B. P. v. Todd Blanche
Split Score
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Case Summary
Disposition
Dismissed
The petitioner, B.P., sought review of the Board of Immigration Appeals’ denial of deferral of removal under the Convention Against Torture. The Eighth Circuit held it lacked jurisdiction because B.P. challenged only the CAT order, not the final administrative removal order, and his petition was untimely under 8 U.S.C. § 1252(b)(1). The court therefore dismissed the petition and, in doing so, rejected equitable tolling of the 30-day filing deadline.
Circuit Split Identified
Legal Issue
Whether the 30-day filing deadline for petitions for review of removal orders under 8 U.S.C. § 1252(b)(1) is subject to equitable tolling.
Circuit Positions
Equitable tolling is available for § 1252(b)(1)’s 30-day deadline.
Equitable tolling is NOT available; § 1252(b)(1) is a mandatory claims-processing rule that cannot be tolled if the government invokes it.
Conflict Summary
The Fourth, Sixth, and Seventh Circuits permit equitable tolling of § 1252(b)(1)’s 30-day deadline, reasoning that the rule is non-jurisdictional and should be flexible in extraordinary circumstances. The Eighth Circuit (this case) joins the Ninth and Fifth Circuits in holding that, although the deadline is non-jurisdictional, it is a mandatory claims-processing rule whose text and statutory scheme rebut the presumption of equitable tolling and therefore cannot be tolled when the government properly raises timeliness.