Roger Esteban Real v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of a Decision of the…

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

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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

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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

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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.

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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

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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

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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.”).

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[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

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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.

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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

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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

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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

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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.

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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.

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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

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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

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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.

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4
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

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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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