PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 22-1667

_______________ 

CARLOS ALBERTO INESTROZA-TOSTA

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

_______________

On Petition for Review of an Order of the

Board of Immigration Appeals

(BIA 1:A094-901-655)

Immigration Judge: Jason L. Pope

_______________

Argued

November 1, 2023

Before: JORDAN, ROTH, and AMBRO, Circuit Judges

(Filed: June 21, 2024)

_______________
2

Anand V. Blakrishnan [ARGUED]

American Civil Liberties Union

125 Broad Street – 18th Floor

New York, NY 10004

Cheryl Lin [ARGUED]

Suite 255

338 Palisade Avenue

Jersey City, NJ 07307

 Counsel for Petitioner

Merrick B. Garland

Linda Y. Cheng

Jenny C. Lee [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

 Counsel for Respondent

Kristin A. Macleod-Ball

Trina A. Realmuto

National Immigration Litigation Alliance et al.

10 Griggs Terrace

Brookline, MA 02446

 Counsel for Amicus-Petitioners

_______________

OPINION OF THE COURT

_______________
3

JORDAN, Circuit Judge.

I. INTRODUCTION

Not every statutory filing deadline serves to limit the 

jurisdiction of federal courts. Some deadlines are simply 

claim-processing rules. The Supreme Court recently held that 

the exhaustion rule contained in 8 U.S.C. § 1252(d)(1) – a 

provision governing judicial review of deportation orders – is 

just such a nonjurisdictional “claim-processing rule.” SantosZacaria v. Garland, 598 U.S. 411, 419 (2023). Today, we 

follow the logic of that decision and hold that the 30-day 

deadline for a would-be immigrant – an “alien,” in statutory 

parlance – to seek judicial review of a “final order of removal”

is likewise nonjurisdictional. That particular deadline is set in 

8 U.S.C. § 1252(b)(1). To understand when the deadline is up, 

however, it is necessary to know when an order of removal 

becomes “final.” Our decision today also answers that 

question. An order of removal is not final until a decision has 

been made on the alien’s request for withholding of removal.

Applying those conclusions to this case, we rule that the 

petitioner, Carlos Inestroza-Tosta, timely sought review of the 

Board of Immigration Appeals’ denial of his requests for 

statutory withholding of removal and relief under the 

Convention Against Torture. Nevertheless, his petition fails 

on the merits. Although he suffered persecution in the past, he 

cannot demonstrate a clear probability of future harm based on 

a protected status or trait, as required by 8 U.S.C. § 1231(b)(3).

Accordingly, while his petition for review was timely, it must 

be denied.
4

II. BACKGROUND 

A. Statutory Background

When an alien unlawfully reenters the United States 

after having been previously removed, “the prior order of 

removal is reinstated from its original date and is not subject to 

being reopened or reviewed,” and “the alien is not eligible and 

may not apply for any relief[.]” 8 U.S.C. § 1231(a)(5). In 

short, he can be removed “at any time.” Id. An alien subject 

to a reinstated removal order may, however, seek to remain in 

the United States through withholding of removal if he claims 

a reasonable fear of persecution or torture if he were sent back

to his home country. When that kind of claim is made, the alien

is directed to an asylum officer for a reasonable-fear interview. 

8 C.F.R. § 241.8(e). If the asylum officer finds that the alien

“has not established a reasonable fear of persecution or 

torture,” the alien may ask an immigration judge (“IJ”) to 

review that determination. 8 C.F.R. § 208.31(f). If the IJ 

disagrees with the asylum officer’s determination, the IJ places 

the alien in “withholding-only proceedings,” Johnson v. 

Guzman Chavez, 594 U.S. 523, 530 (2021), and then

determines de novo the alien’s eligibility for withholding of 

removal. 8 C.F.R. § 208.31(g)(2). 

In that circumstance, the alien may seek two forms of 

relief that fall under the category of withholding of removal: 

statutory withholding of removal under 8 U.S.C. § 1231(b)(3) 

and withholding relief under the Convention Against Torture1

1 United Nations Convention Against Torture and Other 

Cruel, Inhuman or Degrading Treatment or Punishment, art. 

III, Dec. 10, 1984, 1465 U.N.T.S. 85.
5

(“CAT relief”) (collectively, “withholding-only relief”). To be 

eligible for statutory withholding of removal, the alien must 

show that his “life or freedom would be threatened in [his] 

country because of [his] race, religion, nationality, 

membership in a particular social group, or political opinion.” 

8 U.S.C. § 1231(b)(3)(A). To be eligible for CAT relief, he

must show that “it is more likely than not that he ... would be 

tortured if removed to the proposed country of removal.” 8 

C.F.R. § 1208.16(c)(2). 

B. Factual Background

Carlos Alberto Inestroza-Tosta, a native and citizen of 

Honduras, illegally entered the United States in 2006. The 

Department of Homeland Security (“DHS”) removed him to 

his home country later that year, but Inestroza-Tosta illegally 

re-entered the U.S. in 2008. He was removed again. He then

came back illegally for a third time in 2010. On March 5, 2021, 

government agents apprehended Inestroza-Tosta after his 

arrest in New Jersey for aggravated assault. His prior order of 

removal was reinstated. 

Inestroza-Tosta responded to the threat of a third 

deportation by claiming that he feared returning to Honduras. 

Consequently, he was referred to an asylum officer, who 

determined that he did not have a reasonable fear of 

persecution or torture if sent to his home country. An IJ

disagreed with that assessment, vacated the asylum officer’s

finding, and placed Inestroza-Tosta in withholding-only 

proceedings. Inestroza-Tosta then filed an application for 

statutory withholding of removal and CAT relief with United 

States Citizenship and Immigration Services (“USCIS”).
6

In March 2021, he also applied to USCIS for a so-called 

“U visa.” Such a visa is available to an alien who has “suffered 

substantial physical or mental abuse as a result of having been 

a victim” of certain crimes, and who has been helpful to law 

enforcement in “investigating or prosecuting [the] criminal 

activity” upon which his petition is based.2 8 U.S.C. 

§ 1101(a)(15)(U)(i); see 8 C.F.R. § 214.14(b). Inestroza-Tosta

claimed to be eligible for a U visa because, two years earlier, 

he had been violently attacked by three individuals in New 

Jersey and afterwards helped law enforcement investigate the 

crime. Hoping he would obtain a U visa, Inestroza-Tosta asked 

for his withholding-only hearing to be continued, pending a

decision on his U visa application. The IJ delayed InestrozaTosta’s withholding-only hearing four times, the last for 

technical difficulties. 

Eventually, the IJ set a date for the hearing, but

Inestroza-Tosta tried to have his withholding-only proceedings 

administratively closed.3

 The government opposed the 

2 In general, a U nonimmigrant can stay in the United 

States for up to four years after obtaining his U visa. 8 U.S.C. 

§ 1184(p)(6); 8 C.F.R. § 214.14(g)(1). USCIS “has sole 

jurisdiction over all petitions for U nonimmigrant status.” 8 

C.F.R. § 214.14(c)(1).

3 “Administrative closure allows an IJ or the Board [of 

Immigration Appeals] to temporarily pause removal 

proceedings and place the case on hold because of a pending 

alternative resolution or because events outside the control of 

either party may affect the case.” Arcos Sanchez v. Att’y Gen., 

997 F.3d 113, 117 (3d Cir. 2021) (internal quotation marks 

omitted). 
7

request, and the IJ took the government’s side. The IJ doubted 

that administrative closure was available during withholdingonly proceedings because precedent from the Board of 

Immigration Appeals (“BIA”) providing for administrative 

closure concerned aliens whose removal was actively in 

litigation, not ones who, like Inestroza-Tosta, had already been 

ordered to leave. Furthermore, while the IJ “believe[d] the 

applicant’s pending U visa application ... to be particularly 

strong ... considering the injuries that were suffered by the 

applicant in the aggravated assault attack,” the IJ considered 

the prospect of a visa grant to be too speculative, given 

USCIS’s more than three-month delay in processing InestrozaTosta’s U visa application. (A.R. at 23.) Because closing or 

continuing the proceedings would “result in undue delay and 

could result in prolonged detention of this applicant 

indefinitely[,]” the IJ denied Inestroza Tosta’s motion for 

administrative closure. (A.R. at 23.)

The IJ then took up Inestroza-Tosta’s motions for 

statutory withholding of removal and CAT relief. InestrozaTosta testified that, in his hometown of Tegucigalpa, 

Honduras, he had various encounters with members of MS-13, 

a notorious criminal gang. Gang members had menaced him

and his friends at school, threatening violence if they did not

join the gang. Those threats were made real sometime in 2001

or 2002 when gang members stabbed Inestroza-Tosta in the

arm when he rebuffed their recruitment efforts. He never saw 

the same individual attackers again. 

After completing school, Inestroza-Tosta moved in with 

his grandfather in Jesus de Otoro to avoid MS-13. It didn’t 

work. In June 2007, five other members of MS-13 attacked

him, and he was wounded with a machete under his left 
8

shoulder blade because he refused to sell drugs for the gang. 

He did not know his attackers’ names but recognized them as 

local drug dealers. Inestroza-Tosta was hospitalized for two 

days. He thinks the police arrested his attackers for a night and 

released them, but he does not know for sure and never saw 

them again. Worried that the gang would kill him, InestrozaTosta fled to Olancho, a three- to five-hour bus ride away. A 

year or two later, while in Olancho, his apartment building was 

shot at, but he was not hit. He believed he was being targeted 

by MS-13 again. Aside from MS-13, Inestroza-Tosta did not 

identify anyone else whom he feared.

While the IJ believed Inestroza-Tosta’s testimony and 

considered the 2007 attack to be persecution and torture, he 

held that Inestroza-Tosta had failed to establish that he was 

attacked because of his membership in a particular social group 

(“PSG”), as required by 8 U.S.C. § 1231(b)(3). Nor was his 

proffered PSG – namely those who are “gang [] violence 

recipient[s]” – recognized by law. (A.R. at 27.) Likewise, 

Inestroza-Tosta had not demonstrated an objective fear of 

future harm. He did not assert that MS-13 was tracking him or 

would likely target him if he returned to Honduras, fourteen 

years after they attacked him in Jesus de Otoro. Finally,

Inestroza-Tosta could only speculate that MS-13 had shot at 

his apartment in Olancho. Thus, the IJ denied his motion for 

statutory withholding of removal.

The IJ also denied his application for CAT relief

because Inestroza-Tosta did not demonstrate he would likely 

be subject to torture if returned to Honduras. In fact, his 

grandfather was still a resident in Jesus de Otoro and, in an

affidavit, did not indicate that the gang was looking for 

Inestroza-Tosta. 
9

He appealed next to the BIA. He did not file a brief with 

his appeal, but he filed a Notice of Appeal that claimed five 

bases for relief as follows: 

[1]. The IJ erred in not granting the motion for 

administrative closure due to the fact that 

respondent has an extremely significant 

and weighty application for a U visa 

pending.

[2]. The IJ erred in denying respondent’s 

application for withholding of removal.

[3]. The IJ erred in concluding that respondent 

was not a member of a particular social 

group.

[4]. The IJ erred in denying respondent’s 

application for withholding of removal 

under the Convention Against Torture.

[5]. Whatever additional issues a review of 

the administrative record discloses.

(A.R. at 11.)

The BIA dismissed the appeal on March 15, 2022. First, 

it affirmed the IJ’s denial of Inestroza-Tosta’s motion for 

administrative closure because it did not have the “statutory or 

regulatory authority ... to administratively close withholdingonly proceedings.” (A.R. at 3.) And, even assuming it did

have authority, the BIA held that administrative closure would 

be improper because Inestroza-Tosta’s “criminal history 

negatively affects the likelihood of relief via a U visa[.]” (A.R. 

at 4.) The BIA then affirmed the IJ’s denial of statutory 

withholding of removal because Inestroza-Tosta had “not 
10

established that any harm that he experienced or fears has a 

nexus to a protected ground,” and his proffered PSG, “gang 

violence recipient[s][,]” was “not cognizable” nor “perceived 

to exist as a distinct group within Honduran society.” (A.R. at 

4 (first alteration in original).) Finally, the BIA dismissed 

Inestroza-Tosta’s appeal of the denial of CAT relief as waived 

because he “ha[d] not identified any specific error of fact or 

law in the Immigration Judge’s denial of this form of 

protection.” (A.R. at 4.)

Inestroza-Tosta filed a petition for review with us on 

April 12, 2022, less than 30 days after the BIA dismissed his 

administrative appeal. 

III. DISCUSSION

A. Jurisdiction4

Inestroza-Tosta’s petition for review contends that the 

BIA erred in denying his motions for administrative closure, 

statutory withholding of removal, and CAT relief. Although 

both parties agree that we have jurisdiction over InestrozaTosta’s petition for review, “we have a continuing obligation 

to assess subject matter jurisdiction sua sponte at all stages of 

the proceeding[.]” Peace Church Risk Retention Grp. v. 

Johnson Controls Fire Prot. LP, 49 F.4th 866, 869 (3d Cir. 

2022). Thus, we consider our jurisdiction first. See Orie v. 

4 The BIA has appellate jurisdiction over immigration 

judges’ decisions in removal proceedings pursuant to 8 C.F.R. 

§§ 1003.1(b)(3) and 1240.15. Our jurisdiction is a subject of 

this appeal.
11

Dist. Att’y Allegheny Cnty., 946 F.3d 187, 190 n.7 (3d Cir. 

2019); Castro v. Att’y Gen., 671 F.3d 356, 364 (3d Cir. 2012).

We may only review “final order[s] of removal[,]” 8 

U.S.C. § 1252(a)(1); Khouzam v. Att’y Gen., 549 F.3d 235, 247 

(3d Cir. 2008), and, according to 8 U.S.C. § 1252(b)(1), once 

a final order of removal is issued, the alien seeking review must 

file his petition within thirty days. Inestroza-Tosta filed his 

petition on April 12, 2022, less than thirty days from the BIA’s 

dismissal on March 15, 2022 but just over a year after his 

removal order was reinstated on March 5, 2021. Hence, we 

must decide whether the thirty-day deadline set in § 1252(b)(1)

is jurisdictional or only a claim-processing rule and then 

whether the petition was timely filed. If it was timely filed, we 

can consider the merits of Inestroza-Tosta’s petition.5 In light 

of the Supreme Court’s decision in Santos-Zacaria v. Garland, 

598 U.S. 411, 416 (2023), we hold that the thirty-day deadline 

is a claim-processing rule. And we consider the petition to be

timely filed. In the end, however, Inestroza-Tosta’s petition 

loses on the merits.

5 Even if it were untimely filed, we could consider the 

merits if the rule were merely a claim processing one and the 

government forfeited any opposition to an untimely filing. Cf. 

Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023) 

(“Because § 1252(d)(1)’s exhaustion requirement is not 

jurisdictional, it is subject to waiver and forfeiture.”).
12

1. Section 1252(b)(1)’s 30-Day Filing 

Deadline is a Claim-Processing Rule

Our existing precedent holds that the 30-day filing 

deadline set by 8 U.S.C. § 1252(b)(1) is jurisdictional. See, 

e.g., Verde-Rodriguez v. Att’y Gen., 734 F.3d 198, 201 (3d Cir. 

2013) (relying on Kolkevich v. Att’y Gen., 501 F.3d 323, 337 

(3d Cir. 2007)); Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d 

Cir. 2008) (citing Stone v. I.N.S., 514 U.S. 386, 405 (1995) 

(“Judicial review provisions ... are jurisdictional in 

nature[.]”)); McAllister v. Att’y Gen., 444 F.3d 178, 185 (3d 

Cir. 2006) (relying on an out-of-circuit case saying the same). 

But we may depart from our precedent when “intervening legal 

developments have undercut [its] decisional rationale” such 

that it “no longer has any vitality or is patently inconsistent 

with subsequent legal developments.” United States v. Stimler, 

864 F.3d 253, 263 (3d Cir. 2017), vacated in part on other 

grounds by United States v. Goldstein, 902 F.3d 411 (3d Cir. 

2018) (internal quotation marks and emphasis omitted); see 

also Virgin Islands v. Martinez, 620 F.3d 321, 327 (3d Cir. 

2010) (“While a panel of our Court is bound by the 

precedential decisions of earlier panels, that rule does not apply 

when the prior decisions conflict with a Supreme Court 

decision.” (internal quotation marks and brackets omitted)). 

That is the case here, since our prior jurisdictional rulings are

incompatible with recent Supreme Court precedent.

According to 8 U.S.C. § 1252(d)(1), “[a] court may 

review a final order of removal only if [] the alien has 

exhausted all administrative remedies available to the alien as 
13

of right[.]”6 In Santos-Zacaria, the Supreme Court held that 

the claim exhaustion requirement of § 1252(d)(1) is 

nonjurisdictional. 598 U.S. at 416. In so ruling, the Court 

established an analytical framework for deciding whether a

particular prerequisite to judicial review is jurisdictional, 

“set[ting] the bounds of the ‘court’s adjudicatory authority[,]’” 

or is instead a nonjurisdictional claim-processing rule,

“govern[ing] how courts and litigants operate within those 

bounds” to “promote the orderly progress of litigation[.]” Id.

(quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). As an 

initial matter, we are to “treat a rule as jurisdictional only if 

Congress clearly states that it is[,]” with ambiguity leading to 

the conclusion that the rule is nonjurisdictional. Id. (internal 

quotation marks omitted). That is because “[h]arsh 

consequences attend the jurisdictional brand.” Id. (quoting 

Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1849 (2019)). For 

example, a court “cannot grant equitable exceptions to 

jurisdictional rules”; jurisdiction can be raised at any time 

during litigation; and jurisdictional rules must be enforced 

despite a litigant’s waiver or forfeiture. Id. So, we “‘leave the 

ball in Congress’ court,’ ensuring that courts impose harsh 

jurisdictional consequences only when Congress unmistakably 

has so instructed.” Id. (quoting Arbaugh v. Y & H Corp., 546 

U.S. 500, 515-16 (2006)). This is known as the “clear 

statement rule.” See, e.g., United States v. Wong, 575 U.S. 402, 

410 (2015).

To determine Congress’s intent, the first question is 

whether filing deadlines, like that under 8 U.S.C. § 1252(b)(1),

are “ordinarily ... not jurisdictional[.]” Santos-Zacaria, 598 

6 We discuss this provision in Section III.B.3., infra.
14

U.S. at 417 (quoting Sebelius v. Auburn Reg’l Med. Ctr., 568 

U.S. 145, 154 (2013)). The Supreme Court has answered that

“most time bars are nonjurisdictional.”7

 Wilkins v. United 

7 While “the taking of an appeal within the prescribed 

time is mandatory and jurisdictional[,]” Bowles v. Russell, 551 

U.S. 205, 209 (2007) (internal quotation marks omitted), that 

only applies to “the transfer of adjudicatory authority from one 

Article III court to another[,]” Hamer v. Neighborhood Hous. 

Servs. of Chi., 583 U.S. 17, 25 (2017). We apply the “clearstatement rule” to other appeals not involving the transfer of 

adjudicatory authority from one Article III court to another. Id. 

at 25 n.9. Our case concerns a petition for review from the 

BIA, an administrative tribunal created by regulatory authority 

and acting under a delegation of power from the Attorney 

General. 8 C.F.R. § 1003.1(a)(1). Thus, we apply the clear 

statement rule. Hamer, 583 U.S. at 25 n.9. 

That filing deadlines are ordinarily nonjurisdictional is 

a common refrain in Supreme Court jurisprudence. See, e.g.,

United States v. Wong, 575 U.S. 402, 410 (2015) (finding 

Federal Tort Claims Act deadlines, 28 U.S.C. § 2401(b), 

nonjurisdictional, in part because, “[t]ime and again, [the 

Court] ha[s] described filing deadlines as quintessential claimprocessing rules” (internal quotation marks omitted)); 

Boechler, P.C. v. Comm’r, 596 U.S. 199, 204 (2022) (finding 

nonjurisdictional the 30-day deadline to petition the Tax Court 

for review, 26 U.S.C. § 6330(d)(1), because “the text does not 

clearly mandate [a] jurisdictional reading”); Sebelius v. Auburn 

Reg’l Med. Ctr., 568 U.S. 145, 154-55 (2013) (citing cases and 

stating, “[the Court] ha[s] repeatedly held that filing deadlines 

ordinarily are not jurisdictional”); see also T Mobile Ne. LLC 

v. City of Wilmington, 913 F.3d 311, 324 (3d Cir. 2019) 

(finding that the Telecommunications Act of 1996’s 30-day 
15

States, 598 U.S. 152, 158 (2023) (quoting Wong, 575 U.S. at 

410) (concluding that the Quiet Title Act’s statute of 

limitations, 28 U.S.C. § 2409a(g), is nonjurisdictional). Hence, 

“we naturally expect the ordinary” nonjurisdictional rule to 

apply here rather than the “exceptional” jurisdictional one. 

Santos-Zacaria, 598 U.S. at 417 (quoting Sebelius, 568 U.S. at 

155). That is so “even when the time limit is important (most 

are) and even when it is framed in mandatory terms (again, 

most are); indeed, that is so ‘however emphatically’ expressed 

those terms may be[.]” Wong, 575 U.S. at 410 (internal 

brackets omitted) (quoting Henderson v. Shinseki, 562 U.S. 

428, 439 (2011)); see also Guerra v. Consol. Rail Corp., 936 

F.3d 124, 133 (3d Cir. 2019) (“Congress used mandatory 

language [for a filing deadline,] ... [b]ut emphatic words are 

not enough to make a statute jurisdictional.”). Instead, 

“Congress must do something special, beyond setting an 

exception-free deadline, to tag a [time limit] as 

jurisdictional[.]” Wong, 575 U.S. at 410.

Next, Santos-Zacaria instructs, we should consider 

whether the language of the provision under review “differs 

substantially from more clearly jurisdictional language in 

related statutory provisions.” 598 U.S. at 418. “Elsewhere in 

the laws governing immigration cases,” but not in 

§ 1252(b)(1), “Congress specified that ‘no court shall have 

jurisdiction’ to review certain matters.”8

 Id. Section 

filing deadline, 47 U.S.C. § 332(c)(7)(B)(v), is 

nonjurisdictional, in part because “filing deadlines ordinarily 

are not jurisdictional” (internal quotation marks omitted)). 

8 In reviewing § 1252(d)(1) in Santos-Zacaria, the 

Supreme Court noted examples of jurisdictional language
16

1252(b)(1) merely states, “With respect to review of an order 

of removal under subsection (a)(1), the following requirements

apply: ... The petition for review must be filed not later than 

30 days after the date of the final order of removal.” 8 U.S.C. 

§ 1252(b)(1) (emphasis added). No jurisdictional language is 

present in the provision even though Congress clearly provided 

for jurisdictional treatment elsewhere. 

Some of Santos-Zacaria’s remaining rationales apply

here as well. Like § 1252(d)(1), the provision that was held to 

be nonjurisdictional in that case, § 1252(b)(1) was “enacted at 

the same time” and was codified “in the same section” as 

provisions containing “unambiguous jurisdictional terms.” 

See Santos-Zacaria, 598 U.S. at 418-19 & n.6 (citing the 

Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546).9

 The 

contrast between the text of § 1252(b)(1) and the jurisdictional 

terms in nearby provisions “show[s] that Congress would have 

spoken in clearer terms if it intended” for § 1252(b)(1) “to have 

elsewhere: 8 U.S.C. §§ 1252(a)(2)(A), (a)(2)(B), (a)(2)(C), 

(b)(9), (g), 1182(a)(9)(B)(v), (d)(3)(B)(i), (d)(12), (h), (i)(2), 

1158(a)(3), 1227(a)(3)(C)(ii), 1229c(f), 1255a(f)(4)(C), and 

1225(b)(1)(D). 598 U.S. at 419 n.5.

9 The Court cites as examples 110 Stat. 3009-546, 3009-

577, 3009-582, 3009-597, 3009-607, 3009-612, 3009-638, 

3009-639, 3009-649, and 3009-691 (codified at 8 U.S.C. §§ 

1182(a)(9)(B)(v), (d)(12), (h), (i)(2), 1158(a)(3), 

1225(b)(1)(D), 1227(a)(3)(C)(ii), 1229c(f), 1252(a)(2)(A), 

(a)(2)(B), (a)(2)(C), (g), 1255a(f)(4)(C)). Santos-Zacaria, 598 

U.S. at 419 n.6.
17

similar jurisdictional force.” Id. at 419 (quoting Gonzalez v. 

Thaler, 565 U.S. 134, 143 (2012)).

Santos-Zacaria also all but abrogated Stone v. I.N.S., the 

Supreme Court case we relied on in holding that § 1252(b)(1)’s 

filing deadline is jurisdictional. See Vakker, 519 F.3d at 146

(citing Stone, 514 U.S. at 405). In Stone, the Supreme Court 

held that “[j]udicial review provisions ... are jurisdictional in

nature[.]” 514 U.S. at 405. But, as Santos-Zacaria recognizes, 

in interpreting precisely that language from Stone, jurisdiction 

“is a word of many, too many, meanings, and courts have more 

than occasionally used it to describe rules beyond those 

governing a court’s adjudicatory authority.” 598 U.S. at 421 

(internal quotation marks omitted) (quoting Fort Bend Cnty., 

139 S. Ct. at 1848). Stone did not “attend[] to the distinction 

between ‘jurisdictional’ rules (as we understand them today) 

and nonjurisdictional but mandatory ones.” Id. Instead, “Stone 

predates [Supreme Court] cases ... that bring some discipline 

to the use of the term jurisdictional,” id. (internal quotation 

marks and bracket omitted), cases that interpret a provision as 

jurisdictional “only if Congress clearly states that it is[,]” id. at 

416 (internal quotation marks omitted). 

Taken together, these features of § 1252(b)(1) – its 

status as a simple filing deadline “and its contrast with related, 

plainly jurisdictional provisions” – make the conclusion that it

– like § 1252(d)(1) – is a claim-processing rule “credible 

enough that we cannot deem it clearly jurisdictional.” SantosZacaria, 598 U.S. at 419. Thus, we join the Ninth and Fifth 

Circuits in holding that § 1252(b)(1) is a nonjurisdictional 

claim-processing rule. See Alonso-Juarez v. Garland, 80 F.4th 

1039, 1047 (9th Cir. 2023) (“[A]lthough we previously relied 

on Stone to hold that § 1252(b)(1) was a jurisdictional rule, that 
18

reasoning is now clearly irreconcilable with the Supreme 

Court’s intervening reasoning in Santos-Zacaria.” (internal 

quotations omitted)); Argueta-Hernandez v. Garland, 87 F.4th 

698, 705 (5th Cir. 2023) (“In Santos-Zacaria, the Supreme 

Court explained that contrary to our previous interpretation, 

[Stone] did not establish that the exhaustion requirement in 8 

U.S.C. § 1252(d)(1) was jurisdictional in nature,” and so “the 

30-day filing deadline is not jurisdictional.”).

10

2. Inestroza-Tosta’s Petition Was Timely

A petition for review is timely if it is filed within thirty

days from the alien’s “final order of removal[.]” 8 U.S.C. 

§ 1252(b)(1). Although the government now concedes that 

Inestroza-Tosta’s petition is timely, it initially contended that 

his reinstated order constituted the final order of removal and 

that his petition was untimely because it was filed in April 

2022, considerably more than 30 days after that reinstatement

in March 2021. It also argued that the BIA’s final decision

denying Inestroza-Tosta withholding of removal was not itself

10 There is a circuit split on this question. The Fourth 

Circuit held that Santos-Zacaria was limited to § 1252(d)(1) 

and did not completely overrule Stone. Salgado v. Garland, 69 

F.4th 179, 182 n.1 (4th Cir. 2023). But see Martinez v. 

Garland, 86 F.4th 561, 573 (4th Cir. 2023) (Floyd, J., 

concurring) (agreeing with our analysis). The Seventh Circuit 

recently joined the Fourth, but it did not have occasion to 

undertake the full analysis we do here. F.J.A.P. v. Garland, 94 

F.4th 620, 626 (7th Cir. 2024) (noting that briefs on the 

question were filed “shortly before oral argument” and 

acknowledging that the “argument has merit”).
19 

a “final order of removal” subject to its own thirty-day period

to file a petition for review. The government relied on 

language in two recent Supreme Court cases that lends some 

limited support to its argument. (Answering Br. at 25-27 

(citing Nasrallah v. Barr, 590 U.S. 573 (2020) and Johnson v. 

Guzman Chavez, 594 U.S. 523 (2021)).) Nonetheless, the 

government does not press that earlier position, and we follow 

our binding precedent in holding that an “order of removal” 

does not become “final” until an agency decides an alien’s 

request for withholding of removal. 

(a) Nasrallah and Guzman Chavez 

The Immigration and Nationality Act (“INA”) defines 

an “[o]rder of deportation”11 as an “order ... concluding that 

the alien is deportable or ordering deportation.” 8 U.S.C. 

§ 1101(a)(47)(A). In Nasrallah, the Supreme Court held that 

a “CAT order is not itself a final order of removal because it is 

not an order ‘concluding that the alien is deportable or ordering 

deportation.’” 590 U.S. at 582 (quoting 8 U.S.C. 

§ 1101(a)(47)(A)). When an agency grants an alien CAT 

relief, the Supreme Court explained, it does not disturb the 

determination that the alien is removable; it only bars the 

government from sending him to a dangerous country. Id. 

11 The Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 changed the language in § 1252 to 

“final order of removal” but did not amend the definitional 

section. See Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-

607 to 3009-612. We treat the terms “deportation” and 

“removal” as synonymous. Khouzam v. Att’y Gen., 549 F.3d 

235, 247 (3d Cir. 2008). 
20

Thus, the decision denying withholding of removal does not 

“conclud[e] that the alien is deportable” either. Id. But the

Supreme Court did not examine the concept of finality for 

purposes of judicial review. It focused solely on the meaning 

of the term “order of removal.” 

Later, in Guzman Chavez, the Supreme Court did 

consider finality. 594 U.S. at 533-35. It held that, once an 

alien’s order of removal is reinstated, he is subject to detention

under 8 U.S.C. § 1231(a)(2) and may not obtain a bond hearing 

as authorized by 8 U.S.C. § 1226(a)(2). Id. at 526. Section 

1231 prescribes detention for aliens during their “removal 

period,” § 1231(a)(2), which begins once “the order of removal 

becomes administratively final.” § 1231(a)(1)(B)(i). The 

Court said that the reinstatement of the alien’s removal order 

was “administratively final” even if he still had pending 

withholding-only proceedings. Guzman Chavez, 594 U.S. at 

533-35. The Court reasoned that withholding-only relief might

bar removal to a dangerous country, but “the finality of the 

order of removal does not depend in any way on the outcome 

of the withholding-only proceedings.” Id. at 539. Rather, it 

was “administratively final” at reinstatement. Id. at 534. 

While Guzman Chavez, unlike Nasrallah, did examine finality, 

it did so in the context of detention, and – most importantly –

it expressly declined to decide whether its interpretation of 

administrative finality applied to the phrase “final order of 

removal” in the context of judicial review under § 1252(b)(1).

Guzman Chavez, 594 U.S. at 535 n.6.
21 

(b) Our Precedent is Not Patently 

Inconsistent with Nasrallah and 

Guzman Chavez

Nasrallah and Guzman Chavez may be in some tension 

with our precedent, but they are not irreconcilable with it. We 

have previously held that a final decision on withholding of 

removal constitutes the “final order of removal” for aliens 

subject to reinstated orders of removal. Valarezo-Tirado v. 

Att’y Gen., 21 F.4th 256, 261 n.17 (3d Cir. 2021); Bonilla v. 

Sessions, 891 F.3d 87, 90 n.4 (3d Cir. 2018). Pursuant to those 

decisions, the BIA’s dismissal of Inestroza-Tosta’s appeal on 

March 15, 2022, would constitute his final order of removal, 

making his petition for review, filed less than a month later, on 

April 12, timely. Nasrallah and Guzman Chavez are not 

patently inconsistent with our precedent because those two 

cases did not define what a “final” order of removal is in the 

context of judicial review under § 1252(b)(1). Guzman 

Chavez, 594 U.S. at 535 n.6. Thus, we follow our precedent 

and hold that, for the purposes of judicial review, the final 

ruling on withholding of removal is a judicially reviewable

“final order of removal” for an alien subject to a reinstated 

order of removal.12 

(c) Assumption of Judicial Review 

Another consideration supports this conclusion. If we 

were to hold that the order of removal was final at 

12 The view expressed here has been adopted by several 

of our sister Circuits. See Argueta-Hernandez v. Garland, 87 

F.4th 698, 705-06 (5th Cir. 2023); Kolov v. Garland, 78 F.4th 

911, 918-19 (6th Cir. 2023); F.J.A.P. v. Garland, 94 F.4th 620, 
22

reinstatement rather than at the conclusion of withholding-only 

proceedings, judicial review of those proceedings would be 

impossible for aliens with reinstated orders of removal. See 

Martinez v. Garland, 86 F.4th 561, 573 (4th Cir. 2023) (Floyd, 

J., concurring) (“[W]ithholding and CAT proceedings often 

take months or even years to conclude – long past the 30-day 

mark.”). The present case proves the point – Inestroza-Tosta 

did not get a final decision from the BIA until a year after his 

removal order was reinstated. The promise of judicial review 

of agency action would be illusory for him and all like him if 

we accepted the government’s argument. That cannot be 

squared with the “well-settled and strong presumption” that 

Congress intends agency action, including immigration 

decisions, to be subject to judicial review, a presumption which 

“can only be overcome by clear and convincing evidence of 

congressional intent to preclude judicial review.” GuerreroLasprilla v. Barr, 589 U.S. 221, 229 (2020) (internal 

quotations marks omitted). 

The Administrative Procedures Act (“APA”) 

encourages judicial review. See 5 U.S.C. § 702 (“A person 

suffering legal wrong because of agency action ... is entitled 

637-38 (7th Cir. 2024); Alonso-Juarez v. Garland, 80 F.4th 

1039, 1048 (9th Cir. 2023); Arostegui-Maldonado v. Garland, 

75 F.4th 1132, 1141-43 (10th Cir. 2023). But the Second and 

Fourth Circuits go the other way. See Bhaktibhai-Patel v. 

Garland, 32 F.4th 180, 190 (2d Cir. 2022) (holding that Courts 

of Appeals do not have jurisdiction to hear a petition for review 

filed more than thirty days after an alien’s order of removal 

was reinstated); Martinez v. Garland, 86 F.4th 561, 570-71 

(4th Cir. 2023) (same). 
23

to judicial review thereof.”); Weyerhaeuser Co. v. U.S. Fish & 

Wildlife Serv., 586 U.S. 9, 22 (2018) (“The [APA] creates a ...

presumption of judicial review for one suffering legal wrong 

because of agency action.” (internal quotation marks and 

bracket omitted)). As mentioned, this “strong presumption 

favoring judicial review of administrative action” may only be 

overcome if the relevant statute precludes review or if the 

action is “committed to agency discretion by law[.]” 

Weyerhaeuser, 586 U.S. at 23 (quoting 5 U.S.C. § 701(a)). The 

INA defines finality and ties it to a decision by the BIA on 

removability, 8 U.S.C. § 1101(a)(47)(B),13 but that definition 

is best understood as embodying the principle – articulated by 

the Supreme Court in interpreting the APA – that 

“administrative orders are final when they mark the 

‘consummation’ of the agency’s decision-making process, and 

when ‘rights or obligations have been determined’ or when 

‘legal consequences will flow’ from the decision.” Yusupov v. 

Att’y Gen., 518 F.3d 185, 195 (3d Cir. 2008) (quoting Bennett

v. Spear, 520 U.S. 154, 177-78 (1997)); see also Ponce-Osorio 

v. Johnson, 824 F.3d 502, 504 (5th Cir. 2016) (“[The INA’s]

definition of finality ... provides little assistance [to aliens with 

a reinstated order], because DHS regulations confer no means 

to appeal the reinstatement of a removal order to the BIA.”). 

So, because “the rights, obligations, and legal consequences of 

13 The order [of removal] described under subparagraph 

(A) shall become final upon the earlier of –

(i) a determination by the Board of Immigration 

Appeals affirming such order; or

(ii) the expiration of the period in which the alien 

is permitted to seek review of such order by the 

Board of Immigration Appeals.
24

the reinstated removal order are not fully determined until the 

reasonable fear and withholding of removal proceedings are 

complete[,]” “the reinstated removal order is not final until the 

reasonable fear proceedings are complete.” Luna-Garcia v. 

Holder, 777 F.3d 1182, 1185-86 (10th Cir. 2015). 

Accordingly, Inestroza-Tosta’s “order of removal” did not 

become “final” until the BIA denied him withholding-only 

relief, “consummati[ng]” its decision-making process and 

causing “legal consequences [to] flow” from the order. 

Yusupov, 518 F.3d at 195.

In sum, we hold that Inestroza-Tosta’s petition for 

review was timely because it was filed less than thirty days 

from when the BIA denied his request for withholding-only 

relief, which finalized his reinstated order of removal for the 

purpose of judicial review.

14 We therefore proceed to consider

the merits of his petition.

14 Because we hold that Inestroza-Tosta’s petition was 

timely, we need not determine whether the filing deadline in 8 

U.S.C. § 1252(b)(1) is “mandatory” or subject to equitable 

tolling. See Guerra v. Consol. Rail Corp., 936 F.3d 124, 136 

n.6 (3d Cir. 2019) (“[W]e need not decide whether the ... filing 

deadline is a ‘mandatory’ claim-processing rule that must be 

applied if raised.”); Alonso-Juarez, 80 F.4th at 1047 (“Though 

the parties dispute whether § 1252(b)(1) is subject to equitable 

tolling if it is a nonjurisdictional rule, we need not and do not 

decide that dispute today because [the alien]’s petition was 

timely absent any tolling.”).
25

B. Merits

1. Administrative Closure15

Pursuant to their broad authority to manage their 

dockets, IJs have the discretion to administratively close 

immigration proceedings. Arcos Sanchez v. Att’y Gen., 997 

F.3d 113, 123 (3d Cir. 2021). As noted earlier, 

“[a]dministrative closure allows an IJ or the [BIA] to 

temporarily pause removal proceedings and place the case on 

hold because of a pending alternative resolution or because 

events outside the control of either party may affect the case.” 

Id. at 117 (internal quotation marks omitted). We have 

jurisdiction to review denials of administrative closure because 

the BIA has constrained “by rule” its discretion to do so. Sang 

Goo Park v. Att’y Gen., 846 F.3d 645, 651 (3d Cir. 2017); see 

Hernandez-Castillo v. Sessions, 875 F.3d 199, 207-08 (5th Cir. 

2017) (listing cases). In Matter of Avetisyan, 25 I. & N. Dec. 

688 (BIA 2012), the BIA gave guidance for IJs exercising their 

discretion to administratively close proceedings. IJs are to 

weigh “all relevant factors presented in the case,” including:

(1) the reason administrative closure is sought; 

(2) the basis for any opposition to administrative 

closure; (3) the likelihood the respondent will 

succeed on any petition, application, or other 

15 We review decisions denying administrative closure 

for abuse of discretion. Arcos Sanchez, 997 F.3d at 123; 

accord Garcia v. Garland, 64 F.4th 62, 69 (2d Cir. 2023) (“We 

review the denial of administrative closure for abuse of 

discretion.”). 
26

action he or she is pursuing outside of removal 

proceedings; (4) the anticipated duration of the 

closure; (5) the responsibility of either party, if 

any, in contributing to any current or anticipated 

delay; and (6) the ultimate outcome of removal 

proceedings (for example, termination of the 

proceedings or entry of a removal order) when 

the case is recalendared before the Immigration 

Judge or the appeal is reinstated before the 

Board.

Id. at 696. In Matter of W-Y-U-, 27 I. & N. Dec. 17 (BIA 2017),

the BIA clarified that “the primary consideration for an 

Immigration Judge in determining whether to administratively 

close or recalendar proceedings is whether the party opposing 

administrative closure has provided a persuasive reason for the 

case to proceed and be resolved on the merits.”16 Id. at 20.

16 The power to administratively close proceedings has 

been through turbulence lately. In 2018, in Matter of CastroTum, the Attorney General revoked the power “except where a 

previous regulation or settlement agreement has expressly 

conferred it.” 27 I. & N. Dec. 271, 283 (A.G. 2018). A 

regulation codified Castro-Tum two years later. Appellate 

Procedures and Decisional Finality in Immigration 

Proceedings; Administrative Closure, 85 Fed. Reg. 81588, 

81598 (Dec. 16, 2020). But see Arcos Sanchez, 997 F.3d at 

123-24 (holding that Castro Tum was wrongly decided and 

declining to abide by it). That regulation was subject to a 

nationwide injunction by Centro Legal de La Raza v. Exec. Off.

for Immigr. Rev., 524 F. Supp. 3d 919, 928-29 (N.D. Cal. 

2021). Then, a 2021 Attorney General decision overruled 

Castro-Tum, Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 328-
27

Thus, “an irrational departure from that practice might 

constitute abuse.” Sang Goo Park, 846 F.3d at 651-52. 

Here, “[b]ecause the BIA issued its own opinion, and 

did not simply adopt the opinion of the IJ, we review ... the 

BIA’s decision .... However, to the extent the BIA deferred to 

or adopted the IJ’s reasoning, we also look to and consider the 

decision of the IJ on those points.” Nelson v. Att’y Gen., 685 

F.3d 318, 320-21 (3d Cir. 2012). In declining to 

administratively close Inestroza-Tosta’s withholding-only 

proceedings, the IJ acknowledged Matter of Avetisyan and 

considered a number of factors from that precedent. The BIA 

affirmed the denial of closure, noting in particular that 

Inestroza-Tosta’s criminal record made it unlikely he would be 

granted a U visa, so further delay was unwarranted.

Inestroza-Tosta contends that the BIA abused its 

discretion by failing to fully consider the Avetisyan factors. 

The BIA considered some factors (why closure was sought and 

the likelihood of success) even though it did not mention 

29 (A.G. 2021), and a new regulation, effective July 29, 2024,

gives IJs an explicit right to administratively close 

proceedings, codifying the Avetisyan factors. Efficient Case 

and Docket Management in Immigration Proceedings, 89 Fed. 

Reg. 46742, 46789 (May 29, 2024). The currently operative 

regulation gives IJs the discretion to “take any action consistent 

with their authorities under the Act and regulations that is 

appropriate and necessary for the disposition of such cases.” 8 

C.F.R. § 1003.10(b). We have held that this broad language 

“confer[s] the general authority to administratively close cases 

to IJs[.]” Arcos Sanchez, 997 F.3d at 124.
28

Avetisyan by name. Inestroza-Tosta’s argument “gives too 

little weight to the BIA’s discretionary authority here. The 

BIA need not evaluate every factor in detail. Rather, it has

discretion to ‘weigh all relevant factors presented in the case.’” 

Hernandez-Castillo, 875 F.3d at 209 (quoting Avetisyan, 25 I. 

& N. Dec. at 696). By considering both a number of the 

Avetisyan factors and the IJ’s thorough analysis, the BIA did 

not “irrational[ly] depart[]” from its practice and did not abuse 

its discretion. Sang Goo Park, 846 F.3d at 651-52. 

2. Inestroza-Tosta Is Not Eligible for 

Statutory Withholding of Removal17

An alien qualifies for withholding of removal if he can 

show a “clear probability[,]” i.e., that it is more likely than not 

“that []he would be persecuted” on the basis of a protected 

status or trait, such as “race, religion, nationality, membership 

in a particular social group, [or] political opinion” if he 

returned home. Saban-Cach v. Att’y Gen., 58 F.4th 716, 724 

(3d Cir. 2023) (final alteration in original) (quoting 8 U.S.C. 

§ 1231(b)(3)).

The petitioner is given “a presumption” of future harm

based on a protected status or trait if he can demonstrate past 

17 When we undertake review of a BIA decision, 

“[l]egal determinations get a fresh review. For factual 

determinations, we are bound by findings of fact that are 

supported by substantial evidence unless a reasonable 

adjudicator would be compelled to arrive at a contrary 

conclusion.” Ishmael v. Att’y Gen., 77 F.4th 175, 179 (3d Cir. 

2023) (citation and internal quotation marks omitted), cert. 

denied sub nom. Ishmael v. Garland, 144 S. Ct. 592 (2024).
29

persecution because of the same. Id. But even if he cannot, he 

“can still prove future persecution by ‘establish[ing] that it is 

more likely than not that []he would be persecuted on account 

of [some protected trait] upon removal.’” Id. at 725 (first 

alteration in original) (quoting 8 C.F.R. § 1208.16(b)(2)).

Inestroza-Tosta claims that he experienced persecution 

because he suffered gang violence and will experience more 

violence if returned to Honduras. Recall that he claims to be a 

member of a PSG defined as “gang violence recipient[s].”

(A.R. at 100.)18 To succeed on his withholding of removal 

claim, he must establish that his PSG is legally cognizable, that 

he is a member of that group, that he has a well-founded fear

of persecution, and that there is “a nexus, or causal link, 

between the persecution and membership in the” PSG, S.E.R.L.

v. Att’y Gen., 894 F.3d 535, 544 (3d Cir. 2018), or, in other 

words, “that the protected ground was or will be at least one 

central reason for persecution.” Saban-Cach, 58 F.4th at 724

(internal quotation marks omitted); see 8 U.S.C.

18 Inestroza-Tosta says that the BIA “overlooked” an 

alternative PSG, “people who resist and protest gangs.” 

(Opening Br. at 14.) But he waived reliance on that PSG before 

the IJ. During his eligibility hearing, the IJ told InestrozaTosta’s lawyer, “let’s make sure we get them all. ... The Court 

wants to get them all clearly. So gang violence recipient?” 

(A.R. at 99.) The lawyer said, “Yes, Judge.” The IJ said, “And 

is there a separate ... second group?” And the lawyer said, 

“No, [y]our honor.” Thus, Inestroza-Tosta waived reliance on 

any alternative group definition. Cf. Matter of W-Y-C-& H-OB-, 27 I. & N. Dec. 189, 191-93 (BIA 2018) (stating that a PSG 

not articulated before the IJ is forfeited on appeal).
30 

§ 1158(b)(1)(B)(i); see also § 1231(b)(3)(C) (applying the 

standard of § 1158(b)(1)(B) to statutory withholding of 

removal). 

The BIA denied Inestroza-Tosta withholding of 

removal because his PSG was “not cognizable” nor “perceived 

to exist as a distinct group within Honduran society[,]” and 

because he did not “establish[] that any harm that he 

experienced or fears has a nexus to a protected ground.” (A.R. 

at 4.) In particular, the IJ found that Inestroza-Tosta did not 

meet his burden of showing that MS-13 attacked him in Jesus 

de Otoro in 2007 because of his membership in the PSG and 

he did not prove that the gang was tracking him or would likely 

target him if he returned to Honduras fourteen years later. 

(a) Inestroza-Tosta’s PSG, “Gang 

Violence Recipients,” Is Not 

Legally Cognizable19

A PSG is legally cognizable if it is “(1) composed of 

members who share a common immutable characteristic, (2) 

defined with particularity, and (3) socially distinct within the 

society in question.” S.E.R.L., 894 F.3d at 540. The 

particularity requirement is definitional, “ensuring that the 

characteristics defining a group provide a clear benchmark for 

19 The cognizability of a petitioner’s PSG “presents a 

mixed question of law and fact[.]” S.E.R.L. v. Att’y Gen., 894 

F.3d 535, 543 (3d Cir. 2018). Therefore, we review for 

substantial evidence the “underlying factual questions 

concerning the group and the society of which it is a part” and 

review de novo “the ultimate legal conclusion as to the 

existence of a particular social group[.]” Id. 
31

determining who falls within the group.” Id. at 548 (internal 

quotation marks omitted). An asserted PSG must therefore

“have discrete and ... definable boundaries that are not 

amorphous, overbroad, diffuse, or subjective so as to provide a 

clear standard for determining who is a member of it[.]” Id. at 

552 (citations and internal quotation marks omitted). The 

social distinction requirement, by contrast, asks “whether the 

people of a given society would perceive a proposed group as 

sufficiently separate or distinct[.]” Id. at 550. 

The IJ found that “gang violence recipient[s]” is not a 

legally cognizable PSG because it is “defined exclusively by 

the fact that its members have been subjected to harm.” (A.R. 

at 27 (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242

(BIA 2014)).) The BIA affirmed on that basis. (A.R. at 4 

(citing Matter of M-E-V-G-, 26 I. & N. Dec. at 242, and Matter 

of W-G-R-, 26 I. & N. Dec. 208, 215 (BIA 2014)).) We agree. 

“[P]ersecutory conduct alone cannot define a particular social 

group.” S.E.R.L., 894 F.3d at 549 (brackets omitted) (quoting

Matter of M-E-V-G-, 26 I. & N. Dec. at 242). For example, in 

Radiowala v. Attorney General we held that “[a] group of 

persons targeted for their willingness to speak the truth at great 

risk to themselves” is not legally cognizable because it is 

“defined by the harm or potential harm posed to its members.” 

930 F.3d 577, 585 (3d Cir. 2019) (internal quotation marks 

omitted). A “gang violence recipient” PSG is likewise defined 

by the harm posed to its members, so it is not cognizable.20

20 We recently noted that “in determining whether a 

PSG exists independently of the persecution suffered, the BIA 

must consider the PSG in the context both of past persecution 

and a well-founded fear of [future] persecution.” Avila v. Att’y 

Gen., 82 F.4th 250, 264 (3d Cir. 2023) (internal quotation 
32

Moreover, substantial evidence supports the BIA’s 

finding that “‘gang violence recipient[s]’ are [not] perceived to 

exist as a distinct group within Honduran society[.]” (A.R. at 

4 (first alteration in original).) Much of Inestroza-Tosta’s 

record evidence concerns gang violence in Honduras, alleged 

human rights violations perpetrated by its government, and the 

steps the Honduran government is taking to curb gang 

violence. On appeal, Inestroza-Tosta does not point to record 

evidence demonstrating social distinction. He merely contends 

that “gang violence recipients” are socially distinct because 

they “are more vulnerable due to their past traumas.” (Opening 

Br. at 14.) But that does not address how Honduran society 

might see them as a group, and thus he has failed to meet his 

burden of proof. 

marks omitted). While a PSG not independent of the harm 

cannot serve as a PSG for past persecution, “the shared 

experience of enduring past persecution may, under some 

circumstances, support defining a [PSG] for purposes of fear 

of future persecution[.]” Lukwago v. Ashcroft, 329 F.3d 157, 

172 (3d Cir. 2003). We have no occasion here to consider that 

possibility, as Inestroza-Tosta has not advanced such an

argument.
33 

(b) Inestroza-Tosta Was Not Attacked 

on the Basis of His PSG, and There 

is No Clear Probability of Future 

Harm21

Substantial evidence supports the BIA’s finding that 

Inestroza-Tosta was not attacked because of his asserted PSG

and that he did not demonstrate a clear probability of future 

harm. Nothing in the record indicates that MS-13 gang 

members attacked Inestroza-Tosta in 2007 because he was 

once a “gang violence recipient,” and he only speculates that 

the gang was targeting him again in Olancho. He claims 

someone shot at his apartment, but he did not see them. See 

Hernandez Garmendia v. Att’y Gen., 28 F.4th 476, 483 (3d Cir. 

2022) (finding no fear of future harm when petitioner “could 

neither identify the individual who shot his uncle and whether 

the shooter was in a gang, nor provide a reason why his uncle 

was shot”). The IJ found that there is no evidence that MS-13 

would be looking for him after fourteen years, nor that they 

would target him because he was once subject to gang 

violence. Inestroza-Tosta does not address that finding on 

appeal. His grandfather still lives in Jesus de Otoro and, in a 

submitted affidavit, did not “specify specific threats against 

[Inestroza-Tosta] now, or that these individuals that subjected 

him to the harm in 2007 have been back to threaten him or his 

family or have been trying to locate him.” (A.R. at 29.) See 

Hernandez Garmendia, 28 F.4th at 483-84 (“[Petitioner’s] 

grandfather, his uncle who was shot, and his aunt still reside 

unharmed in the country. They even reside in the same home 

where the shooting occurred. These facts undermine 

[Petitioner]’s claimed fear of future persecution.”). 

Accordingly, substantial evidence supports the BIA’s decision 

that Inestroza-Tosta is not eligible for withholding of removal.
34 

3. Inestroza-Tosta Did Not Exhaust 

Administrative Requirements in 

Asserting His Claim for CAT Relief 

Inestroza-Tosta did not file a brief on appeal to the BIA

and merely said in his notice of appeal that “[t]he IJ erred in 

denying respondent’s application for withholding of removal 

under the Convention Against Torture.” (A.R. at 11.) Because 

he did not “identif[y] any specific error of fact or law in the 

[IJ]’s denial of” CAT relief, the BIA considered InestrozaTosta’s CAT claim waived. (A.R. at 4 (citing Matter of Voss, 

28 I. & N. Dec. 107, 108 n.2 (BIA 2020) (“[A]n issue 

addressed in an Immigration Judge’s decision is waived when 

a party does not challenge it on appeal.”)).) 

We may review the BIA’s decision only if an alien “has 

exhausted all administrative remedies available to [him] as of 

right[.]” 8 U.S.C. § 1252(d)(1). “The exhaustion requirement 

attaches to each particular issue raised by the petitioner.” 

Castro, 671 F.3d at 365. So, the issue of exhaustion and the 

Supreme Court’s recent decision in Santos-Zacaria are front 

and center again. That decision established that the exhaustion 

requirement is a claim-processing rule. 598 U.S. at 417. We 

have said that the “exhaustion policy is ‘liberal.’” Nkomo v. 

21 “Whether an asylum applicant has demonstrated past 

persecution or a well-founded fear of future persecution is a 

factual determination reviewed under the substantial evidence 

standard.” Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005). 

We also review for substantial evidence whether a petitioner’s 

past or future harm was perpetrated “because of” a protected 

ground. Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 684, 

686 (3d Cir. 2015). 
35

Att’y Gen., 986 F.3d 268, 272 (3d Cir. 2021) (quoting Joseph v. 

Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006)). “[S]o long as an 

immigration petitioner makes some effort, however 

insufficient, to place the [BIA] on notice of a straightforward 

issue being raised on appeal, he meets the exhaustion 

requirement.” Id. (internal quotation marks omitted). But “we 

will not require the BIA to guess which issues have been 

presented and which have not.” Lin v. Att’y Gen., 543 F.3d 

114, 122 (3d Cir. 2008), abrogated on other grounds by

Santos-Zacaria, 598 U.S. 411.

A petitioner need not file a brief for simple issues and 

may put the BIA on notice with a notice of appeal. Yan Lan 

Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005); Bhiski v. 

Ashcroft, 373 F.3d 363, 368 (3d Cir. 2004). But simply stating 

“the IJ erred” will seldom be enough to exhaust a claim. 

Abdulrahman v. Ashcroft, 330 F.3d 587, 595 (3d Cir. 2003).

We need not decide whether § 1252(d)(1)’s exhaustion

rule is mandatory in the present context because InestrozaTosta’s CAT claim is forfeited. He failed to exhaust his 

remedies before petitioning us, as required by 8 U.S.C. 

§ 1252(d)(1). See Munoz-De Zelaya v. Garland, 80 F.4th 689, 

694 (5th Cir. 2023) (“Regardless of whether § 1252(d)(1)’s 

claim-processing rule is mandatory in the present context, we 

decline to reach the arguments that [Petitioners] have failed to 

exhaust.”). 

IV. CONCLUSION

For the foregoing reasons, we will deny the petition for 

review.