Santos v. Blanche

23-7191-ag Santos v. Blanche 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ___________ 6 7 August Term 2024 8 No. 23-7191-ag 9 10 FLAVIO DIVINO SANTOS, 11 Petitioner, 12 13 V. 14 15 TODD BLANCHE, UNITED STATES ATTORNEY GENERAL, 16 Respondent.∗ 17 ___________ 18 19 ARGUED: DECEMBER 11, 2024 20 DECIDED: SEPTEMBER 8, 2026 21 ___________ 22 23 Before: LOHIER, Chief Judge, SULLIVAN, and KAHN, Circuit Judges. 24 ________________ 25 26 Petitioner Flavio Divino Santos, a citizen of Brazil, attempted to enter the 27 United States in 2004, was issued an expedited removal order, and was deported. 28 In 2017, Santos reentered the United States without inspection and was issued a 29 reinstatement order based on his 2004 expedited removal order. Santos was not 30 removed at the time but, in 2023, was detained pursuant to his reinstatement order. 31 Santos subsequently filed a motion to reopen, reconsider, and rescind his 32 reinstatement order with U.S. Customs and Border Protection (“CBP”), which the 33 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.  1 2017 order reinstating his 2004 expedited removal order and (2) an August 23, 2023 2 order denying his motion to reopen, reconsider, and rescind that reinstatement 3 order. 4 As to the 2017 reinstatement order, we reaffirm our precedent that a 5 reinstatement order is a final order of removal under 8 U.S.C. § 1252(a) such that 6 we have jurisdiction to review his claims. Guided by the Supreme Court’s recent 7 decision in Riley v. Bondi, 606 U.S. 259 (2025), we acknowledge that the 30-day filing 8 deadline at 8 U.S.C. § 1252(b)(1) is a claims-processing rule rather than a 9 jurisdictional bar. However, even assuming that deadline is subject to equitable 10 tolling, we find that Santos did not exercise the requisite diligence to warrant 11 tolling in this case. 12 As to the 2023 denial of Santos’s motion, we conclude that 8 U.S.C. 13 §§ 1252(a) and 1252(b)(6) together grant us jurisdiction to review CBP’s denial of 14 Santos’s motion to reopen. We further hold that 8 C.F.R § 103.5(a) authorizes CBP 15 to reopen, reconsider, and rescind its decisions to reinstate removal orders. We 16 hold that CBP denied Santos’s motion on the erroneous understanding that it had 17 no authority to reopen or reconsider its reinstatement decision, that it therefore 18 misperceived the law and, as such, that it abused its discretion. 19 Accordingly, we DENY Santos’s petition for review as to his 2017 20 reinstatement order. We GRANT Santos’s petition as to the 2023 denial of his 21 motion to reopen, reconsider, and rescind the 2017 reinstatement order, VACATE 22 that denial, and REMAND for CBP to consider Santos’s motion in the first 23 instance. The government’s motion to dismiss Santos’s petition for review is 24 DENIED as moot. 25 26 Judge Sullivan concurs in part and dissents in part in a separate opinion. 27 28 ________________ 29 30 ANNELISE M.J. DE ARAUJO, Araujo & Fisher, LLC, Boston, 31 MA, for Petitioner. 32 33 TIM RAMNITZ, Senior Litigation Counsel (Brian M. 34 Boynton, Principal Deputy Assistant Attorney General 35 and Shelley R. Goad, Assistant Director, on the brief), 36 Office of Immigration Litigation, Civil Division, U.S. 37 Department of Justice, Washington, DC, for Respondent. 2  1 2 TRINA REALMUTO (Kristin Macleod-Ball, on the brief), 3 National Immigration Litigation Alliance, Brookline, MA, 4 for Amicus Curiae National Immigration Litigation Alliance, 5 in support of Petitioner. 6 ________________ 7 8 MARIA ARAÚJO KAHN, CIRCUIT JUDGE: 9 10 Petitioner Flavio Divino Santos (“Santos”), a citizen of Brazil, attempted to 11 enter the United States in 2004, was issued an expedited removal order, and was 12 deported. In 2017, Santos reentered the United States without inspection and was 13 issued a reinstatement order based on his 2004 expedited removal order. Santos 14 was not removed at the time but, in 2023, was detained pursuant to his 15 reinstatement order. Santos subsequently filed a motion to reopen, reconsider, 16 and rescind his reinstatement order with U.S. Customs and Border Protection 17 (“CBP”), which the agency denied. Santos seeks review of two distinct agency 18 actions: (1) the July 2, 2017 reinstatement of his 2004 expedited removal order and 19 (2) the August 23, 2023 denial of his motion to reopen, reconsider, and rescind that 20 reinstatement order. 21 Each of the two orders that Santos challenges raises several issues for this 22 Court. As to his 2017 reinstatement order, we must consider: (1) whether we 23 have jurisdiction to review reinstatement orders, (2) whether Santos’s petition for 3  1 review was timely, and (3) if Santos’s petition was untimely, whether equitable 2 tolling cures that defect. In Part I of this opinion, we hold that reinstatement 3 orders are final orders of removal, such that we have jurisdiction to review them 4 under 8 U.S.C. § 1252(a)(1). We further hold that Santos’s petition for review was 5 untimely and that, even assuming that equitable tolling applies to the thirty-day 6 deadline in 8 U.S.C. § 1252(b)(1), Santos is not entitled to tolling. We therefore 7 deny Santos’s petition for review as to his 2017 reinstatement order. 8 As to the 2023 denial of Santos’s motion to reopen, reconsider, and rescind 9 his 2017 reinstatement order, we must consider: (1) whether we have jurisdiction 10 to review a motion to reopen a reinstatement order, (2) whether CBP has the 11 authority to reopen reinstatement orders under 8 C.F.R § 103.5, and (3) if CBP 12 does have that authority, whether it erred in denying Santos’s motion. In Part II 13 of this opinion, we hold that we have jurisdiction to review Santos’s motion to 14 reopen under 8 U.S.C. § 1252(b)(6). We further hold that CBP is authorized to 15 reopen, reconsider, and rescind reinstatement orders and that it misapprehended 16 its authority to do so when it denied Santos’s motion. We therefore grant 17 Santos’s petition for review as to his 2023 motion to reopen, vacate the agency’s 18 decision, and remand for further proceedings consistent with this opinion. 4  1 FACTUAL AND PROCEDURAL BACKGROUND 2 A. INITIAL ENTRY 3 Santos is a citizen of Brazil who first entered the United States without 4 inspection in 1995. He lived in the United States for several years, during which 5 time he had a U.S. citizen child. Santos then left the country and, in 2004, sought 6 reentry on a B-2 visitor visa. The U.S. Department of Homeland Security (“DHS”) 7 denied Santos entry and issued him an expedited removal order pursuant to 8 8 U.S.C. § 1225(b)(1). 9 In late 2016 and early 2017, Santos arranged to return to the United States 10 with the help of a smuggling network. While en route to the United States, the 11 smugglers warned Santos and his wife that they had previously broken the legs of 12 a client who had not paid his smuggling debt and that they would kill anyone who 13 revealed their identities to U.S. law enforcement. 14 B. REENTRY AND REINSTATEMENT 15 On or about July 1, 2017, Santos entered the United States without 16 inspection at the border in Vermont, where he was apprehended by CBP agents 17 shortly after crossing. These agents served Santos with a Form I-871 Notice of 18 Intent/Decision to Reinstate his 2004 expedited removal order pursuant to 8 U.S.C. 5  1 § 1231(a)(5) and 8 C.F.R. § 241.8. CBP informed Santos of his right to contest the 2 decision to reinstate his removal order in English. Santos represents that he does 3 not speak English and therefore did not understand that he had a right to contest 4 that order. This reinstatement order is the first of two agency actions that Santos 5 challenges in his petition for review. 6 Santos was transferred to the custody of the U.S. Marshal and charged with 7 unlawful entry under 8 U.S.C. § 1325(a) in the United States District Court for the 8 District of Vermont. Both Santos and his wife cooperated with the investigation 9 into the smuggling network that had arranged for their entry into the United 10 States, providing detailed information on the arrangements that the network used 11 and other evidence, including financial documents. Thereafter the government 12 dismissed the criminal complaint against Santos. 13 C. WITHHOLDING-ONLY PROCEEDINGS 14 While he was still in CBP custody, Santos expressed a fear of returning to 15 Brazil and was referred to an asylum officer for a “reasonable fear interview” 16 pursuant to 8 C.F.R. § 208.31. At that interview, which took place on September 17 14, 2017, Santos claimed that, because of his cooperation with U.S. law 18 enforcement, he feared retaliation from the smugglers who had transported him 6  1 into the United States. The asylum officer found Santos credible, but also found 2 that he had not established a reasonable fear of persecution or torture. Santos 3 requested that an immigration judge review the asylum officer’s determination 4 pursuant to 8 C.F.R. § 208.31(g). On September 28, 2017, Santos appeared for a 5 hearing at the Boston Immigration Court and testified before an immigration judge 6 (“IJ”) who vacated the asylum officer’s reasonable fear decision and ordered a 7 “withholding-only” hearing on Santos’s claims. 1 8 Santos submitted evidence to support his fear claims, including police 9 reports of threatening calls his relatives continued to receive, and photos depicting 10 his sister-in-law’s home, which had been ransacked, riddled with bullet holes, and 11 vandalized with graffiti bearing death threats related to Santos’s cooperation with 12 law enforcement. The IJ held an individual merits hearing on January 22, 2018, 13 and denied Santos’s applications for withholding of removal. Santos appealed to 14 the Board of Immigration Appeals (“BIA”), which adopted and affirmed the IJ’s 15 decision on October 2, 2020. Santos was released from DHS custody in April 2018, 16 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  1 D. MORE RECENT PROCEEDINGS 2 In early 2020, Santos’s wife was granted asylum by an IJ in the San Francisco 3 Immigration Court. According to Santos, she was granted asylum on the same 4 facts and circumstances he alleged in his own asylum petition. On May 18, 2020, 5 Santos’s wife filed an I-730 Asylee Relative Petition on Santos’s behalf. U.S. 6 Citizenship and Immigration Services (“USCIS”) denied that petition on May 18, 7 2022 due to Santos’s outstanding reinstatement order. 8 Santos represents that, on August 1, 2022, he sent a request for a stay of 9 removal and rescission of his reinstatement order to the U.S. Immigration and 10 Customs Enforcement (“ICE”) field office in San Francisco, to which he was 11 regularly reporting at the time. He further represents that ICE denied that motion 12 by phone on April 20, 2023. Santos also submits that, on April 25, 2023, his counsel 13 filed a Freedom of Information Act (“FOIA”) request for the entirety of his 14 immigration file in order to assess his reinstatement order, and that his counsel 15 received a response to the FOIA request on June 1, 2023. 16 Meanwhile, on August 4, 2023, Santos filed a motion to reopen, reconsider, 17 and rescind his 2017 reinstatement order with CBP in Boston, arguing that DHS 18 violated his due process rights by failing to advise him of his rights to contest the 8  1 reinstatement order at the time it was issued. Specifically, he claims that he was 2 not advised in a language he understood of his right to make an oral or written 3 statement challenging the reinstatement decision in violation of 8 C.F.R. § 241.8(b). 4 On August 23, 2023, CBP denied Santos’s motion. This denial is the second of the 5 two agency actions that Santos challenges in his petition for review. 6 E. PROCEEDINGS BEFORE THIS COURT 7 Santos filed the instant petition for review on September 22, 2023. Santos 8 then filed a motion for a stay of removal, and the government filed a motion to 9 dismiss the petition for lack of jurisdiction. Following argument, a motions panel 10 of this Court granted the motion for a stay and referred the motion to dismiss to a 11 merits panel. The motions panel further ordered the parties to brief the following 12 questions: 13 [W]hether (1) a decision to reinstate a removal order is a final order of 14 removal subject to judicial review under 8 U.S.C. § 1252(a); (2) the CBP 15 has statutory or regulatory authority to reopen or rescind a reinstated 16 removal order; (3) if so, whether this Court has jurisdiction to review 17 such a ruling; and (4) this Court can review the 2017 reinstated 18 removal order if Respondent does not invok[e] the 30-day filing 19 deadline in 8 U.S.C. § 1252(b)(1). 20 21 Certified Order, Dkt. No. 33. Following briefing and argument, Santos moved to 22 withdraw his motion for a stay of removal. This panel granted that request, and 9  1 then ordered supplemental briefing on the issue of equitable tolling, which the 2 parties duly filed. 3 DISCUSSION 4 Santos’s challenges to the two agency actions at issue present questions of 5 statutory construction, which we review de novo. See Fisher v. Aetna Life Ins. Co., 6 32 F.4th 124, 135 (2d Cir. 2022). 7 I. 2017 REINSTATEMENT ORDER 8 Santos urges this Court to review his 2017 reinstatement order. The gist of 9 his challenge to that order is that CBP did not comply with the regulations for 10 reinstating his removal order because it failed “to provide actual notice of his right 11 to make a statement contesting the [agency’s] determination . . . in a language he 12 could understand” and “fail[ed] to provide him with an interpreter in order to 13 allow a response.” Petitioner’s Reply Br. at 22; see also 8 C.F.R. § 241.8(b) (requiring 14 immigration officers to provide noncitizens with notice of the reinstatement 15 decision and of the opportunity to contest it and requiring that officers consider 16 that challenge). Specifically, Santos represents that he speaks only Portuguese but 17 was notified of his rights in English, which forms the basis of his due process claim. 18 See Certified Administrative Record at 495, 505; Petitioner’s Br. at 26; see also 10  1 Bergamo v. Commodity Futures Trading Comm'n, 192 F.3d 78, 79 (2d Cir. 1999) (“An 2 agency is bound to follow procedures required by its own regulations, even if 3 these regulations were not statutorily or constitutionally mandated.” (citing United 4 States v. Nixon, 418 U.S. 683, 694–95 (1974))). 5 A. JURISDICTION OVER SANTOS’S 2017 REINSTATEMENT ORDER UNDER 8 6 U.S.C. § 1252(A)(1) 7 Our analysis begins with our jurisdiction to review Santos’s 2017 8 reinstatement order. See Juras v. Garland, 21 F.4th 53, 58–59 (2d Cir. 2021). Judicial 9 review of immigration orders is circumscribed by statute. As relevant here, 8 10 U.S.C. § 1252(a)(1) vests the circuit courts of appeal with jurisdiction to review 11 “final order[s] of removal.” Chupina v. Holder, 570 F.3d 99, 103–04 (2d Cir. 2009) 12 (alteration in original). Therefore, our ability to review Santos’s 2017 13 reinstatement order turns on whether that order is a “final order of removal” 14 within the meaning of 8 U.S.C. § 1252(a)(1). 15 Although the government took the contrary position in its main brief, it 16 argues in supplemental briefing that Santos’s reinstatement order is not a final 17 order of removal and that we therefore lack jurisdiction to hear his appeal. For the 18 reasons set forth below, we disagree. 11  1 “[A]ny statutory reference to ‘an order of removal’ is deemed to include a 2 reference to an order of deportation,” Riley v. Bondi, 606 U.S. 259, 267 (2025) 3 (cleaned up), which Congress defined in the Antiterrorism and Effective Death 4 Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). 2 That 5 definition reads: 6 (A) The term “order of deportation” means the order of the special 7 inquiry officer, or other such administrative officer to whom the 8 Attorney General has delegated the responsibility for determining 9 whether an alien is deportable, concluding that the alien is deportable 10 or ordering deportation. 11 (B) The order described under subparagraph (A) shall become final 12 upon the earlier of— 13 (i) a determination by the Board of Immigration Appeals 14 affirming such order; or 15 (ii) the expiration of the period in which the alien is permitted 16 to seek review of such order by the Board of Immigration 17 Appeals. 18 19 8 U.S.C. § 1101(a)(47). We must therefore determine whether Santos’s 2017 20 reinstatement order is (1) an order of removal and (2) final. 21 Santos’s reinstatement order is an order of removal. In Nasrallah v. Barr, the 22 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  1 the Convention Against Torture (“CAT”)—one issued in “withholding-only” 2 proceedings—is not an “‘order of deportation’ because it is not an order 3 ‘concluding that the alien is deportable or ordering deportation.’” 590 U.S. 573, 4 584 (2020) (quoting 8 U.S.C. § 1101(a)(47)). It further held that orders on CAT relief 5 do not “merge into final orders of removal”—unlike, for instance, an IJ’s 6 “evidentiary rulings”—because “final orders of removal encompass only the 7 rulings made by the immigration judge or Board of Immigration Appeals that affect 8 the validity of the final order of removal.” Id. at 582 (emphasis added). 9 Reinstatement orders are new and distinct agency decisions from the 10 removal orders on which they are predicated. The statute requires that DHS make 11 factual determinations prior to reinstatement of the sort contemplated by 12 Nasrallah. See 8 U.S.C. § 1231(a)(5) (requiring findings that an individual is a 13 noncitizen, that they do not have authorization to reenter the United States, and 14 that they have previously been removed or granted voluntary departure while 15 subject to a removal order); 8 C.F.R. § 241.8(a) (same); see also Beekhan v. Holder, 634 16 F.3d 723, 725 (2d Cir. 2011) (reviewing whether petitioner’s reentry was actually 17 unlawful); Miller v. Mukasey, 539 F.3d 159, 164 (2d Cir. 2008) (contemplating review 18 of “the predicate facts underlying the reinstatement order”); Ochoa-Carrillo v. 13  1 Gonzales, 437 F.3d 842, 845–48 (8th Cir. 2006) (reviewing both reinstatement 2 procedures and their factual and legal underpinnings); Vega-Anguiano v. Barr, 982 3 F.3d 542, 544–45 (9th Cir. 2019) (reviewing challenge to the legal underpinning of 4 a reinstatement order). These factual determinations are independent of those the 5 agency is required to make for the underlying removal order because a 6 reinstatement order “conclud[es] that the alien is deportable [and] order[s] 7 deportation.” Nasrallah, 590 U.S. at 584 (internal quotation marks omitted); see 8 Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir. 2010). 3 9 Although the reinstatement statute states that “the prior order of removal is 10 reinstated,” that reinstatement is explicitly predicated on agency findings of fact. 11 8 U.S.C. § 1231(a)(5) (“If the Attorney general finds . . . .”) (emphasis added). The 12 Supreme Court has explained that “law-enforcement discretion” is so 13 fundamental that it endures “even in the presence of seemingly mandatory 14 legislative commands.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005). 15 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  1 removal, including after issuing a removal order, despite the statute’s directive 2 that the agency “shall remove” noncitizens with removal orders. 8 U.S.C. 3 § 1231(a)(1)(A); see Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 4 (1999). As such, we conclude that Santos’s 2017 reinstatement order is an “order 5 of removal.” 6 Having determined that reinstatement orders are distinct orders of removal, 7 we turn to whether they are “final,” and, as such, subject to judicial review. 8 8 U.S.C. § 1252(a)(1). The issue of when a reinstatement order becomes final came 9 before this Court in Bhaktibhai-Patel v. Garland, 32 F.4th 180 (2d Cir. 2022), abrogated 10 on other grounds by Riley, 606 U.S. at 299. In that case, we assumed that a 11 reinstatement order is a judicially reviewable final order of removal and concluded 12 that such orders become final when the reinstatement decision “is definitive and 13 not subject to further review within the agency.” Id. at 192–93 & n.18. 14 The definition of finality we delineated in Bhaktibhai-Patel makes sense 15 because § 1101(a)(47)(B) “ties finality to the final stage of agency review available 16 as of right . . . .” Id. at 192. The immigration statutes focus on completion of agency 17 review as the measure of finality beyond the definition at 8 U.S.C. § 1101(a)(47)(B). 18 See Bhaktibhai-Patel, 32 F.4th at 194 (“Thus, in § 1231(a)(1) [removal periods] and 15  1 § 1252 [judicial review] alike, ‘Congress focused our attention on the agency’s 2 review proceedings’ as the decisive metric for determining the finality of a 3 removal order.” (quoting Johnson v. Guzman Chavez, 594 U.S. 523, 534 (2021))). 4 Our holding that reinstatement orders are judicially reviewable final orders 5 of removal is consistent with Congress’s scheme. At the time that Congress 6 defined orders of deportation, that definition encompassed reinstatement orders 7 because they could be appealed to the BIA. The enactment of a new reinstatement 8 statute did not change this. In 1996, when Congress enacted § 1101(a)(47), a prior 9 version of the reinstatement statute was in effect. See 8 U.S.C. § 1252(f) (repealed 10 1996). Under the regulations implementing that statute, reinstatement authority 11 was vested exclusively in immigration judges and their reinstatement orders were 12 appealable to the BIA. See 8 C.F.R. §§ 242.8(a) (repealed 1997) (reinstatement 13 authority), 242.23(d) (repealed 1997) (same), 242.21 (allowing appeal of IJ 14 reinstatement orders to the BIA); see also Luna v. Holder, 637 F.3d 85, 95 (2d Cir. 15 2011) (recognizing noncitizens’ prior ability to move to reopen before the BIA); 16 Castro-Cortez v. I.N.S., 239 F.3d 1037, 1048 (9th Cir. 2001) (noting that noncitizens 17 could appear before IJs to contest reinstatement); Dinnall v. Gonzales, 421 F.3d 247, 16  1 253 (3d Cir. 2005) (describing the prior regime, including the “right to appeal an 2 adverse [reinstatement] decision to the Board”). 3 Neither party has presented evidence, nor has this Court found any, to 4 suggest that Congress’s subsequent amendments to the reinstatement statute 5 intended to exclude reinstatement orders from the provision that defines what 6 constitutes a final order of removal. 4 See Oklahoma v. Castro-Huerta, 597 U.S. 629, 7 645 (2022) (“This Court does not infer that Congress, in revising and consolidating 8 the laws, intended to change their policy, unless such an intention be clearly 9 expressed.” (internal quotation marks omitted)). True, the Supreme Court has 10 described Congress’s intent in enacting the new reinstatement statute as “toe[ing] 11 a harder line” by subjecting all illegal reentrants to reinstatement and 12 “foreclos[ing] discretionary relief from the terms of the reinstat[ment] order,” 13 Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006), but imposing harsher 14 consequences for illegal reentry is a separate and distinct policy goal from an 15 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  1 When presented with a similar question about appellate jurisdiction over 2 the BIA’s denials of motions to reopen, the Supreme Court wrote that “[a]ny 3 lingering doubt . . . [is] dispelled by a familiar principle of statutory construction: 4 the presumption favoring judicial review of administrative action.” Kucana v. 5 Holder, 558 U.S. 233, 251 (2010). “We have consistently applied that interpretive 6 guide to legislation regarding immigration, and particularly to questions 7 concerning the preservation of federal-court jurisdiction.” Id. at 251–52 (further 8 requiring “’clear and convincing evidence’ to dislodge the presumption” (citations 9 omitted)). 10 Our own precedent supports the conclusion that reinstatement orders 11 constitute final orders of removal subject to our review. In Garcia-Villeda v. 12 Mukasey, this Court considered, among other things, a due process challenge to 13 the reinstatement procedure under 8 C.F.R. § 241.8. 531 F.3d 141, 149–50 (2d Cir. 14 2008). We entertained the challenge via a petition for review of a reinstatement 15 order, id. at 144, and so appeared to have assumed jurisdiction sub silentio. 16 However, we also wrote that, among the procedural safeguards available under 18  1 the scheme, noncitizens “may also challenge the reinstatement order in a court of 2 appeals.” Id. at 150 (citing 8 U.S.C. § 1252(a)). 5 3 Later, in Herrera-Molina v. Holder, we also took up a petition for review of a 4 reinstatement order. 597 F.3d at 131–32. Even though the initial petition for review 5 was filed prior to the BIA’s decision, we explained “that the reinstatement of his 6 prior deportation order [became] a reviewable final order . . . .” Id. at 132. We then 7 proceeded to address the merits of the petitioner’s due process challenge to the 8 agency’s reinstatement of his order. Id. at 132–40. These opinions were followed 9 by a number of cases in which we, once again, sub silentio exercised jurisdiction 10 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  1 Holder, 358 F. App’x 261, 262 (2d Cir. 2009) (summary order); Familia v. Holder, 600 2 F. App’x 23, 24 (2d Cir 2015) (summary order). 6 3 We recognize that our dicta in Bhaktibhai-Patel questioned the limited 4 reasoning underpinning our prior holdings that reinstatement orders are final 5 orders of removal subject to judicial review. In Bhaktibhai-Patel, we referred to our 6 precedents as only “implicitly hold[ing]” that reinstatement orders are “final 7 order[s] of removal” and described that holding as “rest[ing] on an unstable 8 foundation.” Id. at 195. We nevertheless refrained from ruling on our jurisdiction 9 under § 1252(a), see id. at 192 n.18, because we found the petition untimely under 10 § 1252(b)(1) and held that such a defect was jurisdictional, id. at 193. But the Riley 11 Court subsequently rejected the logic that an agency order “may never become 12 final” in view of § 1101(a)(47)(B) if “it cannot be appealed to the BIA.” Id. at 195 13 (internal quotation marks omitted); see Riley, 606 U.S. at 267. As discussed above, 14 there is a sound statutory basis to reaffirm our prior holdings, and we expressly 15 hold that a reinstatement order is a final order of removal subject to judicial review 16 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  1 For these reasons, this Court has jurisdiction under 8 U.S.C. § 1252(a) to 2 review Santos’s challenge to his 2017 reinstatement order. 3 B. TIMELINESS AND EQUITABLE TOLLING 4 Section § 1252(b)(1) provides that a “petition for review must be filed not 5 later than 30 days after the date of the final order of removal.” 8 U.S.C. § 1252(b)(1). 6 Santos filed this petition for review on September 22, 2023, more than six years 7 after his reinstatement order became “final” on July 2, 2017. Santos argues that we 8 should apply equitable tolling and deem his petition timely. 9 Even assuming equitable tolling applies, the record reveals that Santos is not 10 entitled to tolling. We have held that equitable tolling is warranted where “the 11 party seeking tolling was prevented from timely filing in some extraordinary way 12 and passes with reasonable diligence through the period it seeks to have tolled.” 13 Perez v. Bondi, 166 F.4th 327, 330 (2d Cir. 2026) (per curiam) (internal quotation 14 marks omitted). A review of the record in the light most favorable to Santos fails 15 to show that he exercised reasonable diligence during the time period he seeks to 16 toll. 17 Santos provides no explanation, nor is one readily apparent, for the delay of 18 more than two months between the May 18, 2022 USCIS denial of his Asylee 21  1 Relative Petition, which he claims placed him on notice of his reinstatement order, 2 and his August 1, 2022 request to the San Francisco ICE field office to rescind that 3 order. Moreover, Santos’s failure to file the FOIA request until eleven months after 4 he was indisputably on notice of his reinstatement order is incompatible with any 5 argument that he exercised due diligence. As such, Santos’s petition for review of 6 the 2017 reinstatement order is untimely. 7 II. 2023 DENIAL OF SANTOS’S MOTION TO REOPEN, RECONSIDER, AND 8 RESCIND 9 Having determined that Santos’s petition for review of his 2017 10 reinstatement order is untimely, we next consider his petition for review of 11 CBP’s 2023 denial of his motion to reopen, reconsider, and rescind the 2017 12 reinstatement order. 13 A. JURISDICTION OVER CBP’S DENIAL OF SANTOS’S MOTION UNDER 8 14 U.S.C. § 1252(B)(6) 15 As before, we begin by determining whether we have jurisdiction to review 16 CBP’s denial of Santos’s 2023 motion to reopen, reconsider, and rescind his 17 reinstatement order. We hold that we do. 22  1 Section 1252(b)(6) provides that “[w]hen a petitioner seeks review of a [final 2 order of removal], any review sought of a motion to reopen or reconsider the order 3 shall be consolidated with the review of the order.” 8 U.S.C. § 1252(b)(6). 4 Section 1252(b)(6) “expressly contemplates” appellate jurisdiction over “decisions 5 refusing to reopen or reconsider” final orders of removal. Mata v. Lynch, 576 U.S. 6 143, 147 (2015). The Supreme Court has further held that circuit courts have 7 jurisdiction to review the denials of motions to reopen, in a case involving a denial 8 by the BIA. Kucana v. Holder, 558 U.S. 233, 242, 253 (2010) (“Action on motions to 9 reopen . . . therefore remain subject to judicial review.”). The government seeks to 10 limit § 1252(b)(6) to petitions for review of BIA-issued removal orders. Yet 11 § 1252(b)(6) provides that “[w]hen a petitioner seeks review of an order under this 12 section, any review sought of a motion to reopen or reconsider the order shall be 13 consolidated with the review of the order.” 8 U.S.C. § 1252(b)(6). The statute 14 draws no distinction between final removal orders issued by the BIA and by DHS. 15 Exercising jurisdiction here gives effect to Congress’s purpose to channel multiple 16 agency actions into the petition for review process. Section 1252(b)(6) is one of 17 several provisions in the IIRAIRA that sought to consolidate and streamline 18 judicial review of agency action in the courts of appeals. See generally Luna, 637 23  1 F.3d at 93, 95–96 (discussing how AEDPA and IIRAIRA amendments 2 “consolidated all judicial review” and “reject[ed] the existing dual tracks of 3 review” (cleaned up)). 4 As such, we hold that 8 U.S.C. §§ 1252(a) and 1252(b)(6) provide us with 5 jurisdiction to review CBP’s denial of Santos’s motion to reopen. Accordingly, we 6 turn to the merits. 7 B. CBP’S AUTHORITY UNDER 8 C.F.R. § 103.5 8 CBP denied Santos’s motion because it believed that “there is no prescribed 9 mechanism for CBP to reopen, reconsider, or vacate . . . a reinstatement order.” 10 Special App’x at 36. Because we conclude that 8 C.F.R. § 103.5 vests CBP with 11 authority to reopen, reconsider, and rescind Santos’s reinstatement order, we 12 vacate and remand for the agency to consider his motion in the first instance. 13 “As always, we begin with the text.” Sw. Airlines Co. v. Saxon, 596 U.S. 450, 14 457 (2022). Section 103.5 is quite broad: where “the affected party files a motion,” 15 § 103.5 grants the “official having jurisdiction” authority to “reopen the 16 proceeding or reconsider the prior decision.” 8 C.F.R. § 103.5(a)(1)(i). The “official 17 having jurisdiction is the official who made the latest decision in the proceeding.” 18 Id. § 103.5(a)(1)(ii). 24  1 On its face, then, the plain language of § 103.5 contemplates that 2 immigration officials, like CBP officers, have the authority to consider and grant 3 motions to reopen and reconsider so long as those CBP officers were the officials 4 who made