Tenth Circuit: Factual Disputes Over Mendez Rojas Class Membership Are Unreviewable Under the Asylum One-Year Bar

1. Introduction

In Lazo-Villalta v. Blanche (10th Cir. Aug. 28, 2026) (nonprecedential “Order and Judgment”), the Tenth Circuit reviewed a pro se petition challenging the denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection. The petitioner, Lilian Jhoan Lazo-Villalta, a Honduran national, alleged severe harm by two unrelated actors: (1) “Dennis,” an 18th Street gang member who raped and abused her in adolescence and early adulthood, and (2) “Irvis,” an MS-13 member who threatened her after she made reports to police.

The central appellate issues were: (a) whether her late-filed asylum application could be excused based on claimed membership in the Mendez Rojas settlement class, and whether the court had jurisdiction to review the agency’s class-membership determination; (b) whether she met the standards for withholding and CAT protection; and (c) whether her proposed particular social group (PSG) tied to domestic-relationship “property” status was legally cognizable.

2. Summary of the Opinion

  • Asylum: The court dismissed the challenge to the one-year filing bar because the petitioner’s argument (that she was a Mendez Rojas class member) turned on a factual dispute—whether she expressed a fear of return when detained— and factual challenges to one-year-bar exceptions are unreviewable under 8 U.S.C. § 1158(a)(3).
  • Withholding of removal: The court denied relief. Substantial evidence supported the agency’s finding that Irvis’s threats did not rise to persecution, and the petitioner did not overcome the agency’s internal relocation finding. As to Dennis, although the agency recognized harm rising to persecution, the petitioner failed to establish a cognizable PSG (“women viewed as property by virtue of their status in a domestic relationship”).
  • Humanitarian asylum: Denied because humanitarian asylum requires past persecution on account of a protected ground, which the petitioner could not show given the PSG ruling.
  • CAT: Denied because the agency reasonably concluded torture was not more likely than not, emphasizing the lack of ongoing pursuit, absence of post-departure contact, and the feasibility of relocation.

3. Analysis

3.1. Precedents Cited

Appellate posture, standards of review, and pro se treatment

  • Yang v. Archuleta, 525 F.3d 925 (10th Cir. 2008): Cited for the proposition that pro se filings are liberally construed, but the court will not act as counsel. This framed the court’s approach to briefing gaps (e.g., undeveloped arguments were not entertained).
  • Diallo v. Gonzales, 447 F.3d 1274 (10th Cir. 2006): Provided the baseline review framework—where a single BIA member decides, the court reviews that decision as the final agency action and limits review to issues the BIA addressed.
  • Elzour v. Ashcroft, 378 F.3d 1143 (10th Cir. 2004): Quoted (via Diallo) for the substantial-evidence standard: factual findings must be supported by “reasonable, substantial and probative evidence considering the record as a whole.”
  • Gutierrez-Orozco v. Lynch, 810 F.3d 1243 (10th Cir. 2016): Reinforced that reversal of factual findings requires evidence so compelling that no reasonable factfinder could agree with the agency.

One-year asylum bar, Mendez Rojas, and jurisdiction

  • Mendez Rojas v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018): Described the class-based notice litigation that led to a settlement under which certain class members’ asylum applications would be treated as timely and NTAs would be amended prospectively to provide one-year-bar notice. The petitioner invoked this settlement to excuse her late filing.
  • Real v. Att'y Gen. of U.S., 147 F.4th 361 (3d Cir. 2025): Cited for a concise explanation of the Mendez Rojas settlement’s terms and the government’s commitments (retroactive acceptance for class members and prospective NTA notice changes).
  • Ferry v. Gonzales, 457 F.3d 1117 (10th Cir. 2006): Used to support the jurisdictional line: under 8 U.S.C. § 1158(a)(3) courts generally lack jurisdiction to review one-year-bar determinations and exceptions, except for constitutional or legal questions preserved by 8 U.S.C. § 1252(a)(2)(D). Here, whether the petitioner “express[ed] a fear of return” when detained (a Mendez Rojas class criterion) was treated as a factual question, placing it beyond judicial review.

Withholding of removal: persecution, threats, and relocation

  • Karki v. Holder, 715 F.3d 792 (10th Cir. 2013): Provided the governing withholding standard—an applicant must show a “clear probability” of persecution on account of a protected ground.
  • Vicente-Elias v. Mukasey, 532 F.3d 1086 (10th Cir. 2008): Cited to classify “whether the circumstances qualify as persecution” as a question of fact, reviewed for substantial evidence.
  • Zhi Wei Pang v. Holder, 665 F.3d 1226 (10th Cir. 2012): Supplied the general rule that “mere denigration, harassment, and threats” typically do not amount to persecution.
  • Jimenez v. Bondi, 156 F.4th 1037 (10th Cir. 2025): Reinforced skepticism toward claims resting on threats and psychological harm alone, noting the court has “rarely, if ever” granted relief on that basis without more.

Particular social group (PSG) framework

  • Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir. 2015): Set out the BIA-derived three-part PSG test: (1) common immutable characteristic, (2) particularity (clear boundaries), and (3) social distinction (recognized by society as a distinct group).
  • Miguel-Pena v. Garland, 94 F.4th at 1145, 1160 (10th Cir. 2024): Cited for the proposition that PSG cognizability is a legal question reviewed de novo.

Humanitarian asylum and CAT standards

  • Matter of L-S-, 25 I. & N. Dec. 705 (BIA 2012): Used to confirm a threshold requirement for humanitarian asylum: the applicant must already have shown past persecution on account of a protected ground (i.e., established refugee status).
  • Garcia-Botello v. Bondi, 168 F.4th 1245 (10th Cir. 2026): Provided the CAT standard: the applicant must show it is more likely than not she will be tortured “by or with the consent or acquiescence of” a public official.

Judicial restraint (issues not reached)

  • Griffin v. Davies, 929 F.2d 550 (10th Cir. 1991): Cited for the principle that courts do not decide issues unnecessary to the outcome, explaining why the panel declined to reach other arguments the BIA did not decide.

3.2. Legal Reasoning

A. Asylum timeliness: the “jurisdictional gate” turns on how the issue is framed

The court treated the petitioner’s Mendez Rojas argument as a factual dispute about whether she “express[ed] a fear of return” while detained—a prerequisite for the claimed class (as quoted from Mendez Rojas). The IJ and BIA relied on DHS documents (Form I-213 and Form I-867A) indicating she did not express fear at that time.

Because 8 U.S.C. § 1158(a)(3) bars judicial review of determinations involving the one-year bar and its exceptions, and because the petitioner’s challenge did not present a legal/constitutional question preserved by § 1252(a)(2)(D), the court concluded it lacked jurisdiction and dismissed this portion of the petition.

Practical rule from the decision: Where the claimed exception to the asylum one-year bar hinges on contested historical facts (here, whether fear was expressed upon detention), the Tenth Circuit will treat the challenge as unreviewable under § 1158(a)(3).

B. Withholding: threats and intimidation were not compelled to be “persecution”

Applying substantial-evidence review, the panel upheld the BIA’s finding that Irvis’s conduct—an armed death threat, release on bail, and later menacing drive-bys— did not compel a conclusion of “persecution,” relying on Zhi Wei Pang v. Holder and Jimenez v. Bondi for the proposition that threats (even frightening ones) generally do not suffice without additional severe harm.

The court also accepted the agency’s alternative barrier: even assuming a risk of future harm from Irvis, the petitioner did not overcome the finding that she could reasonably relocate within Honduras. Her generalized assertion about gangs’ nationwide reach was deemed insufficient to displace the agency’s fact-specific relocation determination.

C. PSG tied to Dennis: failure of particularity and social distinction

The only PSG issue the court needed to reach was the domestic-relationship/property group: “women viewed as property by virtue of their status in a domestic relationship.” Applying Rodas-Orellana v. Holder, the BIA (and the court, effectively) focused on:

  • Particularity: The group lacked a “clear benchmark” to determine who falls within it (indeterminate boundaries).
  • Social distinction: The record lacked sufficient evidence that Honduran society perceives this group as a distinct social class.

Because the petitioner did not point to record evidence satisfying these prongs, the PSG was not cognizable, defeating the protected-ground element. This, in turn, prevented both withholding (as to Dennis-related persecution) and humanitarian asylum.

D. Humanitarian asylum: threshold failure before discretion

The panel relied on Matter of L-S- to emphasize that humanitarian asylum is not a free-standing remedy for severe suffering. An applicant must first establish past persecution on account of a protected ground. Since the petitioner’s PSG failed, she never reached the humanitarian-asylum “stage of the analysis.”

E. CAT: insufficient likelihood of torture and ability to avoid harm

Under Garcia-Botello v. Bondi, CAT requires a showing that torture is more likely than not with government consent or acquiescence. The BIA’s rationale—Dennis’s presence in the United States, no evidence of Irvis pursuing her after departure, and the feasibility of relocation—was upheld as reasonable and not shown to be reversible error.

3.3. Impact

  • Jurisdictional tightening in one-year-bar litigation: The decision underscores that even when an applicant invokes a broadly known settlement framework like Mendez Rojas, the federal appellate court will dismiss if entitlement depends on disputed facts (e.g., whether fear was expressed in custody), rather than a legal interpretation of the settlement terms or statutory notice obligations.
  • Threats-based persecution claims remain difficult in the Tenth Circuit: By reiterating Zhi Wei Pang and Jimenez, the decision signals that applicants must marshal evidence of additional harm, severity, or concrete consequences beyond threats and fear.
  • PSG proof demands record development: The opinion illustrates that even sympathetic facts (severe domestic and sexual violence) do not substitute for evidence supporting PSG “particularity” and “social distinction.” Applicants must build a record showing how society perceives the group and how membership is objectively defined.
  • Relocation remains a powerful alternative ground: The BIA’s relocation findings, when factually supported, can render other questions (future persecution, PSG for a second claim) effectively academic.
  • Nonprecedential but persuasive: Although labeled nonbinding, the reasoning is likely to be cited for persuasive value, particularly on the reviewability of fact-based one-year-bar exceptions and the threats-persecution line.

4. Complex Concepts Simplified

  • One-year asylum bar (8 U.S.C. § 1158(a)(2)(B)): Generally, asylum must be filed within one year of arrival. Certain exceptions exist, but Congress largely barred courts from reviewing the agency’s timeliness and exception determinations.
  • Jurisdiction bar (8 U.S.C. § 1158(a)(3)) and “legal question” carve-out (§ 1252(a)(2)(D)): Courts cannot review factual disputes about timeliness/exceptions, but can review genuine constitutional or legal questions (for example, what a statute means), not disputes about “what happened.”
  • Withholding of removal: A mandatory form of protection if the applicant shows a “clear probability” of persecution on a protected ground. It is harder to win than asylum and offers narrower benefits.
  • Persecution: A high level of harm; the Tenth Circuit often treats threats alone as insufficient unless accompanied by other severe mistreatment.
  • Internal relocation: If the applicant can avoid harm by moving to another part of the country (and it is reasonable to expect that), the claim can fail even where danger exists in a particular locality.
  • Particular Social Group (PSG): A protected ground requiring a clearly defined group (particularity) that the relevant society recognizes as distinct (social distinction), among other elements.
  • Humanitarian asylum (8 C.F.R. § 1208.13(b)(1)(iii)): A discretionary form of asylum available only after proving past persecution on a protected ground; it can be granted due to the severity of past persecution or risk of other serious harm.
  • CAT protection: Requires showing it is more likely than not the person will be tortured, with government involvement (consent or acquiescence). It does not require a protected ground.

5. Conclusion

Lazo-Villalta v. Blanche delivers a clear, practice-relevant lesson: when an asylum applicant’s attempt to avoid the one-year bar depends on disputed facts—such as whether she expressed fear of return upon detention—the Tenth Circuit will treat the challenge as unreviewable under 8 U.S.C. § 1158(a)(3) and dismiss for lack of jurisdiction. On the merits of the remaining claims, the court reaffirmed stringent standards for (i) treating threats as “persecution,” (ii) overcoming internal-relocation findings, and (iii) proving PSG cognizability through record evidence of particularity and social distinction. The result was a partial dismissal (asylum timeliness) and denial (withholding, humanitarian asylum, CAT), leaving intact the BIA’s removal order.