First Circuit Holds “Extraordinary Circumstances” Excuses for Untimely Asylum Are Unreviewable Discretionary Judgments After Wilkinson

Introduction

In Zapet-Alvarado v. Bondi, the First Circuit addressed three forms of protection sought by a Guatemalan mother and her minor son: asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The petitioners alleged years of threats from unidentified hooded men in the context of local land conflicts in Guatemala, including threatened kidnapping of the children if the family did not “support” one side.

The case presented two central legal issues. First, whether a federal court has jurisdiction to review the Board of Immigration Appeals’ (BIA) rejection of “extraordinary circumstances” to excuse an untimely asylum application under 8 U.S.C. § 1158(a)(2)(D). Second, whether substantial evidence supported the BIA’s denial of withholding of removal and CAT protection given the record of unfulfilled threats, absence of physical harm, and generalized country conditions evidence.

Writing for the panel, Judge Aframe (joined by Judge Montecalvo and District Judge Vélez-Rivé sitting by designation) dismissed the asylum petition for lack of jurisdiction and denied the remainder, affirming the BIA.

Summary of the Opinion

Asylum (untimely filing): Dismissed for lack of jurisdiction. The First Circuit held that the “extraordinary circumstances” exception to the one-year filing bar in § 1158(a)(2)(D) is committed “to the satisfaction of the Attorney General” and therefore is a discretionary judgment not reviewable by the court, consistent with the Supreme Court’s decision in Wilkinson v. Garland (2024).
Withholding of removal: Denied. Substantial evidence supported the BIA’s finding that petitioner did not establish past persecution and did not show it is more likely than not she would face future persecution on a protected ground if returned to Guatemala.
CAT protection: Denied. Substantial evidence supported the BIA’s conclusion that petitioner did not show a more-likely-than-not risk of torture with the consent or acquiescence of a public official.
Ancillary procedural holdings: The court declined to consider a derivative-asylum timeliness argument for the child because it was not exhausted before the BIA. It also noted that arguments first raised at oral argument are waived.

Analysis

Precedents Cited and How They Shaped the Decision

The court’s jurisdictional ruling rests on the interplay of three sets of authorities:

Statutory framework
- 8 U.S.C. § 1158(a)(2)(B): one-year filing deadline for asylum applications.
- 8 U.S.C. § 1158(a)(2)(D): agency may consider a late application if the applicant shows “changed” or “extraordinary” circumstances, but crucially “to the satisfaction of the Attorney General.”
- 8 U.S.C. § 1158(a)(3): “No court shall have jurisdiction to review any determination of the Attorney General under this paragraph,” which includes the extraordinary-circumstances exception.
- 8 U.S.C. § 1252(a)(2)(D): a catch-all that preserves jurisdiction over constitutional claims or questions of law.
First Circuit path before and after Supreme Court guidance
- Chahid Hayek v. Gonzales, 445 F.3d 501 (1st Cir. 2006), and Mehilli v. Gonzales, 433 F.3d 86 (1st Cir. 2005): pre-Wilkinson cases recognizing no jurisdiction over timeliness and changed/extraordinary circumstances determinations because they are discretionary/factual.
- Escobar v. Garland, 122 F.4th 465 (1st Cir. 2024): the court retained jurisdiction to review a pure legal question—whether the agency added an extra-textual requirement to the changed-circumstances standard. Escobar thus involved a predicate legal question, not the discretionary application of the standard to the facts.
Supreme Court guidance
- Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020): “questions of law” in § 1252(a)(2)(D) include mixed questions—application of a legal standard to settled facts (there, due diligence for equitable tolling). This expanded review of certain mixed questions.
- Wilkinson v. Garland, 601 U.S. 209 (2024): reaffirmed reviewability of mixed questions, but importantly distinguished statutory standards committed “to the satisfaction of the Attorney General.” Where Congress uses that formulation, it signals a discretionary judgment insulated from judicial review under § 1252(a)(2)(D). The First Circuit treats § 1158(a)(2)(D)’s extraordinary-circumstances determination as such a discretionary judgment. The court cited post-Wilkinson alignment in other circuits, including Real v. Attorney General (3d Cir. 2025) and A.P.A. v. Attorney General (11th Cir. 2024), and referenced Rahman v. Bondi (6th Cir. 2025) applying similar reasoning to different “satisfaction of the Attorney General” hardship waivers.
- Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): discussed but found irrelevant; the issue was not deference to an agency interpretation but the threshold jurisdiction to review a discretionary application of a statutory standard.

On the merits of withholding and CAT, the court invoked a substantial body of First Circuit asylum/CAT jurisprudence defining persecution, the weight to accord threats, the substantial evidence standard, and the insufficiency of generalized country conditions absent particularized risk:

Martínez-Pérez v. Sessions, 897 F.3d 33 (1st Cir. 2018); Vasili v. Holder, 732 F.3d 83 (1st Cir. 2013); Alibeaj v. Gonzales, 469 F.3d 188 (1st Cir. 2006): “persecution” demands a high threshold; more than harassment or unpleasantness.
Lobo v. Holder, 684 F.3d 11 (1st Cir. 2012); Vilela v. Holder, 620 F.3d 25 (1st Cir. 2010); Montoya-López v. Garland, 80 F.4th 71 (1st Cir. 2023); Javed v. Holder, 715 F.3d 391 (1st Cir. 2013): threats can constitute persecution only if “so menacing as to cause significant actual suffering or harm,” and the presence of physical violence makes that more likely.
Cano-Gutiérrez v. Bondi, 146 F.4th 26 (1st Cir. 2025); Hernández-Lima v. Lynch, 836 F.3d 109 (1st Cir. 2016): “vague or hollow threats” are insufficient for persecution; absence of fulfillment and non-physical harm weigh heavily against a persecution finding.
Barnica-López v. Garland, 59 F.4th 520 (1st Cir. 2023); Gómez-Medina v. Barr, 975 F.3d 27 (1st Cir. 2020): substantial evidence standard—findings stand unless any reasonable adjudicator would be compelled to conclude otherwise.
Bopaka v. Garland, 123 F.4th 552 (1st Cir. 2024); Rodrigues v. Garland, 124 F.4th 58 (1st Cir. 2024): generalized country conditions do not establish an individualized risk.
Hernández-Méndez v. Garland, 86 F.4th 482 (1st Cir. 2023): internal relocation can defeat a well-founded fear (asylum); the court invoked that principle by analogy given the higher burden for withholding.
Varela-Chavarria v. Garland, 86 F.4th 443 (1st Cir. 2023); Sánchez-Vásquez v. Garland, 994 F.3d 40 (1st Cir. 2021): withholding requires a “clear probability” standard, higher than asylum’s “well-founded fear.”
Mayancela v. Bondi, 136 F.4th 1 (1st Cir. 2025); Samayoa Cabrera v. Barr, 939 F.3d 379 (1st Cir. 2019): CAT requires showing a more-likely-than-not risk of torture by, at the instigation of, or with the consent or acquiescence of a public official.
Méndez v. Garland, 67 F.4th 474 (1st Cir. 2023); Méndez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010): threats and non-life-threatening violence generally do not meet the CAT standard; generalized country-conditions evidence is insufficient to show government acquiescence absent particularized facts.
Sunoto v. Gonzales, 504 F.3d 56 (1st Cir. 2007): exhaustion requirement; unexhausted claims are beyond the court’s jurisdiction.
Capen v. Campbell, 134 F.4th 660 (1st Cir. 2025): issues first raised at oral argument are waived.

Legal Reasoning

1) Appellate Jurisdiction Over “Extraordinary Circumstances” under § 1158(a)(2)(D)

The lodestar of the court’s jurisdictional analysis is the textual commitment of the exception to the Attorney General’s satisfaction. The statute authorizes consideration of an untimely asylum application if the applicant “demonstrates to the satisfaction of the Attorney General” the existence of changed or extraordinary circumstances. Paired with § 1158(a)(3)’s jurisdiction-stripping clause, that phrasing signals a discretionary judgment insulated from review.

While Guerrero-Lasprilla expanded review of mixed questions, Wilkinson clarified that this expansion does not reach determinations that Congress expressly committed to the Attorney General’s satisfaction. The First Circuit applied Wilkinson squarely to § 1158(a)(2)(D), aligning with sister circuits post-Wilkinson and distinguishing Escobar on the ground that Escobar involved a pure legal question about the validity of an extra-textual requirement, not a discretionary application of the statutory standard to facts.

Applying these principles, the court concluded it lacked jurisdiction to review the BIA’s rejection of petitioner’s asserted extraordinary circumstances (including lack of legal knowledge, education, English proficiency, cultural familiarity, and fear of drawing attention to unlawful presence), because those are precisely the types of fact-specific considerations the statute commits to the Attorney General’s judgment.

2) Withholding of Removal

Withholding requires the applicant to show a clear probability that her life or freedom would be threatened on account of a protected ground if returned. This can be done by:

Proving past persecution (creating a rebuttable presumption of future persecution), or
Proving that future persecution is more likely than not.

The court upheld the BIA’s finding of no past persecution. The threats were not accompanied by violence, were not specific as to content, frequency, or timing, were never fulfilled despite years of persistence, and produced no physical or described non-physical harm. On this record, the threats were properly characterized as “vague or hollow,” falling short of the “fairly high threshold of seriousness” required for persecution.

The court likewise affirmed the BIA’s rejection of a likelihood of future persecution. General country-conditions evidence about violence in Guatemala and vulnerabilities of indigenous persons did not establish an individualized risk profile for the petitioner. The record did not compel a finding that internal relocation would be unsafe or unreasonable, particularly given the years the family remained without physical harm while the threats persisted.

3) CAT Protection

CAT relief requires showing that it is more likely than not the applicant would be subjected to torture—severe physical or mental pain or suffering intentionally inflicted—by or with the consent/acquiescence of a public official. The court agreed with the BIA that the petitioner did not establish an individualized risk of torture, much less official involvement or acquiescence. The past record consisted of unfulfilled threats and no physical harm, and generalized evidence of violence and limits on law enforcement control did not bridge the gap to a particularized, government-acquiescent risk of torture.

Impact

Jurisdiction after Wilkinson: The decision cements, in the First Circuit, that extraordinary-circumstances determinations under § 1158(a)(2)(D) are unreviewable discretionary judgments. Petitioners can still obtain review of pure legal questions about the validity of agency standards (as in Escobar), but cannot seek review of the agency’s application of the extraordinary-circumstances standard to their facts.
Incentive to file timely asylum applications: Because courts cannot correct most agency denials of extraordinary-circumstances excuses, the practical premium on filing within one year is heightened. Practitioners must build a meticulous record on timeliness and any exceptions at the IJ/BIA, recognizing that appellate courts generally cannot revisit those determinations.
Threats-only cases face headwinds: The opinion underscores that unfulfilled, non-specific threats—without demonstrable physical or concrete non-physical harm—ordinarily do not meet the persecution threshold. Applicants relying on threats should marshal detailed, specific, and corroborated accounts, including evidence of actual suffering or credible indicia of imminent violence.
General country reports are not enough: For both withholding and CAT, generalized evidence of dangerous conditions or systemic violence does not substitute for evidence tying those conditions to an individual’s likely risk. Particularized, individualized evidence remains crucial.
Internal relocation remains salient: Even where danger exists in one locale, the reasonableness and safety of relocation can defeat a claim, especially given withholding’s higher burden.
Exhaustion and waiver reinforced: The court reiterated that issues not raised to the BIA are jurisdictionally barred on review, and arguments raised for the first time at oral argument are waived.

Complex Concepts Simplified

One-year asylum deadline and exceptions: Most asylum seekers must file within one year of arrival. Two exceptions, if proven, can excuse late filing: “changed circumstances” affecting eligibility, or “extraordinary circumstances” relating to the delay. Under this decision, whether facts satisfy “extraordinary circumstances” is a discretionary call for the agency and generally unreviewable in court.
Persecution vs. harassment/threats: Persecution is a severe concept. Threats can qualify, but only if “menacing” to the point of causing significant actual suffering or harm. Vague, unfulfilled threats typically do not suffice, especially without physical harm or concrete consequences.
Asylum vs. withholding: Asylum requires a “well-founded fear” (a lower standard) and is discretionary relief. Withholding requires a “clear probability” (more likely than not) of persecution on a protected ground and is mandatory if the standard is met. Failing asylum often presages failure on withholding, which is harder to prove.
CAT standard: CAT protects against torture, defined as severe pain or suffering intentionally inflicted, with governmental involvement (direct, instigated, or via consent/acquiescence). Generalized violence or criminality without a specific, individualized risk and official involvement is insufficient.
Substantial evidence review: On petitions for review, courts do not reweigh facts. The agency’s findings stand unless any reasonable adjudicator would be compelled to conclude the opposite based on the whole record.
Exhaustion and waiver: Petitioners must present all issues to the BIA to preserve them for court review. Arguments raised for the first time at oral argument are deemed waived.

Conclusion

Zapet-Alvarado v. Bondi sets a clear jurisdictional marker in the First Circuit: post-Wilkinson, the extraordinary-circumstances exception to the asylum one-year bar is a discretionary determination “to the satisfaction of the Attorney General” and thus not reviewable on petition for review. On the merits, the decision reaffirms the rigor of the persecution threshold, the insufficiency of generalized country conditions to show individualized risk, the relevance of internal relocation, and the demanding nature of CAT’s torture-with-official-involvement requirement.

The key takeaway for practitioners is twofold. First, timeliness in asylum filings is paramount; when exceptions are needed, the evidentiary record must be developed fully before the agency because discretionary denials are generally insulated from judicial review. Second, for withholding and CAT, specific, credible, and individualized evidence remains essential—mere threats without concrete harm and generalized violence will rarely carry the day under the substantial evidence standard.