Carlos Alberto Inestroza-Tosta v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of an Order of the…

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)
_______________

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Anand V. Blakrishnan [ARGUED]
American Civil Liberties Union
125 Broad Street – 18 th 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
_______________

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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.” Santos-
Zacaria 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.

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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.

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(“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”).

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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 Inestroza-
Tosta’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).

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request, and the IJ took the government’s side. The IJ doubted
that administrative closure was available during withholding-
only 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 Inestroza-
Tosta’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. Inestroza-
Tosta 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

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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, Inestroza-
Tosta 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.

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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 withholding-
only 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

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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 Inestroza-
Tosta’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.

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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.”).

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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

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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.

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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 “clear-
statement 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 claim-
processing 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

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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

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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.

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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.” Santos-
Zacaria, 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

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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”).

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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).

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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.

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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,

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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.” Guerrero-
Lasprilla 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).

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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.

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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.”).

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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.”).

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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 Castro-
Tum, 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-

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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.

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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).

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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 Inestroza-
Tosta’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-O-
B-, 27 I. & N. Dec. 189, 191-93 (BIA 2018) (stating that a PSG
not articulated before the IJ is forfeited on appeal).

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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.

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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

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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.

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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.

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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 Inestroza-
Tosta’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).

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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 Inestroza-
Tosta’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. C ONCLUSION
For the foregoing reasons, we will deny the petition for
review.

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