Untimely Asylum “Changed Circumstances” Are Unreviewable Discretion Calls; Failure to Seek Police Protection Undercuts Withholding/CAT Claims

I. Introduction

In Oscar Rivera-Gaona v. Pamela Bondi (6th Cir. Mar. 20, 2026) (not recommended for publication), the Sixth Circuit denied a petition for review from a Mexican citizen, Oscar Rivera-Gaona, who overstayed a temporary agricultural visa after entering the United States in 2007 and was detained in 2017. He conceded removability and sought three forms of protection: (1) asylum under 8 U.S.C. § 1158, (2) withholding of removal under 8 U.S.C. § 1231(b)(3), and (3) Convention Against Torture (CAT) withholding under 8 C.F.R. § 1208.16(c).

Rivera-Gaona’s fear was rooted in a long-running personal dispute in Puebla, Mexico, stemming from a 2004 bar/store altercation with a neighbor (Aguilar) that allegedly produced threats and a later arrest/prosecution around 2006. The Immigration Judge (IJ) denied all relief; the Board of Immigration Appeals (BIA) summarily affirmed under 8 C.F.R. § 1003.1(e)(4). On review, the Sixth Circuit addressed three central issues:

• whether BIA summary affirmance violates due process;
• whether the court had jurisdiction to review the denial of an untimely asylum application; and
• whether substantial evidence supported denial of withholding of removal and CAT relief.

II. Summary of the Opinion

The court denied the petition. It held:

1. No due process violation from BIA summary affirmance—the BIA’s streamlined affirmance validly made the IJ decision the final agency determination.
2. No jurisdiction over the untimely asylum claim—the IJ’s rejection of “changed circumstances” excusing a decade-late filing was a discretionary determination the court could not review.
3. Withholding of removal properly denied—substantial evidence supported the IJ’s finding that Rivera-Gaona failed to show persecution by the government or by private actors the government is unable or unwilling to control, particularly given his failure to report threats, his speculative claim of governmental influence, and his success in Mexican court.
4. CAT relief properly denied—substantial evidence supported findings of no “more likely than not” torture and no government acquiescence; several arguments were inadequately developed.

III. Analysis

A. Precedents Cited

1. Denko v. I.N.S.

The court relied on Denko v. I.N.S., 351 F.3d 717 (6th Cir. 2003), for two related points: (i) when the BIA summarily affirms, the IJ decision is reviewed as the final agency decision; and (ii) summary affirmance is not itself a due process violation. The panel used Denko to reject the notion that the BIA “conceded” arguments by issuing no opinion; under the regulation, summary affirmance reflects the BIA member’s view that the result is correct (and any errors are harmless/nonmaterial).

2. Seldon v. Garland

Seldon v. Garland, 120 F.4th 527 (6th Cir. 2024), supplied the review framework: factual findings are reviewed for substantial evidence (conclusive unless a reasonable adjudicator would be compelled to conclude otherwise), while legal conclusions are reviewed de novo. The court used this to structure review of the IJ’s withholding and CAT determinations.

3. Osabas-Rivera v. Bondi

Osabas-Rivera v. Bondi, 161 F.4th 446 (6th Cir. 2025), did the principal jurisdictional work. The opinion treated the “changed circumstances”/“extraordinary circumstances” exceptions to the one-year asylum deadline (8 U.S.C. § 1158(a)(2)(D)) as determinations committed to the Attorney General’s satisfaction—i.e., discretionary—and therefore outside the court’s jurisdiction to review. Applying Osabas-Rivera, the panel dismissed review of Rivera-Gaona’s untimely asylum claim.

4. Palucho v. Garland

Palucho v. Garland, 49 F.4th 532 (6th Cir. 2022), framed the key withholding inquiry where harm is threatened by private actors: the applicant must show the feared harm is inflicted by the government or by private parties the government is unable or unwilling to control. The opinion quoted Palucho’s articulation of two formulations used in Sixth Circuit cases—whether one cannot “reasonably expect the assistance of the government,” or whether the government “condoned” violence or was “completely helpless”—and emphasized the “totality of the circumstances,” including both case-specific responses and general country conditions. The panel also relied on Palucho for the common evidentiary point that failure to report crimes to police makes the inability/unwillingness showing more difficult.

5. Urias-Orellana v. Bondi

The court cited Urias-Orellana v. Bondi, 607 U.S. --- (2026), for applying the substantial-evidence standard to the agency’s determination that alleged harm does not qualify as persecution for withholding purposes.

6. Juan Antonio v. Barr

Rivera-Gaona invoked Juan Antonio v. Barr, 959 F.3d 778 (6th Cir. 2020), to argue reporting to police would have been futile or dangerous due to the persecutor’s governmental connections. The panel distinguished Juan Antonio on the facts: unlike the repeated, fruitless reporting efforts in that case (supporting a finding of governmental inability), Rivera-Gaona never reported threats and offered only a thin, uncorroborated assertion of influence. The opinion thus treats Juan Antonio as recognizing a futility/danger exception, but requiring concrete proof, not speculation.

7. Ortiz v. Garland

In addressing general country-conditions evidence, the panel cited Ortiz v. Garland, 6 F.4th 685 (6th Cir. 2021), approving consideration of a country’s efforts to combat corruption when assessing whether the government is unwilling or unable to enforce the law. Here, reports indicating anticorruption efforts undercut Rivera-Gaona’s broad claim of pervasive inability.

8. Vasquez-Rivera v. Garland

For CAT, the court relied on Vasquez-Rivera v. Garland, 96 F.4th 903 (6th Cir. 2024), for the governing definitions: (i) the applicant must show it is more likely than not he would be subjected to torture if removed, and (ii) “torture” requires severe pain or suffering intentionally inflicted with the consent or acquiescence of a public official (including willful blindness).

9. McPherson v. Kelsey

The court used McPherson v. Kelsey, 125 F.3d 989 (6th Cir. 1997), to decline review of a skeletal argument: Rivera-Gaona asserted the IJ failed to apply “willful blindness,” but did not meaningfully analyze the alleged error. Under McPherson, undeveloped arguments are treated as forfeited.

B. Legal Reasoning

1. Summary affirmance and due process

The court’s due process analysis is straightforward: federal regulations expressly provide that on summary affirmance the IJ’s decision becomes the final agency determination (8 C.F.R. § 1003.1(e)(4)(ii)). Under Denko v. I.N.S., the absence of a separate BIA opinion does not deny due process; it indicates the BIA concluded the result was correct or any errors were immaterial.

2. Jurisdictional bar for untimely asylum applications

Rivera-Gaona filed for asylum more than a decade after arrival, far beyond the one-year deadline in 8 U.S.C. § 1158(a)(2)(B). He invoked “changed circumstances” under § 1158(a)(2)(D), but the IJ found the standard unmet. The Sixth Circuit held that it lacked jurisdiction to review that determination because, under Osabas-Rivera v. Bondi, whether circumstances are sufficiently “changed” to the “satisfaction of the Attorney General” is discretionary and unreviewable. The court therefore did not reach the merits of asylum.

3. Withholding of removal: inability/unwillingness to control a private actor

The decisive rationale was Rivera-Gaona’s failure to prove the Mexican government was unable or unwilling to protect him from Aguilar (a private adversary). Applying Palucho v. Garland and considering both personal experiences and country reports, the court emphasized three evidentiary shortcomings:

• No reporting to authorities: Rivera-Gaona never sought police protection. Under Palucho, non-reporting makes it harder to prove governmental inability/unwillingness. His attempt to excuse non-reporting via Juan Antonio v. Barr failed because he offered only speculative claims of influence, not concrete ties to officials.
• Experience with the legal system cut against corruption claims: he was released on bond after three days and “ultimately prevailed at trial” in Mexico—facts the IJ and the court treated as inconsistent with a claim that the state would be powerless or complicit.
• General country reports were not individualized: his briefing cited generalized dangers faced by journalists, human rights defenders, and victims of organized crime, without claiming he belonged to those groups or tying those conditions to his particular risk. The court also noted reports that Mexico was “actively working to fight corruption,” which the agency could consider under Ortiz v. Garland.

With those findings, the panel held substantial evidence supported denial of withholding of removal.

4. CAT: likelihood of torture and government acquiescence

Under Vasquez-Rivera v. Garland, Rivera-Gaona needed to prove (i) it was more likely than not he would be tortured, and (ii) a public official would instigate, consent, or acquiesce (including willful blindness). The court agreed with the IJ that Rivera-Gaona failed on both probability of harm and acquiescence, largely for the same reasons as withholding (no reporting; speculative influence; prior success in court; lack of individualized proof). Several appellate arguments were rejected as either unsupported by the record (e.g., references to “beatings” not in his testimony) or inadequately developed (waived under McPherson v. Kelsey).

C. Impact

Although unpublished, the decision reinforces several practical and doctrinal points in Sixth Circuit immigration litigation:

• Asylum one-year deadline litigation remains tightly constrained: challenges to “changed circumstances” determinations are likely to be dismissed for lack of jurisdiction where framed as disagreements with the agency’s discretionary assessment under § 1158(a)(2)(D), consistent with Osabas-Rivera v. Bondi.
• Non-reporting is often outcome-determinative: the opinion underscores that applicants alleging persecution by private actors should expect searching scrutiny if they did not report threats/violence—unless they can present concrete evidence that reporting would be futile or dangerous (as factually demonstrated in Juan Antonio v. Barr).
• Generalized country conditions are not enough without individual linkage: broad evidence of corruption or violence must be connected to the applicant’s specific circumstances, geography, and risk profile; otherwise, it may not establish inability/ unwillingness or CAT acquiescence.
• Appellate briefing discipline matters: undeveloped assertions (e.g., merely reciting “willful blindness”) risk forfeiture under McPherson v. Kelsey.

IV. Complex Concepts Simplified

BIA “summary affirmance”

A streamlined procedure where the BIA issues a short order affirming the IJ without a separate written opinion. By regulation, the IJ’s decision becomes the final agency decision. Courts generally treat this as permissible and not a due process problem.

Asylum one-year bar and “changed circumstances”

Most asylum applications must be filed within one year of arrival. Late filings can be excused if the applicant shows certain changes (or extraordinary reasons) justifying delay. Here, the key point is that courts often cannot review the agency’s discretionary decision that the exception was not satisfied.

Withholding of removal vs. asylum

Withholding has a higher burden than asylum and is mandatory if met, but it is narrower in scope. For private-actor harm, the applicant must show the government cannot or will not protect them.

“Unable or unwilling to control” private actors

If the feared harm comes from a private person (not the government), the applicant must prove the state would not realistically protect them. Reporting to police (or having credible reasons not to) is often critical evidence.

CAT “acquiescence” and “willful blindness”

CAT protection requires not only a likelihood of severe torture but also that officials would be involved or would knowingly turn a blind eye to it. Merely showing crime or violence in a country is usually insufficient without proof officials would consent or be willfully blind in the applicant’s situation.

V. Conclusion

Oscar Rivera-Gaona v. Pamela Bondi reaffirms three themes: (1) BIA summary affirmance does not itself violate due process under Denko v. I.N.S.; (2) federal courts lack jurisdiction to review the agency’s discretionary rejection of “changed circumstances” excusing an untimely asylum application under Osabas-Rivera v. Bondi; and (3) on withholding and CAT, substantial evidence supports denial where the applicant offers speculative claims of official influence, fails to seek protection, and relies on generalized country conditions untethered to individualized risk.