Judge Allison H. Eid, who agreed with the panel’s decision in Vizguerra-Ramirez v. Blanche, urged the court to consider the issue in a rare hearing before all its active judges, known as an en banc review. Eid said she would conclude that the court lacks jurisdiction to review reinstatement orders because they are not themselves orders of removal.

The panel’s 2-1 decision did not adopt that view. Writing for the majority, Judge Carolyn B. McHugh said a recent U.S. Supreme Court ruling had not clearly displaced the 10th Circuit’s precedent allowing review of reinstatement orders. But the majority concluded that Vizguerra had missed the deadline to challenge her order, even if she could seek judicial review.

Vizguerra received an initial deportation order in 2011 that allowed her to leave the United States voluntarily. She went to Mexico for family reasons while an appeal was pending, causing that appeal to be withdrawn. After she returned to the United States without authorization in 2013, the government reinstated the earlier removal order.

The government later extended her ability to remain in the country, but immigration officials detained her again in March 2025. Vizguerra, a prominent Colorado immigration activist, has said she fears persecution or torture in Mexico because of her criticism of that country’s government. She pursued separate proceedings seeking protection from being sent there.

For years, 10th Circuit precedent directed people in circumstances like Vizguerra’s to wait until those protection proceedings ended before seeking review of a final removal order. A 2025 Supreme Court decision, Riley v. Bondi, rejected the circuit’s approach to when certain removal orders become final. The government argued that Riley also meant the 10th Circuit could no longer review reinstatement orders.

McHugh wrote that Riley did not clearly overrule the circuit’s earlier position. A reinstatement order, she said, has characteristics that the Supreme Court identified as relevant to a reviewable removal order.

The panel nevertheless found Vizguerra’s challenge untimely. McHugh said the reinstatement order was issued in July 2013, before the 10th Circuit adopted its rule requiring people to wait for their protection proceedings to conclude. As a result, she wrote, Vizguerra had not relied on that later precedent when she failed to file a petition within 30 days, and the court’s earlier case law had not barred her from filing sooner.

Judge Gregory A. Phillips dissented. He said he would have overturned the reinstatement order, finding that its language raised questions about whether it was itself a deportation order and whether a valid underlying order existed. Phillips also faulted the government and the court for creating confusion about when Vizguerra could appeal.

“For years, the government told us, other courts, and litigants like Ms. Vizguerra” that an appeal had to wait until the end of protection proceedings, Phillips wrote. He said he would not accept the government’s later position that she should have appealed before those proceedings began.

Eid’s proposed approach would go further than the panel’s ruling. She argued that reinstatement orders generally make no new substantive findings, but simply confirm that an earlier removal order applies to a person. She acknowledged that no other federal appeals court had adopted her position, though some judges elsewhere had supported similar arguments.

If the full 10th Circuit took up the question and adopted Eid’s view, people subject to reinstatement orders could lose a route to challenge them in federal court within the circuit. The 10th Circuit covers Colorado and five other states. The ruling does not itself change the court’s precedent; Eid’s call for en banc review would require the court to take up the issue separately.

The Department of Homeland Security reported that it carried out more than 183,000 deportations nationwide in fiscal year 2023. Nearly one-third — 59,660 — involved reinstatement orders, though those national figures do not indicate how many cases would be affected in the 10th Circuit.

The case is Vizguerra-Ramirez v. Blanche.