Summary
The Sixth Circuit reviewed a petition for review of a Board of Immigration Appeals decision involving an untimely asylum application and applications for withholding of removal and protection under the Convention Against Torture. The court held that it lacked jurisdiction to review the discretionary determination that the petitioner had not established extraordinary circumstances excusing the late asylum filing. It also concluded that the petitioner forfeited a dispositive challenge concerning whether the Honduran government was unable or unwilling to protect him from gang violence, and therefore denied the petition in part and dismissed it in part.
Topics
Practice areas
Questions Presented
- Whether the Sixth Circuit had jurisdiction under the statutory constitutional-claim and legal-question exception to review the Board of Immigration Appeals' determination that Osabas-Rivera failed to establish extraordinary circumstances excusing his untimely asylum application.
- Whether Osabas-Rivera exhausted his withholding-of-removal claim by adequately challenging before the Board the immigration judge's finding that the Honduran government was unable or unwilling to protect him from gang violence.
- Whether the petition for review should be denied in part and dismissed in part.
Holdings
- The determination under 8 U.S.C. § 1158(a)(2)(D) that an applicant has demonstrated extraordinary circumstances sufficient to excuse an untimely asylum application is discretionary because the statute requires the circumstances to be shown to the satisfaction of the Attorney General. The court therefore lacked jurisdiction to review the Board's ultimate determination that Osabas-Rivera failed to establish extraordinary circumstances.
- Osabas-Rivera forfeited his challenge to the immigration judge's finding that the Honduran government was unable or unwilling to protect him because he did not meaningfully raise that issue in his brief to the Board of Immigration Appeals. A perfunctory reference in the Notice of Appeal was insufficient.
Key quotations
“First, we lack jurisdiction to review the Board’s determination that Osabas-Rivera failed to establish extraordinary circumstances warranting waiver of the deadline for his untimely asylum application.” (2)
“And second, we hold that Osabas-Rivera abandoned a dispositive issue as to his withholding-of-removal claim—specifically, whether the Honduran government is unable or unwilling to protect him from gang violence.” (2)
“And without a showing that the Honduran government is unable or unwilling to protect him from gangs, Osabas-Rivera’s withholding-of-removal application necessarily fails.” (11)
“For these reasons, we DENY the petition in part and DISMISS in part.” (12)
Factual background
Osabas-Rivera, a Honduran citizen, was targeted by MS gang members after his brother refused to join the gang and fled to the United States. The gang threatened, extorted, kidnapped, beat, and threatened to kill Osabas-Rivera, after which he moved within Honduras and eventually came to the United States. He filed his asylum application approximately fourteen months after the statutory one-year deadline, attributing the delay primarily to depression, separation from his family, and financial difficulties.
Procedural history
The Department of Homeland Security initiated removal proceedings in 2016. The immigration judge found Osabas-Rivera removable, rejected his untimely asylum application because he failed to establish extraordinary circumstances, and denied withholding of removal and CAT protection. The Board of Immigration Appeals affirmed, finding that Osabas-Rivera waived or failed to establish challenges to several dispositive issues. The Sixth Circuit denied the petition in part and dismissed it in part.