Asylum; Jurisdiction; Whether the court could review the Board of Immigration Appeals’ (BIA) determination that petitioner failed to establish “extraordinary circumstances” related to an untimely asylum application; 8 USC § 1158(a)(2)(D); Wilkinson v Garland; Rahman v Bondi; The “safe harbor” provision (§ 1252(a)(2)(D)); Singh v Rosen; Whether petitioner abandoned a withholding-of-removal claim; Immigration judge (IJ)

Noting that it had not squarely resolved the issue of its jurisdiction to review the BIA’s “extraordinary circumstances” determination for untimely asylum applications, the court held that it did not have jurisdiction where this issue was within the Attorney General’s discretion. Thus, it lacked jurisdiction to review the BIA’s determination that petitioner-Osabas-Rivera failed to establish extraordinary circumstances warranting waiver of the deadline for his untimely asylum application. Petitioner, a native of Honduras, claimed in his credible-fear interview that he left his country because he had been threatened by a gang (MS). At a removal hearing, he was informed that he had one year after his arrival in the U.S. to file his asylum application. But he did not file it until 14 months after the statutory deadline. The IJ ruled that petitioner’s reasons for the late asylum filing, depression at being separated from his family, did not constitute extraordinary circumstances to support the untimely filing. The BIA affirmed the IJ’s decision. Petitioner argued that the BIA erred when determining the extent of his depression. But the court held that it lacked jurisdiction to consider the issue where it involved a “factual determination” that was not reviewable. And even more significantly, after Wilkinson, the extraordinary circumstances determination under § 1158(a)(2)(D) “lies within the discretion of the Attorney General.” The court noted that, under the statute, petitioner was “required to show ‘to the satisfaction of the Attorney General’ that his depression created an extraordinary circumstance sufficient to warrant waiver of the one-year application deadline.” The court concluded that just “as that language rendered the BIA’s extreme-hardship determination discretionary in Rahman, it signifies that the BIA’s conclusion on extraordinary circumstances is also discretionary.” Thus, the court lacked jurisdiction to review whether petitioner showed “extraordinary circumstances to justify filing his asylum application more than two years after arriving in the United States.” It also concluded that his challenge to the denial of withholding of removal was “forfeited” where he did not address or dispute “the IJ’s finding that he failed to establish that the Honduran government is unable or unwilling to protect him from MS” in his BIA brief. The court denied his petition for review in part and dismissed it in part.