Marvin Martinez Alquijay v. MERRICK B. GARLAND, Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN MARTINEZ ALQUIJAY,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-70470
Agency No.
A088-709-286
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2022*
Pasadena, California
Filed July 27, 2022
Before: Sandra S. Ikuta, Jacqueline H. Nguyen, and
John B. Owens, Circuit Judges.
Opinion by Judge Ikuta
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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MARTINEZ ALQUIJAY V. GARLAND 2
SUMMARY**
Immigration
Denying Marvin Martinez Alquijay’s petition for review
of a decision of the Board of Immigration Appeals, the panel
held that the BIA did not err in concluding that Martinez
Alquijay failed to establish extraordinary circumstances to
excuse his delay in filing his asylum application.
Martinez Alquijay missed the filing deadline for his
asylum application by over three years and argued that he
qualified for the extraordinary circumstances exception to the
time limitation based on his “incapacity or legal disability”
due to ignorance of the relevant immigration laws, his young
age of 22 years old at the time of his arrival, his lack of
English-language skills, and the stress he experienced from
fleeing his home country. The panel concluded that none of
the factors identified by Martinez Alquijay, either separately
or in the aggregate, were of a similar nature or seriousness to
the examples of extraordinary circumstances set forth in the
regulation. 8 C.F.R. § 1208.4(a)(5). The panel held that the
BIA therefore did not err in concluding that Martinez
Alquijay failed to establish the presence of an extraordinary
circumstance to excuse the delay in filing his asylum
application.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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MARTINEZ ALQUIJAY V. GARLAND 3
COUNSEL
Ramiro J. Lluis, Lluis Law, Los Angeles, California, for
Petitioner.
Leslie McKay, Senior Litigation Counsel; Madeline Henley,
Trial Attorney; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
IKUTA, Circuit Judge:
An applicant for asylum must generally file his
application within one year of his arrival in the United States.
8 U.S.C. § 1158(a)(2)(B). There are exceptions to this
deadline, including an exception if the applicant can show
“extraordinary circumstances relating to the delay in filing an
application.” Id. § 1158(a)(2)(D). The applicable regulations
list examples of the sorts of circumstances that qualify as
extraordinary. 8 C.F.R. § 1208.4(a)(5). In this appeal, an
applicant who missed the filing deadline for his asylum
application by over three years argues that because he was
ignorant of the relevant immigration laws, was 22 years old
at the time of his arrival, lacked English-language skills, and
was stressed because he had fled from his home country, his
circumstances qualify as extraordinary. Because none of
these circumstances “are of a similar nature or seriousness”
to the examples of extraordinary circumstances in the
regulation, Gasparyan v. Holder, 707 F.3d 1130, 1135 (9th
Cir. 2013), we conclude that the Board of Immigration
Appeals (BIA) did not err in concluding that the applicant

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MARTINEZ ALQUIJAY V. GARLAND 4
failed to establish the presence of an “extraordinary
circumstance” to excuse the delay in filing his application.
I
Marvin Estuardo Martinez Alquijay seeks review of a
decision of the BIA affirming the decision of an immigration
judge (IJ) denying his claim for asylum.1
A
Before addressing the merits of Martinez Alquijay’s case,
we outline the applicable legal framework. As a general rule,
an application for asylum must be filed “within 1 year after
the date of the alien’s arrival in the United States.” 8 U.S.C.
§ 1158(a)(2)(B). Notwithstanding this rule, an application for
asylum “may be considered . . . if the alien demonstrates to
the satisfaction of the Attorney General . . . extraordinary
circumstances relating to the delay in filing an application.”
Id. § 1158(a)(2)(D). To qualify for this exception, an
applicant must first demonstrate circumstances that qualify as
“extraordinary.” Gasparyan, 707 F.3d at 1135. The
applicable regulations define “extraordinary circumstances”
to “refer to events or factors directly related to the failure to
meet the 1-year deadline.” 8 C.F.R. § 1208.4(a)(5). The
regulations provide a non-exhaustive list of such
“extraordinary circumstances.” Id.2
1 We resolve Martinez Alquijay’s other claims in a memorandum
disposition filed simultaneously with this opinion. ___ F. App’x ___ (9th
Cir. 2022).
2 The regulations provide, in pertinent part, that extraordinary
circumstances “may include but are not limited to:”

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MARTINEZ ALQUIJAY V. GARLAND 5
Once an applicant for asylum has demonstrated to “the
satisfaction of the Attorney General” the existence of
“extraordinary circumstances,” 8 U.S.C. § 1158(a)(2)(D),
“[t]he burden of proof is on the applicant to establish to the
satisfaction of the asylum officer, the immigration judge, or
the Board of Immigration Appeals that the circumstances
were not intentionally created by the alien through his or her
own action or inaction, that those circumstances were directly
(i) Serious 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;
(ii) Legal disability (e.g., the applicant was an
unaccompanied minor or suffered from a mental
impairment) during the 1-year period after arrival;
(iii) Ineffective assistance of counsel, [in certain
conditions] . . .
(iv) The applicant maintained Temporary Protected
Status, lawful immigrant or nonimmigrant status, or
was given parole, until a reasonable period before the
filing of the asylum application;
(v) The applicant filed an asylum application prior to
the expiration of the 1–year deadline, but that
application was rejected by the [Department of
Homeland Security] as not properly filed, was returned
to the applicant for corrections, and was refiled within
a reasonable period thereafter; and
(vi) The death or serious illness or incapacity of the
applicant’s legal representative or a member of the
applicant’s immediate family.
Id. § 1208.4(a)(5).

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MARTINEZ ALQUIJAY V. GARLAND 6
related to the alien’s failure to file the application within the
1-year period, and that the delay was reasonable under the
circumstances,” 8 C.F.R. § 1208.4(a)(5).
B
We now turn to the facts of this case. Martinez Alquijay
is a native and citizen of Guatemala.3 He worked on a banana
farm in Guatemala and was also an assistant secretary for a
union of banana workers. During union meetings in 2005,
protestors wearing masks and holding weapons assembled
outside of the meeting place. According to Martinez
Alquijay, these protestors fired weapons and yelled that they
were going to kill the union members. When the members
left the meetings, protestors confronted the union’s leaders.
For example, after a meeting in October 2005, the five
protestors who were present warned the union’s leaders that
if they did not “stop putting ideas in people’s heads . . . there
would be very serious consequences,” and that they would
kill as many union members as necessary. After this incident,
Martinez Alquijay decided to flee Guatemala. In March
2006, Martinez Alquijay illegally entered the United States.
At the time, he was 22 years old.4 While in the United States,
Martinez Alquijay was convicted of driving while intoxicated
in July 2009. In March 2010, he was again convicted of
3 The following narrative is taken from Martinez Alquijay’s testimony
before the IJ.
4 According to Martinez Alquijay’s testimony, while he was in the
United States, one of the union leaders was killed in 2007, and the
husband of a union member was killed shortly thereafter. In 2008,
Martinez Alquijay’s aunt was killed in a hit-and-run accident. His cousin
was strangled to death in 2010. Of these victims, only the union leader
had been a member of the union.

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MARTINEZ ALQUIJAY V. GARLAND 7
driving while intoxicated, as well as driving with a suspended
license.
In November 2009, the Department of Homeland Security
initiated removal proceedings against Martinez Alquijay,
charging that he was removable as “[a]n alien present in the
United States without being admitted or paroled.” See
8 U.S.C. § 1182(a)(6)(A)(i). In October 2010, Martinez
Alquijay filed an application for asylum, withholding of
removal, and relief under the Convention Against Torture,
stating that he feared persecution based on threats made to
members of his labor union. Martinez Alquijay also
requested voluntary departure.
In the immigration proceedings, the IJ noted that Martinez
Alquijay filed his application for asylum more than one year
after he entered the country in March 2006, and so there was
“a one-year issue.” Martinez Alquijay’s counsel stated that
he would look into this issue and submit a brief if there was
an applicable exception to the one-year bar.5 The following
exchange also took place between Martinez Alquijay and his
counsel.
Counsel: Did you file for an application for
asylum when you first entered the United
States?
Martinez Alquijay: No.
Counsel: Is there a specific reason as to why?
5 The record does not include any further brief on the one-year bar
from Martinez Alquijay’s counsel to the IJ.

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MARTINEZ ALQUIJAY V. GARLAND 8
Martinez Alquijay: I wasn’t aware, I didn’t
know about the laws, I just simply - I just fled
the country.
Martinez Alquijay did not otherwise address the one-year bar.
The IJ denied all of Martinez Alquijay’s claims for relief
and his request for voluntary departure. With respect to
Martinez Alquijay’s application for asylum, the IJ stated that
Martinez Alquijay “testified that he did not file for asylum
within one year of his entry because he was not aware of the
laws of the United States.” However, the IJ concluded that
“ignorance of the law is not an event or factor beyond
[Martinez Alquijay’s] control.” According to the IJ, Martinez
Alquijay’s lack of diligence was not analogous to the
circumstances listed in the regulations as exceptions to the
one-year bar. Therefore, the IJ denied his application as
untimely because it was filed more than three years after the
one-year deadline set out in 8 U.S.C. § 1158(a)(2)(B).
The BIA denied Martinez Alquijay’s appeal. The BIA
held that the IJ properly found that Martinez Alquijay’s
ignorance of asylum laws upon entering the United States
was not an “extraordinary circumstance” that could excuse
his four-year delay in filing his asylum application. The BIA
also rejected Martinez Alquijay’s further argument on appeal
that he was legally incompetent when he entered the United
States because he was 22 years old and lacked English skills.
Martinez Alquijay timely petitioned for review.

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MARTINEZ ALQUIJAY V. GARLAND 9
II
A
We have jurisdiction to review the question of law raised
by Martinez Alquijay’s appeal. Under the Immigration and
Nationality Act, “[n]o court shall have jurisdiction to review
any determination of the Attorney General” relating to
exceptions to the filing deadline contained in § 1158(a)(2).
8 U.S.C. § 1158(a)(3). Nevertheless, we retain jurisdiction
over “constitutional claims or questions of law.” Id.
§ 1252(a)(2)(D). Reading these statutes together, we have
concluded that we have jurisdiction “to review the BIA’s
legal determination that the undisputed facts in [a] case do
not constitute ‘extraordinary circumstances.’” Toj-Culpatan
v. Holder, 612 F.3d 1088, 1090 (9th Cir. 2010) (per curiam).
In other words, although we lack jurisdiction to review a BIA
determination that “rests on the IJ’s resolution of an
underlying factual dispute,” Sumolang v. Holder, 723 F.3d
1080, 1082 (9th Cir. 2013), we may consider whether the BIA
erred in deciding that the undisputed facts raised by Martinez
Alquijay did not constitute extraordinary circumstances. Id.
B
On appeal, Martinez Alquijay asks this court to reverse
the BIA’s determination that his delay in filing his asylum
application was not justified by extraordinary circumstances.
Martinez Alquijay argues that his youth, language barrier,
ignorance of the legal requirement to file his application
within a year, and stress from fleeing his home country,
constitute a “form of incapacity or legal disability,” and
therefore qualifies as an extraordinary circumstance under the
regulations.

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MARTINEZ ALQUIJAY V. GARLAND 10
The argument that Martinez Alquijay suffered under a
legal disability points to one of the circumstances set forth in
the applicable regulations. Under 8 C.F.R. § 1208.4(a)(5)(ii),
“extraordinary circumstances” may include: “[l]egal
disability (e.g., the applicant was an unaccompanied minor or
suffered from a mental impairment) during the 1-year period
after arrival.”6 At the time this regulation was promulgated,
see 62 Fed. Reg. 10312-01, 10339 (March 6, 1997)
(previously codified as 8 C.F.R. § 208.4), the ordinary
meaning of “legal disability” was a lack of ability or capacity
to fulfill legal duties due to minority or cognitive issues. See
DISABILITY, Black’s Law Dictionary (6th ed. 1990)
(“[Disability] is generally used to indicate an incapacity for
the full enjoyment of ordinary legal rights; thus, persons
under age, insane persons, and convicts are said to be under
legal disability.”). Because the regulation’s examples are not
exclusive, Martinez Alquijay’s circumstances need not meet
the definition of “legal disability” so long as they “are of a
similar nature or seriousness.” Gasparyan, 707 F.3d at 1135.
None of the factors identified by Martinez Alquijay,
either separately or in the aggregate, “are of a similar nature
or seriousness,” id., to the regulation’s examples of legal
disability. First, in providing an example of a person under
a legal disability, the regulation gives the example of an
“unaccompanied minor.” 8 C.F.R. § 1208.4(a)(5)(ii).
Because Martinez Alquijay was 22 years of age when he
entered the United States, he does not meet this definition.
Nor is a 22-year-old man considered unable to meet his legal
duties, unless he suffers from some other disability, so
6 Martinez-Alquijay does not argue that any other example listed in
the regulation is applicable.

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MARTINEZ ALQUIJAY V. GARLAND 11
Martinez Alquijay’s age is not of a similar nature to being a
minor.
Martinez Alquijay also references his lack of English
language skills. But we have held that the lack of such skills
is not an “extraordinary circumstance” when the applicant
“fails to explain how his inability to speak English is
extraordinary for an alien nor how it prevented him from
timely filing an asylum application in English, especially
given that the government makes translators available to
immigrants who do not speak or read English.” Toj-
Culpatan, 612 F.3d at 1091. We have also taken judicial
notice of “the fact that many immigrants who come to this
country do not speak English fluently.” Id. Martinez
Alquijay has not provided an explanation on either point, and
so this circumstance is also not extraordinary.
Martinez Alquijay’s argument that ignorance of the legal
requirements for filing an asylum application is an
“extraordinary circumstance” also fails. “As a general rule,
ignorance of the law is no excuse.” Antonio-Martinez v. INS,
317 F.3d 1089, 1093 (9th Cir. 2003) (citing Cheek v. United
States, 498 U.S. 192, 199 (1991)); see also Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S.
573, 581 (2010) (“We have long recognized the ‘common
maxim, familiar to all minds, that ignorance of the law will
not excuse any person, either civilly or criminally.’”) (citing
Barlow v. United States, 7 Pet. 404, 411 (1833)). We have
applied this principle in the immigration context. In Luna v.
Holder, we held that once a regulation setting a filing
deadline was published in the Federal Register, all applicants
were “presumptively deemed to have been given notice of the
deadline.” 659 F.3d 753, 760 (9th Cir. 2011). Therefore, the
argument that the petitioner and other similarly-situated

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MARTINEZ ALQUIJAY V. GARLAND 12
applicants were ignorant of the deadline, “runs afoul of the
rule that ignorance of the law is not an excuse where one has
constitutionally sufficient notice.” Id.; see also Antonio-
Martinez, 317 F.3d at 1092–93 (indicating that an applicant’s
obligation to notify the INS of any change of address under
certain circumstances was not excused by ignorance of the
law). Because Martinez Alquijay’s failure to act with
diligence to determine applicable legal requirements is not a
circumstance “of a similar nature or seriousness” to the
examples listed in the regulation, Gasparyan, 707 F.3d
at 1135, it does not constitute an extraordinary circumstance
excusing the failure to file his asylum applicant by the one-
year deadline.7
Finally, Martinez Alquijay does not explain how stress
from fleeing his homeland constitutes an “extraordinary
circumstance” analogous to those listed in the regulation. As
in Toj-Culpatan, we may take judicial notice of “the fact that
many immigrants who come to this country” seeking asylum
from persecution are in a similar stressful situation. 612 F.3d
at 1091. Martinez Alquijay does not argue that he has
suffered stress in some unusual way that would rise to a level
analogous to a “mental impairment,” 8 C.F.R.
§ 1208.4(a)(5)(ii), or “[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
7 For this reason, our unpublished dispositions have repeatedly
rejected petitioners’ claims that ignorance of the deadline for filing an
asylum application is an “extraordinary circumstance.” See Velasquez-
Carrillo v. Barr, 812 F. App’x 435, 438 (9th Cir. 2020); Argueta-
Chavarria v. Barr, 780 F. App’x 519, 520 (9th Cir. 2019); Gochez v.
Sessions, 676 F. App’x 629, 629 (9th Cir. 2017); Esquivel-Rubinos v.
Sessions, 700 F. App’x 633, 635 (9th Cir. 2017).

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MARTINEZ ALQUIJAY V. GARLAND 13
arrival,” id. § 1208.4(a)(5)(i).8 Therefore, the BIA did not err
in rejecting this argument.
Finally, Martinez Alquijay does not explain how, in the
aggregate, his circumstances are different from the
circumstances of many applicants who seek refuge in the
United States, or “are of a similar nature or seriousness” to
the examples of in the regulation, Gasparyan, 707 F.3d
at 1135. Accordingly, we conclude that the BIA did not err
in determining that Martinez Alquijay’s circumstances were
not extraordinary.9 Therefore, we uphold the BIA’s
8 Even if Martinez Alquijay had raised such an argument on appeal,
we would lack jurisdiction to address it because there are no undisputed
facts that could form the basis of our review. “[W]e have jurisdiction to
review an extraordinary circumstances determination only with regard to
constitutional claims and questions of law.” Gasparyan, 707 F.3d at 1133.
We do not have jurisdiction to review the agency’s factual determinations;
rather, our authority is limited to determining whether undisputed facts
constitute “extraordinary circumstances.” Toj-Culpatan, 612 F.3d at 1090.
Whether Martinez Alquijay suffered stress that affected his ability to meet
the one-year deadline is a factual question, and the IJ did not make any
factual findings on this matter because Martinez Alquijay did not raise the
issue to the IJ as an excuse for missing the one-year filing deadline. In the
absence of such factual findings, we have no basis for evaluating Martinez
Alquijay’s claim that his stress qualified as an extraordinary circumstance.
9 Because the BIA rejected Martinez Alquijay’s argument that his
circumstances were extraordinary, the BIA did not need to consider the
second step of the extraordinary circumstances analysis, which would
require consideration of whether the circumstances were a product of
Martinez Alquijay’s own action, whether the circumstances were directly
related to his failure to file the application by the deadline, and whether
his failure to file the application was reasonable for the full four years he
was in the United States. See Gasparyan, 707 F.3d at 1135.

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MARTINEZ ALQUIJAY V. GARLAND 14
determination that Martinez Alquijay failed to excuse his
four-year delay in filing his application.
PETITION DENIED.

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