“Clarifying the Boundary of ‘Questions of Law’ in Asylum-Deadline Challenges”
Commentary on Hernandez Benito v. Bondi, 23-6697 (2d Cir. May 6 2025)

Introduction

The United States Court of Appeals for the Second Circuit, in a non-precedential Summary Order, adjudicated Hernandez Benito v. Bondi, a petition for review arising from the denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection to a Colombian national and former student activist. Although the Order itself carries no precedential weight under Local Rule 32.1.1, the panel’s reasoning offers an instructive refinement of an increasingly litigated niche: what constitutes a reviewable “question of law” where the alien’s asylum application is filed outside the one-year statutory window but allegedly excused by “extraordinary circumstances.”

The petitioner, Mr. Juan David Hernandez Benito, argued that post-traumatic stress disorder (PTSD) stemming from threats by Colombian paramilitary groups accounted for his late filing and that the agency erred in rejecting this justification. The Second Circuit, however, dismissed the asylum portion for lack of a reviewable legal question and denied relief on withholding and CAT grounds, principally because the record did not compel a finding that the Colombian government was “unable or unwilling” to protect him or would “acquiesce” in future harm.

Summary of the Judgment

• Asylum: Petition dismissed for want of jurisdiction; petitioner raised only factual disputes about the weight of evidence, not genuine questions of law, concerning the timeliness exception.
• Withholding of Removal: Petition denied; petitioner failed to establish that Colombian authorities were unable or unwilling to protect him.
• CAT Protection: Petition denied; record evidence did not compel a finding that government actors would acquiesce in torture.

The Court therefore dismissed in part and denied in part the petition for review, vacating any outstanding stays.

Detailed Analysis

A. Precedents Cited and Their Influence

1. Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) & Wilkinson v. Garland, 601 U.S. 209 (2024)
   – Confirm that “application of law to undisputed facts” is a reviewable question of law even when statutes appear jurisdiction-stripping. The panel relied on these cases to frame the jurisdictional inquiry but ultimately held that the petitioner identified no such mixed question.
2. Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009) & Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2007)
   – Provide the twin avenues for review: (i) misapplication of the governing standard or (ii) total overlooking/serious mischaracterization of key facts. The Court measured the petitioner’s arguments against these benchmarks.
3. Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020); Singh v. Garland, 11 F.4th 106 (2d Cir. 2021)
   – Define “persecution” through the “unable or unwilling” test that remained fatal to the withholding claim.
4. Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) & Mu Xiang Lin v. DOJ, 432 F.3d 156 (2d Cir. 2005)
   – Establish the CAT “acquiescence” threshold and the need for “particularized evidence,” respectively. These principles underpinned the CAT denial.
5. Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021)
   – Emphasizes that courts may not re-weigh evidence under substantial-evidence review, guiding the panel’s deferential stance.
6. Debique v. Garland, 58 F.4th 676 (2d Cir. 2023) & Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005)
   – Spell out abandonment doctrine, which the Court applied to the scantily argued withholding challenge.

B. Legal Reasoning

1. Asylum Timeliness
   • The statute (8 U.S.C. § 1158(a)(2)(B)) imposes a one-year filing deadline.
   • Exception: “extraordinary circumstances” directly causing delay (§ 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(5)).
   • Judicial review limited to “constitutional claims or questions of law.” (§ 1158(a)(3), § 1252(a)(2)(D)).
   • The panel found petitioner’s challenge boiled down to factual disagreement (whether PTSD in fact caused delay) and weight of evidence (BIA allegedly under-credited medical records). Those are not questions of law under Mendez unless facts were ignored altogether, which the Court said did not occur.
2. Withholding of Removal
   • Requires proof that persecution is “more likely than not” and linked to a protected ground (8 C.F.R. § 1208.16(b)).
   • Agency held Colombian authorities not “unable or unwilling” to protect activists; petitioner offered little rebuttal in his brief, thus abandoning the argument.
   • The Court, citing both abandonment doctrine and the substantial-evidence standard, affirmed.
3. CAT Protection
   • Standard: “more likely than not” to face torture “with the consent or acquiescence” of a public official (8 C.F.R. § 1208.18).
   • The record showed governmental efforts (police investigations, national policies) to combat paramilitary groups; petitioner never reported threats. Under Mu Xiang Lin, generalized country evidence was insufficient.

C. Anticipated Impact

While a Summary Order cannot bind future panels, the Court’s clarifications are nevertheless persuasive authority and instructive for litigants. The key takeaways likely to influence practice include:

• Narrowing of Reviewable Issues: Litigants must articulate how the agency misapplied law or disregarded undisputed facts; mere disagreement with fact-finding is jurisdictionally fatal.
• PTSD and Extraordinary Circumstances: Mental-health conditions do not self-prove causation. Concrete evidence must show that the condition directly prevented timely filing.
• Continuing Rigidity in “Unable or Unwilling” and “Acquiescence” Tests: Country-conditions reports that also document state counter-measures will generally defeat arguments of governmental impotence unless supplemented with particularized incidents and reporting efforts.
• Brief-Writing Discipline: Even meritorious theories can be forfeited by perfunctory treatment in appellate briefs.

Complex Concepts Simplified

Question of Law vs. Question of Fact

A “question of law” involves interpreting statutes, regulations, or applying legal standards to established facts; a “question of fact” involves determining what actually happened. Federal courts can review only the first in some immigration contexts.

Extraordinary Circumstances (Asylum)

Situations beyond the applicant’s control—serious illness, legal disability, ineffective assistance—whose causal tie to the missed deadline must be direct.

Unable or Unwilling to Protect

For withholding, persecution by private actors counts only if the government cannot or will not protect the victim. Evidence often includes police reports, protection requests, or systemic corruption.

Acquiescence (CAT)

Government actors must know of, or remain willfully blind to, the torture and then fail to intervene; passive incompetence is insufficient.

Substantial-Evidence Review

The appellate court asks whether a “reasonable adjudicator” would be compelled to reach a result different from the agency’s. It is a deferential standard akin to “clearly erroneous.”

Conclusion

Hernandez Benito v. Bondi reinforces a critical procedural message: framing on appeal matters. Petitioners confronting the asylum one-year bar must tether their arguments to true legal questions—misapplied standards or overlooked facts—to secure judicial review. On the merits, the decision underscores the evidentiary rigor demanded for both withholding and CAT relief, particularly regarding the state-protection predicates. Though not precedential, the Order will likely serve as persuasive guidance, sharpening the line between factual disagreement (unreviewable) and genuine legal error (reviewable), and reminding counsel that mental-health diagnoses, without a documented nexus to filing delay, will seldom suffice to invoke the extraordinary-circumstances safety valve.