NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________ 

No. 23-1682

_______________ 

HECTOR ABRAHAM GUERRA-LOPEZ,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

_______________ 

On Petition for Review of an Order of the 

Board of Immigration Appeals

(BIA 1:A205-760-142)

Immigration Judge: David Cheng

_______________

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

March 4, 2024

Before: JORDAN, PHIPPS, and FREEMAN, Circuit Judges

(Filed: March 19, 2024)

_______________

OPINION∗

_______________

JORDAN, Circuit Judge.

Hector Guerra-Lopez petitions for review from the Board of Immigration Appeals

(“BIA”) summarily dismissing his appeal from an order of the Immigration Judge (“IJ”) 

∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent. 
2

that denied him withholding of removal. Because the BIA did not abuse its discretion, 

we will deny the petition.

I. BACKGROUND

Guerra-Lopez is a citizen of El Salvador. He entered the United States unlawfully

on December 5, 2012, and, that same day, the Department of Homeland Security 

(“DHS”) issued his removal order. He was removed to El Salvaor on January 3, 2013. 

He unlawfully re-entered the United States in September of 2015. After Guerra-Lopez’s 

re-entry, the DHS, on September 27, 2015, issued a Notice of Intent/Decision to 

Reinstate Prior Order.1 It also referred Guerra-Lopez to an asylum officer for a 

reasonable-fear interview because he had expressed a fear of returning to El Salvador. 

The asylum officer found that he failed to establish a reasonable fear of persecution or 

torture. Guerra-Lopez appealed that finding to an IJ. 

1 When an alien unlawfully reenters the United States aftering having been 

previously removed, “the prior order of removal is reinstated from its original date and is 

not subject to being reopened or reviewed.” 8 U.S.C. § 1231(a)(5). The alien “is not 

eligible and may not apply for any relief.” Id. Because Guerra-Lopez’s 2012 removal 

order was reinstated, he could seek to avoid removal to El Salvador via withholding of 

removal, 8 U.S.C. § 1231(b)(3), or the Covention Against Torture, 8 C.F.R. 

§ 1208.16(c)(2), if he claimed a reasonable fear of persecution or torture, in which case 

he is referred to an asylum officer for a reasonable fear interview. 8 C.F.R. § 241.8(e); 

Regulations Concerning the Covention Against Torture, 64 Fed. Reg. 8478, 8485 (Feb. 

19, 1999). If the asylum officer finds that the alien “has not established a reasonable fear 

of persecution or torture,” the alien may ask an IJ to review that determination. 8 C.F.R. 

§ 208.31(f). If an IJ disagrees with the asylum officer’s determination, the IJ may place 

the alien in “withholding-only proceedings,” Johnson v. Guzman Chavez, 594 U.S. 523, 

530-31 (2021), and review de novo his or her eligibility. 8 C.F.R. § 208.31(g)(2).
3

The IJ vacated the asylum officer’s reasonable-fear determination and placed 

Guerra-Lopez in withholding-only proceedings. In a pre-hearing brief for those 

proceedings, Guerra-Lopez sought withholding of removal and protection under the 

Convention Against Torture (“CAT”) and advanced three bases for concluding that he

had suffered past persecution. First, he claimed to be a member of “the particular social 

group of young Salvadoran men living in territory controlled by the de facto government 

of the Mara Salvatrucha [(“MS-13”)]2 who are targeted for and resist forced conscription

into the forces of the [MS-13.]” (A.R. at 950 (cleaned up).) Second, he said he was 

prevented from attending Catholic mass and “receiv[ing] the sacraments and follow[ing] 

the doctrines of his religion[.]” (A.R. at 951.) And third, he said he had been forced by 

the MS-13 to vote for the Farabundo Martí National Liberation Front (“FMLN”)3

presidential candidate. Because of all that, he argued “it [was] more likely than not that 

[he] would suffer persecution” if he returned to El Salvador. (A.R. at 950.) 

The IJ granted statutory withholding of removal but did not reach a decision on the

CAT claim. The IJ decided that a group designated as “Salvadoran men who live in area 

controlled by the MS-13” was a cognizable social group because it was “defined by 

2 Mara Salvatrucha is an international criminal gang commonly known as MS-13. 

Mara Salvatrucha, Encyclopedia Britannica, https://www.britannica.com/topic/MaraSalvatrucha (Jan. 23, 2024).

3 The Farabundo Martí National Liberation Front (“FMLN”), formerly an 

insurgent group, is one of El Salvador’s political parties, officially recognized after the 

country’s civil war ended in the early 1990s. The Farabundo Martí National Liberation 

Front, Encyclopedia Britannica, https://www.britannica.com/topic/Farabundo-MartiNational-Liberation-Front (Feb. 7, 2024).
4

where they are from[ and] where they live.” (A.R. at 194.) Despite agreeing with the 

DHS that his inability to practice Catholicism was not grounds for granting his

withholding of removal claim, the IJ determined that Guerra-Lopez’s testimony provided 

sufficient evidence that he “would be harmed on account of his religion.” (A.R. at 194.) 

The IJ did not address the third point Guerra-Lopez had raised, the one pertaining to his 

allegedly forced political vote. 

The DHS appealed the IJ’s order to the BIA. The BIA, in turn, concluded it was 

“difficult to fairly adjudicate DHS’s appeal [because of the IJ’s] limited analysis,” which 

did not explain how the proffered social group – “Salvadoran men who live in area 

controlled by the MS-13” – met the requirements under BIA precedent for being 

sufficiently particularized, or why religion was a basis for withholding removal when the 

IJ acknowledged that Guerra-Lopez’s inability to participate in Catholic sacraments was 

not a reason to grant the claim. (J.A. at 14; A.R. at 123-24.) The BIA remanded the case 

for further proceedings. 

On remand,4 a different IJ denied withholding of removal. Addressing the BIA’s 

concerns, the IJ provided a detailed analysis supporting his finding that Guerra-Lopez 

had not established “a clear probability of persecution on account of any protected 

ground.”5 (J.A. at 9.) The IJ decided Guerra-Lopez’s proposed social group was not 

4 Prior to remand, the DHS sought a change of venue after Guerra-Lopez moved to 

New Jersey, and the unopposed motion was granted. 

5 Guerra-Lopez’s attorney for this proceeding relied on the pre-hearing briefing, 

offered no additional testimony, and rested on the record. 
5

cognizable. (J.A. at 9.) According to the IJ, the group was “defined by the harm 

suffered[,]” and its members did not share any “narrowing characteristic other than their

risk of being persecuted” by the MS-13. (J.A. at 9 (citation omitted).) The IJ also relied 

on BIA precedent that held that a group defined as “male Salvadorans[] who resist gang 

recruitment” failed the particularity and social viability elements required for a 

cognizable social group. (J.A. at 10 (citing Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 

2008) and Matter of E-A-G-, 24 I. & N. Dec. 591 (BIA 2008)).) 

Next, the IJ found that Guerra-Lopez’s argument that he was persecuted for his 

political opinion was unpersuasive because he did not provide evidence that the MS-13 

had agreements with the FMLN or had targeted Salvadorans who are not members of that

political party, nor did he show that the MS-13 controlled the entire country. Lastly, the 

IJ determined that Guerra-Lopez’s Catholic faith was not “one central reason” for his 

having been threatened by the MS-13. (J.A. at 11 (quoting Gonzalez-Posadas v. Att'y 

Gen., 781 F.3d 677, 684-85 (3d Cir. 2015)).) Rather, his inability to practice his faith

was “a byproduct of generalized gang violence[.]” (J.A. at 11.) Thus, the IJ concluded

that Guerra-Lopez had not clearly established any ground for withholding of removal 

and, for that reason, denied his application. 

Guerra-Lopez, through his attorney, filed a Notice of Appeal on June 12, 2019. 

The form for the Notice of Appeal6 required Guerra-Lopez to “[s]tate in detail the 

reason(s) for [the] appeal[]” and included the following warning:

6 Department of Justice Form EOIR-26. 
6

WARNING: You must clearly explain the specific facts and law on which 

you base your appeal of the Immigration Judge’s decision. The Board may 

summarily dismiss your appeal if it cannot tell from this Notice of Appeal, 

or any statement attached to this Notice of Appeal, why you are appealing.

(A.R. at 12.) In the Notice of Appeal, Guerra-Lopez’s attorney stated that: “The [IJ]

made significant errors of law and fact[]” and “went beyond the scope of the prior BIA 

order on remand.” (A.R. at 12.) Additionally, in response to question eight on the Notice 

of Appeal, which asks, “Do you intend to file a separate written brief or statement after 

filing this Notice of Appeal[,]” the attorney marked “Yes[.]” (A.R. at 12.) Another 

warning box appeared below that question: 

If you mark “Yes” in item #8, you will be expected to file a written brief or 

statement after you receive a briefing schedule from the Board. The Board 

may summarily dismiss your appeal if you do not file a brief or statement 

within the time set in the briefing schedule.

(A.R. at 12.) 

The BIA issued a briefing schedule and granted Guerra-Lopez until August 

26, 2021, to submit his opening brief. With the briefing schedule came a further 

warning that failure to file a timely brief or statement could result in summary 

dismissal by the BIA under 8 C.F.R. § 1003.1(d)(2)(i)(E). Despite that, GuerraLopez’s counsel never filed a brief. Fifteen months after the filing deadline, that 

attorney was suspended from practice before the BIA, the Immigration Courts, and 

the DHS. 

The BIA determined that Guerra-Lopez’s appeal was “amenable to summary 

dismissal” for two independent reasons. First, the Notice of Appeal failed to “contain 

statements that meaningfully apprise[d] the [BIA] of specific reasons underlying his
7 

challenge to the [IJ]’s decision[,]” and it “d[id] not cite to any supporting legal authority” 

or any contested facts or any specifics about how the IJ supposedly erred. (J.A. at 3.) 

Second, Guerra-Lopez did not file a separate brief or “reasonably explain” why he failed 

to do so, even though he had indicated he would file a brief. (J.A. at 4.) 

Guerra-Lopez now petitions for review of the summary dismissal. 

II. DISCUSSION7

The BIA’s bases for its determination “must be set forth with such clarity as to be 

understandable,” Dia v. Ashcroft, 353 F.3d 228, 241 (3d Cir. 2003) (quoting SEC v. 

Chenery Corp., 332 U.S. 194, 196 (1947)), and, in this case, those bases are quite clear. 

Guerra-Lopez utterly failed to provide the required information and briefing.

As explained on the pertinent forms, the BIA may summarily dismiss an appeal 

that “fails to specify the reasons for the appeal ... .” 8 C.F.R. § 1003.1(d)(2)(i)(A). The 

appellant’s statements must specifically identify the findings of fact and conclusions of 

law that are being challenged, with citations to supporting authority. 8 C.F.R. 

§ 1003.3(b). Additionally, the BIA is authorized to summarily dismiss an appeal when 

the appellant has stated he “will file a brief or statement in support of the appeal and, 

7

 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction 

pursuant to 8 U.S.C. §§ 1252(a)(1), (5). We review the BIA’s summary dismissal of an 

appeal for abuse of discretion. Uddin v. Att’y Gen., 870 F.3d 282, 288 (3d Cir. 2017). 

“Discretionary decisions of the BIA will not be disturbed unless they are found to be 

arbitrary, irrational or contrary to law.” Tipu v. I.N.S., 20 F.3d 580, 582 (3d Cir. 1994) 

(internal quotation marks omitted). 
8 

thereafter, does not file such brief or statement, or reasonably explain [the] failure to do 

so, within the time set for filing[.]” 8 C.F.R. § 1003.1(d)(2)(i)(E). 

“[I]t is within the [BIA’s] discretion to determine when to dismiss summarily an 

appeal for lack of specificity and when [it] is sufficiently apprised of the applicable issues 

to entertain the appeal.” Lin v. Att’y Gen., 543 F.3d 114, 124 (3d Cir. 2008), abrogated 

on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411, 413 (2023). Accordingly, 

the BIA is within its discretion to summarily dismiss an appeal on the ground that the 

Notice of Appeal is deficient. Cf. Argueta-Orellana v. Att’y Gen., 35 F.4th 144, 146-48

(3d Cir. 2022) (holding it was not an abuse of discretion for the BIA to summarily 

dismiss an appeal when the petitioner indicated “a brief supporting his appeal would 

follow” but was never filed). 

Nevertheless, Guerra-Lopez argues that he should be “given leeway” as a pro se 

appellant because the BIA was on notice of the issues on appeal. (Opening Br. at 11-12.) 

But Guerra-Lopez was not acting pro se when his Notice of Appeal was filed. Although 

poorly represented by counsel, he was not acting pro se in filing his Notice of Appeal and 

failing to submit his appeal brief. Importantly, Guerra-Lopez has never raised an 

ineffective assistance of counsel argument. On the contrary, he stated that he was “well 

represented by his prior attorney, ... who performed an excellent job of documenting this 

case, prevailing before the first [IJ], and developing and preserving the legal issues in this 

case.” (Opening Br. at 17.) 

Moreover, it is hard to see why Guerra-Lopez believes that the issues he raises 

now should have been obvious to the BIA. His Notice of Appeal said that “[the IJ] made 
9

significant errors of law and fact[]” and “went beyond the scope of the prior BIA order on 

remand.” (A.R. at 12.) In light of that, it is inadequate to say, as Guerra-Lopez now 

does, that “all of the issues on appeal had been identified and fully addressed and briefed 

below so as to make summarily dismissal unnecessary[.]” (Opening Br. at 12.) On the 

contrary, Guerra-Lopez “did nothing to alert the BIA” of the specific facts and law on 

which he based his appeal of the IJ’s decision after remand. Joseph v. Att’y Gen., 465 

F.3d 123, 126 (3d Cir. 2006). 

While we are not unsympathetic to Guerra-Lopez, given the quality of 

representation he had, we cannot reach the merits of his arguments. Our scope of review 

is limited to the BIA’s grounds for dissmissal. Dia, 353 F.3d at 241 (emphasizing that “a 

reviewing court, in dealing with a determination or judgment which an administrative 

agency alone is authorized to make, must judge the propriety of such action solely by the 

grounds invoked by the agency” (quoting Chenery Corp., 332 U.S. at 196)). “[W]e will 

not require the BIA to guess which issues have been presented and which have not.” Lin, 

543 F.3d at 122. Therefore, the BIA was within its discretion in summarily dismissing 

Guerra-Lopez’s appeal.

III. CONCLUSION

For the foregoing reasons, we will deny the petition for review.