Lucas Francisco-Gonzalez v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of a Decision of…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 25-2063
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LUCAS FRANCISCO-GONZALEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(A213-090-614)
Immigration Judge: Mary C. Lee
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 21, 2026
Before: RESTREPO, BIBAS and FISHER, Circuit Judges.
(Filed: August 19, 2026)
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OPINION*
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FISHER, Circuit Judge.
In 2002, the petitioner Lucas Francisco-Gonzalez, a native and citizen of
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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Guatemala, unlawfully entered the United States. On March 11, 2017, the Department of
Homeland Security brought removal proceedings against Francisco-Gonzalez, who
conceded removability but applied for statutory withholding of removal, for protection
under the Convention Against Torture (CAT), and for post-conclusion voluntary
departure. An immigration judge (IJ) denied each application, and the Board of
Immigration Appeals (BIA) dismissed the appeal. Challenging the BIA’s denial of his
application for withholding of removal and his application for post-conclusion voluntary
departure, Francisco-Gonzalez petitions for review.1 We will deny his petition.2
During his removal proceedings, Francisco-Gonzalez contended that he was
entitled to withholding of removal because, if returned to Guatemala, gangs will
persecute him on account of his Mayan race and his membership in a particular social
group (PSG)—“men of the Mayan Qanjob’al group.”3 In an order affirming the IJ’s
decision and denying Francisco-Gonzalez’s appeal, the BIA determined that Francisco-
1 Because his opening brief does not challenge the BIA’s denial of his application
for relief under the CAT, Francisco-Gonzalez has forfeited any argument for CAT relief.
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017).
2 The agency exercised jurisdiction under 8 U.S.C. § 1103 and 8 C.F.R.
§ 1003.1(b). We exercise jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA
affirms and partially reiterates the immigration judge’s determinations, we look to both
decisions. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). Where the BIA relied
only on a few of the immigration judge’s grounds for denying relief, we review only
those grounds. Chukwu v. Att’y Gen., 484 F.3d 185, 193 (3d Cir. 2007). We review for
substantial evidence the agency’s factual findings, and we review the agency’s legal
determinations de novo. Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020),
abrogated in part by Urias-Orellana v. Bondi, 607 U.S. 537 (2026).
3 AR 3.

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Gonzalez failed to establish “a nexus between his past harm or fear of future harm” and a
protected ground.4
Francisco-Gonzalez brings four arguments that the agency improperly denied his
application for withholding of removal. First, Francisco-Gonzalez challenges the IJ’s
finding that Francisco-Gonzalez’s testimony was incredible. Because both the IJ and the
BIA assumed Francisco-Gonzalez’s credibility, we need not address this argument.
Second, Francisco-Gonzalez correctly argues that the BIA applied the wrong legal
standard for evaluating nexus. The BIA stated that Francisco-Gonzalez failed to
“establish that a protected ground was or will be a central reason, rather than an
incidental, tangential, superficial reason, or subordinate to another reason for
persecution.”5 We have rejected the “subordinate” language of this test, concluding that
when analyzing nexus in a mixed-motives case, the result “should not depend on a
hierarchy of motivations . . . . [A] persecutor may have more than one central motivation
for his or her actions; whether one of those central reasons is more or less important than
another is irrelevant.”6
The BIA’s error, however, was harmless.7 Although the BIA reiterated the
4 AR 3.
5 AR 4 (citing Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007)).
6 Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009).
7 In an immigration case, an error is harmless when “it is highly probable that the
error did not affect the outcome of the case.” Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d
Cir. 2011).

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“subordinate” language, the BIA also cited in the same string citation our holding that a
petitioner “must show that the protected ground was or will be at least one central reason
for persecution.”8 And nothing in the BIA’s analysis suggests that the BIA rejected
Francisco-Gonzalez’s application because his race or status was subordinate to some
other central reason. Rather, the BIA rejected Francisco-Gonzalez’s application because
he failed to provide any details showing that he has suffered, or will suffer, persecution
on account of a protected ground.9 Accordingly, to the extent that the BIA’s citation of
the improper nexus standard amounted to a legal error, the error was harmless.
For his third argument, Francisco-Gonzalez argues that the agency ignored
country conditions evidence and letters of support that establish that Guatemalan gangs
have persecuted, and will persecute, him on account of his status as a Mayan man.
Relatedly, for his fourth argument, Francisco-Gonzalez argues that country conditions
evidence and letters of support establish a pattern or practice of persecution, and that the
IJ failed to consider that evidence. Neither argument is persuasive.10
To obtain withholding of removal, Francisco-Gonzalez must establish that, if
returned to Guatemala, he will more likely than not suffer persecution because of his
8 AR 4 (quoting Saban-Cach v. Att’y Gen., 58 F.4th 716, 724 (3d Cir. 2023)
(citation modified)).
9 AR 3 (“[T]he [petitioner] testified that he does not know why gang members beat
him.”) 10 The Government argues that Francisco-Gonzalez failed to exhaust his argument
that the letters of support establish a nexus. But a review of the record reveals that
Francisco-Gonzalez properly exhausted this argument before the BIA. See AR 22.

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“race, religion, nationality, membership in a particular social group, [or] political
opinion.”11 As explained, a protected ground must be “one central reason” for the
persecution he fears.12 Proof of past persecution creates a “rebuttable presumption that
the alien’s life or freedom would be threatened in the future.”13 “Persecution” is an
“extreme concept” that encompasses only grave harm, such as “threats to life,
confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom.”14
The BIA affirmed the IJ’s finding that Francisco-Gonzalez failed to establish a
nexus between his race and status as a Mayan man and his fear that gangs will persecute
him. Although the record shows that gang members beat Francisco-Gonzalez, when
responding to the IJ’s questioning, Francisco-Gonzalez could not recall why he was
attacked, could not recall any targeted statements uttered by the gang members, and could
not recall when this alleged beating occurred. Only on cross-examination could
Francisco-Gonzalez recall a possible reason for the beatings; he stated that the gang
members might have beaten him because they wanted to recruit him—not because of his
Mayan race or status. Accordingly, substantial evidence supports the IJ’s finding that
11 Saban-Cach, 58 F.4th at 724 (quoting 8 U.S.C. § 1231(b)(3)).
12 Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 685 n.6 (3d Cir. 2015).
13 Id. at 684 (citing 8 C.F.R. § 1208.16(b)(1)(i)).
14 Fatin v. INS, 12 F.3d 1233, 1240, 1243 (3d Cir. 1993).

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Francisco-Gonzalez did not suffer past persecution on account of a protected ground.15
Although Francisco-Gonzalez failed to prove that he suffered past persecution, he
could still obtain withholding if he established that, if removed, he will more likely than
not face persecution on account of a protected ground.16 Francisco-Gonzalez can
demonstrate a sufficient threat of future persecution by showing either: (1) that he will
more likely than not be individually targeted for persecution on account of his belonging
to the group of Mayan men of Q’Anjob’al; or (2) that in Guatemala there exists a pattern
or practice of persecuting Mayan Q’Anjob’al men, that he is a member of that group, and
that, if removed, he will more likely than not face threats to his life or freedom.17 “To
qualify as a pattern or practice for purposes of withholding of removal, the persecution
must be systematic, pervasive, or organized.”18
The IJ determined that because Francisco-Gonzalez’s mother and sister remain in
Guatemala unharmed, Francisco-Gonzalez failed to demonstrate that “he will be singled
out if returned to Guatemala” and failed to demonstrate “that there is a pattern or practice
in Guatemala of persecution of persons similarly situated.”19 Similarly, the BIA
determined that, although Francisco-Gonzalez may have been a member of his proposed
15 Cf. Saban-Cach, 58 F.4th at 732 (determining that expressly stated threats and
insults based on the petitioner’s indigenous identity established that the gang targeted the
petitioner on account of his indigenous identity).
16 Gonzalez-Posadas, 781 F.3d at 687.
17 Id.
18 Id. (citation modified).
19 AR 52.

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PSG, “there must be a showing that the claimed persecution is on account of the group’s
identifying characteristics.”20
Substantial evidence supports the agency’s conclusion that Francisco-Gonzalez
failed to establish that he, individually, will more likely than not face persecution on
account of his race or status and that Francisco-Gonzalez failed to establish a pattern or
practice of persecution. First, as discussed above, Francisco-Gonzalez did not establish
that the gangs targeted him on account of his Mayan race. Second, neither the country
conditions evidence nor the letters of support compel the conclusion that Francisco-
Gonzalez is more likely than not to suffer persecution on account of his being Mayan.
Although this evidence shows that Mayan men in Guatemala may suffer discrimination,
poverty, and gang recruitment, the record does not compel the conclusion that in
Guatemala there is a “systematic, pervasive, or organized”21 pattern or practice of
persecuting Mayan Qanjob’al men.
Finally, Francisco-Gonzalez challenges the IJ’s denial of his application for post-
conclusion voluntary departure. First, Francisco-Gonzalez argues that the IJ legally erred
by “cherry picking” evidence in the record to support its conclusion.22 Second, Francisco-
Gonzalez argues that the IJ “left the record so confused as to Mr. Francisco-Gonzalez’s
20 AR 3–4.
21 Gonzalez-Posadas, 781 F.3d at 687.
22 Petitioner’s Br. 37.

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eligibility for voluntary departure, that a due process violation occurred.”23
Generally, we lack jurisdiction to review the agency’s discretionary decision to
deny voluntary departure.24 But we retain jurisdiction to review “constitutional claims or
questions of law.”25 Although Francisco-Gonzalez frames his first argument—that the IJ
ignored certain evidence in favor of voluntary departure—as a legal one, a review of the
record reveals that the IJ considered all relevant evidence, including Francisco-
Gonzalez’s financial means, criminal history, and travel documentation. Because the
substance of Francisco-Gonzalez’s first argument amounts to contesting the weight the IJ
should have given certain evidence, this argument fails to invoke our jurisdiction.26
Francisco-Gonzalez’s due process argument asserts a constitutional violation, so
we have jurisdiction.27 But Francisco-Gonzalez’s argument nonetheless fails. A petitioner
has no protected liberty interest in voluntary departure or in even being considered for
voluntary departure.28 Even if he did, the BIA correctly determined that Francisco-
Gonzalez failed to establish prima facie eligibility for voluntary departure and failed to
demonstrate that he is ready, willing, and capable of voluntarily departing the country
23 Petitioner’s Br. 38.
24 See 8 U.S.C. § 1252(a)(2)(B)(i).
25 8 U.S.C. § 1252(a)(2)(D).
26 See Ku v. Att’y Gen., 912 F.3d 133, 144 (3d Cir. 2019) (“Our jurisdiction . . . is
limited to colorable claims or questions of law.”) (citation modified); Pareja v. Att’y
Gen., 615 F.3d 180, 187 (3d Cir. 2010) (“[A] party may not dress up a claim with legal
clothing to invoke this Court’s jurisdiction.”).
27 See Jarbough v. Att’y Gen., 483 F.3d 184, 189–90 (3d Cir. 2007).
28 See, e.g., United States v. Torres, 383 F.3d 92, 104–05 (3d Cir. 2004).

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within sixty days.29
For the reasons stated above, we will deny Francisco-Gonzalez’s petition for
review.
29 AR 4.

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