 The partial dissent submits that “if section 103.5 covers only benefits, then the expressio unius canon would simply suggest that the