PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-3550

DAVID CASTILLO ROMERO,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

On Petition for Review of an Order of the U.S. Department of 

Justice Executive Office for Immigration Review 

Immigration Court 

(Immigration Court No.: A201-067-060)

Immigration Judge: Alice S. Hartye

Submitted under Third Circuit L.A.R. 34.1(a)

July 2, 2020

(Opinion Filed: August 25, 2020)
2

Before: GREENAWAY, JR., SHWARTZ, and RENDELL, 

Circuit Judges

Sandra L. Greene

Greene Fitzgerald Advocates and Consultants

2575 Eastern Boulevard

Suite 208

York, PA 17402

Counsel for Petitioner

Anthony C. Payne

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Washington, DC 20044

Kathleen K. Volkert

United States Department of Justice

Office of Immigration Litigation

LSB 10234

P.O. Box 878

Washington, DC 20044

Counsel for Respondent

OPINIO N

RENDELL, Circuit Judge.
3

David Castillo Romero (“Romero”) petitions for review 

of an Immigration Judge’s (“IJ”) determination that Romero 

was not entitled to relief from reinstatement of his prior 

removal order. The IJ affirmed the asylum officer’s 

determination that Romero did not have a reasonable fear of 

torture as required for relief under the Convention Against 

Torture (“CAT”) or a reasonable fear of persecution as 

required for withholding of removal. Although the 

government argues that we should review the IJ’s decision 

under the “facially legitimate and bona fide reason” standard, 

we will instead look to whether the IJ’s determinations are

supported by substantial evidence. We find that they are. We 

will therefore deny Romero’s petition for review.

I

Romero is a native and citizen of Mexico. DHS 

Administrative Record (“D.A.R.”) at 28. In 2011, Romero 

sought admission to the United States at an airport in Houston, 

Texas. Id. Relying on a fraudulent United States passport, he 

claimed to be a United States citizen. Id. DHS issued a Notice 

and Order of Expedited Removal to Romero under 8 U.S.C. 

§ 1225(b)(1), charging him with inadmissibility on three 

grounds: under 8 U.S.C. § 1182(a)(6)(C)(i) as an alien who by 

fraud or willfully misrepresenting a material fact sought 

admission to the United States; under 8 U.S.C. 

§ 1182(a)(6)(C)(ii) as an alien who falsely represented himself 

as a United States citizen; and under 8 U.S.C. 

§ 1182(a)(7)(A)(i)(I) as an alien who at the time of his 

application for admission was not in possession of a valid entry 

document. Id. at 10-11. Romero was eventually removed to

Mexico. Executive Office for Immigration Review 

Administrative Record (“E.A.R.”) at 125.
4

In July 2013, Romero reentered the United States. Id. 

DHS issued to Romero a Notice of Intent/Decision to Reinstate 

Prior Order pursuant to 8 U.S.C. § 1231(a)(5), reinstating 

Romero’s removal order from 2011. Id. Romero was then 

removed to Mexico. Id.

In September 2013, Romero reentered the United States 

again. Id. at 124. Romero evaded immigration officials for 

almost six years until July 24, 2019. Id. DHS again issued to 

Romero a Notice of Intent/Decision to Reinstate Prior Order 

under 8 U.S.C. § 1231(a)(5), D.A.R. 2, which states:

If the Attorney General finds that an alien has 

reentered the United States illegally after having 

been removed or having departed voluntarily, 

under an order of removal, the prior order of

removal is reinstated from its original date and is 

not subject to being reopened or reviewed, the 

alien is not eligible and may not apply for any 

relief under this chapter, and the alien shall be 

removed under the prior order at any time after 

the reentry.

Id.

Although the plain text of this provision appears to 

prohibit any application for relief, other statutory provisions 

require that an alien like Romero who is subject to removal 

under § 1231(a)(5) be given the opportunity to seek two forms 

of relief. First, pursuant to 8 U.S.C. § 1231(b)(3)(A), an alien 

subject to reinstatement of a removal order may seek 

withholding of removal if the alien has a reasonable fear that 

he or she will be subject to persecution based on his or her race, 

religion, nationality, membership in a particular social group, 
5

or political opinion. Bonilla v. Sessions, 891 F.3d 87, 90-91 

(3d Cir. 2018) (citing Fernandez-Vargas v. Gonzales, 548 U.S. 

30, 35 n.4 (2006) (citing 8 U.S.C. § 1231(b)(3)(A))); 8 C.F.R. 

§§ 208.31, 241.8(e) (2020).

Second, pursuant to Congress’s adoption of the 

Convention Against Torture in the Foreign Affairs Reform and 

Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277, 

div. G, § 2242, 112 Stat. 2681-761, 2681-822, the United 

States will not “expel, extradite, or otherwise effect the 

involuntary return of any person to a country in which there are 

substantial grounds for believing the person would be in danger 

of being subjected to torture.” Id. § 2242(a). Pursuant to this 

requirement, an alien subject to reinstatement of a removal 

order may not be removed if he or she is likely to be subject to 

torture, defined as “any act by which severe pain or suffering, 

whether physical or mental, is intentionally inflicted on a 

person . . . by or at the instigation of or with the consent or 

acquiescence of a public official or other person acting in an 

official capacity.” 8 C.F.R. § 208.18(a)(1) (2020).

These two forms of relief are available to aliens subject 

to removal under 8 U.S.C. § 1231(a)(5). That is so because 

when such an alien “expresses a fear of returning to the country 

designated” in his or her prior removal order, he or she must 

be “immediately referred to an asylum officer for an interview 

to determine whether [he or she] has a reasonable fear of 

persecution or torture.” 8 C.F.R. § 241.8(e) (2020). This type 

of interview is often referred to as a “reasonable fear” 

interview.

In a “reasonable fear” interview, pursuant to the 

relevant legal standards for withholding of removal and CAT 

relief, the asylum officer looks to whether the alien has 
6

demonstrated “a reasonable possibility that he or she would be 

persecuted on account of his or her race, religion, nationality, 

membership in a particular social group or political opinion, or 

a reasonable possibility that he or she would be tortured in the 

country of removal.” 8 C.F.R. § 208.31(c) (2020). The alien 

“may present evidence, if available, relevant to the possibility 

of persecution or torture.” Id. The alien may also be 

represented by counsel or “an accredited representative,” his or 

her representative may “present a statement at the end of the 

interview,” and the alien must be provided an “opportunity to 

correct errors” in the asylum officer’s summary of the material 

facts. Id.

If the asylum officer finds that the alien meets this 

standard, the asylum officer must refer the case to an IJ for a 

full proceeding to determine if the alien is eligible for relief 

from removal. 8 C.F.R. § 208.31(e) (2020). But if the officer 

finds that the alien has not established a reasonable possibility 

of persecution or torture, the alien may appeal the asylum 

officer’s determination to an IJ, id. § 208.31(f)-(g) (2020), who 

must conduct “an expeditious review of the negative screening 

determination.” Regulations Concerning the Convention 

Against Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999). If 

the IJ “concurs with the asylum officer’s determination that the 

alien does not have a reasonable fear of persecution or torture,” 

the alien is removed. 8 C.F.R. § 208.31(g)(1). If, on the other 

hand, the IJ determines that the asylum officer’s determination 

was wrong, then the IJ must give the alien an opportunity for a

full hearing on his or her claims for withholding of removal or 

relief under the CAT. 8 C.F.R. § 208.31(g)(2) (2020).

Romero told immigration officials that he feared 

returning to Mexico. E.A.R. 9-10. Therefore, pursuant to 8 

C.F.R. § 241.8(e), Romero was referred to an asylum officer, 
7

who conducted a “reasonable fear” interview of Romero, who 

was represented by counsel. Id. At Romero’s reasonable fear 

interview, Romero expounded on his fear of returning to 

Mexico. He testified that he is afraid to return to Mexico 

because a man named Arturo Valencia will harm him. E.A.R.

95, 101. Romero testified that Valencia had a prior 

relationship with Romero’s wife, that Valencia was the father 

of his wife’s daughter, that Valencia had been deported from 

the United States to Mexico, and that Valencia was a member 

of the New Generation Cartel in Mexico. Id. at 101-02. 

Romero indicated that Valencia had threatened, over the 

phone, to kill him and his wife if they did not give Valencia his 

daughter. Id. Romero testified that in May 2013, Valencia and 

others went to Romero’s house in Mexico and shot at the house 

as a warning, although Romero was not there at the time. Id. 

Valencia never physically harmed Romero. Id. 

Romero testified that he is afraid to return to Mexico 

because Valencia may find out through acquaintances or 

through Facebook that he has returned. Id. at 114-15. Romero 

stated that he has never been harmed or threatened by a 

Mexican public official; that he does not fear future harm from 

a Mexican public official; and that he has no evidence that 

Valencia is connected to any Mexican public official. Id. 116-

17. He also stated that he has never been harmed, nor does he 

fear harm in Mexico based on his race, religion, sex, political 

opinion, or membership in a particular social group. Id. at 116. 

The asylum officer assigned to Romero’s case 

determined that Romero had not demonstrated a reasonable 

fear of persecution or torture under the relevant legal standards, 

and the supervisory asylum officer approved that 

determination. E.A.R. at 89-97. The officer found that 

Romero had not shown that the harm he fears from Valencia 
8

was on account of a protected ground as required for 

withholding of removal or that the Mexican government would 

consent or acquiesce to the harm that he fears as required for a 

reasonable fear determination.

1

 E.A.R. 96. 

Romero appealed the officers’ determinations to an IJ. 

E.A.R. 88. The IJ reviewed Romero’s reasonable fear 

interview and heard Romero’s testimony. E.A.R. 5-20. 

Romero reiterated his statement that he fears returning to 

Mexico because he had been threatened by Valencia by phone 

but that Valencia had never acted on the threats. E.A.R. 11. 

He stated that he did not report the threats to the police or seek 

the protection of the police in Mexico. E.A.R. 13.

The IJ concurred with the asylum officer’s decision. 

The IJ explained that Romero’s persecution claim failed 

because he had not “established a nexus to a protected ground” 

and therefore had not “established a reasonable possibility of 

being persecuted based upon a protected ground.” Executive 

Office for Immigration Review Administrative Record at 17. 

As to his CAT claim, Romero’s counsel argued that Romero 

had a reasonable fear of torture because he feared that Valencia 

would harm him and that the Mexican government would

acquiesce to such gang-related violence as part of a strategy to 

“allow the cartels to fight each other, so the government 

doesn’t have to do it because the government has been unable 

to.” Id. at 16. The IJ rejected this argument:

I would recognize that crime, corruption, and 

gang violence are problematic and prevalent in 

1 The asylum officer also made a finding, not at issue on 

appeal, that Romero’s testimony was partially not credible. 

E.A.R. 94-95.
9

Mexico, but the country is taking steps to address 

that issue. Here, [Romero] did not seek 

protection from the authorities. He does assert 

that he believes that [the government’s policies 

and the harm he fears] are connected, but I don’t 

have persuasive or specific evidence establishing 

that. So I’m not able to find that he’s established 

his burden.

Id. at 17.

II

We have jurisdiction under 8 U.S.C. § 1252(a)(1). See 

Bonilla, 891 F.3d at 90 n.4 (holding that when an IJ concurs 

with the asylum officer’s negative reasonable fear 

determination, the IJ’s decision “constitutes a final order of 

removal over which we have jurisdiction pursuant to 8 U.S.C. 

§ 1252(a)(1)”).

III

We must first decide which standard of review applies 

to the IJ’s determination that Romero does not have a 

reasonable fear of persecution or torture. Despite the 

government’s urging to the contrary, we will apply the 

substantial evidence standard. Generally, when we review 

findings of fact in the immigration context, we review the 

findings for substantial evidence. See, e.g., Herrera-Reyes v. 

Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020) (citing INS v. 

Elias-Zacarias, 502 U.S. 478, 481 (1992)). Under this 

“extraordinarily deferential standard,” we uphold the IJ’s 

findings if they are “supported by reasonable, substantial, and 

probative evidence on the record considered as a whole.” 
10

Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011)

(quotation marks and citations omitted). When we review for 

substantial evidence, “findings of fact are conclusive unless 

any reasonable adjudicator would be compelled to conclude to 

the contrary.” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir. 

2009) (quoting 8 U.S.C. § 1252(b)(4)(B)).

The government argues that we should look only to 

whether the IJ furnished a “facially legitimate and bona fide 

reason” for her determination that Romero did not have a 

reasonable fear of torture or persecution. Specifically, the 

government urges that because “a negative reasonable fear 

determination . . . is similar to other kinds of executive 

decisions to which the courts have” applied the deferential

“facially legitimate and bona fide reason” standard, we should 

apply it here as well. Resp’t’s Br. at 20-21. The government’s 

argument relies in part on its assertion that a reasonable fear 

determination is only a threshold agency assessment of the 

merits of an alien’s claims, not a final order of removal or a 

decision denying an alien’s application for asylum, 

withholding of removal, or relief under the CAT. 

Courts initially developed and applied the “facially 

legitimate and bona fide reason” standard in a limited and 

distinctive setting: challenges to government decisions to deny 

visas. Because “the power to exclude aliens is inherent in 

sovereignty, necessary for maintaining normal international 

relations and defending the country against foreign 

encroachments and dangers,” it is “a power to be exercised 

exclusively by the political branches of government.” 

Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) (quotation 

marks and citation omitted). Accordingly, for the most part, 

the Executive’s decisions about visa eligibility are not 

reviewable in court.
11

However, a court may review a visa denial in the limited 

circumstance where the visa denial potentially infringes on the 

constitutional rights of American citizens. See, e.g., id. at 765–

70 (reviewing American citizens’ First Amendment challenge 

to denial of an alien’s visa application where American citizens 

sought to but could not hear from the alien at an academic 

conference because the alien was denied a visa). In such cases, 

because of the “plenary congressional power to make policies 

and rules for exclusion of aliens” and because “Congress has 

delegated conditional exercise of this power to the Executive,” 

courts review the Executive’s exercise of this delegated 

discretion only to ensure that the decision-maker proffers “a 

facially legitimate and bona fide reason,” but “the courts will 

[not] look behind the exercise of that discretion,” even when 

the constitutional rights of American citizens are indirectly 

implicated. Id. at 769–70. 

Other courts have extended this standard of review to 

review of denials of temporary admission to the United States 

via parole, see Andrade-Garcia v. Lynch, 828 F.3d 829, 835 

(9th Cir. 2016) (citing Nadarajah v. Gonzales, 443 F.3d 1069, 

1082 (9th Cir. 2006); Mason v. Brooks, 862 F.2d 190, 193-94 

(9th Cir. 1988)), and we have applied it to certain constitutional

challenges to immigration statutes, see, e.g., Flores-Nova v. 

Att’y Gen., 652 F.3d 488, 492 (3d Cir. 2011) (“The standard of 

review applied in equal protection cases that do not involve 

suspect classes or the exercise of a fundamental constitutional 

right requires a ‘facially legitimate and bona fide’ rationale 

supporting the immigration statute in question.”); Kamara v. 

Att’y Gen., 420 F.3d 202, 217 (3d Cir. 2005) (applying the 

“facially legitimate and bona fide reason” standard to 

determine that the state-created danger doctrine did not 

“extend[] . . . to final orders of removal”). 
12

But we reject the government’s argument that the

“facially legitimate and bona fide reason” standard should

govern our review of the IJ’s determination here. In rejecting 

the government’s argument on this issue, we follow the lead of 

the Ninth Circuit in Andrade-Garcia v. Lynch, in which the 

court held that the “facially legitimate and bona fide reason” 

standard, which was developed in and applied to cases in the

“related, but different, context” described above, should not 

apply to reasonable fear determinations. 828 F.3d at 833-36. 

We note two reasons for so holding.

First, as explained in Andrade-Garcia, unlike in the 

relatively unconstrained visa application context, Congress has 

indicated an intent to limit the Executive’s discretion to impose 

a reinstated order of removal. Although it is true that the text 

of § 1231(a)(5) itself precludes applications for relief, 

Congress has nonetheless restrained the Executive from 

removing an alien to a country in which there are substantial 

grounds for believing the alien would be subject to torture. 

Fernandez-Vargas, 548 U.S. at 35 n.4 (aliens subject to 

reinstatement of removal may still apply for and be awarded 

CAT relief). And Congress has also acted to ensure that 

petitioners subject to reinstatement of a prior removal order 

may petition for withholding of removal if they fear 

persecution in the country to which they would be removed. 

See id. Accordingly, Congress has also given us express 

authority to review Executive-branch decision-making in final 

orders of removal like the reinstatement order at issue in this 

case to ensure, among other things, that the Executive’s 

decision-making accords with the statutory requirements 

described above. 8 U.S.C. § 1252(a); see Bonilla, 891 F.3d at 

90 n.4 (IJ’s negative reasonable fear decision “constitutes a 
13

final order of removal over which we have jurisdiction 

pursuant to 8 U.S.C. § 1252(a)(1)”).

Second, we note that the substantive and procedural 

similarities in reasonable fear proceedings and removal 

proceedings support our decision to apply the same standard of 

review—substantial evidence—in both settings. Although 

these two types of cases are not identical, in reasonable fear 

proceedings, as in removal proceedings, asylum officers make 

findings of fact based on evidence presented by the alien. See, 

e.g., 8 C.F.R. §§ 208.31(c); 241.8(e) (2020); Bonilla, 891 F.3d 

at 91. In both settings, there are procedures for an initial factfinding interview about an immigrant’s eligibility for relief as 

well as a procedure for appealing this initial determination to 

an IJ. And, in both proceedings, if the alien’s case fails, he or 

she faces the severe consequence of removal from the United 

States. In other words, we reject the government’s assertion 

that a reasonable fear determination, unlike a traditional 

removal proceeding, is only a discretionary, threshold agency 

assessment of the merits of an alien’s claims for withholding 

of removal and relief under the CAT. Instead, the similarities

between these two types of proceedings bolster our decision to 

apply the substantial evidence standard to fact-finding 

determinations by immigration officials in both scenarios.

For these reasons, we will review the IJ’s denial of 

Romero’s petitions for CAT relief and withholding of removal 

for substantial evidence. See Andrade-Garcia, 828 F.3d at 

833-36.

IV

The IJ’s denials of Romero’s persecution and CAT

claims are supported by substantial evidence. As noted above, 
14

under the “extraordinarily deferential” substantial evidence 

standard, we uphold the IJ’s determination if it is “supported 

by reasonable, substantial, and probative evidence on the 

record considered as a whole.” Garcia, 665 F.3d at 502. When 

we review for substantial evidence, “findings of fact are 

conclusive unless any reasonable adjudicator would be 

compelled to conclude to the contrary.” Sandie, 562 F.3d at 

251. 

Substantial evidence supports the IJ’s denial of 

Romero’s persecution claim. The IJ determined that Romero’s 

claim failed because he had not shown that the harm that he 

fears from Valencia is connected or related to a statutorily 

protected ground, such as Romero’s race, religion, nationality, 

membership in a particular social group, or political opinion. 

We agree. There is no indication that Romero would 

likely be persecuted based on any of these characteristics. 

Rather, based on the evidence in the record, Romero could only 

conceivably have asserted that he fears persecution based on 

his membership in his stepdaughter’s family, which we have 

ruled does not qualify as a “particular social group” for these 

purposes. See, e.g., S.E.R.L. v. Att’y Gen., 894 F.3d 535, 556-

57 (3d Cir. 2018) (affirming BIA’s determination that alien 

“had not identified sufficient evidence that immediate family 

members of Honduran women unable to leave a domestic 

relationship are viewed as socially distinct within Honduran 

society”); Matter of L-E-A-, 27 I. & N. Dec. 581, 582 (U.S. 

Att’y Gen. 2019) (“[A]n alien’s family-based group will not 

constitute a particular social group unless it has been shown to 

be socially distinct in the eyes of its society, not just those of 

its alleged persecutor.”). Similarly, Romero’s fear of personal 

conflict with Valencia does not suffice to entitle him to relief

on this basis. See Gonzalez-Posadas v. Att’y Gen., 781 F.3d 
15

677, 684-85 (3d Cir. 2015) (“Conflicts of a personal nature and 

isolated criminal acts do not constitute persecution on account 

of a protected characteristic.”). Therefore, because the record 

does not compel a contrary result, substantial evidence 

supports the IJ’s finding that Romero did not have a reasonable 

fear of persecution in Mexico. Sandie, 562 F.3d at 251.

The IJ’s denial of Romero’s torture claim is also

supported by substantial evidence. In order to show a 

reasonable fear of torture under the CAT and its implementing 

regulations, an alien must show that he has a reasonable fear 

of:

(1) an act causing severe physical or mental pain 

or suffering; (2) intentionally inflicted; (3) for an 

illicit or proscribed purpose; (4) by or at the 

instigation of or with the consent or acquiescence 

of a public official who has custody or physical 

control of the victim; and (5) not arising from 

lawful sanctions. 

Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017) (quoting 

Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005)); see also 

8 C.F.R. § 208.18(a)(1) (2020). The IJ determined that

Romero did not have a reasonable fear of torture under this 

standard because Romero had not indicated that the torture he 

feared would be executed “by or at the instigation of or with 

the consent or acquiescence of a public official who has 

custody or physical control of the victim,” id., because

although “crime corruption, and gang violence are problematic 

and prevalent in Mexico, . . . the country is taking steps to 

address that issue” and, in any case, Romero has not sought 

“protection from the authorities,” Executive Office for 

Immigration Review Administrative Record at 17. 
16

The record evidence does not compel a contrary result. 

See Sandie, 562 F.3d at 251. Romero’s testimony and the 

record’s evidence about torture in Mexico are not sufficient to 

require us to conclude that Romero has a reasonable fear of 

being tortured “by or at the instigation of or with the consent 

or acquiescence of” an official in the Mexican government. 

The IJ’s finding that Romero did not have a reasonable fear of 

torture is therefore supported by substantial evidence.2

V

Because substantial evidence supports the IJ’s 

determinations that Romero did not have a reasonable fear of 

torture or a reasonable fear of persecution, we will deny his 

petition for review.

2 Romero also presents indistinct and unclear constitutional 

claims, including claims that he was denied continuances and 

that because United States Citizenship and Immigration 

Services “misapplied the correct legal standard,” it “violated 

[his] due process rights.” Pet’r’s Br. at 23-26. First, as the 

government correctly points out, there is no evidence to 

suggest that Romero requested any continuances in this case, 

so we reject his constitutional claim on this basis. Second, we 

reject Romero’s claim that the IJ applied the wrong standard 

for his CAT claim: as noted above, the IJ appropriately 

identified the standard for CAT relief and appropriately 

applied it in Romero’s case. Therefore, we reject Romero’s 

constitutional claims.