Gustavo Adolfo Osabas-Rivera v. Pamela Bondi
25a0332p.06 (2025)
Rule of Law:
Federal courts lack jurisdiction to review the Board of Immigration Appeals' discretionary determination regarding whether an applicant has established 'extraordinary circumstances' to excuse an untimely asylum application under 8 U.S.C. § 1158(a)(2)(D). Additionally, an applicant forfeits any claim for withholding of removal if they fail to specifically challenge a dispositive finding in their brief to the Board of Immigration Appeals.
Facts:
- Gustavo Adolfo Osabas-Rivera is a native of Honduras whose brother, Eldon, was targeted by the MS gang for refusing recruitment.
- After Eldon fled to the United States, the gang began threatening Osabas-Rivera, demanding his brother's location and extorting money.
- In 2013, MS members kidnapped Osabas-Rivera for four hours, beating him with a gun and threatening his life.
- Osabas-Rivera fled to a different city, Choluteca, and reported the kidnapping to the police, but believed the police were corrupt and communicated his location to the gang.
- Gang members subsequently sent text messages indicating they knew his new location and threatened to kill him.
- Osabas-Rivera entered the United States in October 2016.
- He suffered from depression due to separation from his family, which he claimed prevented him from filing his asylum application within the one-year statutory deadline.
Procedural Posture:
- The Department of Homeland Security initiated removal proceedings against the petitioner by filing a Notice to Appear.
- An asylum officer interviewed the petitioner and found he had a credible fear of persecution.
- The petitioner conceded removability before an Immigration Judge but filed applications for asylum and withholding of removal.
- The Immigration Judge denied the asylum application as untimely and denied the withholding of removal application on the merits.
- The petitioner appealed the Immigration Judge's decision to the Board of Immigration Appeals.
- The Board of Immigration Appeals affirmed the Immigration Judge's decision, finding no extraordinary circumstances for the delay and holding that the petitioner waived his challenge regarding government protection.
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Issue:
Does the Court of Appeals have jurisdiction to review the Board of Immigration Appeals' determination that an applicant failed to demonstrate 'extraordinary circumstances' to excuse an untimely asylum application?
Opinions:
Majority - Davis
No, the Court lacks jurisdiction to review the agency's discretionary decision regarding the timeliness of the application. The Immigration and Nationality Act requires asylum applications to be filed within one year unless the applicant demonstrates extraordinary circumstances 'to the satisfaction of the Attorney General.' Following the Supreme Court's guidance in Wilkinson v. Garland and the Sixth Circuit's reasoning in Rahman v. Bondi, this statutory language indicates that the decision is inherently discretionary. Because Congress barred judicial review of such discretionary determinations, the Court cannot overturn the Board's finding that Osabas-Rivera's depression did not constitute an extraordinary circumstance. Furthermore, regarding the withholding of removal claim, the Court held that Osabas-Rivera forfeited the argument that the Honduran government was unable or unwilling to protect him because he failed to raise that specific challenge in his brief to the Board of Immigration Appeals.
Analysis:
This decision reinforces a trend in immigration law limiting judicial review over agency decisions where the statute uses the phrase 'to the satisfaction of the Attorney General.' By classifying the 'extraordinary circumstances' determination as discretionary, the Sixth Circuit aligns itself with the First, Third, and Eleventh Circuits, effectively closing the door on federal court review of fact-intensive excuses for late asylum filings unless a constitutional or legal question is raised. The ruling also emphasizes strict adherence to exhaustion requirements, warning practitioners that failing to brief a specific dispositive issue before the BIA results in a total forfeiture of that claim in federal court.
