Arsen Sarkisov v. PAMELA BONDI, Attorney General

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0316p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ARSEN SARKISOV,
Petitioner,
v.
PAMELA BONDI, Attorney General,
Respondent.
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No. 23-3965
On Petition for Review from the Board of Immigration Appeals.
No. A 098 822 051
Decided and Filed: November 21, 2025
Before: MOORE, BUSH, and DAVIS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Anna Darbinian, ASHERSON, KLEIN & DARBINIAN, Beverly Hills, California,
for Petitioner. Alexander J. Lutz, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Arsen Sarkisov is a citizen of Russia who
has lived in the United States for at least two decades without legal status. Since 2013, he has
been subject to a final order of removal. Several years ago, Sarkisov filed a self-petition under
the Violence Against Women Act (“VAWA”) alleging that his former U.S.-citizen spouse
subjected him to physical and emotional abuse. After the petition was granted, Sarkisov moved
to reopen his immigration proceedings under a special rule for VAWA petitioners. To satisfy the
>

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rule, the VAWA petitioner must demonstrate “extraordinary circumstances or extreme hardship
to the alien’s child.” The Attorney General, through her designee the Board of Immigration
Appeals (“BIA”), concluded that Sarkisov did not meet that standard. Sarkisov petitioned for
review. As a matter of first impression, we conclude that we have jurisdiction to review the
BIA’s determination that Sarkisov did not demonstrate extraordinary circumstances. But
because the BIA’s determination was not erroneous, we DENY the petition for review.
I. BACKGROUND
A. Statutory Background
This case concerns motions to reopen removal proceedings. 8 U.S.C.
§ 1229a(c)(7)(C)(iv). “‘[T]o ensure a proper and lawful disposition’ of immigration
proceedings,” Congress has created a procedural mechanism allowing noncitizens to seek relief
even after a final order of removal has been entered. Kucana v. Holder, 558 U.S. 233, 242
(2010) (quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008)). In a “motion to reopen,” the
noncitizen “asks the Board to change its decision in light of newly discovered evidence or a
change in circumstances since the hearing.” Dada, 554 U.S. at 12 (citation omitted). In general,
motions to reopen must be filed within ninety days of “entry of a final administrative order of
removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). However, there are two statutory exceptions to the
timing rules.1 One is an exception for filing asylum petitions. Id. § 1229a(c)(7)(C)(ii). The
other, relevant here, is a “[s]pecial rule for battered spouses, children, and parents.” Id.
§ 1229a(c)(7)(C)(iv). Under this special rule, an individual seeking to reopen his proceedings to
obtain cancellation of removal pursuant to VAWA has a more lenient one-year period to file. Id.
§ 1229a(c)(7)(C)(iv)(III). Beyond that time period, “the Attorney General may, in the Attorney
General’s discretion, waive this time limitation in the case of an alien who demonstrates
extraordinary circumstances or extreme hardship to the alien’s child.” Id.
1The timing rules are subject to equitable tolling. See Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008).
The BIA may also reopen a removal proceeding sua sponte at any time. See 8 C.F.R. § 1003.2(a).

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B. Factual Background
Sarkisov is a citizen of Russia. Admin. R. (“AR”) at 3 (BIA Order). In 2005, the
Department of Homeland Security began removal proceedings, charging him with removability
based on his presence in the United States without admission or parole. Id. at 397–98 (Notice to
Appear). Sarkisov conceded removability but sought relief on other grounds. See id. at 235
(Mot. to Change Venue). Initially, he sought asylum based on his experiences as an Armenian
living in Russia. Id. at 372, 377, 381–83 (Asylum Application). Later, he married an American
citizen, who petitioned for an immigrant visa on his behalf. Id. at 235 (Mot. to Change Venue).
Sarkisov asked for voluntary departure, so that he could leave the country while the visa was
processed. Id. In late 2012, the immigration judge (“IJ”) granted voluntary departure, id. at 196
(Voluntary Departure Order), but Sarkisov did not leave the country, id. at 3 (BIA Order). As a
result, Sarkisov became subject to a final order of removal. See id. at 196 (Voluntary Departure
Order).
About six-and-a-half years later, Sarkisov moved to reopen his removal proceedings. Id.
at 58 (Mot. to Reopen). The basis for the motion to reopen was an approved visa petition based
on domestic violence that Sarkisov suffered at the hands of his former, now-deceased wife. Id.
at 59–60 (Mot. to Reopen). He argued that the circumstances supporting his visa petition were
also “extraordinary circumstances” supporting extension of the deadline to file a motion to
reopen his removal proceedings. Id. at 67–71 (Mot. to Reopen). Sarkisov described that his
former wife engaged in verbal and physical abuse and that she leveraged his immigration status
to prevent him from leaving the relationship. Id. at 119–34 (Sarkisov Decl.). He also appended
a psychological report, which diagnosed him with general anxiety disorder resulting largely from
the alleged domestic abuse. Id. at 144–55 (Psych. Rep.). The Department of Homeland Security
did not oppose the motion to reopen. Id. at 48 (IJ Order).
An IJ concluded that there were no “extraordinary circumstances” warranting an exercise
of discretion to reopen the removal proceedings. Id. at 48–49 (IJ Order). The BIA affirmed. Id.
at 3–4 (BIA Order). The BIA reasoned that “although the abuse and resulting psychological
effects could explain some reasonable delay in filing the motion to reopen, they did not
constitute extraordinary circumstances excusing the 6-year delay between the finality of the

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order of removal and the filing of the motion to reopen.” Id. The BIA acknowledged that
Sarkisov’s visa petition was approved only one-and-a-half years before filing of the motion to
reopen, but reasoned that his psychological condition did not qualify as an “extraordinary
circumstance[]” justifying his delay in filing the motion to reopen. Id. at 4. The BIA also
rejected Sarkisov’s arguments for equitable tolling and sua sponte reopening. Id.
Sarkisov filed a timely petition for review of the BIA’s final decision, as well as a motion
to stay his removal from the United States. A panel of this court denied his unopposed motion to
stay removal because his motion failed to demonstrate his equitable entitlement to such relief.
Sarkisov v. Bondi, 138 F.4th 976, 980 (6th Cir. 2025). The merits of Sarkisov’s petition are now
before us.
II. JURISDICTION
The Attorney General argues that we lack jurisdiction to review the BIA’s denial of
Sarkisov’s motion to reopen his immigration proceedings. Our court has not yet considered
whether we have jurisdiction to review a BIA determination that a petitioner failed to present
“extraordinary circumstances” warranting the Attorney General’s exercise of discretion to reopen
a VAWA applicant’s removal proceedings. 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).
Our jurisdiction to review decisions of the BIA is “sharply circumscribed” by Congress.
Patel v. Garland, 596 U.S. 328, 332 (2022). Although Congress has generally granted circuit
courts the jurisdiction to review “final order[s] of removal,” 8 U.S.C. § 1252(a)(1), two kinds of
removal orders have been carved out, id. § 1252(a)(2)(B). First, a federal court may not review
“any judgment regarding the granting of relief” under certain sections. Id. § 1252(a)(2)(B)(i).
Second, as relevant here, a federal court may not review “any other decision or action of the
Attorney General . . . the authority for which is specified . . . to be in the discretion of the
Attorney General.” Id. § 1252(a)(2)(B)(ii). Against these limitations, Congress has created a
“safe harbor” preserving our ability to review “constitutional claims or questions of law.” Singh
v. Rosen, 984 F.3d 1142, 1148 (6th Cir. 2021) (quoting 8 U.S.C. § 1252(a)(2)(D)).
We have previously set forth a rubric for determining whether an issue falls within this
safe harbor for judicial review. See id. at 1148–49. The safe harbor allows us to review purely

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legal questions, such as whether the BIA properly interpreted a statute. Moctezuma-Reyes v.
Garland, 124 F.4th 416, 420 (6th Cir. 2024). We may also review petitions presenting mixed
questions of law and fact, i.e., whether the BIA correctly applied the law to undisputed facts.
Wilkinson v. Garland, 601 U.S. 209, 212 (2024). But we may not review petitions presenting
pure questions of fact, such as whether a testifying witness was credible. Patel, 596 U.S. at 333.
And we may not review purely discretionary decisions, such as when the BIA declines to reopen
a removal order sua sponte. See, e.g., Lopez v. Garland, 990 F.3d 1000, 1003 (6th Cir. 2021).
When determining whether a petition raises a reviewable or non-reviewable issue on appeal, our
focus is on the “substance of the immigrant’s claim, not the name the immigrant places on it.”
Singh, 984 F.3d at 1149. “If a claim amounts to nothing more than a challenge to the agency’s
discretionary and fact-finding exercises cloaked as a question of law, we have no jurisdiction.”
Id. (citation modified).
Sarkisov argues that whether “extraordinary circumstances” warrant waiver of the
deadline for reopening immigration proceedings is a mixed question of law and fact. 8 U.S.C.
§ 1229a(c)(7)(C)(iv)(III).2 We agree. Our determination on this issue is guided by a pair of
recent Supreme Court cases, Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), and Wilkinson,
601 U.S. 209. Guerrero-Lasprilla concerned an appeal from the denial of a motion to reopen
removal proceedings. 589 U.S. at 225. The petitioner argued to the BIA that the deadline for
filing his motion should be equitably tolled. Id. at 225–26. The BIA refused to equitably toll the
deadline because the petitioner failed to demonstrate “the requisite due diligence.” Id. at 226.
On appeal, the question presented was whether the federal courts have jurisdiction to review the
BIA’s due-diligence determination. Id. The Supreme Court held that federal courts had
jurisdiction to review the due-diligence determination because it involved the application of a
legal standard to undisputed facts, otherwise known as a mixed question of law and fact. Id. at
228. Because a mixed question is a “question of law,” there was jurisdiction to review it under
the safe harbor created by 8 U.S.C. § 1252(a)(2)(D). Id. at 227.
2Sarkisov apparently assumes that the jurisdictional bar at 8 U.S.C. § 1252(a)(2)(B)(ii) applies in the
instant case. D. 28 (Sarkisov Br. at 17, 20–21). We, too, assume without deciding that the bar applies. We need not
reach the issue because we conclude that review is permitted by the safe-harbor provision, 8 U.S.C. § 1252(a)(2)(D).

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Four years later, in Wilkinson, the Court turned to a provision of the immigration statutes
that confers discretion on the BIA to cancel a final order of removal if certain circumstances are
met, including if the noncitizen “‘establishes that removal would result in exceptional and
extremely unusual hardship to [the alien’s] spouse, parent, or child,’ who is a U.S. citizen or
lawful permanent resident.” 601 U.S. at 213 (quoting 8 U.S.C. § 1229b(b)(1)(D)). The Court
decided that this statutory provision also created a “legal standard” that the BIA must “apply to a
set of established facts.” Id. at 217; accord Singh, 984 F.3d at 1150. Thus, “the application of
the . . . standard to a given set of facts [wa]s reviewable as a question of law under
§ 1252(a)(2)(D).” Wilkinson, 601 U.S. at 217.
There is no meaningful difference between the legal standards analyzed in Wilkinson and
Guerrero-Lasprilla and the legal standard governing eligibility for a discretionary waiver of the
time limitation for filing a motion to reopen based on a VAWA-visa petition. Just like “due
diligence” and “exceptional and extremely unusual hardship,” “extraordinary circumstances or
extreme hardship to the alien’s child,” 8 U.S.C. § 1229a(c)(7)(C)(iv)(III), is a legal standard that,
when applied to settled facts, presents a mixed question, which the jurisdictional bar on
immigration appeals does not limit our ability to decide. Our conclusion on this issue comports
with those of the only two circuit courts to analyze the issue carefully after Guerrero-Lasprilla.
Pena-Lopez v. Garland, 33 F.4th 798 (5th Cir. 2022); Magana-Magana v. Bondi, 129 F.4th 557
(9th Cir. 2025). The Attorney General’s citations to cases from the First, Second, Third, Fourth,
and Seventh Circuits do not persuade.3 So, the judicial-review bar of 8 U.S.C. § 1252(a)(2)(B)
does not preclude our review.
3The First, Second, and Seventh Circuit cases, Twum v. Barr, 930 F.3d 10 (1st Cir. 2019), Mansaray v.
Barr, 771 F. App’x 128 (2d Cir. 2019), and Joseph v. Lynch, 793 F.3d 739 (7th Cir. 2015), were all decided before
Guerrero-Lasprilla. As this court has previously recognized, Guerrero-Lasprilla has “cause[d] us to reassess our
jurisdiction” over mixed questions, even when they contain fact-dependent elements. Singh, 984 F.3d at 1150. The
Third Circuit, in Yasin v. Attorney General of the United States, 20 F.4th 818 (3d Cir. 2021), failed to grapple with
Guerrero-Lasprilla at all. And the Fourth Circuit’s decision in Ezema v. Garland, 849 F. App’x 50 (4th Cir. 2021),
fails to mention Guerrero-Lasprilla, is sparsely reasoned, and does not clarify the grounds for the BIA’s
determination.

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The Attorney General raises a further argument, however, which was not carefully
considered by those prior circuit cases.4 She argues that “whether the ‘circumstances’ of an alien
filing an untimely VAWA motion to reopen are ‘extraordinary’ is not a ‘legal standard’ because
it involves no legal principles, no guidelines, and no measurable test at all – just an unbounded
judgment call.” D. 30 (AG Br. at 15). The Attorney General argues, therefore, that the statute is
so standardless that it indicates an intent by Congress to commit the determination to agency
discretion “absolutely.” Heckler v. Chaney, 470 U.S. 821, 830 (1985); see 5 U.S.C. § 701(a)(2).
We disagree. What constitute “extraordinary circumstances” warranting waiver of a filing
deadline is not so unmanageable that it evades review. Heckler, 470 U.S. at 830.
To begin, both Guerrero-Lasprilla and Wilkinson themselves suggest that a standard can
be judicially manageable, even when it confers significant discretion to the agency and requires
close engagement with the facts. In Guerrero-Lasprilla, for example, the question was whether
the noncitizen exercised “due diligence.” Although due diligence is also a loosely defined
concept, that did not prevent the Court from concluding that it presented a legal standard that
could be applied. Likewise, in Wilkinson, the standard was “exceptional and extremely unusual
hardship.” 589 U.S. at 227. The Court similarly had no problem concluding that such a
standard, although it might “require[] a court to immerse itself in facts,” was still a legal
standard. 601 U.S. at 222. The Court’s answer to the difficulty defining these statutes was not to
commit a category error. Instead, the Court accommodated the significant breadth of the statute
by providing that when a “mixed question is primarily factual, th[e] review is deferential.” Id. at
225.
Our case law also suggests that this legal standard is susceptible to meaningful review.
After Wilkinson, we interpreted the legal standard of “exceptional and extremely unusual
4The Attorney General characterizes the question of whether a statute confers unreviewable discretion to
the agency as jurisdictional. Our case law is not entirely consistent on this point. Compare Madison-Hughes v.
Shalala, 80 F.3d 1121, 1127 (6th Cir. 1996) (treating the issue as jurisdictional), with Jama v. Dep’t of Homeland
Sec., 760 F.3d 490, 495 (6th Cir. 2014) (treating the issue on the merits). And a circuit split also exists on this
question. Compare Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (merits), and Builders Bank v. Fed.
Deposit Ins. Corp., 846 F.3d 272, 274 (7th Cir. 2017) (same and collecting cases), with Lunney v. United States, 319
F.3d 550, 559–60 (2d Cir. 2003) (subject-matter jurisdiction), and Angelex Ltd. v. United States, 723 F.3d 500, 505–
06 (4th Cir. 2013) (same), and Animal Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1214 (11th Cir.
2015) (same). We need not resolve this question today.

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hardship.” Moctezuma-Reyes, 124 F.4th at 422–23 (quoting 8 U.S.C. § 1229b(b)(1)(D)). In
Moctezuma-Reyes, we turned first to dictionary definitions for the words used in the statute and
then assessed how those words modified the concept of hardship in the context of a noncitizen
who would be deported and separated from their family. Id. at 421–22. The Attorney General
points out that Wilkinson had already indicated that the standard interpreted in Moctezuma-Reyes
“was a reviewable standard,” so our court did not directly address the question of whether the
standard committed discretion to the agency. D. 30 (AG Br. at 19). But our ability to parse the
standard implies that the law was not so standardless that it committed all discretion to the
agency.
Furthermore, 8 U.S.C. § 1229a(c)(7)(C)(iv)(III) does not obliquely suggest that the
determination of whether extraordinary circumstances apply is itself in the discretion of the
Attorney General. Compare this statutory provision with the one granting the Attorney General
discretion to waive a ground of inadmissibility, which we analyzed in Rahman v. Bondi, 131
F.4th 399 (6th Cir. 2025). That statute, unlike this one, provides that the decision to waive rests
on whether it is “established to the satisfaction of the Attorney General that the refusal of
admission to such immigrant alien would result in extreme hardship to the citizen or lawfully
resident spouse or parent of such alien.” 8 U.S.C. § 1182(a)(9)(B)(v) (emphasis added). We
observed that “[t]he highlighted language signals ‘that the [extreme-hardship] determination is
for’ the Attorney General (and those to whom the Attorney General has delegated this task).”
Rahman, 131 F.4th at 407 (alteration in original) (quoting Pierce v. Underwood, 487 U.S. 552,
559 (1988)). Because the statute calls on the Attorney General to “decide if the ‘information’
that an immigrant introduces suffices to meet their ‘demands,’” the statute “conveys that the
Attorney General’s designees must make an ‘inherently discretionary’ call.” Id. (citations
omitted). This statutory feature distinguishes this waiver provision from the similar provision in
the asylum statute, which we later reviewed in Moctezuma-Reyes.
Section 1229a(c)(7)(C)(iv)(III) is more comparable to the one analyzed in Wilkinson and
Moctezuma-Reyes. The statute provides that “the Attorney General may, in the Attorney
General’s discretion, waive this time limitation in the case of an alien who demonstrates
extraordinary circumstances or extreme hardship to the alien’s child.” 8 U.S.C.

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§ 1229a(c)(7)(C)(iv)(III). This is a two-part framework.5 See Wilkinson, 601 U.S. at 212–13
(outlining two-part framework as applied to 8 U.S.C. §§ 1229b(a)–(b)). It involves a legal
determination of whether the noncitizen has satisfied the legal standard of “extraordinary
circumstances or extreme hardship to the alien’s child.” 8 U.S.C. § 1229a(c)(7)(C)(iv)(III); see
Wilkinson, 601 U.S. at 212. And it involves a discretionary determination by the BIA that a
waiver is warranted. 8 U.S.C. § 1229a(c)(7)(C)(iv)(III); see Wilkinson, 601 U.S. at 212. In
short, the statute says that the BIA may exercise discretion in a case that meets a certain legal
standard. The presence of the secondary, discretionary component does not render that legal
standard also discretionary. The statute at issue in Wilkinson and Moctezuma-Reyes operated the
same way. The noncitizen needed to prove both that he was eligible for cancellation of removal
and that his case “merit[ed] a favorable exercise of discretion.” Wilkinson, 601 U.S. at 213
(quoting 8 U.S.C. § 1229a(c)(4)(A)). Although it was undisputed that the ultimate discretionary
decision was not reviewable, “the threshold question whether a noncitizen is statutorily eligible
for cancellation of removal requires a court to assess whether an IJ correctly applied the statutory
standard to a given set of facts.” Id. at 221. The same is true here.
The Attorney General argues that this standard is different from the ones previously
analyzed, because the concept of “extraordinary circumstances” is simply so discretionary that it
cannot be analyzed. The Attorney General draws a comparison to our precedent holding that the
BIA’s denial of a request to reopen proceedings sua sponte is not reviewable, even though the
BIA has developed a doctrine of granting such requests in “exceptional situations.” Harchenko
v. INS, 379 F.3d 405, 411 (6th Cir. 2004); see Lopez v. Garland, 990 F.3d 1000, 1003 (6th Cir.
2021); In re G-D-, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999).6 But Harchenko is
5The other two circuits to consider the reviewability of decisions involving 8 U.S.C.
§ 1229a(c)(7)(C)(iv)(III) applied the two-part framework. See Magana-Magana v. Bondi, 129 F.4th 557, 569 (9th
Cir. 2025); Pena-Lopez v. Garland, 33 F.4th 798, 805 (5th Cir. 2022).
6The Attorney General notes that we have found that review is available when regulations or precedential
BIA opinions set forth legal tests and standards that facilitate our review. The Attorney General points to our
decision in Denko v. INS, 351 F.3d 717 (6th Cir. 2003), but that decision does not support her position. There, we
were tasked with deciding whether a regulation creating a summary-affirmance procedure for immigration decisions
was unreviewable under Heckler. Id. at 731. The Heckler argument was “doubtful” because the regulation itself set
forth a definite framework for when those procedures could be used. Id. at 731–32. So, Denko tells us very little
about when a statute provides judicially manageable standards. The Attorney General also points to our unpublished
decision in Duruji v. Lynch, 630 F. App’x 589 (6th Cir. 2015). That opinion also provides little support. In Duruji,

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distinguishable because it addressed different judicial-review provisions. Because of the timing
of the immigration proceedings at issue, that case “[wa]s governed by former § 106 of the INA,
as amended by the IIRIRA’s transitional rules[,]” not by the then-new judicial-review provision
codified at 8 U.S.C. § 1252. 379 F.3d at 408–09. Indeed, Harchenko predates Congress’s
enactment of the safe-harbor provision, 8 U.S.C. § 1252(a)(2)(D). See 119 Stat. 310 (2005). As
we noted above, the safe-harbor provision gives us authority to review questions of law—such as
application of the “extraordinary circumstances” standard to the facts here. See Wilkinson, 601
U.S. at 217.
Because the meaning of “extraordinary circumstances” is a legal question, we “resolve its
meaning on our own.” See Moctezuma-Reyes, 124 F.4th at 420 (citing Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 391–92 (2024)). To determine the meaning of the statute, we start with
the dictionary. Black’s Law Dictionary defines “extraordinary circumstances” as a “[a] highly
unusual set of facts that are not commonly associated with a particular thing or event.”
Circumstance, BLACK’S LAW DICTIONARY (12th ed. 2024). That accords with the ordinary
definition of each of those words. Extraordinary means “going beyond what is usual, regular, or
customary” or “exceptional to a very marked extent.” Extraordinary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/extraordinary; see Extraordinary, Oxford English
Dictionary, https://www.oed.com/dictionary/extraordinary_adj?tab=meaning_and_use#4874525
(“Of a kind not usually met with; exceptional; unusual; singular” or “Exceeding what is usual in
amount, degree, extent, or size”); see also Moctezuma-Reyes, 124 F.4th at 421 (defining
“exceptional” as “rare” or “deviating from the norm” (citation modified)). Meanwhile, a
“circumstance” is “a condition, fact, or event accompanying, conditioning, or determining
another.” Circumstance, Merriam-Webster, https://www.merriam-webster.com/dictionary
/circumstances.
we considered whether a request for an administrative closure (similar to a continuance) was reviewable. Id. at 591–
92. We concluded that the “decision to temporarily continue proceedings is well within the competence of the
courts to consider.” Id. at 592. To be sure, we noted that the BIA had set forth “straightforward standards for
evaluating when administrative closure is appropriate,” but those standards were “nonexhaustive.” Id. Indeed, we
proceeded to review whether the BIA erred by concluding that the IJ did not abuse its discretion when it found that
“good cause” supported the administrative closure. Id. at 593.

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What kind of circumstances are extraordinary? The statutory provision might be satisfied
in at least two ways, and a review of recent BIA decisions applying that standard indicate that
both are sometimes applied. “Extraordinary circumstances” could refer to a situation especially
warranting reopening because, for example, the abuse suffered by the petitioner is so severe that
it would be unfair to deprive this petitioner of an opportunity to seek relief. See In Re: Tatiara
Pinho-De Oliveira, AXXX XX2 495 - HAR, 2018 WL 3969122, at *1 (B.I.A. June 6, 2018).
“Extraordinary circumstances” could also refer to a situation that prevents the petitioner from
filing a timely petition. For example, a hurricane might have destroyed the petitioner’s home
days before the filing deadline, preventing her from filing a timely motion to reopen the
proceedings. Or a petitioner might be subject to severe abuse or manipulation by the violent
spouse that prevented him from filing a timely motion to reopen. The BIA often uses the
“extraordinary circumstances” rule in this way. See In Re: Aminot Adewunmi-Dunn, AXXX
XX3 818 - NEW, 2017 WL 3382761, at *1 (B.I.A. May 26, 2017) (concluding that “the
evidence offered with the instant motion does not demonstrate that exceptional circumstances
prevented the timely filing of an application for VAWA-related relief”); In Re: Martin Perez-
Sanchez, AXXX-XX9-729 - GUA, 2018 WL 6618260, at *2 (B.I.A. Oct. 5, 2018).
We do not think that the statute limits the application of the Attorney General’s discretion
to one circumstance or the other. Compare this statute to the asylum statute, which allows the
Attorney General to consider an asylum application when there are “extraordinary circumstances
relating to the delay in filing an application within the period specified.” 8 U.S.C.
§ 1158(a)(2)(D) (emphasis added). And to another provision of § 1229a, which authorizes
rescission of an order of removal filed in absentia if the noncitizen files a motion to reopen
within 180 days that “demonstrates that the failure to appear was because of exceptional
circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). Here, by contrast, the statute does not directly
link the extraordinary circumstance to the delay or other failure. So, we can infer that Congress
did not intend to limit extraordinary circumstances to those that directly explain a delay.
We have jurisdiction to review the BIA’s application of the “extraordinary
circumstances” standard to the facts when the BIA concludes that the standard is not met. In
reviewing the BIA’s determination, we can draw guidance from related statutes and regulations,

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as well as from our own case law on equitable tolling. In the context of late-filed asylum
petitions, the Attorney General has issued regulations defining what might be considered
extraordinary, including serious illness or disability, legal disability, ineffective assistance of
counsel, and death or serious illness or incapacity of a legal representative or an immediate
family member. 8 C.F.R. § 1208.4(a)(5). Even though many courts have found that ultimate
determination to be unreviewable, because the extraordinary circumstance must be
“demonstrate[d] to the satisfaction of the Attorney General,” id.; see Rahman, 131 F.4th at 408
(collecting cases), the criteria laid out in regulations provide helpful guideposts to determine
what constitutes an extraordinary circumstance explaining a late filing.
We can also draw on our expertise handling filing delays as federal judges. Indeed, the
phrase “extraordinary circumstances” parrots the test we use for equitable tolling. When
deciding whether to excuse noncompliance with a statutory deadline, we ask whether the
petitioner has shown (1) “‘that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The BIA
has adopted this rule to decide whether to equitably toll the deadline to appeal. In re Morales-
Morales, 28 I. & N. Dec. 714, 717 (B.I.A. 2023). In that context, the BIA has said that an
“extraordinary circumstance may include those situations where reasonable expectations about
an event’s occurrence are interrupted.” Id. We, along with the First Circuit, recently reviewed
whether an extraordinary circumstance prevented timely filing such as to require equitable
tolling. See, e.g., Chaudhary v. Bondi, No. 24-3890, 2025 WL 1420925 (6th Cir. May 16, 2025);
Diaz-Valdez v. Garland, 122 F.4th 436 (1st Cir. 2024) (reversing the BIA’s determination that a
petitioner failed to demonstrate an extraordinary circumstance for an untimely filed appeal). Yet
while precedent can guide the determination of whether a circumstance is “extraordinary,” courts
must remain mindful that what warranted treating circumstances as ordinary in one case, may,
with added nuances, warrant treating those found in another case as extraordinary. See Holland,
560 U.S. at 649–50.

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No. 23-3965 Sarkisov v. Bondi Page 13
III. MERITS
Having concluded that we can review the BIA’s determination that Sarkisov did not
“demonstrate[] extraordinary circumstances” that might justify an exercise of discretion to
reopen his removal proceedings, we turn to the merits of Sarkisov’s appeal. Because this is a
highly factual mixed question of law and fact, our review is deferential to the agency. Wilkinson,
601 U.S. at 225; Moctezuma-Reyes, 124 F.4th at 423.
Before the BIA, Sarkisov contended that the “cumulative psychological effects of the
abuse from his former wife constitutes extraordinary circumstances.” AR at 3 (BIA Order). The
BIA observed that “the abuse and resulting psychological effects could explain some reasonable
delay in filing the motion to reopen,” but “they did not constitute extraordinary circumstances
excusing the 6-year delay between the finality of the order of removal and the filing of the
motion to reopen.” Id. at 3–4. Even starting the clock from when Sarkisov’s VAWA petition
was approved, the BIA concluded that Sarkisov had not “established how the psychological
effects of the abuse constituted extraordinary circumstances delaying his filing of the motion
almost 1½ years after the self-petition was approved.” Id. at 4.
On appeal, Sarkisov argues that the BIA “ignored and/or failed to give the proper weight
to the fact of Petitioner’s ongoing mental trauma as a direct result of his abusive relationship,”
which affected his ability to timely file the motion for reopening.7 D. 28 (Sarkisov Br. at 21).
He points out that he provided an evaluation from a doctor, who diagnosed him with moderate-
to-severe generalized anxiety disorder. Id. at 23. The BIA squarely accounted for “the abuse
and resulting psychological effects” of his prior relationship and acknowledged that they could
justify some delay. AR at 3–4 (BIA Order). But here, the delay lasted more than six years,
including a year-and-a-half since the approval of his VAWA self-petition. Sarkisov contends
that the BIA failed to acknowledge the lasting effects of the trauma. But on these facts, with
7On appeal, Sarkisov focuses much of his argument on disputes with the IJ’s findings. Where, as here, “the
BIA reviews the IJ’s decision and issues a separate opinion, rather than summarily affirming the IJ’s decision, we
review the BIA’s decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009),
abrogated on other grounds by Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024). Accordingly, we have no
cause to consider Sarkisov’s complaints concerning the IJ’s references to his fluency in English and retention of
multiple immigration attorneys, because it is not apparent that the BIA relied on them. In any event, these
considerations were apparent from the record, and we agree that they were not inappropriate considerations.

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such a lengthy delay, we cannot conclude that the BIA was unreasonable in deciding that
reopening was unwarranted.
Next, Sarkisov argues that the BIA imposed an impermissibly high bar, considering the
intent of VAWA to assist survivors of domestic violence. D. 28 (Sarkisov Br. at 26). Still, “no
legislation pursues its purposes at all costs.” Rodriguez v. United States, 480 U.S. 522, 525–26
(1987) (per curiam). Congress chose to allow VAWA petitioners to reopen their proceedings but
limited the filing of untimely reopening motions to “extraordinary circumstances.” “Deciding
what competing values will or will not be sacrificed to the achievement of a particular objective
is the very essence of legislative choice—and it frustrates rather than effectuates legislative
intent simplistically to assume that whatever furthers the statute’s primary objective must be the
law.” Id. at 526.
Lastly, Sarkisov suggests that his circumstances were extraordinary because he suffered
from “battery or extreme cruelty,” a standard applicable to reopening of a removal order entered
in absentia. See 8 U.S.C. § 1229a(b)(5)(C), (e)(1); D. 28 (Sarkisov Br. at 19–20, 26).8 In the
context of motions to reopen removal orders filed in absentia, Congress has set forth guidance on
what constitutes “exceptional circumstances” excusing failure to appear. There, Congress
defines “exceptional circumstances” as those “beyond the control of the alien,” including
“battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the
alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less
compelling circumstances.” 8 U.S.C. § 1229a(e)(1). Sarkisov argues that because he might
meet the criteria for “exceptional” circumstances he must also meet the criteria for
“extraordinary” ones. We do not think that follows in this context. For one, some degree of
battery is common in many VAWA self-petitions, but would likely be unusual in the ordinary
motion for reopening an in-absentia order. Sarkisov’s proposed reading of the statute here would
tend to eliminate the requirement that the circumstance be extraordinary in the context of a
VAWA petition. There may be certain circumstances in which the abuse or trauma is so severe
as to be characterized as extraordinary, even in this context. Cf. Moctezuma-Reyes, 124 F.4th at
8Sarkisov briefly suggests that the BIA in fact applied the “battery or extreme cruelty” standard. D. 28
(Sarkisov Br. at 26). Yet, nothing in the BIA’s order suggests that it applied this standard.

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423 (considering whether a family member “will suffer hardship that’s substantially different
from or greater than that which normally results from a loved one’s deportation”). As the BIA
recognized, Sarkisov suffered “abuse and resulting psychological effects,” but we cannot
conclude that the BIA erred by finding that those did not “constitute extraordinary circumstances
excusing the 6-year delay.” AR at 3–4 (BIA Order).
IV. CONCLUSION
For these reasons, we DENY the petition for review.

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