Split 10th Circuit tosses immigrant activist’s plea for review of reinstatement order

Immigrant and activist Jeanette Vizguerra-Ramirez has been trying to obtain review of a deportation order after her initial appeal was dissolved following her return to Mexico in 2011 to sit by her mother's deathbed.DENVER (CN) — The 10th Circuit tossed on Monday a Mexican woman’s petition for review of a 13-year-old reinstatement order as untimely, with two judges finding the court had jurisdiction to review the case and a different pair agreeing the petition came too late.“Because we conclude that [Jeanette Vizguerra-Ramirez] has failed to demonstrate extraordinary circumstances entitling her to equitable tolling, we do not address the merits of Ms. Vizguerra’s case,” U.S. Circuit Judge Carolyn McHugh wrote in a 21-page opinion.U.S. Circuit Judges Gregory Phillips and Allison Eid both penned partial concurrences, adding one vote for and one vote against McHugh on each of the two issues presented: whether the court had jurisdiction to review Vizguerra-Ramirez’s case and whether she filed too late.After living in the U.S. for more than a decade, Vizguerra-Ramirez first faced removal proceedings in 2009 after she presented fraudulent documents during a traffic stop. In 2011, an immigration judge denied her application to cancel a removal order, then granted her request to voluntarily depart. When she appealed, Vizguerra-Ramirez was granted a stay of the removal order through the appeal.About nine months into proceedings, however, Vizguerra-Ramirez returned to Mexico to be with her mother on her deathbed — an action that unwittingly threw a wrench in the gears of her immigration proceedings.In Vizguerra-Ramirez’s view, returning to Mexico amounted to voluntarily departing the country as required. When she reentered the U.S. in April 2013, the government charged her with the misdemeanor of entering illegally and reinstated the 2011 removal order. In pursuing review of the reinstatement, Vizguerra-Ramirez has been granted several stays on the removal order, allowing her to remain in the U.S.Rather than satisfying the requirement to voluntarily depart in 2011, the federal government argues Vizguerra-Ramirez’s departure invalidated both her appeal and her 2011 stay of removal, creating an immediate retroactive violation.Under that rationale, Vizguerra-Ramirez committed felony illegal reentry when she returned to the U.S. in 2013 and has no means to review the 2011 order the government claims she violated.Before the 10th Circuit, the federal government argued the court lacked jurisdiction to review the reinstated orders of removal against Vizguerra-Ramirez, and she should have filed her petition for review 13 years ago when the orders were issued.On a 2-1 vote, McHugh and Phillips found the court had jurisdiction to review the reinstated removal orders, while McHugh and Eid agreed to dismiss the petition after finding Vizguerra-Ramirez failed to show why she waited so many years to bring the matter to the 10th Circuit.In 2015’s Luna-Garcia v. Holder, the 10th Circuit determined people in a position similar to Vizguerra-Ramirez did not have a final reviewable order. Last year, however, in Riley v. Bondi, the U.S. Supreme Court found some removal orders do meet the criteria of a final order, thus allowing appellate courts to review them. This prompted Vizguerra-Ramirez to file and claims her petition was timely.“Under our previous approach as articulated in Luna-Garcia, Ms. Vizguerra’s petition for review would have been premature,” McHugh wrote. “But following the Supreme Court’s decision in Riley, Ms. Vizguerra’s petition should have been filed within thirty days of July 24, 2013 — the date of her reinstatement order.”Although the law between 2015 and 2025 set forth conflicting advice, McHugh found Vizguerra-Ramirez failed to justify why she hadn’t applied for review in 2013, two years before Luna-Garcia could have misled her.McHugh further added that “a garden variety claim of excusable neglect” like miscalculating deadlines did not warrant tolling nor did “mistaken inferences about what the law requires."McHugh’s co-panelists each penned a concurring opinion, agreeing with one half of the case, and disagreeing with the other.Eid penned an eight-page opinion arguing against the court’s authority to review the case, while agreeing Vizguerra-Ramirez was not entitled to equitable tolling. Eid said the question of jurisdiction after Riley belongs to the court en banc.“Riley has made it clear that more analysis than exists in these cases is required to determine whether we have jurisdiction to review reinstatement orders,” Eid wrote. “However, it is not as clear that Riley sufficiently undermines our previous precedent to give us the authority to overturn this precedent without taking this case en banc.”Phillips agreed with the majority’s stance on jurisdiction but disagreed with the conclusion that Vizguerra-Ramirez did not meet the “extraordinary circumstance” threshold warranting equitable tolling.“Ms. Vizguerra’s mistake of law was outside of her control because she wasn’t the only one who was mistaken. So were we, and so was the government,” Phillips wrote in a seven-page opinion. “Though we said that the petitioner in Luna-Garcia presented ‘a question of first impression,’ at that time, the answer was clear.”Rather than “excusable neglect,” Phillips concluded Vizguerra-Ramirez’s failure to file in 2013 was “reasonable reliance” on the court’s rulings of the day.Barack Obama appointed both Phillips and McHugh. Eid was appointed during Trump’s first term.Attorney Mark Barr represented Vizguerra-Ramirez on appeal and did not immediately respond to an inquiry for comment.U.S. Attorney Jacob Roth argued for the federal government. A U.S. Department of Justice spokesperson declined to comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads