CLAY, Circuit Judge. Fras Abdul Kazem Audi (“Audi”) filed a timely petition for review of the decision by the Board of Immigration Appeals (“BIA”) affirming the denial of his asylum

application and application for withholding of removal. Audi claims that the BIA erred in (1) finding that he failed to file his asylum application within a reasonable period of time, pursuant to 8 C.F.R. § 1208.4(a)(5), given the existence of extraordinary circumstances justifying the delay of his application, and in (2) denying his asylum application on the merits as he had suffered past persecution and faced the threat of future persecution based on his membership in a particular social group. For the reasons set forth below, we DENY his petition for review.

BACKGROUND

Fras Abdul Kazem Audi was born in Samawah, Iraq on May 24, 1979. He was raised as a

Shi’a Muslim, which was the predominant religion of those individuals living in Samawah. His parents, three sisters, and one of his brothers live in Samawah, and his other brother lives in Jordan.

Case No. 20-3196, Audi v. Barr

From 1997 to 2000, Audi served in the Iraqi military pursuant to a mandatory three-year conscription, during which time he was stationed in Basra and worked as a cook. He did not engage in any combat while in the military. Further, while living in Iraq, he was never arrested, nor did he participate in any political party.

Following the fall of Saddam Hussein’s regime in 2003, a number of militias formed in Iraq. The first of several incidents in connection with these militias occurred in mid-October 2003, during which a militia made up of Sunni Muslims opened fire at the bus while Audi was on board.

Several passengers were killed in this attack, but Audi was not harmed because he was able to hide

behind one of the seats. After this incident, the Al-Mahdi Army, a group of Shi’a Muslims, threatened Audi that he would have to join the militia or else he would be killed. Despite numerous recruitment calls, Audi refused to join and fled to Syria, remaining there for two months on a visitor visa. Audi then returned to Iraq in January 2004, after his parents convinced him that United

States troops in the country would help quell the instability in the area. But four days after his return, while on the way home from shopping at a market, Audi and his cousin, Hassan, were attacked by three masked men who tried to pull them into a car. Audi was able to flee, despite sustaining injuries while fighting the men off, but his cousin was pulled into the car and later beaten, tortured, and killed. Audi reported the attack to the police and went to the hospital to receive treatment for his injuries.

On February 4, 2004, Audi left Iraq again and returned to Syria with plans to obtain refugee status through the United Nations. Audi then met a woman, who was a U.S. citizen, through her

brother who used to live in the same neighborhood as Audi. The two later married in Jordan and moved to the United States, at which point Audi’s wife petitioned for permanent residency on his behalf.

Case No. 20-3196, Audi v. Barr

On June 8, 2005, Audi was admitted into the United States as a nonimmigrant spouse of a

U.S. citizen pursuant to a K-3 visa. This visa authorized Audi to remain in the United States until

June 7, 2007. On February 27, 2007, before the visa expired, Audi filed an Application to Register

Permanent Residence or Adjust Status, Form I-485, which was denied by the United States

Citizenship and Immigration Services (“USCIS”) because it lacked necessary documents. On

December 15, 2007, Audi filed a second I-485 application, this time with the help of a now disbarred attorney. This application was denied by USCIS on March 24, 2009, due to abandonment for failure to appear for fingerprinting and for an interview. Although his attorney at the time had notice of these requirements, the attorney did not inform Audi of his fingerprinting appointment or his scheduled interview. USCIS informed Audi that this denial of the second application left

him “without lawful immigration status,” he was “now present in the United States in violation of the law,” and was “required to depart the United States within 30 days from the date of this decision.” (Doc. No. 9, Notice of Decision at 1001.) During this time, Audi had separated from his wife, and he officially filed for divorce on December 28, 2009.

On November 27, 2009, Audi acquired new counsel and filed an Application for Asylum

and for Withholding of Removal, Form I-589. In the application, Audi sought asylum or withholding of removal based on his religion, membership in a particular social group, and the Convention Against Torture. USCIS referred Audi’s asylum application to an immigration judge on April 8, 2010, noting that Audi had “established changed circumstances materially affecting

[his] eligibility for asylum, or extraordinary circumstances directly related to [his] delay in filing,” but “failed to file [his] application within a reasonable period of time given those circumstances.”

(Doc. No. 9, Referral Notice at 261.) Audi was then served with a Notice to Appear (“NTA”) at removal proceedings for violating section 237(a)(1)(B) of the Immigration and Nationality Act Case No. 20-3196, Audi v. Barr

(“INA”) for “remain[ing] in the United States for a time longer than permitted” after being admitted “as a nonimmigrant under Section 101(a)(15) of the Act.” (Doc. No. 9, NTA at 1154.)

USCIS initiated removal proceedings on April 12, 2010, by filing the NTA with the Immigration

Court in Detroit.

On September 1, 2010, at the master calendar hearing, Audi denied the allegation that he remained in the U.S. after June 7, 2007, without authorization, but admitted that he was not a U.S. citizen or national, he was a native and citizen of Iraq, and he was admitted into the United States as a nonimmigrant spouse. The Immigration Judge then determined that the denied allegation “had

been established by the requisite clear and convincing evidence, and sustained the charge of removability, finding that it had also been established by the requisite clear and convincing evidence.” (Doc. No. 9, Decision of the IJ at 408.) The judge designated Iraq as the country of removal.

On October 16, 2017, Audi filed a new 1-589 application, again requesting asylum or withholding of removal based on having suffered past persecution on account of his religion and membership in a particular social group, as well as under the Convention Against Torture. He also feared future persecution if he returned to Iraq from both the Shiite militia who tried to recruit him as well as the Sunni militiamen who attacked the bus, and he specifically noted that he was concerned about persecution based on his affiliation with the U.S. After a number of rescheduled hearings, Audi appeared in front of an Immigration Judge on November 13, 2017, for his individual hearing.

The Immigration Judge issued her decision on March 1, 2018, denying Audi’s application under all asserted grounds for relief and ordering Audi to be removed to Iraq. While she found

Audi’s testimony to be credible, the IJ denied the asylum application on grounds that it was not Case No. 20-3196, Audi v. Barr timely filed because, even within the exception for extraordinary circumstances to the one-year filing deadline based on his lawful nonimmigrant status, it was not filed within a reasonable time

period thereafter. Notwithstanding the untimely filing, the IJ considered the merits of the application and found that Audi had established past persecution from 2003-2004, but she denied the application because conditions in Iraq had changed since 2004. She also denied the application based on his well-founded fear of future persecution because she determined that Shi’a Muslims were not harmed due to their religion and Audi’s two proposed social groups— “individuals who refuse forced recruitment into militia groups and Americanized or Westernized Iraqis”—were not

cognizable as they respectively lacked social visibility and particularity. (Doc. No. 9, Decision of the IJ at 424–26.) She then denied the withholding of removal application because Audi did not

meet the “higher ‘clear probability’ standard” used to determine eligibility for withholding of removal under the Act.” (Id. at 426 (quoting Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001)).)

Finally, she denied Audi’s application for withholding of removal based on the Convention

Against Torture because he “ha[d] not met his burden to establish that it is more likely than not that he will be tortured by or with the acquiescence of the Iraqi government if returned to Iraq.”

(Id.)

On March 16, 2018, Audi filed a Notice of Appeal with the Board of Immigration Appeals.

On December 12, 2019, Audi also filed a motion to remand based on new evidence that was not discoverable at the time of the individual hearing, which was consolidated with his pending appeal

before the BIA. On February 5, 2020, the BIA issued a separate opinion affirming the decision of the Immigration Judge, both as to the untimeliness and underlying merits of the applications,1 and Case No. 20-3196, Audi v. Barr dismissed Audi’s appeal. The BIA also denied the motion to remand because Audi “ha[d] not met his heavy burden to demonstrate that if the record were remanded for further proceedings it is likely that the outcome of his case would be changed.” (Doc. No. 9, Decision of the BIA at 6.)

This timely petition for review followed.

DISCUSSION

Standard of Review

“Where the BIA reviews the immigration judge’s decision and issues a separate opinion, rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). But “to

the extent the BIA adopted the immigration judge’s reasoning, this court also reviews the immigration judge’s decision.” Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir. 2015) (citing

Khalili, 557 F.3d at 435). Questions of law are “ordinarily” reviewed de novo, but “we grant substantial deference to the BIA’s interpretation of the INA and accompanying regulations.”

Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007).

We review factual findings made by the immigration judge and the BIA—“as well as the determination that the petitioner failed to establish eligibility for asylum”—under the substantial evidence standard. Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006); Khalili, 557 F.3d at 435.

The immigration judge and BIA’s factual determinations are upheld if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105(a)(4)); see also Ramaj, 466 F.3d at 527 (noting

of his status.”).) In contrast, the BIA assumed the applicability of the extraordinary circumstance for ineffective assistance of counsel under 8 C.F.R. § 1208.4(a)(5)(iii). (Doc. No. 9, Decision of the BIA at 3 (“Assuming arguendo that the respondent received ineffective assistance of counsel, constituting extraordinary circumstances up until May, 2009, we still conclude that the delay from May 2009 until November, 2009 was not a reasonable delay.”).)

Case No. 20-3196, Audi v. Barr that this Court “will not reverse a factual determination of the IJ unless we find ‘that the evidence not only supports a contrary conclusion, but compels it’” (quoting Marku v. Ashcroft, 380 F.3d

982, 986 (6th Cir. 2004))).

Analysis

I. Jurisdiction to Review the BIA’s Timeliness Determination

Before proceeding to whether Audi’s asylum application was untimely filed, we must first decide whether we have jurisdiction to review the BIA’s denial of his application on that basis.

The government argues that we lack jurisdiction under 8 U.S.C. § 1158(a)(3) to review the BIA’s denial of Audi’s asylum application based on untimeliness because the determination of what constitutes a reasonable period of time under 8 C.F.R. § 1208.4(a)(5) is a predominantly factual question, which we cannot review. Audi contends that this Court can review the denial of his application because it presents a question of law, namely applying a legal standard to “undisputed or established facts,” as determined by the Supreme Court in Guerrero-Lasprilla v. Barr, 140 S.

Ct. 1062, 1068 (2020).

Under the INA, individuals seeking asylum must “demonstrate[] by clear and convincing

evidence that the application has been filed within 1 year after the date” of their entry into the United States. 8 U.S.C. § 1158(a)(2)(B). The statute provides for an exception to the one-year filing requirement if the asylum-seeker can show “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application.” Id. § 1158(a)(2)(D). Upon a showing of extraordinary

circumstances, “the failure to file within the 1-year period” may be excused as long as the application is filed “within a reasonable period given those circumstances.” 8 C.F.R.

§ 1208.4(a)(5). Extraordinary circumstances include: (1) “serious illness or mental or physical disability,” (2) “legal disability,” (3) “ineffective assistance of counsel,” (4) having “maintained Case No. 20-3196, Audi v. Barr

Temporary Protected Status, lawful immigrant or nonimmigrant status, or [been] given parole, until a reasonable period before the filing of the asylum application,” (5) having “filed an asylum

application prior to the expiration of the 1–year deadline, but that application was rejected by the Service as not properly filed,” and (6) “[t]he 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).

The INA also expressly precludes courts from “hav[ing] jurisdiction to review any

determination of the Attorney General.” 8 U.S.C. § 1158(a)(3). However, Congress passed the REAL ID Act in 2005, which amended the INA to say:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D) (emphasis added). In Almuhtaseb v. Gonzales, we adopted the Second

Circuit’s reasoning in Xiao Ji Chen v. United States Department of Justice, 434 F.3d 144 (2d Cir.), vacated, 471 F.3d 315 (2d Cir. 2006), and held that 8 U.S.C. § 1252(a)(2)(D) maintained the jurisdictional bar for “review of asylum applications denied for untimeliness only when the appeal

seeks review of discretionary or factual questions, but not when the appeal seeks review of constitutional claims or matters of statutory construction.” 453 F.3d 743, 748 (6th Cir. 2006)

(finding that this Court lacked jurisdiction to hear the petitioner’s “appeal of the denial of asylum because her claim before the BIA and this [C]ourt is based on her assertion that the IJ incorrectly applied the ‘changed circumstances’ provision,” which relied on determinations of fact).

We further explained in Khozhaynova v. Holder that 8 U.S.C. § 1252(a)(2)(D) did not

extend jurisdiction to review a claim for untimeliness based on a “question[] involving the application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law.” 641 F.3d 187, 192 (6th Cir. 2011) (quoting Ramadan v. Gonzales, 479 F.3d 646, Case No. 20-3196, Audi v. Barr

650 (9th Cir. 2007)). In the panel’s view, the petitioner was asking the “panel to reconsider our decision in Almuhtaseb,” which contravened the “well-established rule of this circuit that one panel

cannot overrule the holding of another panel, absent an intervening inconsistent opinion from the U.S. Supreme Court.” Id. (quoting Lewis v. Humboldt Acquisition Corp., 634 F.3d 879, 879 (6th

Cir. 2011)). But just this year, the Supreme Court held in Guerrero-Lasprilla that “the application

of law to undisputed or established facts is a ‘questio[n] of law’ within the meaning of § 1252(a)(2)(D),” effectively overruling Almuhtaseb. 140 S. Ct. at 1069 (alteration in original).

The government contends that Guerrero-Lasprilla is inapplicable in the present case and that, in any event, the ruling “does not necessarily disturb this Court’s holding in Khozhaynova or established precedent recognizing that discretionary decisions are unreviewable” because it did not address review of discretionary decisions. (Resp’t Br. at 22 (internal citations removed).) This

argument is misplaced; for one, Guerrero-Lasprilla similarly dealt with a statutory time-limit for filing a motion to reopen removal proceedings, where there was no factual dispute that the petitioners had failed to file within the requisite time period. 140 S. Ct. at 1067. Accordingly, all that was left to review was the BIA’s determination of whether the petitioners had “failed to

demonstrate the requisite due diligence” to qualify for equitable tolling of the 90-day time limit, in other words applying the due diligence standard to their factual circumstances. Id. at 1067–68.

And while the government is correct that discretionary questions are still unreviewable after

Guerrero-Lasprilla,2 we have previously referred to the application of the exception for Case No. 20-3196, Audi v. Barr exceptional circumstances as a predominantly factual question rather than a discretionary one. ^[3]

See Khozhavnova, 641 F.3d at 191 (“Khozhaynova's claim regarding extraordinary circumstances

rests on challenging the immigration judge's factual determinations.”); Fang Huang v. Mukasey, 523 F.3d 640, 651 (6th Cir. 2008) (noting that Huang’s “argument regarding changed circumstances is ‘predominantly factual’” (quoting Almuhtaseb, 453 F.3d at 748 n.3)).

In the present case, both Audi and the government concede that the underlying facts are not in dispute, namely that Audi filed his application almost two and a half years after he fell out

of legal status and six months after discovering his prior attorney’s failure to notify him of the required fingerprinting and interview appointments. Further, neither the IJ nor the BIA actually

decided whether Audi presented extraordinary circumstances to qualify for the exception to the one-year filing requirement and instead determined that, assuming the exception was applicable, Audi still did not file the application “within a reasonable period of time given the circumstances” under 8 C.F.R. § § 1208.4(a)(5). What this Court has left to review is whether Audi filed his asylum application within a reasonable period of time given the circumstances based on the undisputed facts of his case. In accordance with Guerrero-Lasprilla, we have jurisdiction to review the denial of his asylum application.

II. Timeliness of Audi’s Asylum Application

Audi contends that the BIA erred in finding that he did not file his asylum application within a reasonable period of time given the circumstances following the existence of an