“To the Satisfaction of the Attorney General”: Osabas‑Rivera v. Bondi and the Unreviewability of the Asylum Extraordinary‑Circumstances Exception

I. Introduction

In Gustavo Adolfo Osabas‑Rivera v. Pamela Bondi, the U.S. Court of Appeals for the Sixth Circuit issues a precedential opinion that does two important things in immigration law:

1. It holds that the “extraordinary circumstances” exception to the one‑year asylum filing deadline under 8 U.S.C. § 1158(a)(2)(D) is a discretionary determination committed “to the satisfaction of the Attorney General” and therefore not reviewable in the court of appeals—even when the noncitizen characterizes the challenge as a legal or mixed question.
2. It strictly enforces issue exhaustion in withholding‑of‑removal cases, holding that failure to challenge an IJ’s finding on the “government unable or unwilling to protect” element in the brief to the BIA is dispositive and bars judicial review of that element.

The case arises from a Honduran national’s claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) based on threats and violence by the MS gang. The immigration judge (IJ) found his asylum application untimely and rejected withholding and CAT on the merits; the Board of Immigration Appeals (BIA) affirmed. The Sixth Circuit now dismisses the challenge to the asylum timeliness determination for lack of jurisdiction, and denies the petition as to withholding, concluding that the petitioner abandoned a dispositive element before the BIA. The CAT claim is treated as waived.

Doctrinally, the opinion cements an important jurisdictional rule in the Sixth Circuit regarding untimely asylum applications, and it reinforces stringent briefing obligations before the BIA for preserving claims related to private‑actor persecution such as gang violence.

II. Factual and Procedural Background

A. Factual Background

Gustavo Adolfo Osabas‑Rivera, a Honduran national, fled his country due to threats and violence from the MS gang (commonly understood as MS‑13). According to his credible testimony, MS infiltrated Honduran soccer fan clubs and used them as a recruitment mechanism. Both Gustavo and his brother Eldon supported the soccer team Motagua. MS members posing as fans of rival team Olympia threatened to kill Eldon if he did not switch his allegiance—a pretext, Gustavo explained, for a demand that Eldon join the gang.

Eldon refused and fled to the United States. After Eldon’s departure, MS turned its attention to Gustavo:

• Gang members demanded information about Eldon’s whereabouts, threatening retaliation if Gustavo did not cooperate.
• Gustavo paid extortion payments to MS for about a year and a half to protect himself and his family.
• In 2013, MS kidnapped him for roughly four hours, beat him, cut his face, pointed guns at his head, and struck him with a gun. The gang said this was done for “gang pride,” not for money, and threatened to kill him or his family if he did not reveal Eldon’s location.

The next morning, Gustavo moved with his family from San Pedro Sula to Choluteca and filed a police report about the kidnapping there. The Choluteca police transferred the report to San Pedro Sula, where the crime occurred. Gustavo believed the police to be corrupt and associated with gangs, though he had no direct proof that they disclosed his whereabouts.

Four or five months later, MS began sending him threatening text messages in Choluteca, showing knowledge of his neighborhood and threatening to kill him if they found him. Gustavo did not report these new threats, fearing that further contact with the police would worsen the situation. He had no further in‑person contact with the gang. After some time, he and his family moved to a rural area, El Triunfo, but he continued to feel unsafe.

Gustavo entered the United States around October 22, 2016, leaving his family in Honduras. After his arrival, a relative reported receiving messages asking about his wife’s location. Later his wife told him that MS knew the family was no longer in Choluteca and that Gustavo was not with them. After his family joined him in the U.S. in 2019, his father informed him that MS was still looking for him but knew the family had fled to the United States. Gustavo fears that, if he returns, MS will seriously harm or kill him, especially because he made a “fool” of the gang by evading their control and reaching the U.S.

B. Procedural History

On November 21, 2016, the Department of Homeland Security served Gustavo with a Notice to Appear, charging him as removable as an arriving alien without valid entry documents under 8 U.S.C. § 1182(a)(7)(A)(i)(I).

• At his credible‑fear interview, he described threats and extortion arising from his brother’s refusal to join the gang. The asylum officer found a credible fear and referred him to an IJ.
• At his first hearing on December 1, 2016, he conceded removability and indicated he would apply for asylum, withholding of removal, and CAT protection.
• At a June 21, 2017 hearing—when he was unrepresented—the IJ advised him that any asylum application must be filed by October 22, 2017 (one year after his arrival) to be timely.

He did not file by that deadline. Instead:

• He retained new counsel on July 26, 2018 (about thirteen months after the June 2017 hearing).
• He filed his I‑589 application for asylum and withholding of removal on December 19, 2018, about fourteen months after the statutory one‑year deadline.
• He asserted persecution on account of membership in two particular social groups (PSGs): (1) “the family of Eldon Osabas‑Rivera” and (2) “residents of Honduras who report gang activity to the police.”

At a merits hearing on November 15, 2022, the IJ found Gustavo’s testimony credible and adopted it as factual findings. Regarding the late asylum filing, Gustavo testified that he was “very depressed” due to separation from his family and fear that MS would harm them, and that he decided to seek asylum only after his family came to the United States.

The IJ concluded:

• Asylum timeliness: Gustavo had not shown “exceptional [extraordinary] circumstances” justifying the untimely filing. Being upset or depressed due to family separation was common among asylum seekers; he had not sought medical care for depression; and his written application attributed the delay mainly to financial problems.
• Withholding of removal:
  • The harm he suffered, though serious, did not rise to the level of “persecution” under the case law.
  • Even assuming persecution, he had not established a nexus between that persecution and a cognizable PSG:
    • “Family of Eldon” was not shown to be socially distinct, and other family members in Honduras (like his father and brother) were not targeted, undermining nexus.
    • While “residents who report gang activity to the police” could be a cognizable PSG, Gustavo had not shown that any threats after his police report were “because of” his act of reporting; the gang’s main motive was to find his brother and maintain “gang pride.”
  • He failed to show the Honduran government was unable or unwilling to protect him: he had no evidence how the police responded to his report, and he did not report later threats, depriving the government of a chance to act.
  • He had not shown a well‑founded fear (for asylum) or clear probability (for withholding) of future persecution given the passage of six years since the kidnapping and the possibility of internal relocation; a general fear of pervasive gang violence was insufficient.
• CAT: The IJ also denied CAT protection, though those findings are not recounted in detail in the circuit opinion because the claim was later waived.

On appeal, the BIA:

• Held that Gustavo waived his CAT claim because he did not “meaningfully challenge” the IJ’s adverse CAT ruling in his BIA brief.
• Affirmed the finding that he had not demonstrated “serious illness or mental disability, or comparable circumstances” within one year of arrival that would excuse his late asylum application.
• Concluded that his “broad allegation” in the Notice of Appeal did not sufficiently identify a factual or legal error regarding the IJ’s finding that the Honduran government was not unable or unwilling to protect him; it treated that issue as waived and “dispositive” of his asylum and withholding claims.
• Found no clear error in the IJ’s alternative conclusions: that the past harm was not severe enough to be “persecution,” that Gustavo had not shown a well‑founded fear or clear probability of future persecution, and that he had not demonstrated an inability to internally relocate.

Gustavo timely petitioned the Sixth Circuit for review. He challenged (1) the asylum timeliness determination and (2) the denial of withholding of removal. He did not press any CAT arguments before the court of appeals.

III. Summary of the Sixth Circuit’s Decision

The Sixth Circuit’s opinion, authored by Judge Davis and joined by Judges Nalbandian and Hermandorfer, resolves the petition as follows:

• Asylum timeliness: The court holds that it lacks jurisdiction to review the BIA’s determination that Gustavo failed to establish “extraordinary circumstances” under 8 U.S.C. § 1158(a)(2)(D) that would excuse his late filing. That determination, in the court’s view, is an unreviewable discretionary decision because the statute requires that the applicant demonstrate the exception “to the satisfaction of the Attorney General.” The court therefore dismisses the petition to the extent it challenges the asylum‑timeliness ruling.
• Withholding of removal: The court concludes that Gustavo forfeited (abandoned) a dispositive element of his withholding claim—whether the Honduran government is unable or unwilling to protect him—by failing to meaningfully challenge the IJ’s finding on that point in his BIA brief. Because the government raised this forfeiture in the Sixth Circuit, the court must enforce the statutory exhaustion requirement, 8 U.S.C. § 1252(d)(1). Without proof on this element, his withholding claim necessarily fails. The court therefore denies the petition as to withholding.
• CAT: The court does not address CAT at all; consistent with the BIA’s view and Gustavo’s briefing, that claim is treated as waived or abandoned.

The disposition stated at the end of the opinion is: “For these reasons, we DENY the petition in part and DISMISS in part.”

IV. Detailed Analysis

A. Jurisdiction Over Untimely Asylum Claims and the “Extraordinary Circumstances” Exception

1. Statutory and Regulatory Framework

The starting point is the one‑year filing deadline for asylum applications:

• 8 U.S.C. § 1158(a)(2)(B) requires an asylum applicant to show by clear and convincing evidence that the application was filed within one year of arrival in the United States.
• 8 U.S.C. § 1158(a)(2)(D) creates two exceptions: the Attorney General may still consider an otherwise untimely application if the applicant “demonstrates to the satisfaction of the Attorney General” either:
  • (i) “changed circumstances which materially affect the applicant’s eligibility for asylum,” or
  • (ii) “extraordinary circumstances relating to the delay in filing.”
• The regulations further list “[s]erious illness or mental or physical disability” as a potential extraordinary circumstance. 8 C.F.R. § 1208.4(a)(5)(i).
• Even if an exception applies, the applicant must still file “within a reasonable period” after the changed or extraordinary circumstance arises. 8 C.F.R. § 1208.4(a)(4)(ii), (5).

On the judicial review side:

• 8 U.S.C. § 1158(a)(3) provides that “[n]o court shall have jurisdiction to review any determination of the Attorney General under” § 1158(a)(2), which includes both the one‑year bar and the changed/extraordinary‑circumstances exceptions.
• 8 U.S.C. § 1252(a)(2)(D), the “safe harbor” provision, limits the effect of jurisdiction‑stripping clauses like § 1158(a)(3): it preserves judicial review of “constitutional claims or questions of law.”

The scope of § 1252(a)(2)(D) has generated substantial litigation. The key question here is whether an “extraordinary circumstances” ruling is the sort of determination that can be recast as a legal or mixed question reviewable under the safe harbor—or whether it is an “inherently discretionary” call that lies beyond the court’s reach.

2. The Sixth Circuit’s Jurisdiction Doctrine Before Osabas‑Rivera

The opinion traces the evolution of the Sixth Circuit’s view on reviewing untimely asylum denials:

• In Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006), the court held it lacked jurisdiction to review an IJ’s “changed circumstances” determination when the challenge focused on how the facts were weighed. Only constitutional claims or pure questions of statutory construction were reviewable.
• In Khozhaynova v. Holder, 641 F.3d 187 (6th Cir. 2011), the court declined to reconsider Almuhtaseb’s jurisdictional holding absent an intervening Supreme Court decision.
• The Supreme Court then decided Guerrero‑Lasprilla v. Barr, 589 U.S. 221 (2020), holding that the term “questions of law” in § 1252(a)(2)(D) includes mixed questions of law and fact—such as whether a petitioner acted with due diligence for equitable tolling—where the underlying facts are undisputed.
• After Guerrero‑Lasprilla, the Sixth Circuit, in Audi v. Barr, 839 F. App’x 953 (6th Cir. 2020), acknowledged that Guerrero‑Lasprilla “effectively overruled” Almuhtaseb on one point and held that the court has jurisdiction to review whether an applicant filed within a “reasonable period” after a change in circumstances, where the relevant facts are undisputed. Audi, however, did not decide whether courts may review the existence of “extraordinary circumstances”; the BIA had not reached that issue.

Meanwhile, the Supreme Court further refined the safe‑harbor doctrine in Wilkinson v. Garland, 601 U.S. 209 (2024), and the Sixth Circuit in turn elaborated on that in its own recent cases.

• In Wilkinson, the Court held that the “exceptional and extremely unusual hardship” standard for cancellation of removal, as applied to undisputed facts, presents a reviewable mixed question under § 1252(a)(2)(D). But the Court also emphasized that some determinations—especially those phrased as “to the satisfaction of the Attorney General”—fall in the category of discretionary calls outside the safe harbor.
• In Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021), the Sixth Circuit underscored that a petitioner cannot circumvent a jurisdictional limit simply by labeling a discretionary or factual determination as a legal one.
• In Rahman v. Bondi, 131 F.4th 399 (6th Cir. 2025), the court confronted waiver applications that also used the phrase “to the satisfaction of the Attorney General” and, drawing on Wilkinson, held that such language indicates an “inherently discretionary” determination beyond judicial review. Rahman explicitly analogized these waiver standards to the asylum extraordinary‑circumstances inquiry.
• In Sarkisov v. Bondi, --- F.4th ----, 2025 WL 3251118 (6th Cir. 2025), the court reaffirmed that “to the satisfaction of the Attorney General” signals a discretionary, non‑reviewable determination.

Most other circuits have taken a similar view of § 1158(a)(2)(D), as the Osabas‑Rivera opinion notes:

• Pre‑Guerrero‑Lasprilla, the Third, Seventh, Eighth, Tenth, and Eleventh Circuits generally treated the § 1158(a)(2)(D) exceptions as unreviewable discretionary calls.
• After Wilkinson, the Eleventh Circuit in A.P.A. v. U.S. Attorney General, 104 F.4th 230 (11th Cir. 2024), expressly held that the “to the satisfaction of the Attorney General” language in § 1158(a)(2)(D) renders the “changed circumstances” and “extraordinary circumstances” determinations discretionary and thus unreviewable.
• More recently, the First and Third Circuits have aligned with this reasoning in Zapet‑Alvarado v. Bondi, 152 F.4th 329 (1st Cir. 2025), and Real v. Attorney General, 147 F.4th 361 (3d Cir. 2025).
• The Ninth Circuit has taken a different, more review‑friendly approach, though the Sixth Circuit does not delve into the Ninth’s reasoning in this opinion.

3. The Holding in Osabas‑Rivera: Extraordinary Circumstances as Discretionary and Unreviewable

Against that backdrop, the Sixth Circuit confronts Gustavo’s argument that the IJ and BIA misapplied the legal standard for an exception to the one‑year deadline to the undisputed facts of his depression and family separation. He characterizes the issue as a legal or mixed question.

The court’s analysis proceeds in two moves.

a. Mental‑health severity as a factual (and unreviewable) question

First, the court observes that Gustavo’s main disagreement is with the IJ’s characterization of his mental state. He says he was “so depressed he did not want to seek asylum,” whereas the IJ described him as merely “upset.” Relying on Wilkinson and Patel v. Garland, 596 U.S. 328 (2022), the court characterizes this as a purely factual dispute about the severity of a mental condition.

In Patel, the Supreme Court held that factual determinations underlying certain discretionary forms of relief (there, adjustment of status) are unreviewable. Wilkinson cited Patel’s treatment of whether someone had a “serious medical condition” as the sort of factual finding beyond the safe harbor. By analogy, the Sixth Circuit treats the severity of Gustavo’s depression—whether it rises to “serious illness or mental disability” under the regulation—as a factual question that the court of appeals cannot review in the asylum‑timeliness context.

b. The core holding: § 1158(a)(2)(D) determinations are discretionary

The court then makes its more consequential doctrinal move: it holds that the entire extraordinary‑circumstances determination under § 1158(a)(2)(D) is a discretionary decision committed to the Attorney General’s satisfaction and is therefore unreviewable.

Quoting the statute, the panel emphasizes that an untimely application “may be considered if the alien demonstrates to the satisfaction of the Attorney General” the existence of changed or extraordinary circumstances. The italicized phrase is decisive:

• Following Rahman, Sarkisov, and A.P.A., the panel concludes that “to the satisfaction of the Attorney General” signals a discretionary determination rather than a legal or mixed question.
• Because § 1158(a)(3) bars judicial review of “any determination” under § 1158(a)(2), and because the safe harbor in § 1252(a)(2)(D) is limited to constitutional or legal questions, the “satisfaction” determination falls entirely outside the safe harbor’s reach.

Thus, the court holds that it lacks jurisdiction to review whether Gustavo’s depression and related circumstances were sufficiently “extraordinary” to excuse his late filing. This is true even if the underlying facts are undisputed and even if he characterizes the claim as one of misapplication of the legal standard.

In practical terms, within the Sixth Circuit:

• The definition of “extraordinary circumstances” or the validity of the regulation itself might still be subject to a pure question‑of‑law challenge.
• But the decision whether a particular set of facts amounts to extraordinary circumstances “to the satisfaction of the Attorney General” is treated as a non‑reviewable discretionary judgment.

Having reached that conclusion, the court dismisses Gustavo’s challenge to the asylum timeliness ruling for lack of jurisdiction. No further analysis of his depression or family separation is permitted on appeal.

4. Application to Mental‑Health‑Based Excuses

Gustavo’s attempt to justify his late filing based on depression highlights the especially harsh consequences of the court’s jurisdictional approach for applicants with mental‑health‑related claims.

• The regulations specifically recognize “serious illness or mental or physical disability” as a paradigmatic “extraordinary circumstance” that can excuse late filing. 8 C.F.R. § 1208.4(a)(5)(i).
• Yet, under Osabas‑Rivera, the factual determination whether a particular condition is “serious” enough—and whether it satisfies the Attorney General—is both (i) a factual question and (ii) embedded in a discretionary determination shielded from judicial review.

The net effect is that noncitizens whose mental illness or psychological trauma delayed filing are almost entirely at the mercy of the IJ and BIA’s assessment, with no meaningful judicial oversight of how the mental‑health exception is applied case‑by‑case.

This approach is consistent with the court’s reading of Wilkinson and Patel, but it materially limits the protective reach of § 1252(a)(2)(D)’s safe harbor in the asylum deadline context.

B. Withholding of Removal and the Government‑Protection Requirement

1. Elements of Withholding of Removal and Private‑Actor Persecution

Withholding of removal, governed by 8 U.S.C. § 1231(b)(3), is a mandatory form of relief: the Attorney General “may not remove” an alien to a country where the alien’s “life or freedom would be threatened ... because of” a protected ground, including “membership in a particular social group.”

To prevail on withholding, a noncitizen must show, among other elements:

1. A clear probability (more likely than not) that his life or freedom will be threatened in the proposed country of removal.
2. That the threat is on account of a protected ground (race, religion, nationality, political opinion, or membership in a particular social group).
3. Where the feared persecutors are private actors (like gangs), that the feared harm would be inflicted either:
   • by the government itself, or
   • by private parties that the government is unable or unwilling to control.

The third element reflects a key doctrinal point: harm by private actors alone does not qualify as “persecution” unless the government is complicit, incapable, or indifferent. The Sixth Circuit reaffirmed this in Palucho v. Garland, 49 F.4th 532, 535–36 (6th Cir. 2022), which the panel cites here.

In gang‑violence cases from countries like Honduras, El Salvador, or Guatemala, this “government unable or unwilling” requirement is often the decisive hurdle. Applicants must present specific evidence that the state cannot or will not protect them—including, for example, failures to respond to reports, patterns of corruption, or country‑conditions evidence tying those patterns to their particular situation.

2. Issue Exhaustion Before the BIA

The court’s resolution of Gustavo’s withholding claim turns not on the merits of his fear, but on procedural default—specifically, failure to exhaust a particular issue before the BIA.

• 8 U.S.C. § 1252(d)(1) requires that a petitioner exhaust “all administrative remedies available ... as of right” before seeking judicial review of a final order of removal.
• In Santos‑Zacaria v. Garland, 598 U.S. 411 (2023), the Supreme Court held that § 1252(d)(1) is a claim‑processing rule, not jurisdictional: it can be waived or forfeited by the government, but if properly invoked, it must ordinarily be enforced.
• In Mazariegos‑Rodas v. Garland, 122 F.4th 655 (6th Cir. 2024), the Sixth Circuit applied Santos‑Zacaria and explained that claim‑processing rules can be “mandatory” in the sense that courts must enforce them when a party properly raises them, citing Fort Bend County v. Davis, 587 U.S. 541 (2019).
• The Sixth Circuit has long required that issues be raised in the brief filed with the BIA, not merely in the Notice of Appeal. See Cuevas‑Nuno v. Barr, 969 F.3d 331, 334–35 (6th Cir. 2020); Hassan v. Gonzales, 403 F.3d 429, 433 n.5 (6th Cir. 2005). A bare assertion in the Notice is insufficient to preserve the issue for judicial review if it is not developed in the BIA brief.

3. Application in Osabas‑Rivera

The IJ made an explicit finding that Gustavo did not establish that the Honduran government was unable or unwilling to protect him:

• He presented no evidence about whether the San Pedro Sula police investigated his kidnapping complaint.
• He did not report the later threatening text messages in Choluteca, so the state had no opportunity to respond.

On appeal, the BIA noted that Gustavo’s brief did not meaningfully challenge this finding. While he apparently referenced the point in his Notice of Appeal, he did not develop any argument or cite evidence regarding government inability or unwillingness in his BIA brief. The BIA treated this as a waiver of the issue and deemed it “dispositive” of his asylum and withholding claims.

The Sixth Circuit agrees:

• It confirms that it looks to the BIA brief—not the Notice of Appeal—to determine which issues were exhausted, citing Cuevas‑Nuno.
• The government, in its brief to the Sixth Circuit, invoked the exhaustion requirement and argued that Gustavo failed to preserve the “government unable or unwilling” issue.
• Under Mazariegos‑Rodas and Fort Bend County, the court therefore must enforce § 1252(d)(1) as a mandatory claim‑processing rule.
• It concludes that Gustavo “forfeited” the argument that the Honduran government is unable or unwilling to protect him.

Because proof of government inability or unwillingness is a necessary element of persecution in a private‑actor case, the forfeiture is fatal:

Without a showing that the Honduran government is unable or unwilling to protect him from gangs, Osabas‑Rivera’s withholding‑of‑removal application necessarily fails. We thus need not reach his remaining arguments.

The court accordingly denies the petition for review as to withholding of removal without reaching other elements such as:

• Whether the past harm rose to the level of “persecution.”
• The cognizability of his PSGs.
• Nexus between persecution and a protected ground.
• Internal relocation possibilities.

C. Treatment of the CAT Claim

The Convention Against Torture claim plays a minimal role in the Sixth Circuit’s opinion, but the procedural posture is important:

• The IJ denied CAT relief.
• The BIA found that Gustavo had waived any CAT challenge by failing to “meaningfully challenge[] this determination” in his BIA briefing.
• Before the Sixth Circuit, Gustavo did not raise any arguments relating to CAT.

The panel therefore explicitly notes that it does not address CAT. This is consistent with its general principle, stated with citation to Turcios‑Flores v. Garland, 67 F.4th 347, 353 (6th Cir. 2023), that “any issues the Board did not address are not before the court,” and that issues not raised in the petition for review are forfeited.

V. Key Precedents and Their Influence on the Decision

Several precedents are pivotal to the court’s reasoning. The opinion both builds on and clarifies their impact.

A. Supreme Court Cases

• Guerrero‑Lasprilla v. Barr, 589 U.S. 221 (2020)
  Expanded the meaning of “questions of law” in § 1252(a)(2)(D) to include mixed questions where the underlying facts are undisputed (e.g., due diligence in equitable tolling). This case opened the door to review of some timeliness determinations, such as the “reasonable time” requirement in Audi. However, Osabas‑Rivera demonstrates that the safe harbor’s reach can be limited by statutory language that makes a determination discretionary (“to the satisfaction of the Attorney General”).
• Patel v. Garland, 596 U.S. 328 (2022)
  Held that factual findings underlying the denial of certain discretionary immigration relief are unreviewable. Wilkinson later referenced Patel’s example of whether someone has a “serious medical condition” as a paradigmatic factual (and unreviewable) question. Osabas‑Rivera relies on this line to characterize the severity of Gustavo’s depression as a non‑reviewable factual issue.
• Wilkinson v. Garland, 601 U.S. 209 (2024)
  Clarified that mixed questions such as “exceptional and extremely unusual hardship” are reviewable under § 1252(a)(2)(D) but emphasized that some determinations—especially those phrased as “to the satisfaction of the Attorney General”—are inherently discretionary and non‑reviewable. Wilkinson is the key doctrinal bridge that allows the Sixth Circuit to reconcile Guerrero‑Lasprilla’s broad safe harbor with its conclusion that § 1158(a)(2)(D) determinations remain unreviewable.
• Santos‑Zacaria v. Garland, 598 U.S. 411 (2023)
  Held that § 1252(d)(1)’s exhaustion requirement is a claim‑processing rule rather than jurisdictional. Osabas‑Rivera relies on Santos‑Zacaria, as interpreted in Mazariegos‑Rodas, to enforce exhaustion as a mandatory constraint where the government properly invokes it.
• Fort Bend County v. Davis, 587 U.S. 541 (2019)
  Clarified the distinction between jurisdictional rules and mandatory claim‑processing rules in the Title VII context. Cited in Mazariegos‑Rodas and invoked here to emphasize that claim‑processing rules must be enforced when properly raised.

B. Key Sixth Circuit Cases

• Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006), and Khozhaynova v. Holder, 641 F.3d 187 (2011)
  Early cases limiting review of asylum‑timeliness exceptions, now effectively narrowed by Guerrero‑Lasprilla and Audi but still instructive as background on the court’s reluctance to second‑guess timeliness exceptions.
• Audi v. Barr, 839 F. App’x 953 (6th Cir. 2020)
  Post‑Guerrero‑Lasprilla case where the Sixth Circuit recognized jurisdiction to review whether an asylum application was filed within a “reasonable period” after changed circumstances. Importantly, Audi did not address the extraordinary‑circumstances determination under § 1158(a)(2)(D). Osabas‑Rivera now fills that gap and holds that at least the extraordinary‑circumstances component is discretionary and unreviewable.
• Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021)
  Outlined the categories of issues covered by § 1252(a)(2)(D)—pure legal questions and mixed questions—but stressed that petitioners cannot re‑label factual or discretionary determinations as legal questions to obtain review. This principle is used to reject Gustavo’s attempt to frame the extraordinary‑circumstances determination as a legal question.
• Rahman v. Bondi, 131 F.4th 399 (6th Cir. 2025)
  Critical for interpreting “to the satisfaction of the Attorney General” as signaling unreviewable discretion. Rahman analogized the fraud/readmission waiver standards to the extraordinary‑circumstances inquiry for asylum. Osabas‑Rivera now explicitly applies that reasoning to § 1158(a)(2)(D).
• Sarkisov v. Bondi, --- F.4th ----, 2025 WL 3251118 (6th Cir. 2025)
  Reaffirmed that “to the satisfaction of the Attorney General” conveys an “inherently discretionary” determination beyond the court’s review.
• Palucho v. Garland, 49 F.4th 532 (6th Cir. 2022)
  Reiterated that persecution by private actors constitutes protected persecution only if the government is unable or unwilling to control them. Cited here to show why the “government protection” finding was a dispositive element of Gustavo’s withholding claim.
• Cuevas‑Nuno v. Barr, 969 F.3d 331 (6th Cir. 2020), and Hassan v. Gonzales, 403 F.3d 429 (6th Cir. 2005)
  Established that issues must be raised and developed in the BIA brief, not only in the Notice of Appeal, to be considered exhausted. Applied directly to find that Gustavo waived the government‑protection issue.
• Mazariegos‑Rodas v. Garland, 122 F.4th 655 (6th Cir. 2024)
  Interpreted Santos‑Zacaria to mean that while exhaustion is not jurisdictional, it is a mandatory claim‑processing rule that courts must enforce when the government invokes it. That principle leads directly to the denial of Gustavo’s withholding claim.
• Turcios‑Flores v. Garland, 67 F.4th 347 (6th Cir. 2023)
  Confirmed that the court reviews only the BIA’s decision (where the BIA issues a separate opinion) and that issues the BIA did not address are not before the court. Supports the court’s refusal to revisit unraised or waived issues.
• Saleh v. Garland, 100 F.4th 742 (6th Cir. 2024), and Patel v. Bondi, 131 F.4th 377 (6th Cir. 2025)
  Cited for the standards of review: de novo for legal issues, substantial evidence for factual findings, and the deferential “any reasonable adjudicator” standard in § 1252(b)(4)(B).

VI. Practical and Doctrinal Implications

A. For Asylum Seekers and Counsel

The opinion has several immediate consequences for asylum practice in the Sixth Circuit:

1. Drastic limits on judicial review of untimely asylum applications.
   The court’s holding that extraordinary‑circumstances determinations are discretionary and unreviewable means that, in most late‑filing cases, applicants will not be able to obtain meaningful appellate review of whether their reasons for delay (including serious mental health conditions, ineffective assistance, or traumatic events) meet the exception. This increases the importance of:
   • Filing within one year whenever possible.
   • Developing a robust factual record and expert evidence (e.g., psychiatric evaluations) before the IJ and BIA.
   • Framing any preserved appellate challenges in terms of pure questions of law (for example, a challenge to the validity of a regulation or to an incorrect legal definition of “extraordinary circumstances”).
2. Particular vulnerability for applicants with mental illness or trauma.
   Because the severity of a mental condition is treated as a factual issue and the extraordinary‑circumstances determination is discretionary, applicants whose mental illness delayed filing must effectively persuade the IJ and BIA—without expecting a second look from the court of appeals. That places a premium on early diagnosis, documentation, and careful presentation of medical evidence at the administrative level.
3. No safe harbor where “to the satisfaction of the Attorney General” appears.
   The decision signals the court’s broader interpretive approach: whenever an immigration statute ties eligibility or waiver to the Attorney General’s “satisfaction,” the Sixth Circuit is likely to treat the determination as a non‑reviewable discretionary judgment. Counsel must be alert to that language when assessing the viability of appellate challenges.

B. For Issue Exhaustion and Litigation Strategy

On withholding of removal, the case is a cautionary tale:

• Every independent basis for denial must be briefed to the BIA.
  If an IJ denies relief on multiple independent grounds (persecution severity, nexus, government inability/unwillingness, internal relocation, etc.), each ground must be adequately challenged in the BIA brief. A generic or “broad allegation” in the Notice of Appeal will not suffice.
• Government‑protection element is often dispositive in gang cases.
  Where persecution is by gangs or other private actors, the “government unable or unwilling” element is often the linchpin. If that element is not argued to the BIA, the entire withholding claim is effectively lost on appeal, as in Gustavo’s case.
• Exhaustion is non‑jurisdictional but mandatory when invoked.
  After Santos‑Zacaria, petitioners might be tempted to treat exhaustion as flexible. Osabas‑Rivera confirms that in the Sixth Circuit, if the government invokes § 1252(d)(1) in the court of appeals, the court will rigorously enforce it and refuse to consider unexhausted issues.

C. For the Law of Persecution and Private‑Actor Harm

Though the Sixth Circuit does not reach the substance of Gustavo’s withholding arguments, the case underscores how crucial the “government unable or unwilling” requirement is for those fleeing private‑actor violence:

• Applicants must provide concrete evidence of state failure or complicity—not just a general belief that the police are corrupt or allied with criminals.
• Failure to report harm to authorities—while sometimes understandable due to fear—can be used to argue that the state was never given a fair chance to protect the applicant, undermining the “unable or unwilling” element.
• Country‑conditions reports should be tied specifically to the applicant’s situation and the relevant regions (e.g., police practices in San Pedro Sula and Choluteca), as generic references to corruption may not be enough.

The opinion also illustrates how procedural defaults can obscure the development of important substantive doctrines (e.g., the contours of cognizable PSGs related to family membership or whistleblowing against gangs, the severity threshold for “persecution,” and standards for internal relocation).

VII. Complex Concepts Simplified

1. Asylum vs. Withholding of Removal vs. CAT

• Asylum:
  • Discretionary relief.
  • Standard: “Well‑founded fear” of persecution (roughly a 10% risk).
  • Subject to a one‑year filing deadline, with limited exceptions.
  • Benefits include a path to permanent residence and derivative status for family.
• Withholding of removal:
  • Mandatory if statutory criteria are met.
  • Higher standard: “Clear probability” of persecution (more likely than not).
  • No one‑year deadline.
  • More limited relief: protection only against removal to a particular country; no direct path to a green card, more limited derivative benefits.
• CAT protection:
  • Protection against being returned to a country where the person is more likely than not to be tortured.
  • Torture must be inflicted by or with the acquiescence of a public official.
  • No requirement of a protected ground (race, religion, etc.).
  • Often harder to prove but not subject to a one‑year filing bar.

2. The One‑Year Asylum Deadline and “Extraordinary Circumstances”

• Most noncitizens must file for asylum within one year of entering the U.S.
• If they miss that deadline, they may still qualify if they can show either:
  • Changed circumstances that materially affect asylum eligibility (e.g., a coup, new persecution of a group, etc.), or
  • Extraordinary circumstances related to the delay (e.g., serious illness, mental disability, ineffective assistance of counsel).
• Even with an exception, they must still file “within a reasonable time” after the change or extraordinary event.
• In Osabas‑Rivera, the Sixth Circuit holds that whether the applicant has shown extraordinary circumstances “to the satisfaction of the Attorney General” is a discretionary question that the court of appeals cannot review.

3. “Government Unable or Unwilling to Protect”

When persecution is by private actors like gangs, persecuted women, or family members, the law asks: Where was the state? The applicant must show that:

• He reported the harm or threats (or had a credible reason not to), and
• The government either did nothing effective, was complicit, or is institutionally incapable of providing protection.

Evidence can include:

• Police reports and follow‑up (or lack thereof).
• Testimony about specific interactions with authorities.
• Country‑conditions reports about corruption, collusion with gangs, or chronic impunity.

In Gustavo’s case, the IJ and BIA relied heavily on the fact that he did not show what the police did with his kidnapping report and did not report later threats, leading to the conclusion that he did not prove the government was unable or unwilling to protect him.

4. Exhaustion and Forfeiture

• Exhaustion means raising your arguments at the administrative level (here, before the BIA) before the court of appeals will consider them.
• It is not enough to vaguely reference an issue in the Notice of Appeal; it must be:
  • Clearly identified, and
  • Substantively argued in the brief to the BIA.
• Forfeiture (or waiver) occurs when a party fails to raise an argument at the right time. In immigration cases, that usually means:
  • Not raising it before the BIA, or
  • Not raising it in the petition for review in the court of appeals.
• In Osabas‑Rivera, failure to challenge the IJ’s “government able and willing” finding in the BIA brief meant that argument was forfeited; the Sixth Circuit was then bound to enforce that forfeiture.

VIII. Conclusion

Osabas‑Rivera v. Bondi is a significant addition to the Sixth Circuit’s immigration jurisprudence. On the asylum side, it squarely holds that the “extraordinary circumstances” exception to the one‑year filing bar, as codified in 8 U.S.C. § 1158(a)(2)(D), is an unreviewable discretionary determination when phrased “to the satisfaction of the Attorney General.” This aligns the Sixth Circuit with other circuits following the Eleventh Circuit’s A.P.A. decision and cements the impact of Wilkinson’s discussion of “to the satisfaction” language.

On the withholding‑of‑removal side, the court emphasizes the centrality of issue exhaustion and the “government unable or unwilling to protect” element in cases involving private‑actor persecution such as gang violence. By treating Gustavo’s failure to brief that element to the BIA as dispositive, the opinion underscores the need for meticulous appellate advocacy at the administrative level.

Taken together, the opinion illustrates two broader trends: (1) a continuing tightening of judicial review over certain discretionary and fact‑intensive immigration determinations, especially those framed as being “to the satisfaction of the Attorney General,” and (2) a strict enforcement of procedural rules such as exhaustion and waiver, which can prevent courts from reaching substantive questions even in compelling factual circumstances. For practitioners and applicants alike, Osabas‑Rivera is both a doctrinal marker and a practical warning: timeliness and thorough briefing at the agency level are more crucial than ever.