Constructive Notice Suffices: Third Circuit Affirms No Due-Process Right to Personal Notice of the Asylum One-Year Deadline and Confirms Non-Reviewability of “Extraordinary Circumstances” Findings

Introduction

Case: Roger Esteban Real v. Attorney General of the United States, No. 24-1545, decided 30 July 2025 by the U.S. Court of Appeals for the Third Circuit (Opinion by Judge Hardiman; Judge Fisher dissenting).

The petitioner, Colombian national Roger Esteban Real, entered the United States in March 2022 and conceded filing his asylum application sixteen months later—well beyond the statutory one-year deadline. He argued that:

(a) the Government’s failure to affirmatively warn him of the deadline violated his Fifth-Amendment due-process rights; and
(b) alternatively, the same omission constituted an “extraordinary circumstance” excusing the late filing under 8 U.S.C. § 1158(a)(2)(D).

The Immigration Judge (IJ) granted withholding of removal but denied asylum as untimely; the Board of Immigration Appeals (BIA) affirmed. Real petitioned for review. The Third Circuit:

Denied relief on the due-process claim, holding that publication of the deadline in the U.S. Code and Federal Register provides constitutionally adequate notice, absent misleading Government conduct.
Dismissed the petition for lack of jurisdiction insofar as it challenged the BIA’s “extraordinary circumstances” determination, reaffirming that such determinations are discretionary and statutorily insulated from review.

Summary of the Judgment

Due Process: The Court distinguished Mullane v. Central Hanover Bank and United States v. Charleswell. Because no misleading statements were shown and the statute is publicly codified, constructive notice satisfied due-process requirements.
Jurisdiction over § 1158(a)(2)(D): Relying on its own precedent (Sukwanputra v. Gonzales) and § 1158(a)(3)’s jurisdiction-stripping clause, the Court held that “extraordinary-circumstances” findings are discretionary and not reviewable, notwithstanding recent Supreme Court cases expanding “questions of law.”
Outcome: Petition denied in part (due process); dismissed in part (extraordinary-circumstances challenge).

Analysis

A. Precedents Cited and Their Influence

Mullane v. Central Hanover Bank (1950) – Established the “reasonably-calculated notice” criterion. The Third Circuit held Mullane inapplicable to statutory filing deadlines published in the Federal Register.
Mathews v. Eldridge (1976) – Petitioner invoked the Mathews balancing test; the Court merged it with its Mullane analysis because both collapse into adequacy of notice.
United States v. Charleswell (3d Cir. 2006) – Demonstrated due-process violations where government forms actively mislead aliens; used to distinguish rather than support Real’s situation.
Mendez Rojas v. Johnson (W.D. Wash. 2018) – A district-court settlement providing retroactive relief for certain entrants; Real conceded non-membership. The Third Circuit found its reasoning, to the extent broader, unpersuasive.
Sukwanputra v. Gonzales (3d Cir. 2006) & Jarbough v. Attorney General – Earlier Third-Circuit cases holding “extraordinary circumstances” determinations discretionary and unreviewable.
Guerrero-Lasprilla v. Barr (2020) & Wilkinson v. Garland (2024) – Supreme Court broadened the phrase “questions of law” to include application of law to undisputed facts; dissent argued they overruled Sukwanputra, but majority distinguished them due to the “to the satisfaction of the Attorney General” language.
Patel v. Garland (2022) – Cited for the principle that policy concerns cannot override clear statutory text.
Eleventh-Circuit decision A.P.A. v. Attorney General (2024) – Agreed with non-reviewability post-Wilkinson & Guerrero-Lasprilla.

B. Core Legal Reasoning

Constructive statutory notice is enough.
- The asylum deadline appears at 8 U.S.C. § 1158(a)(2)(B) and 8 C.F.R. § 1208.4(a). Under administrative-law doctrine, publication in the Federal Register imparts constructive notice (Cervase v. Office of Fed. Register).
- Due process is violated only when the Government combines lack of affirmative notice with misleading statements. Real produced no evidence of such deception.
Statutory bar on review.
- § 1158(a)(2)(D) authorizes the Attorney General to forgive lateness “to the satisfaction of the Attorney General.”
- § 1158(a)(3) states that “no court shall have jurisdiction to review any determination” under § 1158(a)(2).
- The “constitutional claims or questions of law” saving clause (§ 1252(a)(2)(D)) does not apply because the “extraordinary-circumstances” inquiry is discretionary, not purely legal, in the Third Circuit’s view.
- Wilkinson distinguished hardship standards lacking the “satisfaction” phrase; therefore non-reviewability here survived Supreme-Court expansions.

C. Potential Impact

Notice doctrine: The ruling entrenches the principle that general publication of immigration statutes is normally adequate; aliens cannot rely on lack of personal notice absent misleading conduct.
Jurisdictional boundaries: The decision preserves a circuit split. The Third and Eleventh Circuits bar review of “extraordinary-circumstances” findings; some other circuits may open the door post-Wilkinson. Future Supreme-Court clarification is likely.
Asylum practice: Practitioners must treat the one-year deadline as virtually absolute within the Third Circuit unless clear extraordinary circumstances exist and DHS acknowledges them. Litigation strategies may instead focus on withholding-of-removal where the one-year bar does not apply.
Agency behavior: The opinion implicitly disincentivizes class-wide due-process suits like Mendez Rojas, signaling deference so long as the Government avoids misleading forms.

Complex Concepts Simplified

One-Year Asylum Filing Bar: Under U.S. law, an asylum application must be filed within 12 months of first arrival, unless excused by “extraordinary” or “changed” circumstances.
Extraordinary Circumstances (8 U.S.C. § 1158(a)(2)(D)): A narrow waiver allowing late filings. Examples include serious illness, legal disability, or ineffective assistance of counsel, but must be proven “to the satisfaction of the Attorney General.”
Constructive Notice: The legal fiction that individuals are presumed to know the contents of laws and regulations once officially published.
Jurisdiction-Stripping Provision: A statutory clause that expressly deprives courts of power to review certain executive decisions. Here, § 1158(a)(3) strips review of timeliness determinations.
Mixed Question of Law and Fact: A question requiring application of a legal standard (e.g., “due diligence”) to fixed facts. The Supreme Court now treats such questions as “legal” for jurisdictional saving purposes—except where Congress unambiguously reposes discretion in the agency.

Conclusion

The Third Circuit’s precedential decision in Real v. Attorney General cements two propositions within the circuit:

Publication of the asylum one-year deadline is constitutionally adequate notice; absent affirmative governmental deception, aliens carry the burden of timely filing.
“Extraordinary-circumstances” rulings remain discretionary and beyond judicial review, notwithstanding recent Supreme-Court trends broadening “questions of law.”

The ruling narrows the pathway for untimely asylum applicants and underscores the critical importance of immediate legal advice upon arrival. At the systemic level, it preserves a robust sphere of unreviewable discretion for immigration authorities—a posture that may invite further high-court review to harmonize conflicting circuit interpretations.