EDUARDO JACOBO-DIAZ, AKA Eduardo Diaz Jacobo v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO JACOBO-DIAZ, AKA Eduardo
Diaz Jacobo,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72520
Agency No. A200-551-424
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 19, 2021
San Francisco, California
Before: W. FLETCHER and MILLER, Circuit Judges, and KORMAN,** District
Judge.
Eduardo Jacobo-Diaz, a native and citizen of Mexico, petitions for review of
the decision of the Board of Immigration Appeals affirming an immigration
judge’s denial of his asylum application as time barred. Jacobo challenges the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
DEC 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Board’s conclusion that he has not established extraordinary or changed
circumstances excusing his late application. See 8 U.S.C. § 1158(a)(2)(D). We
have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a denial of asylum, except
to the extent that our jurisdiction is limited by section 1252(a)(2). Because we have
jurisdiction over only Jacobo’s changed-circumstances claim, the petition is
dismissed in part and denied in part.
1. We lack jurisdiction to review the agency’s determination that
Jacobo’s PTSD was not an extraordinary circumstance excusing his failure to
comply with the one-year deadline for filing an asylum application. We have
jurisdiction to review an extraordinary-circumstances decision only if the facts are
undisputed. Husyev v. Mukasey, 528 F.3d 1172, 1178 (9th Cir. 2008) (“[O]ur
jurisdiction over ‘questions of law’ as defined in the Real ID Act includes not only
‘pure’ issues of statutory-interpretation, but also application of law to undisputed
facts, sometimes referred to as mixed questions of law and fact.” (quoting
Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007))).
Extraordinary circumstances are “events or factors directly related to the
failure to meet the 1-year deadline,” and include “[s]erious illness or mental or
physical disability, including any effects of persecution or violent harm suffered in
the past, during the 1-year period after arrival.” 8 C.F.R. § 1208.4(a)(5)(i)-(vi). The
agency concluded that Jacobo’s PTSD was unrelated to his filing delay. That

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determination is a factual one over which we do not have jurisdiction. See
Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013) (holding that the court
lacked jurisdiction to review an underlying factual dispute as to whether financial
constraints and a language barrier, rather than mental health issues, explained a
filing delay). We therefore dismiss Jacobo’s petition for review of the Board’s
extraordinary-circumstances determination.
2. Jacobo’s changed-circumstances claim fails on the merits. Changed
circumstances are those “materially affecting the applicant’s eligibility for asylum”
and may include, but are not limited to, changes in country conditions, changes in
applicable U.S. law, or activities in which the applicant has become involved that
may place him at risk if returned to the country of feared persecution. 8 C.F.R. §
1208.4(a)(4)(i)(A)-(C). Jacobo argues that the following changed circumstances
justify an exception to the filing deadline: cartel violence against relatives in
Mexico after his departure, his PTSD diagnosis, and his discovery that he was
ineligible for cancellation of removal. See 8 U.S.C. § 1158(a)(2)(D).
We have jurisdiction to review the Board’s rejection of Jacobo’s claim
because the underlying facts are undisputed. See Ramadan, 479 F.3d at 650. None
of the developments identified by Jacobo involves a change to his eligibility for
asylum; they are largely unrelated to “persecution or a well-founded fear of
persecution” that Jacobo has suffered or might suffer in the future. 8 U.S.C.

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§ 1101(a)(42)(A). As the Board explained, Jacobo has not demonstrated changed
circumstances materially affecting his eligibility for asylum. We therefore deny the
petition for review with respect to the claim of changed circumstances.
PETITION DISMISSED in part and DENIED in part.

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