Adhering to Khan: No Appellate Jurisdiction to Review Untimely Asylum Determinations Absent a Developed “Question of Law” Theory

I. Introduction

This petition for review arose from removal proceedings against Sanaullah Khan Mohammed, an Indian national who entered the United States in June 2016 on a visitor visa, overstayed, and applied for asylum in January 2019—well beyond the one-year statutory filing deadline. Mohammed alleged past harm and fear of future harm in India stemming from religious and political tensions connected to his family’s slaughterhouse business.

The immigration judge (IJ) found the asylum application untimely and rejected requests for withholding of removal and protection under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) dismissed the appeal. Before the Seventh Circuit, the case presented two central issues:

• Jurisdiction: whether the court could review the IJ/BIA determination that the asylum application was untimely (and not excused by “extraordinary circumstances”).
• Merits: whether the denial of withholding of removal was supported by substantial evidence.

II. Summary of the Opinion

The Seventh Circuit dismissed the petition in part for lack of jurisdiction over the asylum timeliness ruling, adhering to circuit precedent holding that timeliness and “extraordinary circumstances” determinations are unreviewable factual/discretionary matters. The court denied the petition in part as to withholding of removal, concluding substantial evidence supported the agency’s findings that Mohammed neither suffered past persecution nor established a likelihood of future persecution. Mohammed did not pursue any challenge to the CAT denial.

III. Analysis

A. Precedents Cited

1. Seventh Circuit jurisdiction precedents

• Khan v. Filip, 554 F.3d 681 (7th Cir. 2009)
  Role in this case: Controlling authority. The court relied on Khan for the proposition that while 8 U.S.C. § 1252(a)(2)(D) preserves review of “constitutional claims” and “questions of law,” it does not permit review of factual determinations (e.g., whether an application was filed within one year) or discretionary determinations (e.g., whether “extraordinary circumstances” excuse lateness). On that basis, the court held it lacked jurisdiction over Mohammed’s asylum timeliness challenge.
• Gulomjonov v. Bondi, 131 F.4th 601 (7th Cir. 2025)
  Role in this case: Reinforcement rather than departure. The court used Gulomjonov to support two ideas: (i) certain timeliness disputes are “factual argument[s], not… legal one[s],” and thus outside jurisdiction; and (ii) although courts have an independent duty to examine jurisdiction, they “need not bend over backwards” to construct pro-jurisdiction theories the petitioner did not develop.
• Yang v. Holder, 760 F.3d 660 (7th Cir. 2014)
  Role in this case: Cited as part of the Seventh Circuit’s line maintaining limited review over asylum-timeliness determinations; it is invoked through Gulomjonov to show the persistence of this approach.

2. Supreme Court “question of law” cases driving the unresolved split

• Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020)
  Influence: The opinion recognizes Guerrero-Lasprilla as expanding the meaning of “questions of law” in § 1252(a)(2)(D) to include “the application of a legal standard to undisputed or established facts.” The court notes this decision has prompted reevaluation of older jurisdictional holdings like Khan, but does not undertake that reevaluation here due to the absence of adversarial briefing by Mohammed.
• Wilkinson v. Garland, 601 U.S. 209 (2024)
  Influence: The opinion treats Wilkinson as confirming that certain mixed questions (application of a statutory hardship standard) qualify as reviewable “questions of law.” Importantly, the Seventh Circuit highlights Wilkinson’s attention to statutory text—particularly whether Congress used discretionary phrasing—because asylum’s late-filing exception in 8 U.S.C. § 1158(a)(2)(D) includes “to the satisfaction of the Attorney General,” potentially signaling discretion and thus insulating determinations from review under § 1158(a)(3).

3. Other circuits’ post-Guerrero-Lasprilla/Wilkinson asylum-timeliness cases (identified but not decided)

The court canvasses the emerging split to underscore the importance of the issue it is deferring:

• Zapet-Alvarado v. Bondi, 152 F.4th 329 (1st Cir. 2025) (no jurisdiction; emphasizes discretion in § 1158(a)(2)(D)).
• Real v. Att'y Gen., 147 F.4th 361 (3d Cir. 2025) (no jurisdiction on similar reasoning).
• Osabas-Rivera v. Bondi, 161 F.4th 446 (6th Cir. 2025) (no jurisdiction on similar reasoning).
• A.P.A. v. U.S. Att'y Gen., 104 F.4th 230 (11th Cir. 2024) (no jurisdiction on similar reasoning).
• Pacheco-Mo-ran v. Garland, 70 F.4th 431 (8th Cir. 2023) (pre-Wilkinson; declines a reading that would “vitiate” § 1158(a)(3)).
• Ruiz v. Bondi, 163 F.4th 586 (9th Cir. 2025) (jurisdiction exists; treats determination as mixed law/fact and reviewable, albeit deferentially).

4. Withholding-of-removal merits and standard-of-review precedents

• Urzua Ortega v. Garland, 97 F.4th 496 (7th Cir. 2024)
  Role: Provides the review framework when the BIA adopts and affirms the IJ while adding its own reasoning; also quoted for the rule that private-actor harm is insufficient unless the government is complicit or unable/unwilling to prevent it.
• Urias-Orellana v. Bondi, 146 S. Ct. 845 (2026)
  Role: Supplies the articulation of “substantial evidence” review for persecution determinations, covering both factual findings and application of the INA to those findings.
• Stanojkova v. Holder, 645 F.3d 943 (7th Cir. 2011)
  Role: Defines persecution as involving “significant physical force” or comparable nonphysical harm.
• Halim v. Holder, 755 F.3d 506 (7th Cir. 2014)
  Role: Quoted (via Urzua Ortega) for the principle that private violence generally does not establish persecution absent state complicity or inability/unwillingness to protect.
• Zhu v. Gonzales, 465 F.3d 316 (7th Cir. 2006)
  Role: Comparator showing that a single incident causing injury (even requiring stitches) may fall short of persecution; used to support the conclusion that Mohammed’s “bumps, scrapes, and bruises” did not compel a finding of past persecution.
• Martinez-Martinez v. Bondi, 147 F.4th 831 (7th Cir. 2025)
  Role: Supports the internal relocation rationale: where feasible, the ability to live elsewhere in a large country can undermine a claimed likelihood of future persecution.

B. Legal Reasoning

1. The asylum-timeliness jurisdiction holding (and why the court did not reach the larger question)

The court treated the asylum portion as primarily a jurisdictional matter governed by statutory limits and circuit precedent:

• Statutory structure: 8 U.S.C. § 1158(a)(2)(B) imposes a one-year filing deadline; § 1158(a)(2)(D) provides a narrow exception for “changed” or “extraordinary circumstances,” but only if shown “to the satisfaction of the Attorney General”; § 1158(a)(3) states that “[n]o court shall have jurisdiction to review any determination of the Attorney General” regarding, among other items, whether an untimely application should be considered.
• Restoration clause: 8 U.S.C. § 1252(a)(2)(D) preserves review of “constitutional claims or questions of law.”
• Controlling circuit precedent: Under Khan v. Filip, timeliness and “extraordinary circumstances” determinations are treated as factual/discretionary, and therefore not reviewable.

The opinion openly recognizes that Guerrero-Lasprilla and Wilkinson have led other circuits to reexamine whether the application of the “extraordinary circumstances” standard to established facts should be characterized as a reviewable “question of law.” But the Seventh Circuit declined to engage that debate here because Mohammed did not address jurisdiction in his opening brief and filed no reply brief responding to the government’s jurisdictional argument. In that posture, the court followed Gulomjonov v. Bondi’s admonition that it need not invent jurisdictional theories for a petitioner who failed to develop them, even while acknowledging the court’s independent duty to assess jurisdictional barriers.

2. Withholding of removal: application of substantial-evidence review

On withholding of removal, the court applied the governing statute and regulations:

• Legal standard: 8 U.S.C. § 1231(b)(3)(A) bars removal if the noncitizen’s life or freedom would be threatened on account of a protected ground. Past persecution triggers a rebuttable presumption (8 C.F.R. § 1208.16(b)(1)); absent past persecution, the petitioner must show it is “more likely than not” that he would be persecuted (8 C.F.R. § 1208.16(b)(2)).
• Past persecution: The court concluded the record did not compel a finding of persecution. It emphasized (i) the relatively minor injuries, and (ii) that local police responded and stopped the attack, undermining any claim that the government was complicit or unwilling/unable to protect.
• Future persecution: The claim weakened further because the slaughterhouse business—the claimed flashpoint—was no longer operating, and internal relocation within India was feasible.

Applying substantial-evidence review (as articulated in Urias-Orellana v. Bondi), the panel found no basis to disturb the agency’s conclusions.

C. Impact

1. Immediate effect within the Seventh Circuit

• Practical rule: Until the Seventh Circuit revisits Khan v. Filip in a properly developed case, petitioners should expect the court to dismiss asylum timeliness challenges for lack of jurisdiction when they are framed as factual or discretionary disputes—or when the petitioner fails to clearly articulate why the issue is a reviewable “question of law” under § 1252(a)(2)(D).
• Procedural lesson: The opinion signals that jurisdictional innovation is unlikely without robust briefing. The court’s reliance on the absence of adversarial presentation makes briefing strategy dispositive in close jurisdictional contexts.

2. Longer-term significance (the deferred question)

The court’s extended discussion of § 1158(a)(2)(D), § 1158(a)(3), and § 1252(a)(2)(D)—and its survey of other circuits—effectively tees up the Seventh Circuit’s future confrontation with the post-Guerrero-Lasprilla/Wilkinson split. The key interpretive fault line identified by the panel is:

• Whether “to the satisfaction of the Attorney General” in § 1158(a)(2)(D) makes the late-filing excuse determination sufficiently discretionary to fall within § 1158(a)(3)’s jurisdictional bar (as the First, Third, Sixth, Eighth, and Eleventh Circuits largely hold), or whether applying the “extraordinary circumstances” standard to established facts constitutes a reviewable mixed question of law and fact (as the Ninth Circuit held in Ruiz v. Bondi).

Given the cited pending cert petitions in Zapet-Alvarado v. Bondi and Osabas-Rivera v. Bondi, Supreme Court intervention could also reshape this area; the Seventh Circuit’s opinion is careful to preserve its ability to recalibrate later.

IV. Complex Concepts Simplified

• “One-year asylum deadline”: Most asylum seekers must apply within one year of arriving in the U.S. Filing later usually ends the asylum claim—unless an exception applies.
• “Extraordinary circumstances” exception: A narrow safety valve allowing a late filing if unusual events explain the delay. In the statute, the applicant must convince the Attorney General (“to the satisfaction of the Attorney General”).
• “Jurisdiction”: The court’s legal power to decide an issue. If Congress bars jurisdiction, the court must dismiss that part of the case even if it suspects the agency was wrong.
• “Questions of law” under § 1252(a)(2)(D): Reviewable issues including legal interpretations and, per Guerrero-Lasprilla v. Barr, applying a legal standard to established facts. Whether asylum timeliness excuses fit this category is the disputed question.
• “Withholding of removal” (different from asylum): A separate, higher-threshold protection that forbids removal to a country where persecution is more likely than not on account of a protected ground.
• “Substantial evidence” review: A deferential standard: the court asks whether the agency’s decision is reasonably supported by the record, not whether the judges would decide the facts differently.

V. Conclusion

Sanaullah Mohammed v. Todd W. Blanche does not resolve the post-Guerrero-Lasprilla/Wilkinson question of whether asylum late-filing excuse determinations are reviewable as “questions of law.” Instead, it establishes a practical, precedentially anchored rule for the Seventh Circuit’s present posture: absent developed briefing that frames timeliness review as a cognizable legal question, the court will adhere to Khan v. Filip and dismiss for lack of jurisdiction. On the merits, the decision reinforces familiar withholding principles—minor injuries from a single incident stopped by police, coupled with changed conditions and internal relocation possibilities, will rarely compel a finding of past or future persecution under substantial-evidence review.