Ruiz v. Bondi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTIAN RUIZ, No. 23-1095

Agency No.

Petitioner,

A027-962-997

v.

OPINION

PAMELA BONDI, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 4, 2024

Portland, Oregon

Filed December 22, 2025

Before: Consuelo M. Callahan, Jacqueline H. Nguyen, and

Jennifer Sung, Circuit Judges.

Opinion by Judge Nguyen

2 RUIZ V. BONDI

SUMMARY *

Immigration

The panel denied Christian Ruiz’s petition for review of

the Board of Immigration Appeals’ decision upholding the

denial of asylum on timeliness grounds, withholding of

removal and protection under the Convention Against

Torture, and a motion for administrative closure.

As an initial matter, the panel addressed its jurisdiction

to review the BIA’s determination that Ruiz failed to

establish extraordinary circumstances to qualify for an

exception to the one-year asylum timeliness requirement

under 8 U.S.C. § 1158(a)(2). Although the Immigration and

Nationality Act strips jurisdiction to review many of the

Attorney General's discretionary decisions, 8 U.S.C.

§ 1252(a)(2)(B), as well as decisions regarding the

timeliness of asylum applications, 8 U.S.C. § 1158(a)(3),

this court held in Ramadan v. Gonzales, 479 F.3d 646 (9th

Cir. 2007) (per curiam), that it could exercise jurisdiction

when the issue involves "the application of a statutory

standard to undisputed facts" rather than "the agency's

exercise of discretion." The panel considered whether

Ramadan remained good law in light of Wilkinson v.

Garland, 601 U.S. 209 (2024), which analyzed whether an

immigration statute calls for a reviewable application of law

to fact, and concluded that to the extent Ramadan held that

the agency’s extraordinary circumstances determination was

not discretionary, that determination was clearly

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

RUIZ V. BONDI 3

irreconcilable with Wilkinson. However, Wilkinson’s core

holding—that the court retains jurisdiction to review mixed

questions of law and fact under 8 U.S.C. § 1252(a)(2)(D)—

permits the court to review those legal issues even when the

INA makes them discretionary. Thus, the panel held that it

had jurisdiction to review—with deference—the Attorney

General's extraordinary circumstances determination

because it presented a mixed question of law and fact.

The panel held that the BIA did not err in concluding that

Ruiz failed to qualify for the extraordinary circumstances

exception to the asylum timeliness bar. Although Ruiz

asserted that his past experiences in Nicaragua had long-term

effects on his mental health, he failed to explain how the

trauma he experienced affected his ability to file a timely

asylum application.

The panel held that substantial evidence supported the

BIA's determination that the Department of Homeland

Security rebutted the presumption of future persecution in

Nicaragua based on changed country conditions since the

Sandinistas harmed Ruiz and his family during the civil war

in the late 1970s and early 1980s. After Ruiz and his family

returned to Nicaragua in the 1990s, they did not suffer

further harm, and Ruiz presented no evidence that the current

government has any interest in harming him or his family

members.

The panel held that the BIA did not abuse its discretion

in denying Ruiz’s motion for administrative closure to seek

adjustment of his status to lawful permanent resident based

on his marriage to a United States citizen. The Department

of Homeland Security provided a persuasive reason for the

case to proceed and be resolved on the merits —namely,

Ruiz’s criminal conduct and immigration

4 RUIZ V. BONDI

history. Moreover, the regulations provided Ruiz an

alternative procedure for seeking an unlawful presence

waiver once the order of removal became administratively

final and Ruiz obtained consent to reapply for admission

after removal. Thus, the BIA’s conclusion that

administrative closure would not affect Ruiz’s immigration

proceedings was not arbitrary, irrational, or contrary to the

law.

COUNSEL

Caroline K. Medeiros (argued), Marandas Garcia Law

Group LLC, Lake Oswego, Oregon, for Petitioner.

Sarah K. Pergolizzi (argued) and Kohsei Ugumori, Senior

Litigation Counsels; Leslie McKay, Assistant Director;

Office of Immigration Litigation; Brian M. Boynton,

Principal Deputy Assistant Attorney General; Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

RUIZ V. BONDI 5

OPINION

NGUYEN, Circuit Judge:

Christian Ruiz, a native and citizen of Nicaragua, applied

for asylum more than a year after arriving in the United

States. With limited exceptions, the Immigration and

Nationality Act (“INA”) bars such applications as untimely.

See 8 U.S.C. § 1158(a)(2)(B). Invoking one such exception,

Ruiz argues that his delay was due to “extraordinary

circumstances.” Id. § 1158(a)(2)(D). The immigration

judge (“IJ”) rejected Ruiz’s argument and further found that

he was not entitled to any other relief from removal. The

Board of Immigration Appeals (“BIA”) affirmed, and Ruiz

petitions for review of that decision.

Although the INA strips our jurisdiction to review many

of the Attorney General’s discretionary decisions, see id.

§ 1252(a)(2)(B), as well as decisions regarding the

timeliness of asylum applications, see id. § 1158(a)(3), we

have held that we can exercise jurisdiction when the issue

involves “the application of a statutory standard to

undisputed facts” rather than “the agency’s exercise of

discretion.” Ramadan v. Gonzales, 479 F.3d 646, 650, 654

(9th Cir. 2007) (per curiam); see Husyev v. Mukasey, 528

F.3d 1172, 1178–79 (9th Cir. 2008) (holding that the

“extraordinary circumstances” determination “presents a

question of law” when the underlying facts are undisputed).

The initial question before us is whether Ramadan remains

good law in light of Wilkinson v. Garland, 601 U.S. 209

(2024), which analyzed whether an immigration statute calls

for a reviewable application of law to fact.

We hold that Wilkinson is clearly irreconcilable with

Ramadan’s holding that the “extraordinary circumstances”

6 RUIZ V. BONDI

determination is not discretionary. Wilkinson identified

statutes requiring discretionary rulings, and these statutes are

structurally indistinguishable from § 1158(a)(2)(D). While

the statute prohibiting review of discretionary decisions has

an exception for decisions regarding “relief under

[§] 1158(a),” 8 U.S.C. § 1252(a)(2)(B)(ii), this exception

refers to the former version of § 1158(a), which specified

only one discretionary decision: whether or not to grant

asylum.

But Wilkinson’s core holding—that we retain

jurisdiction to review mixed questions of law and fact under

§ 1252(a)(2)(D)—permits us to review those legal issues

even when the INA makes them discretionary. Therefore,

despite our rejection of Ramadan’s premise, we reaffirm its

conclusion that we have jurisdiction to review

determinations under § 1158(a)(2)(D).

On the merits, Ruiz’s claims do not warrant relief.

Substantial evidence supports the BIA’s denial of

withholding of removal and protection under the Convention

Against Torture (“CAT”), and the BIA did not abuse its

discretion in denying Ruiz’s motion for administrative

closure. Therefore, we deny the petition for review as to

those claims.

I.

Ruiz grew up in Nicaragua in the late 1970s and early

1980s during the conflict between the Sandinistas and the

Somoza regime. Most of his family members supported the

ruling Nationalist Liberal Party, and his aunt and uncle were

close to top officials in the administration. After the

Sandinistas seized power in 1979, they began to harass,

interrogate, and threaten to kill members of Ruiz’s family

who did not collaborate with them.

RUIZ V. BONDI 7

When Ruiz was four years old, a Sandinista militant

killed his father on the street in Managua for criticizing

Sandinista policies. His mother demanded that the

Sandinista authorities investigate, but they told her to forget

about her husband’s death and threatened to kill her.

Members of Sandinista organizations came to Ruiz’s home,

yelled at his mother, and spraypainted the walls with threats

against the family.

Ruiz and his siblings experienced problems in school

when they were forced to join the Sandinista youth

organization, which their mother opposed. When Ruiz was

five or six years old, he was forced to dig trenches to prepare

for air raids. On his way to school, he would walk past the

burned remains of persons who had served in the Somoza

military or had opposed the Sandinista government; they had

been left on the side of the road as a warning.

The Sandinista authorities threatened Ruiz’s aunt with

death and confiscated her land and property. Sandinista

troops killed Ruiz’s cousin in Pantasma, Nicaragua. Ruiz’s

uncle fled the country, and state security forces repeatedly

interrogated Ruiz’s mother about him.

Ruiz’s mother moved the family to her hometown of

Matagalpa. Even there, however, Sandinista officials

continued to interrogate her and threatened her with lifetime

imprisonment if she did not cooperate. After two years, Ruiz

and his family returned to Managua.

In 1984, when Ruiz was nine, he and his family moved

to the United States. In 1994, his mother’s asylum

application was denied, and the family returned to

Nicaragua. Around the same time, the Immigration and

Naturalization Service (“INS”) sent Ruiz an order to show

8 RUIZ V. BONDI

cause, eventually obtaining a deportation order in absentia

when he failed to appear at scheduled hearings. 1

Ruiz stayed in Nicaragua for the next two years. His

mother remained there until 2001, when she moved to Spain.

As of 2002 or 2003, his sister was married and still living in

Nicaragua.

In 1996, Ruiz moved to Guatemala, where he spent the

next decade. He married a Guatemalan woman, and they had

a child together. In 2001, he visited his mother in Nicaragua

for 15 days. He returned to Nicaragua for three or four days

in 2005 to obtain a driver’s license. In 2006, after his

marriage failed, Ruiz moved to the United States, settling in

Oregon.

Ruiz moved in with his current wife, Jennifer, in 2008.

For most of their relationship, Ruiz struggled with a drinking

problem. In 2012, he was convicted of driving under the

influence (“DUI”) and transferred to DHS custody.

However, an immigration judge rescinded the outstanding

deportation order and terminated the proceedings, finding

that the government’s attempt to serve Ruiz with the order

to show cause had been unsuccessful. Ruiz was convicted

of additional DUIs in 2016 and 2019. While jailed on the

latter charge, he was again transferred to DHS custody.

1

Prior to the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”), the INA used the term “deportation” rather than

“removal,” see Vartelas v. Holder, 566 U.S. 257, 262 (2012), and

provided for an “order to show cause” rather than a “notice to appear” as

the case-initiating document, see Niz-Chavez v. Garland, 593 U.S. 155,

167 (2021). The INS was replaced by the Department of Homeland

Security (“DHS”) pursuant to the Homeland Security Act of 2002. See

Flores v. Rosen, 984 F.3d 720, 728 (9th Cir. 2020).

RUIZ V. BONDI 9

DHS served Ruiz with a notice to appear charging that

he is removable for being unlawfully present in the United

States. Ruiz admitted the allegations and conceded

removability but applied for asylum, withholding of

removal, and CAT protection. 2 He claimed that he would be

persecuted in Nicaragua for being a member of his father’s

family and because his father’s political opinion would be

imputed to him.

The IJ denied relief. The IJ concluded that Ruiz’s trauma

did not qualify as an extraordinary circumstance excusing

the untimely asylum application. As for withholding of

removal, the IJ found that Ruiz’s childhood experiences in

Nicaragua did not amount to past persecution, the harm he

experienced was not on account of a protected ground, and

the circumstances in Nicaragua have materially changed

such that a presumption of future persecution would be

inappropriate regardless. The IJ found that Ruiz’s claim of

future persecution was speculative given that he has

repeatedly returned to Nicaragua unharmed, has never been

politically active, and can relocate internally within the

country. For similar reasons, the IJ found that any risk of

torture was speculative, precluding CAT relief.

During the pendency of his appeal to the BIA, Ruiz

married Jennifer, U.S. Citizenship and Immigration Services

(“USCIS”) approved Jennifer’s petition for alien relative,

2

In his brief to the IJ, Ruiz requested only withholding of removal and

CAT relief, and at the merits hearing, counsel conceded Ruiz’s

ineligibility for asylum due to the one-year bar. The IJ, however,

construed Ruiz’s application to include an asylum claim and analyzed

his eligibility for an exception to the time bar.

10 RUIZ V. BONDI

and Ruiz moved for administrative closure so that he could

seek permanent residency. 3

The BIA denied Ruiz’s motion for administrative closure

and dismissed the appeal. The BIA denied administrative

closure due to DHS’s objections and the BIA’s view that

administrative closure is unnecessary for Ruiz to obtain a

provisional unlawful presence waiver—the first step toward

adjusting his status. The BIA affirmed the IJ’s ruling that

Ruiz’s trauma was not an extraordinary circumstance

justifying a 13-year delay in applying for asylum. And the

BIA agreed with the IJ’s reasons for denying withholding of

removal and CAT protection.

We have jurisdiction to review the final order of

removal, including the administrative closure decision,

pursuant to 8 U.S.C. § 1252. See Gonzalez-Caraveo v.

Sessions, 882 F.3d 885, 893 (9th Cir. 2018). We review the

agency’s factual findings for substantial evidence and its

legal determinations de novo. See id. at 889. We review

administrative closure decisions for abuse of discretion. See

Marquez-Reyes v. Garland, 36 F.4th 1195, 1208–09 (9th

Cir. 2022).

II.

The INA provides that “[a]ny alien who is physically

present in the United States . . . may apply for asylum.” 8

U.S.C. § 1158(a)(1). But there are conditions. Relevant

3

The BIA proceedings were protracted by intervening proceedings here.

Initially, the BIA summarily dismissed Ruiz’s appeal for failure to

specify any grounds. Ruiz petitioned for review, arguing that he never

received a copy of the IJ’s decision. We granted the government’s

motion to remand so that the BIA could serve Ruiz a copy of the decision

and issue a new briefing schedule. See Ruiz v. Garland, No. 20-71169

(9th Cir. July 13, 2021).

RUIZ V. BONDI 11

here, the alien must “demonstrate[] by clear and convincing

evidence that the application has been filed within 1 year . . .

of the alien’s arrival in the United States.” Id.

§ 1158(a)(2)(B). This one-year limit is subject to

exceptions, such as when the applicant can show changed or

extraordinary circumstances. See id. § 1158(a)(2)(D).

Ruiz contends that the BIA erred in determining that he

did not show extraordinary circumstances. Before

addressing this contention, we must consider whether we

have jurisdiction to review the BIA’s finding. See Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(“Federal courts are courts of limited jurisdiction. They

possess only that power authorized by Constitution and

statute . . . .”).

A.

1.

The INA purports to bar judicial review of

determinations regarding the one-year limit and its

exceptions: “No court shall have jurisdiction to review any

determination of the Attorney General under

[§ 1158(a)(2)].” 8 U.S.C. § 1158(a)(3). Despite this

seemingly clear directive, Ramadan held that we have

jurisdiction to review a “changed circumstances”

determination. See 479 F.3d at 650. In Husyev, we extended

this holding to an “extraordinary circumstances”

determination because Ramadan’s reasoning “necessarily

applies to both.” Husyev, 528 F.3d at 1180.

Ramadan reached its holding in two steps. The first

concerns the REAL ID Act’s restoration of our jurisdiction

to review “questions of law.” 8 U.S.C. § 1252(a)(2)(D). In

light of this change, Ramadan explained, we have

12 RUIZ V. BONDI

jurisdiction to review legal questions notwithstanding “any

other provision of [the INA] . . . which limits or eliminates

judicial review.” Ramadan, 479 F.3d at 650 n.3 (quoting 8

U.S.C. § 1252(a)(2)(D)). Thus, the limitation on judicial

review in § 1158(a)(3) no longer “precluded our review of

[every] determination relating to the application of the one-

year bar.” Id. at 650. In particular, our jurisdiction to review

questions of law “extends to questions involving the

application of statutes or regulations to undisputed facts,

sometimes referred to as mixed questions of fact and law,”

id., which include “the existence of changed circumstances

which materially affect the applicant’s eligibility for

asylum,” 8 U.S.C. § 1158(a)(2)(D); see Ramadan, 479 F.3d

at 650.

The second step of Ramadan’s analysis concerned

whether the “changed circumstances” determination, though

involving a mixed question of fact and law, was nonetheless

discretionary. The INA provides—with exceptions we will

discuss—that “no court shall have jurisdiction to review”

any “decision or action” that Title II of the INA specifies “to

be in the discretion of the Attorney General.” 4 8 U.S.C.

§ 1252(a)(2)(B), (B)(ii).

4

We retain jurisdiction to review discretionary decisions where the

authorization lies outside Title II, 8 U.S.C. §§ 1151–1382. See, e.g.,

Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008) (per

curiam) (holding that Ҥ 1252(a)(2)(B)(ii) does not strip jurisdiction over

petitions challenging an IJ’s discretionary denial of a continuance”

because an IJ’s “authority to continue a case is not ‘specified under’”

Title II (quoting Alsamhouri v. Gonzales, 484 F.3d 117, 122 (1st Cir.

2007))); see also Kucana v. Holder, 558 U.S. 233, 237 (2010) (“[T]he

key words ‘specified under this subchapter’ refer to statutory, but not to

regulatory, specifications.” (quoting 8 U.S.C. § 1252(a)(2)(B)(ii))).

RUIZ V. BONDI 13

The question of discretion arose because of how

Congress wrote the exception for changed or extraordinary

circumstances. To qualify, an asylum applicant must show

changed or extraordinary circumstances “to the satisfaction

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

Ramadan held that “[t]he words ‘to the satisfaction of the

Attorney General’ do not render the changed circumstances

determination discretionary.” Ramadan, 479 F.3d at 655.

Normally, this holding would bind us. See Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)

(holding that panels must follow circuit law unless

intervening higher authority “undercut the theory or

reasoning underlying the prior circuit precedent in such a

way that the cases are clearly irreconcilable”). Here, the

government argues that Wilkinson “is clearly irreconcilable

with the reasoning of . . . Ramadan and Husyev.” We agree.

2.

The Supreme Court in Wilkinson left no doubt that the

“extraordinary circumstances” determination involves

discretion. To the extent we held otherwise in Ramadan, that

holding is clearly irreconcilable with Wilkinson. Wilkinson

concerned the hardship determination required for

cancellation of removal. That statute provides in relevant

part that:

The Attorney General may cancel removal

of . . . an alien who is inadmissible or

deportable from the United States if the

alien . . . establishes that removal would

14 RUIZ V. BONDI

result in exceptional and extremely unusual

hardship . . . .

8 U.S.C. § 1229b(b)(1), (b)(1)(D). Although the ultimate

decision whether to grant relief is discretionary—the

Attorney General “may” cancel removal, and “the word

‘may’ clearly connotes discretion,” Bouarfa v. Mayorkas,

604 U.S. 6, 13–14 (2024) (quoting Biden v. Texas, 597 U.S.

785, 802 (2022)); see Wilkinson, 601 U.S. at 218 (“Section

1252(a)(2)(B)(i) . . . strips courts of jurisdiction over a

‘judgment’ on cancellation of removal.”)—the threshold

hardship question contains no such discretionary language.

Addressing this absence of discretionary language, the

government pointed out that the statute previously had

included it; relief was “available only to a ‘person whose

deportation would, in the opinion of the Attorney General,

result in exceptional and extremely unusual hardship.’”

Wilkinson, 601 U.S. at 224 (quoting INA, Pub. L. No. 82-

414, § 244(a)(1), 66 Stat. 163, 214 (1952)). The Court

accepted that the former wording signaled discretion, but it

declined to “read that discretion back into the current version

of the statute.” Id. That is “because Congress chose to retain

similar language in provisions governing other forms of

discretionary relief subject to § 1252(a)(2)(B)’s bar on

judicial review,” id., indicating that its omission in

§ 1229b(b)(1) was intentional.

Two of Wilkinson’s examples of discretionary

provisions that survived are worded similarly to the

“extraordinary circumstances” provision. The first concerns

waiver of certain criminal bars to admissibility:

The Attorney General may, in his discretion,

waive the application of [the bars] if . . . it is

RUIZ V. BONDI 15

established to the satisfaction of the Attorney

General that the alien’s denial of admission

would result in extreme hardship . . . .

8 U.S.C. § 1182(h), (h)(1)(B) (emphases added). The

second concerns waiver of a misrepresentation-based bar to

admissibility:

The Attorney General may, in the discretion

of the Attorney General, waive the

application of [the bar] . . . if it is established

to the satisfaction of the Attorney General

that the refusal of admission to the United

States of such immigrant alien would result

in extreme hardship . . . .

Id. § 1182(i)(1) (emphases added). And for comparison, the

statute at issue here:

An application for asylum of an alien may be

considered . . . if the alien demonstrates to

the satisfaction of the Attorney General either

the existence of changed circumstances . . .

or extraordinary circumstances . . . .

Id. § 1158(a)(2)(D) (emphases added).

Structurally, the three provisions are identical. Each uses

the word “may” to convey that the ultimate decision about

relief is discretionary. More importantly, in each provision,

the threshold showing necessary for relief is modified by the

phrase “to the satisfaction of the Attorney General.” This

phrase shows that even the threshold determination is

discretionary.

16 RUIZ V. BONDI

3.

In concluding that “to the satisfaction of the Attorney

General” does “not render the changed circumstances

determination discretionary,” Ramadan explained that “this

phrase is a specification of who is to make the decision,

rather than a characterization of that decision itself.” 479

F.3d at 655. We provided three justifications for this

characterization, but none is compatible with Wilkinson.

First, Ramadan reasoned that “to the satisfaction of the

Attorney General” means something different than “in the

discretion of the Attorney General.” Ramadan explained

that “when Congress wants to place something within the

Attorney General’s discretion, it either uses that word or a

phrase that the courts have held to function in this way.” Id.

But Wilkinson made clear that “to the satisfaction of the

Attorney General” is a phrase that “function[s] in this way.”

Id.

Second, Ramadan compared § 1158(a)(2)(D) to an

identically structured statute, 8 U.S.C. § 1182(h)(1)(A), and

posited that “may” would be superfluous if “to the

satisfaction of the Attorney General” already conveyed

discretion. 479 F.3d at 655–56. But Wilkinson’s examples

of discretionary statutes—including § 1182(h)(1)(B)—have

the same structure. And we need not assume that this

structure creates surplusage. More likely, Congress wanted

to accomplish two different goals while emphasizing the

Attorney General’s discretion in making each determination.

On the one hand, Congress wanted to limit consideration of

untimely asylum applications to only those involving

changed or extraordinary circumstances. On the other hand,

Congress recognized that applicants who can make this

threshold showing might be unsuitable for relief for other

RUIZ V. BONDI 17

reasons; it gave the Attorney General discretion to deny such

applications.

Third, Ramadan relied on our precedent, Kalaw v. INS,

133 F.3d 1147, 1150–52 (9th Cir. 1997), which,

coincidentally, analyzed the prior version of the statute at

issue in Wilkinson. See Ramadan, 479 F.3d at 656. Kalaw

concerned the statutory elements of suspension of

deportation—the precursor to cancellation of removal. It

held, consistent with Wilkinson, that some requirements

presented legal questions, subject to judicial review, even

though “the statute explicitly designated the overall

determination to be discretionary.” Ramadan, 479 F.3d at

656. Crucially, Kalaw also held that one “statutory

requirement, ‘extreme hardship,’ is clearly a discretionary

act” because the statute “commit[ted] the determination to

‘the opinion of the Attorney General.’” Kalaw, 133 F.3d at

1152 (quoting 8 U.S.C. § 1254(a)(1) (1996)). As Wilkinson

made clear through the statutory comparisons, “the opinion

of the Attorney General” is functionally equivalent to “the

satisfaction of the Attorney General.”

We therefore hold that insofar as Ramadan held that the

determination of changed or extraordinary circumstances

does not involve discretion, it is clearly irreconcilable with

Wilkinson. But that does not resolve our jurisdictional

inquiry, because not all discretionary decisions are

unreviewable.

B.

That brings us to § 1252(a)(2)(B)’s exception to the

general prohibition on review of discretionary decisions:

[N]o court shall have jurisdiction to review—

18 RUIZ V. BONDI

(i) any judgment regarding the granting of

relief under section 1182(h), 1182(i),

1229b, 1229c, or 1255 of this title, or

(ii) any other decision or action of the

Attorney General or the Secretary of

Homeland Security the authority for

which is specified under this subchapter

to be in the discretion of the Attorney

General or the Secretary of Homeland

Security, other than the granting of relief

under section 1158(a) of this title.

8 U.S.C. § 1252(a)(2)(B) (emphasis added).

Both the Supreme Court and our court have assumed that

§ 1252(a)(2)(B)(ii) references § 1158(a) to permit review of

discretionary asylum denials. See Kucana, 558 U.S. at 247

n.13 (“Absent the exception, asylum applicants might fall

within § 1252(a)(2)(B)(ii)’s jurisdictional bar because a

statutory provision, § 1158(b)(1)(A), specifies that ‘the

Attorney General may grant asylum.’”); Morales v.

Gonzales, 478 F.3d 972, 979 (9th Cir. 2007) (“[B]ecause

decisions whether to grant asylum are exempted from

§ 1252(a)(2)(B)(ii)’s jurisdiction-stripping mandate, we

have jurisdiction to review the IJ’s denial of [an] asylum

application.”), abrogated on other grounds, N-A-M-, 24 I.

& N. Dec. 336, 343–44 (B.I.A. 2007), as recognized in,

Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010);

Hosseini v. Gonzales, 471 F.3d 953, 956 (9th Cir. 2006)

(same). The legislative history confirms that Congress

intended such a result. See H.R. Rep. No. 104-828, at 219

(1996) (Conf. Rep.) (describing the exception as applicable

to “a discretionary judgment whether to grant asylum”).

RUIZ V. BONDI 19

But asylum is granted under § 1158(b), not § 1158(a), so

that interpretation of § 1252(a)(2)(B)(ii) is unmoored from

the statutory text. See 8 U.S.C. § 1158(b)(1)(A); E. Bay

Sanctuary Covenant v. Trump, 932 F.3d 742, 758 (9th Cir.

2018) (“Where § 1158(a) governs who may apply for

asylum, the remainder of § 1158 delineates the process by

which applicants may be granted asylum.”).

Plainly, Congress made a drafting error, a mistake that it

repeated elsewhere in the statute. See, e.g., 8 U.S.C.

§ 1252(b)(4)(D) (“[T]he Attorney General’s discretionary

judgment whether to grant relief under section 1158(a) of

this title shall be conclusive unless manifestly contrary to the

law and an abuse of discretion.”). Congress’s intent is clear.

When Congress enacted § 1252(a)(2)’s jurisdiction-

stripping provisions in IIRIRA, see Pub. L. No. 104-208,

div. C, § 306(a)(2), 110 Stat. 3009, 3009-607 (1996), it also

rewrote the asylum statute; prior to IIRIRA, § 1158(a) had a

broader focus that included both application procedure and

discretionary relief:

The Attorney General shall establish a

procedure for an alien physically present in

the United States or at a land border or port

of entry, irrespective of such alien’s status, to

apply for asylum, and the alien may be

granted asylum in the discretion of the

Attorney General if the Attorney General

determines that such alien is a refugee within

the meaning of section 1101(a)(42)(A) of this

title.

8 U.S.C. § 1158(a) (1994) (emphasis added).

20 RUIZ V. BONDI

IIRIRA was the product of multiple proposals for

immigration reform. The one-year limit on asylum claims

that led to § 1158(a)’s current form originated in both houses

of Congress. See S. 1664, 104th Cong. § 194 (1996); H.R.

2202, 104th Cong. § 531(a) (as reported by H. Comm. on

Agric., Mar. 8, 1996); H.R. Rep. No. 104-828, at 245–46

(1996) (Conf. Rep.). The initial version of the House bill,

which ultimately became law, reworked § 1158(a) but did

not include § 1252’s jurisdiction-stripping provision for

discretionary decisions. See H.R. 2202, 104th Cong.

§§ 306(a)(2), 526(a) (as introduced in House, Aug. 4, 1995).

That change—including the exception for § 1158(a)

decisions—was introduced later by the Senate. See H.R.

2202, 104th Cong. § 142(a) (as passed by Senate, May 2,

1996). Thus, § 1252(a)(2)(B)(ii)’s reference to “section

1158(a)” plainly reflects Congress’s failure to reconcile the

two parallel changes with one another. In other words,

§ 1252(a)(2)(B)(ii) refers to the pre-IIRIRA version of

§ 1158(a), which contained only one form of discretionary

relief—the ultimate decision whether to grant or deny

asylum, which is now codified in § 1158(b).

We therefore conclude that “changed circumstances”

determinations under § 1158(a) do not fall within

§ 1252(a)(2)(B)(ii)’s exception authorizing review of

discretionary determinations “under section 1158(a).” But

that still does not end our jurisdictional inquiry, because

Ramadan conflicted with prior Ninth Circuit precedent that

we must now consider.

C.

Section 1252(a)(2)(B) has another exception—it

prohibits review of discretionary decisions “except as

provided in subparagraph (D).” Section 1252(a)(2)(D)

RUIZ V. BONDI 21

provides that the INA’s limitations on judicial review in

§ 1252(a)(2)(B) do not “preclud[e] review of constitutional

claims or questions of law.” Wilkinson held that “[m]ixed

questions of law and fact, even when they are primarily

factual, fall within the statutory definition of ‘questions of

law’ in § 1252(a)(2)(D) and are therefore reviewable.”

Wilkinson, 601 U.S. at 225.

In Afridi v. Gonzales, we held that “the REAL ID Act

grants jurisdiction to appellate courts to review questions of

law presented in petitions for review of final orders of

removal, even those pertaining to otherwise discretionary

determinations.” 442 F.3d 1212, 1218 (9th Cir. 2006)

(emphasis added), overruled on other grounds by, Estrada-

Espinoza v. Mukasey, 546 F.3d 1147, 1160 n.15 (9th Cir.

2008) (en banc). A year later, Ramadan stated that the

REAL ID Act “does not restore jurisdiction over

discretionary determinations.” 479 F.3d at 654.

In Husyev, we acknowledged this inconsistency but had

no reason to resolve it given that, under Ramadan’s

reasoning, the “extraordinary circumstances” issue is not

discretionary. 528 F.3d at 1179–80. But because we now

conclude the issue is discretionary, we must resolve the

conflict between Ramadan and Afridi.

Ramadan provided neither reasoning nor authority for

the proposition that the Attorney General’s legal conclusions

are unreviewable if the INA designates them as

discretionary. We normally treat such passing statements as

nonbinding dicta. See Melendres v. Skinner, 113 F.4th 1126,

1136 (9th Cir. 2024); see also United States v. McAdory, 935

F.3d 838, 843 (9th Cir. 2019) (“[W]e are not bound by a prior

panel’s comments ‘made casually and without analysis . . .

as a prelude to another legal issue that commands the panel’s

22 RUIZ V. BONDI

full attention.’” (citation modified) (quoting United States v.

Ingham, 486 F.3d 1068, 1078 n.8 (9th Cir. 2007))).

In holding that we can review the Attorney General’s

legal conclusions pertaining to discretionary determinations,

Afridi relied on the REAL ID Act’s “plain language” and a

prior case that, like Wilkinson, involved legal questions

regarding the hardship determination for cancellation of

removal. See Afridi, 442 F.3d at 1218 (citing Cabrera-

Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005)).

Neither Afridi nor Cabrera-Alvarez nor Wilkinson

resolves the precise question here, because all three cases

involved antecedent legal questions that the INA did not

commit to the Attorney General’s discretion. See also

Magana-Magana v. Bondi, 129 F.4th 557, 567–71 (9th Cir.

2025) (exercising jurisdiction to review nondiscretionary

“extraordinary circumstances” determination where the

Attorney General had discretion to grant the ultimate

relief—consideration of an untimely motion to reopen

brought by a battered spouse (construing 8 U.S.C.

§ 1229a(c)(7)(C)(iv)(III))).

We recently considered our jurisdiction when both the

threshold and ultimate determinations are discretionary. By

default, the INA requires noncitizens convicted of certain

crimes to be held in custody. See 8 U.S.C. § 1226(c)(1). But

“[t]he Attorney General may release [the] alien . . . only if,”

among other things, “the alien satisfies the Attorney General

that the alien will not pose a danger to the safety of other

persons or of property.” 8 U.S.C. § 1226(c)(4) (formerly

codified at 8 U.S.C. § 1226(c)(2)) (emphasis added).

Originally, we held that the Attorney General’s

dangerousness determination is an unreviewable matter of

discretion, see Martinez v. Clark, 36 F.4th 1219, 1230 (9th

RUIZ V. BONDI 23

Cir. 2022), but the Supreme Court vacated our decision and

remanded for reconsideration in light of Wilkinson, 5 see

Martinez v. Clark, 144 S. Ct. 1339 (2024).

On remand, we held that “Wilkinson compels the

conclusion that application of the ‘dangerousness’ standard

is a reviewable mixed question.” Martinez v. Clark

(“Martinez II”), 124 F.4th 775, 783 (9th Cir. 2024). The

government argued that the dangerousness determination

was akin to the unreviewable “step two” determination in

Wilkinson—i.e., the ultimate discretionary decision whether

to grant or deny cancellation of removal—but we rejected

the comparison. Id. at 784. We distinguished Wilkinson’s

“step two” determination as “fully discretionary,” id.,

whereas the “dangerousness” standard “provide[s] multiple

factors for an IJ to consider before making the ultimate

determination,” and “federal courts can ‘assess whether an

IJ correctly applied the statutory standard to a given set of

facts.’” Id. at 783 (quoting Wilkinson, 601 U.S. at 221).

Thus, “[e]ven though what constitutes ‘dangerousness’ is

malleable and involves agency discretion,” it “is still a legal

standard.” Id. So too here.

The “extraordinary circumstances” determination

requires consideration of specific factors showing that the

circumstances caused the delay and that the asylum

applicant’s own conduct neither contributed to the

5

Martinez considered the jurisdictional limitation in § 1226(e)—which

provides that “[t]he Attorney General’s discretionary judgment

regarding the application of this section shall not be subject to review”—

rather than the general limitation on review of discretionary decisions in

§ 1252(a)(2)(B)(ii). This difference is not material, however, because

§ 1252’s restoration of jurisdiction to review legal questions applies to

“any . . . provision of [the INA] (other than this section) which limits or

eliminates judicial review.” 8 U.S.C. § 1252(a)(2)(D).

24 RUIZ V. BONDI

circumstances nor prolonged the delay. See 8 C.F.R.

§ 208.4(a)(5). The regulation provides six illustrative

examples, id. § 208.4(a)(5)(i)–(vi), requiring a legal

conclusion as to whether the circumstances at issue are

comparable to those enumerated in the regulation. Thus,

Wilkinson supports our conclusion in Husyev that the

“extraordinary circumstances” issue “is how the statute and

regulation apply to [the] facts” of the case, which “presents

a question of law not subject to the jurisdictional restriction

of § 1158(a)(3).” Husyev, 528 F.3d at 1179; see Wilkinson,

601 U.S. at 222 (explaining that application of the hardship

standard for cancellation of removal is a legal question

because it “requires an IJ to evaluate a number of factors”

despite also “requir[ing] a close examination of the facts.”).

Nothing in Wilkinson suggests that discretionary mixed

questions are unreviewable. When the Court discussed

statutes that retained discretionary language for threshold

questions, it did so to contrast them with the cancellation of

removal statute, which had discretionary language removed

in an amendment. Given Congress’s evident intent to make

the hardship determination less discretionary than in the

past, the Court found the government’s reliance on history

“particularly unavailing.” Wilkinson, 601 U.S. at 224. The

Court explained that after the REAL ID Act restored

jurisdiction to review legal questions, a “clear” rule governs

the interaction between § 1252(a)(2)(B) and (D): “mixed

questions of law and fact are always reviewable as questions

of law under § 1252(a)(2)(D).” Id. at 218–19.

Of course, not all discretionary decisions implicate

questions of law. For example, 8 U.S.C. § 1155 provides

that the Secretary of Homeland Security “may, at any time,”

revoke an approved visa petition “for what he deems to be

good and sufficient cause.” As a discretionary decision, it is

RUIZ V. BONDI 25

shielded from review by § 1252(a)(2)(B)(ii). See Bouarfa,

604 U.S. at 9. And because the statute lacks any meaningful

standard against which to judge the Secretary’s decision, see

id. at 14 (“Congress has in no way prescribed how that

discretion must be exercised.”), there is no legal issue that a

court could review under § 1252(a)(2)(D), see id. at 11 n.2

(noting that even the party asserting jurisdiction to review

visa revocations acknowledged § 1252(a)(2)(D)’s

inapplicability).

Even when we have jurisdiction to review the Attorney

General’s discretionary application of a legal standard to the

facts, our “review is deferential” if “[the] mixed question is

primarily factual.” Wilkinson, 601 U.S. at 225. That is the

case here. The “fact-bound nature” of the “extraordinary

circumstances” determination requires that “we apply a

‘deferential standard of review,’” Magana-Magana, 129

F.4th at 572 (quoting Wilkinson, 601 U.S. at 222). As with

other “fact-intensive mixed questions of this sort,” we

review the agency’s decision “for substantial evidence.”

Lemus-Escobar v. Bondi, 158 F.4th 944, 954 (9th Cir. 2025)

(citing Gonzalez-Juarez v. Bondi, 137 F.4th 996, 1000–03

(9th Cir. 2025)).

Therefore, we hold that we have jurisdiction to review—

with deference—the Attorney General’s “extraordinary

circumstances” determination in § 1158(a)(2)(D) because,

as we decided in Husyev, it presents a mixed question of law

and fact.

III.

We now turn to the merits of Ruiz’s claims.

26 RUIZ V. BONDI

A.

Ruiz argues that he established “extraordinary

circumstances” preventing him from timely applying for

asylum because his experiences in Nicaragua have “had

long-term effects on his mental health.” To establish

extraordinary circumstances, an asylum applicant must show

that: (1) “the circumstances were not intentionally created by

[him] through his . . . own action or inaction”; (2) “those

circumstances were directly related to [his] failure to file the

application within the 1-year period”; and (3) “the delay was

reasonable under the circumstances.” 8 C.F.R.

§ 1208.4(a)(5).

Even if Ruiz could meet the first element necessary for

relief—that the circumstances were not attributable to him—

the BIA reasonably faulted his failure to explain “how his

past trauma delayed the filing of his asylum application for

13 years” (emphasis added). Persecution often results from

highly traumatic circumstances, but the direct relationship

between Ruiz’s trauma and his delay of more than a decade

is not self-evident.

We do not suggest that trauma could never justify such a

delay. The regulations recognize that mental illness or

disability, “including any effects of persecution or violent

harm suffered in the past,” can constitute extraordinary

circumstances. 8 C.F.R. § 208.4(a)(5)(i). But an asylum

applicant must explain the relationship between his trauma

and the delay. Without such an explanation, the BIA could

only speculate whether the delay was reasonable. The BIA

did not err by denying Ruiz’s asylum application as

untimely.

RUIZ V. BONDI 27

B.

Ruiz challenges the denial of his application for

withholding of removal. An applicant for such relief has the

burden of showing that he will be persecuted in the proposed

country of removal—i.e., that his life or freedom would be

threatened on account of a protected ground. See 8 C.F.R.

§ 1208.16(b). If the applicant shows that he has experienced

persecution in the past, he is entitled to a presumption that

he will be persecuted upon removal. See id.

§ 1208.16(b)(1)(i). The government can rebut this

presumption by showing either “a fundamental change in

circumstances” or the applicant’s reasonable ability to avoid

persecution “by relocating to another part of the proposed

country.” Id. § 1208.16(b)(1)(i)(A)–(B).

Even if we assume that Ruiz established past

persecution, substantial evidence supports the BIA’s

conclusion that DHS rebutted the presumption of future

persecution. Nicaragua has changed substantially since the

Sandinistas harmed Ruiz and his family during the civil war

in the late 1970s and early 1980s. That conflict ended in

1990 when an opposition candidate beat Sandinista

incumbent Daniel Ortega to win the presidential election,

and the new government began to investigate human rights

abuses.

Ruiz and his family’s experiences bear out these changed

conditions as well as their ability to relocate within

Nicaragua. After a 10-year absence, the family returned to

the country in 1994. They moved to Jinotega and lived with

Ruiz’s mother’s cousin. At the time, Sandinista appointees

retained control of the security forces, but Ruiz suffered no

harm during his two-year stay. In the years that followed, he

returned twice more without incident—he even obtained a

28 RUIZ V. BONDI

driver’s license from a government office. His mother, who

years earlier had received death threats from the Sandinistas,

lived in Nicaragua uneventfully for seven years before

moving to Spain.

Although Ortega returned to the presidency in 2007, and

the country has experienced rising authoritarianism since

that time, including government-sponsored torture of

dissenters, Ruiz presented no evidence that the current

government has an interest in harming him. Ruiz claims he

would face persecution on account of his familial

relationship with his father and because his family’s anti-

Sandinista political opinion would be imputed to him, but his

sister remained in Nicaragua, and there is no evidence that

she experienced any threats. “[T]he well-being of others

who have stayed behind in a country is . . . relevant when

those others are similarly situated.” Zhao v. Mukasey, 540

F.3d 1027, 1031 (9th Cir. 2008); see also Abebe v. Gonzales,

432 F.3d 1037, 1044 (9th Cir. 2005) (en banc).

Nor was the IJ required to accept Ruiz’s testimony that

he “would speak [his] mind out against the injustice that’s

being committed” in Nicaragua given that he has never been

politically active anywhere. See Sarkar v. Garland, 39 F.4th

611, 623 (9th Cir. 2022) (rejecting “speculative” statements

as the basis for future persecution (quoting Nagoulko v. INS,

333 F.3d 1012, 1018 (9th Cir. 2003))); see also Hoxha v.

Ashcroft, 319 F.3d 1179, 1185 (9th Cir. 2003) (rejecting

claim of future persecution where persecution “was directed

toward members of the political opposition” and the asylum

applicant “[did] not have a history of political agitation”).

Because the record does not compel the conclusion that

Ruiz will face persecution in Nicaragua, the BIA did not err

by denying withholding of removal. See Lopez v. Garland,

RUIZ V. BONDI 29

116 F.4th 1032, 1046 (9th Cir. 2024). For similar reasons,

the BIA did not err by denying CAT relief. See Sarkar, 39

F.4th at 623.

C.

Ruiz also challenges the BIA’s denial of his motion for

administrative closure. He seeks a green card—i.e.,

adjustment of his status to lawful permanent resident—based

on his marriage to Jennifer, a U.S. citizen. However, his

unlawful presence in the United States bars him from such

relief for 10 years, see 8 U.S.C. § 1182(a)(9)(B)(i)(II), unless

the Attorney General waives the bar because it “would result

in extreme hardship” to Jennifer, 8 U.S.C.

§ 1182(a)(9)(B)(v). But Ruiz is ineligible to apply for a

waiver while still in the United States “unless the removal

proceedings are administratively closed and have not been

recalendared.” 8 C.F.R. § 212.7(e)(4)(iii).

Administrative closure is a tool for the IJ or BIA “to

await an action or event that is relevant to immigration

proceedings but is outside the control of the parties or the

[immigration] court and may not occur for a significant or

undetermined period of time.” Avetisyan, 25 I. & N. Dec.

688, 692 (B.I.A. 2012), overruled by Castro-Tum, 27 I. & N.

Dec. 271 (Att’y Gen. 2018), and reinstated by Cruz-Valdez,

28 I. & N. Dec. 326 (Att’y Gen. 2021).

When the BIA evaluates a request for administrative

closure, it considers “the totality of the circumstances,” 8

C.F.R. § 1003.1(l)(3), including, as relevant:

(A) The reason administrative closure is

sought;

30 RUIZ V. BONDI

(B) The basis for any opposition to

administrative closure;

(C) Any requirement that a case be

administratively closed in order for a

petition, application, or other action to be

filed with, or granted by, DHS;

(D) The likelihood the [noncitizen] will

succeed on any petition, application, or

other action that the [noncitizen] is

pursuing, or that the [noncitizen] states in

writing or on the record at a hearing that

they plan to pursue, outside of

proceedings before the [BIA];

(E) The anticipated duration of the

administrative closure;

(F) The responsibility of either party, if any,

in contributing to any current or

anticipated delay;

(G) The ultimate anticipated outcome of the

case pending before the [BIA]; and

(H) The ICE detention status of the

[noncitizen].

Id. § 1003.1(l)(3)(i); accord Avetisyan, 25 I. & N. Dec. at

696.

Under the current regulation, “[n]o single factor is

dispositive.” 8 C.F.R. § 1003.1(l)(3). However, at the time

the BIA adjudicated Ruiz’s motion, “the primary

consideration” was “whether the party opposing

administrative closure ha[d] provided a persuasive reason

for the case to proceed and be resolved on the merits.” W-

RUIZ V. BONDI 31

Y-U-, 27 I. & N. Dec. 17, 20 (B.I.A. 2017), superseded by 8

C.F.R. § 1003.1(l)(3) as stated in Efficient Case and Docket

Management in Immigration Proceedings, 89 Fed. Reg.

46742, 46753 (May 29, 2024).

By citing to W-Y-U-, the BIA signaled that it found

DHS’s reason for opposing the motion—Ruiz’s “criminal

conduct and immigration history in the United States”—to

be persuasive. 6 The BIA did not abuse its discretion in

concluding that Ruiz’s three DUI convictions weighed

against relief. Nor did the BIA abuse its discretion in

considering Ruiz’s immigration history.

Ruiz faults the BIA for failing to consider evidence he

presented regarding his eligibility for a provisional unlawful

presence waiver. Although the BIA must “weigh all relevant

factors presented in the case, including . . . the likelihood the

[noncitizen] will succeed on any petition, application, or

other action he . . . is pursuing outside of removal

proceedings,” administrative closure is inappropriate to

await “an event or action that may or may not affect the

course of an alien’s immigration proceedings.” Avetisyan,

25 I. & N. Dec. at 696.

The BIA concluded that Ruiz “does not need to have his

removal proceedings administratively closed to be able to

apply for a provisional unlawful presence waiver” because

6

Ruiz argues that the BIA should not have considered DHS’s untimely

opposition, but the BIA has discretion to “consider a brief filed out of

time” in other contexts, 8 C.F.R. § 1003.2(g)(3) (reopening or

reconsideration), and it has inherent authority to exercise this discretion

in the context of administrative closure, see 8 C.F.R. § 1003.1(d)(1)(ii)

(“[The BIA] may take any action consistent with [its] authorities under

the [INA] and the regulations as necessary or appropriate for the

disposition or alternative resolution of the case.”).

32 RUIZ V. BONDI

the regulations provide for an alternative procedure. When

the BIA dismissed Ruiz’s appeal, the order of removal

became administratively final, see 8 U.S.C.

§ 1101(a)(47)(B)(i); 8 C.F.R. § 1241.1(a), permitting Ruiz

to apply for a conditional unlawful presence waiver once he

obtained consent to reapply for admission after removal, see

8 U.S.C. § 1182(a)(9)(A)(iii); 8 C.F.R. §§ 212.2(j),

212.7(e)(4)(vi). Ruiz does not argue that this alternative

procedure is unavailable to him. The BIA’s conclusion that

administrative closure would not affect Ruiz’s immigration

proceedings was not arbitrary, irrational, or contrary to the

law. See Singh v. Garland, 117 F.4th 1145, 1150 (9th Cir.

2024).

PETITION DENIED.