Roger Real v. Attorney General United States of America

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 24-1545

____________

ROGER ESTEBAN REAL,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________

On Petition for Review of a

Decision of the Board of Immigration Appeals

(A240-246-218)

Immigration Judge: Adam Panopoulos

__________

Argued on April 9, 2025

Before: HARDIMAN, PORTER, and FISHER, Circuit

Judges.

(Filed: July 30, 2025)

Rebecca Hufstader

Emily G. Thornton [Argued]

Legal Services of New Jersey

100 Metroplex Drive

Suite 402

Edison, NJ 08818

Counsel for Petitioner

Jonathan A. Robbins [Argued]

United States Department of Justice

1100 L Street NW

Washington, DC 20530

Michael C. Heyse

Craig W. Kuhn

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

___________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Roger Esteban Real petitions this Court for review of a

Board of Immigration Appeals decision denying his

application for asylum as untimely. Real concedes that he filed

his application more than one year after arriving in the United

States, rendering him ineligible for asylum. He argues instead

that the Government’s failure to affirmatively notify him of the

2

deadline constitutes either a due process violation or an

“extraordinary circumstance[]” excusing his untimely

application. 8 U.S.C. § 1158(a)(2)(D). Because we are

unpersuaded by the first contention and lack jurisdiction to

consider the second, we will deny the petition in part and

dismiss it in part.

I

A

Real is a native and citizen of Colombia. While in his

home country, he participated in a series of protests regarding

work, financial, and educational opportunities. Because of his

participation in these protests, the police several times arrested,

detained, and beat him.

Real fled Colombia with his family and arrived in the

United States in March 2022. Although he did not present at a

port of entry, Real surrendered to immigration authorities

shortly after he arrived. Department of Homeland Security

(DHS) officials “took [his] phone and clothing,” “gave [him] a

cell phone,” and “released [him] with [his] son and wife” the

next day. A.R. 265. The authorities did not issue Real a Notice

to Appear (NTA) and “never asked [him] if [he] was afraid to

return to Colombia.” Id. They instructed him to attend a court

hearing in 2025 and, in the interim, to regularly check in using

the cell phone they gave him.

B

About a year later, Real was arrested and charged with

several crimes related to a domestic dispute. Two months after

that arrest, DHS issued Real an NTA charging him with

3

removability under 8 U.S.C. § 1182(a)(6)(A)(i). An

Immigration Judge (IJ) found him removable, so in July

2023—sixteen months after arriving in the United States—

Real applied for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT).

At his hearing, Real testified about the brutality that he

suffered at the hands of Colombian police. The IJ concluded

that Real had shown “cumulative harm” in Colombia that “rose

to the level of persecution,” so it granted him withholding of

removal. A.R. 46. But the IJ denied Real’s application for

asylum, finding that he had not complied with the one-year

deadline for such applications and did not “qualify as a member

of the Mendez-Rojas settlement agreement from the Western

District of Washington.”1 A.R. 45–46; see also 8 U.S.C.

§ 1158(a)(2)(B). The IJ further reasoned that “lack of

knowledge about the law is not sufficient to excuse the one-

1

In Mendez Rojas v. Johnson, a district court ruled that the

government’s failure to provide a class of aliens with notice of

the one-year asylum bar violated the Immigration and

Nationality Act (INA), Administrative Procedure Act (APA),

and the Fifth Amendment’s Due Process Clause. 305 F. Supp.

3d 1176, 1178 (W.D. Wash. 2018). Following that decision,

the government settled the case and committed to

(1) retroactively accept as timely any asylum applications filed

by class members before March 31, 2022, and

(2) prospectively amend NTAs to provide notice of the one-

year bar. Real concedes that he is not a Mendez Rojas class

member and is therefore ineligible for retroactive relief on that

basis.

4

year bar absent extraordinary circumstances” and that Real did

not demonstrate such circumstances. A.R. 45.

Real appealed the denial of his asylum application to the

Board of Immigration Appeals. The Board dismissed the

appeal, reasoning that (1) Real was not a Mendez Rojas class

member, and (2) “lack of knowledge of the 1-year filing

deadline is not an extraordinary circumstance within the

meaning of” 8 U.S.C. § 1158(a)(2)(D). A.R. 3–4. Real filed

this timely petition.

II

The Board had jurisdiction under 8 C.F.R.

§ 1003.1(b)(3). We have jurisdiction under 8 U.S.C.

§ 1252(a)(1) to consider “constitutional claims or questions of

law” arising from the Board’s order, which we review de novo.

Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017). The

parties dispute whether we have jurisdiction to review the

“extraordinary circumstances” determination under 8 U.S.C.

§ 1158(a)(2)(D).

III

To obtain asylum under the Immigration and

Nationality Act (INA), a petitioner must “demonstrate[] by

clear and convincing evidence that [his] application has been

filed within 1 year after the date of [his] arrival in the United

States.” 8 U.S.C. § 1158(a)(2)(B). Real concedes that he

violated the one-year bar but offers two excuses for that

oversight: the Government’s failure to apprise him of the one-

year bar either (1) violated his due process rights or (2) is an

“extraordinary circumstance[] relating to the delay in filing”

his application. 8 U.S.C. § 1158(a)(2)(D). We address each

5

argument in turn.

A

The Fifth Amendment guarantees aliens within the

United States, even those who entered unlawfully, the

“traditional standards of fairness encompassed in due process

of law.” Shaughnessy v. United States ex rel. Mezei, 345 U.S.

206, 212 (1953); see also U.S. Const. amend. V. That

protection applies not only to removal but also to applications

for discretionary relief, such as asylum. See Calderon-Rosas v.

Att’y Gen., 957 F.3d 378, 386 (3d Cir. 2020).

Real argues that the Government’s failure to advise him

of the one-year asylum deadline violated his due process rights.

He relies principally on Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306 (1950). By not informing him of the

one-year asylum bar, Real says, the Government failed to

provide notice “reasonably calculated, under all the

circumstances” to apprise him of his rights under the INA.2

2

Real also offers a due process theory based on the three-part

balancing test outlined in Mathews v. Eldridge, 424 U.S. 319

(1976). But it is unclear how this approach meaningfully

differs from his Mullane theory. As the Government points out,

both “at [their] core revolve[] around whether Real received

[c]onstitutionally sufficient notice.” Gov’t Br. 14. Because

these two theories involve the same perceived procedural issue,

we consider them together. See Dusenbery v. United States,

534 U.S. 161, 168 (2002) (“[W]e have never viewed Mathews

as announcing an all-embracing test for deciding due process

claims. Since Mullane was decided, we have regularly turned

6

Real Br. 9 (quoting Mullane, 339 U.S. at 314). We are

unpersuaded.

Mullane considered whether publication was

constitutionally sufficient notice to beneficiaries of a common

trust fund. 339 U.S. at 307. The trustee of the fund asked for a

judicial decree settling its accounts as to all parties with an

interest in it, but it provided notice to affected parties only

through publication in a local newspaper. Id. at 309–10. The

Court found this notice insufficient. Because many of the

affected parties had ascertainable identities and whereabouts,

notice by publication was not “reasonably calculated, under all

the circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their

objections.” Id. at 314, 318–19.

Real’s case is a far cry from Mullane. Unlike Mullane,

this case concerns the Government’s alleged obligation to

notify an alien of his rights under a generally applicable

immigration statute. That statute is published in the United

States Code, and implementing regulations are published in the

Federal Register. See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R.

§ 1208.4(a). In the mine-run of cases, that is enough to provide

constitutionally sufficient notice of the law’s contents. See

Cervase v. Off. of Fed. Reg., 580 F.2d 1166, 1168–69 (3d Cir.

1978) (“[P]ublication in the Federal Register gives [regulated

parties] constructive notice of the existence of the

regulation.”); see also Alquijay v. Garland, 40 F.4th 1099,

1104 (9th Cir. 2022) (“[O]nce a regulation setting a filing

deadline [is] published in the Federal Register, all applicants

to it when confronted with questions regarding the adequacy of

the method used to give notice.”).

7

[for asylum] [are] presumptively deemed to have been given

notice of the deadline.” (citation modified)).

Real insists that publication is not always sufficient to

provide notice of a law’s contents. He relies primarily on two

cases. In the first, United States v. Charleswell, this Court

considered whether an alien who failed to timely appeal an

adverse immigration decision was denied meaningful judicial

review. 456 F.3d 347, 349 (3d Cir. 2006). We declined to

“decide whether the mere lack of notice concerning the right to

take a direct appeal from an administrative order can ever be

considered an effective denial of meaningful judicial review.”

Id. at 356. Instead, we held that Charleswell was denied

meaningful judicial review because he was served a

document—called “Notice of Intent/Decision to Reinstate

Prior Order”—containing “misleading” information about his

appeal rights. Id. The Notice informed aliens that they “may

contest this determination by making a written or oral

statement to an immigration officer,” but they “do not have a

right to a hearing before an immigration judge.” Id. (citation

omitted). We concluded that “reasonable persons reading this

Notice would be led to believe that their only avenue for relief

if they desire to contest the reinstatement order would be to

make either a written or oral statement to the immigration

officer.” Id. at 356–57.

Real also relies on Mendez Rojas. The alien plaintiffs

there brought a due process challenge like Real’s, arguing that

the government’s “failure to affirmatively require officials to

provide any notice of the one-year deadline is a policy that is

not ‘reasonably calculated’ to provide notice to the class

members.” Mendez Rojas, 305 F. Supp. 3d at 1184 (citation

omitted). The district court agreed with the plaintiffs, relying

primarily on (1) the class members’ “severe trauma,” lack of

8

English-speaking skills, and unfamiliarity with the U.S.

immigration system; and (2) the “confusing” and

“affirmatively misleading” documents that the government

provided to them. Id. at 1185–86 (citation modified).

Neither decision bears the weight Real places on it. In

both cases, the aliens were denied the opportunity for review

because of the lack of affirmative notice combined with

misleading government communications. See Charleswell,

456 F.3d at 357 (“[W]here an alien is misled to believe that he

has no opportunity for judicial review, the lack of an

affirmative notice of the right to an appeal may combine to

constitute a denial of the meaningful opportunity for judicial

review.”); Mendez Rojas, 305 F. Supp. 3d at 1186 (same).3

Attempting to analogize to Charleswell and Mendez

Rojas, Real claims that he “encountered a series of misleading

interactions with DHS officers.” Real Br. 17. But the record

does not support that assertion. He notes that DHS officials

scheduled a court date and gave him a cell phone through

which to report updates, but he identifies no record evidence of

misleading statements, oral or written, accompanying those

instructions. Indeed, unlike the class members in Mendez

Rojas, Real did not ask for asylum when he was first detained,

so DHS officials did not discuss that process. Real suggests

that he received misleading “paperwork” when he arrived at

the border, but no such paperwork appears in the record. Real

3

To the extent that Mendez Rojas suggests that publication in

the Federal Register is not enough to apprise aliens of the one-

year bar, regardless of the government’s conduct, its reasoning

is unpersuasive—and likely in tension with Ninth Circuit

precedent. See Alquijay, 40 F.4th at 1103–04.

9

Br. 17. And when pressed for evidence of misleading

government statements at oral argument, Real’s counsel could

not identify any. In short, because Real cannot point to any

record evidence of misleading government communications,

his due process challenge fails.

B

Real alternatively argues that his failure to abide by the

one-year asylum bar is excused by “extraordinary

circumstances.” 8 U.S.C. § 1158(a)(2)(D). We lack

jurisdiction to consider this argument.

Three provisions of the INA bear on our jurisdiction

over the “extraordinary circumstances” determination. Id.

Under 8 U.S.C. § 1158(a)(2)(D), “[a]n application for asylum

of an alien may be considered, notwithstanding [the one-year

bar], if the alien demonstrates to the satisfaction of the

Attorney General . . . extraordinary circumstances relating to

the delay in filing.” A neighboring provision, 8 U.S.C.

§ 1158(a)(3), then limits judicial review of that question: “[n]o

court shall have jurisdiction to review any determination of the

Attorney General under” the paragraph containing the one-year

bar and “the extraordinary circumstances” exception. Finally,

a catchall provision in another section of the INA restores

federal appellate courts’ jurisdiction over “constitutional

claims or questions of law raised upon a petition for review.”

8 U.S.C. § 1252(a)(2)(D).

This Court first considered the interplay among these

provisions in Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir.

2006). We concluded there that we lacked jurisdiction to

review the Board’s “extraordinary circumstances”

determination, reasoning that the “language requiring an

10

asylum applicant to make a demonstration to the Attorney

General’s ‘satisfaction’ implies that the Attorney General’s

determination entails an exercise of discretion.” Id. at 635

(quoting 8 U.S.C. § 1158(a)(2)(D)). Because “extraordinary

circumstances” is a discretionary judgment, we explained, it is

not covered by the carveout for “constitutional claims or

questions of law” in 8 U.S.C. § 1252(a)(2)(D). Id. So

Sukwanputra established that we lack jurisdiction over the

Board’s “extraordinary circumstances” determination. See also

Jarbough v. Att’y Gen., 483 F.3d 184, 190 (3d Cir. 2007).

Real, along with the dissent, argues that things have

changed because of the Supreme Court’s decisions in

Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) and

Wilkinson v. Garland, 601 U.S. 209 (2024). They read those

decisions to suggest that the “extraordinary circumstances”

inquiry is really a mixed question of law and fact reviewable

under 8 U.S.C. § 1252(a)(2)(D), abrogating our cases to the

contrary. We disagree.

The petitioners in Guerrero-Lasparilla asked the Board

to equitably toll the 90-day deadline for reopening their

removal proceedings. 589 U.S. at 226; see 8 U.S.C.

§ 1229a(c)(7)(C)(i). The Board declined that request,

reasoning that the petitioners failed to demonstrate the “due

diligence” required for equitable tolling. Guerrero-Lasprilla,

589 U.S. at 226. On petition for review, the Fifth Circuit

concluded that the due diligence inquiry was a factual one, so

it lacked jurisdiction to review the Board’s decision. Id. The

Supreme Court disagreed, explaining that “the phrase

‘questions of law’” in 8 U.S.C. § 1252(a)(2)(D) “includes the

application of a legal standard to undisputed or established

facts.” Id. at 225. Since the petitioners did not dispute the facts

relevant to the equitable tolling question, the Court concluded

11

that the Fifth Circuit had jurisdiction to review the Board’s

decision on due diligence. Id. at 226–27.

The Supreme Court reached a similar conclusion in

Wilkinson. That case concerned a petitioner’s invocation of 8

U.S.C. § 1229b(b)(1)(D), which requires aliens seeking

cancellation of removal to show “exceptional and extremely

unusual hardship” to a qualifying spouse, parent, or child.

Wilkinson, 601 U.S. at 211–12. Our Court had declined to

review the Board’s decision on that score, reasoning that the

“exceptional and extremely unusual hardship” inquiry is a

discretionary judgment. Id. at 216. The Supreme Court

disagreed. “[E]xceptional and extremely unusual hardship” is

a legal standard, the Court explained, so applications of that

standard to undisputed facts are reviewable under 8 U.S.C.

§ 1252(a)(2)(D). Id. at 217.

The dissent insists that Real’s case is

“indistinguishable” from Guerrero-Lasprilla and that it

“resembles” Wilkinson. Dissent Op. 2. After all, he tells us, all

three cases “involve[] the application of law to established

facts,” so all three should be reviewable as “questions of law”

under 8 U.S.C. § 1252(a)(2)(D). Dissent Op. 1. But the dissent

downplays a key—indeed, the key—distinction between this

case and those. Unlike the standards at issue in Guerrero-

Lasprilla and Wilkinson, the relevant statute here instructs the

petitioner to meet its requirements “to the satisfaction of the

Attorney General.” 8 U.S.C. § 1158(a)(2)(D). The inclusion of

that phrase reflects Congress’s judgment that “extraordinary

circumstances” is a discretionary determination not subject to

12

judicial review.4

Wilkinson confirms this view. The Court there explicitly

distinguished the “exceptional and extremely unusual

hardship” standard in 8 U.S.C. § 1229b(b)(1)(D) from

standards located elsewhere in the INA that are applied “to the

satisfaction of the Attorney General.” Wilkinson, 601 U.S. at

224 (citing 8 U.S.C. § 1182(h)(1)(B) and § 1182(i)(1)). While

the former standard presented a “question[] of law” reviewable

under 8 U.S.C. § 1252(a)(2)(D), the latter ones called for

discretionary judgments shielded from judicial scrutiny.

Unable to escape this discretionary language, our

dissenting colleague warns of “the consequences of insulating

these agency determinations from judicial review.” Dissent

Op. 6. He urges us instead to adhere to our “basic judicial task”

of “saying what the law is.” Id. (citation modified). But that is

precisely what we have done here. Congress expressly

entrusted the Attorney General to determine when

“extraordinary circumstances” excuse an untimely asylum

application, and it instructed that “[n]o court shall have

jurisdiction to review” her judgment on that score. 8 U.S.C.

§ 1158(a)(3). That is the law, and we must apply it irrespective

4

Relying on a federal regulation that guides immigration

officials’ exercise of discretion, the dissent contends that the

“extraordinary circumstances” determination is really a matter

of “legal judgment.” Dissent Op. 2. But that regulation

proposes only a non-exhaustive list of possible “extraordinary

circumstances,” and even then, as the dissent concedes, the list

is chock-full of “fact-intensive considerations.” Id.; see 8

C.F.R. § 1208.4(a)(5). So we reject the dissent’s contention

that 8 U.S.C. § 1158(a)(2)(D) contains reviewable “embedded

legal questions.” Dissent Op. 4.

13

of the “consequences” that animate the dissent. Dissent Op. 6;

see Patel v. Garland, 596 U.S. 328, 346 (2022) (“[P]olicy

concerns cannot trump the best interpretation of the statutory

text.”).

We therefore agree with the Eleventh Circuit that

federal appellate courts lack jurisdiction over the

“extraordinary circumstances” inquiry, even after Guerrero-

Lasprilla and Wilkinson expanded the definition of “questions

of law” under 8 U.S.C. § 1252(a)(2)(D). See A.P.A. v. Att’y

Gen., 104 F.4th 230, 241 (11th Cir. 2024); see also Pacheco-

Moran v. Garland, 70 F.4th 431, 438 (8th Cir. 2023)

(concluding, before Wilkinson, that the “extraordinary or

changed circumstances” determination “is an unreviewable

discretionary judgment of the Attorney General”). So we

cannot consider Real’s contention that “extraordinary

circumstances” excuse his failure to timely seek asylum under

the INA. 8 U.S.C. § 1158(a)(2)(D).

* * *

The Government’s failure to apprise Real of the one-

year asylum application deadline did not offend the Due

Process Clause of the Fifth Amendment. And we lack

jurisdiction to consider his claim concerning 8 U.S.C.

§ 1158(a)(2)(D). So we will deny the petition in part and

dismiss it in part.

14

Roger Esteban Real v. Attorney General United States of

America, No. 24-1545

FISHER, Circuit Judge, dissenting.

The majority holds that we lack jurisdiction to review

the BIA’s determination that Real failed to show

“extraordinary circumstances” under 8 U.S.C. § 1158(a)(2)(D)

sufficient to excuse the late filing of his asylum application. I

disagree; the “extraordinary circumstances” timeliness

determination involves the application of law to established

facts—a legal question we have jurisdiction to review. Because

I would hold that we have jurisdiction, I would go on to review

the petition’s merits and would conclude that Real meets the

standard for “extraordinary circumstances.” I would therefore

grant his petition, vacate the BIA’s dismissal, and remand for

the IJ to consider granting asylum in the exercise of discretion.

The majority relies primarily on Sukwanputra v.

Gonzales, 434 F.3d 627, 635 (3d Cir. 2006), but that holding

preceded, and is incompatible with, recent Supreme Court

decisions in Wilkinson v. Garland, 601 U.S. 209 (2024); Patel

v. Garland, 596 U.S. 328 (2022); and Guerrero-Lasprilla v.

Barr, 589 U.S. 221 (2020). As discussed below, these cases

make clear that appellate courts retain jurisdiction over legal

questions embedded within the agency’s § 1158(a)(2)(D)

“extraordinary circumstances” determination.

In Guerrero-Lasprilla, the Court held that a timeliness

inquiry in the form of an equitable tolling determination—

specifically, whether a petitioner acted with “due diligence”

sufficient to toll the 90-day deadline for reopening removal

proceedings—involved the application of a legal standard to

established facts. 589 U.S. at 225–26. This rendered it a

“question[] of law,” which we have jurisdiction to review

under 8 U.S.C. § 1252(a)(2)(D). Id. at 226. The question

presented by Real, whether he met the standard necessary to

1

excuse his late asylum filing, is indistinguishable from the

Guerrero-Lasprilla equitable tolling question, as it likewise

requires application of a legal standard to established facts. See

id. at 230–31.

The statutory criterion of “extraordinary circumstances”

calls for a multi-layered inquiry rather than a purely

discretionary call. The statute’s implementing regulations

provide a non-exhaustive list of possible “extraordinary

circumstances,” including what kinds of events qualify; how

proximate the cause must be to the delay; and what evidentiary

burden applies. 8 C.F.R. § 1208.4(a)(5). These are fact-

intensive considerations for the IJ, yes, but they also implicate

legal criteria and therefore legal judgment, as “whether a given

set of facts meets a particular legal standard presents a legal

inquiry.” Guerrero-Lasprilla, 589 U.S. at 227 (citation

modified).

Wilkinson reinforces this result. There, the Court

reversed our determination that we did not have jurisdiction to

review the BIA’s cancellation of removal decision—what we

had considered a “discretionary” determination insulated from

review. 601 U.S. at 209, 216–17. The case involved the

“exceptional and extremely unusual hardship” standard under

8 U.S.C. § 1229b(b)(1)(D)—a fact-intensive decision that

procedurally resembles the agency’s “extraordinary

circumstances” determination. See id. at 211–12. The Court

held that we were wrong to decline jurisdiction because the

petitioner’s challenge focused on how the agency applied the

legal standard to his established set of facts; thus, the issue was

a “question[] of law” subject to our review. Id. at 212, 217,

221. The presence of discretion did not foreclose our review

because the “threshold question” of eligibility for relief was

mixed, a conclusion “compelled” by Guerrero-Lasprilla. Id. at

221 (citation modified). Here, the § 1158(a)(2)(D) standard

2

similarly operates like a gateway, a threshold eligibility

criterion akin to tolling or statutory exceptions that screen

petitioners before any ultimate grant of discretionary relief,

which requires factual assessments to be made within a legal

framework. See 8 U.S.C. § 1158(a)(2)(D). We do not invade

the agency’s discretion by checking whether it applied the

correct law. See Loper Bright Enters. v. Raimondo, 603 U.S.

369, 385 (2024).

I disagree with the majority’s approach to interpreting

all discretionary determinations under the INA through a single

lens. Such determinations are not treated uniformly for

purposes of judicial review. Rather, “[w]hen a statute is

reasonably susceptible to divergent interpretation, we adopt the

reading that accords with traditional understandings and basic

principles: that executive determinations generally are subject

to judicial review.” Kucana v. Holder, 558 U.S. 233, 251

(2010) (citation modified). Nevertheless, the majority relies on

Wilkinson to argue that we lack jurisdiction because

§ 1158(a)(2)(D) includes the phrase “to the satisfaction of the

Attorney General,” which is language shared by some

provisions delineating determinations insulated from review,

like those involving the “extreme hardship” standard. See

Wilkinson, 601 U.S. at 224 (discussing 8 U.S.C.

§§ 1182(h)(1)(B), 1182(i)(1)). For example, under

§ 1182(h)(1)(B), a noncitizen who is inadmissible due to past

criminal convictions may receive a waiver of admission or

status where they “establish[] to the satisfaction of the Attorney

General that [their] denial of admission would result in extreme

hardship to [a] United States citizen or lawfully resident

[family member].” 8 U.S.C. §§ 1182(h)(1)(B). There, the

agency evaluates “extreme hardship” by conducting a wide-

ranging, individualized assessment of the noncitizen’s

personal circumstances and familial relationships. See U.S.

3

Citizenship & Immigration Servs., USCIS Policy Manual,

vol. 9, pt. B, ch. 5, Extreme Hardship Considerations &

Factors (updated June 24, 2025). But that determination

reflects value-laden, policy-based, factual judgments lacking

legal inquiry—the type of determination that Congress

intended to insulate. See, e.g., Patel, 596 U.S. at 339. Real’s

case is categorically different because it presents an underlying

legal issue in the form of an equitable tolling inquiry—a

paradigmatically mixed question within our jurisdiction to

review. See Guerrero-Lasprilla, 589 U.S. at 227.

While the “extraordinary circumstances” statute

contains some discretion-triggering language, that does not

render the entire determination purely factual or unreviewable.

See § 1158(a)(2)(D). “A mixed question may require

‘primarily legal or factual work,’” but just because it may

“require[] a court to immerse itself in facts does not transform

the question into one of fact.” Wilkinson, 601 U.S. at 221–22

(quoting U. S. Bank N. A. ex rel. CWCapital Asset Mgmt. v.

Vill. at Lakeridge, LLC, 583 U.S. 387, 396 (2018)). Even

where a statute delegates discretion to an agency, courts retain

jurisdiction to review embedded legal questions. See id. at

224–25.

With jurisdiction to review the petition, the next step

would be to address the merits: whether the BIA erred in

refusing to excuse Real’s late filing. I would hold that it did.

This case exemplifies “extraordinary circumstances” because

we have made clear that equitable tolling is warranted where

the Government “has misled a petitioner about what course of

action to follow.” See Alzaarir v. Att’y Gen., 639 F.3d 86, 90

(3d Cir. 2011).

That is exactly what happened here. While the record is

not clear on details, the Government admitted that Real

“probably did turn himself in.” A.R. 117. He did not cross the

4

border at a point of entry but was not clandestine, testifying

that he crossed “where some of the coyotes told me to cross

. . . . and then I surrender[ed] myself. I did not know . . . if this

is illegal or not.” A.R. 113. He complied with processing and

was released with instructions to check in and await a hearing,

again, which he did. Yet, despite being asylum-eligible, he was

not placed in expedited removal, not given a credible fear

interview, not advised of the asylum process, and not issued an

NTA for over a year. At no point was he informed, verbally or

in writing, of the one-year asylum deadline. Because Real

presented himself to authorities and did what they told him to

do, he reasonably believed that he would have an opportunity

to present all his claims.

And while asylum information was available through

the Federal Register, we have no bright-line rule that

publication always constitutes sufficient notice. See United

States v. Charleswell, 456 F.3d 347, 355–57 (3d Cir. 2006). In

fact, courts have found that a statute alone is insufficient when

paired with misleading instructions and personal

vulnerabilities. E.g., Rojas v. Johnson, 305 F. Supp. 3d 1176,

1185–88 (W.D. Wash. 2018). Like many noncitizens who

qualify for asylum, Real relied on a Spanish-speaking court

interpreter because he lacked English fluency; he had no legal

guidance; and he was grappling with past trauma that would

later be considered “credibly established” and “adequately

corroborated.” A.R. 44. Viewing the record objectively, there

were no red flags that would alert even English-speaking,

reasonable noncitizens that they needed to take further action

after being processed, released, and given a court date. The

Government lulled Real into inaction. See Rojas, 305 F. Supp.

at 1185.

Taken together, these facts reflect a fundamental lack of

notice. The Government’s conduct not only misled Real, but it

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actively deprived him of a meaningful opportunity to comply

with the law. See Charleswell, 456 F.3d at 357. If this does not

constitute “extraordinary circumstances,” it is difficult to

imagine what does.

As a final point, we should be wary of the consequences

of insulating these agency determinations from judicial review.

As the Supreme Court recently emphasized, courts’ “basic

judicial task [is] ‘say[ing] what the law is.’” Loper Bright, 603

U.S. at 410 (second alteration in original) (quoting Marbury v.

Madison, 5 U.S. 137, 177 (1803)). “Legal interpretation has

been, ‘emphatically,’ ‘the province and duty of the judicial

department’ for at least 221 years.” Id. at 412 (quoting

Marbury, 5 U.S. at 177) (citation modified). Our independent

judgment does not vanish simply because a legal question

arises at the threshold of a discretionary decision.

Misapplication of the “extraordinary circumstances” standard

can prevent even meritorious asylum seekers from having their

claims heard. Real has already met the higher burden for

withholding of removal, which required him to prove the same

elements as asylum. See Lukwago v. Ashcroft, 329 F.3d 157,

182 (3d Cir. 2003). But for the misapplied standard, his asylum

claim would have succeeded. This is precisely the kind of legal

error § 1252(a)(2)(D) allows us to correct.

Justice Jackson, concurring in Wilkinson, rightly

observed that Congress retains the authority to more clearly

limit judicial review, but it has not done so. 601 U.S. at 227.

Until it does, we are required to give full effect to the

jurisdictional boundary marked out by § 1252(a)(2)(D),

including its promise of judicial oversight for legal questions.

To do otherwise is to repeat the mistake that Wilkinson

corrected.

I would hold that we have jurisdiction to review whether

Real demonstrated “extraordinary circumstances” under

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§ 1158(a)(2)(D), and that Real has done so. I would grant the

petition for review, vacate the BIA’s dismissal, and remand for

the IJ to consider granting asylum in the exercise of discretion.

For the above reasons, I respectfully dissent.

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