CAT Relief May Be Denied at Myrie Step One Absent Proof of a >50% Likelihood of Harm, and Withholding Fails Without Nexus and Social Distinction Evidence

1. Introduction

In Rutul Jaiswal v. Attorney General United States of America (3d Cir. Feb. 19, 2026) (not precedential), the Third Circuit denied a petition for review challenging the Board of Immigration Appeals’ (“BIA”) dismissal of an appeal from an Immigration Judge’s (“IJ”) denial of withholding of removal and Convention Against Torture (“CAT”) protection.

The petitioner, Rutul A. Jaiswal, a native and citizen of India who overstayed a 2016 visa, alleged fear of harm in India based on: (i) religion (non-Hindu / later Christian practice), (ii) political opinion (support for the Congress Party), (iii) membership in a proposed particular social group (“PSG”), and (iv) mental health conditions (ADHD, PTSD, bipolar disorder). Key factual assertions included childhood abuse by his biological father, a 2018 assault in the United States by relatives allegedly motivated by religion, and a claimed 2022 death threat.

The central issues were whether the record compelled a finding of (a) past persecution “on account of” a protected ground, (b) a clear probability of future persecution on protected grounds, (c) the cognizability of the proposed PSG, and (d) a more-likely-than-not probability of torture under CAT—particularly how the agency may structure the CAT analysis under Myrie v. Att’y Gen.

2. Summary of the Opinion

  • Withholding of removal: Denied because substantial evidence supported (i) the lack of a proven nexus between alleged past harm and religion, (ii) the failure to show a clear probability of future persecution on religion, political opinion, or mental health, and (iii) the non-cognizability of the proposed PSG due to lack of social distinction.
  • CAT protection: Denied because substantial evidence supported the finding that Jaiswal failed to show, in the aggregate, a greater-than-50% likelihood of harm upon return, and therefore the agency did not need to reach whether the predicted harm legally qualifies as “torture.”
  • Asylum: Any challenge was deemed abandoned because the petitioner did not contest the IJ/BIA bases (including discretionary denial) in the petition for review.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

  • Calla-Collado v. Att’y Gen., 663 F.3d 680 (3d Cir. 2011): The court applied the standard rule that it reviews the BIA’s decision, and the IJ’s reasoning only to the extent the BIA adopted or deferred to it—framing the scope of appellate review.
  • Gomez-Zulaga v. Att’y Gen., 527 F.3d 330 (3d Cir. 2008) and Gomez-Zuluaga, 527 F.3d at 349: Used for the core elements of withholding (“more likely than not” persecution on a protected ground) and CAT (torture “more likely than not,” plus government consent/acquiescence). The opinion relies on these principles as the baseline legal tests.
  • Saban-Cach v. Att’y Gen., 58 F.4th 716 (3d Cir. 2023): Cited for the rebuttable presumption of future persecution if past persecution is shown—important because Jaiswal sought to leverage childhood abuse into a presumption. The court’s rejection of past-persecution nexus meant no presumption was triggered.
  • Doe v. Att’y Gen., 956 F.3d 135 (3d Cir. 2020): Reinforced the substantial evidence standard: the court would disturb factual findings only if any reasonable adjudicator would be compelled to conclude otherwise. This high deference drove multiple outcomes (nexus, future-risk, pattern-or-practice).
  • Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003): Provided the requirement of “specific, cogent reasons” for credibility determinations. The court used Dia to uphold the IJ’s skepticism of motive testimony grounded in decades-old childhood memory and asserted memory issues.
  • Thayalan v. Att’y Gen., 997 F.3d 132 (3d Cir. 2021): Applied to the nexus burden: the petitioner must show evidence so compelling that no reasonable factfinder could fail to find the protected-ground nexus. Here, because the asserted motive evidence was limited and discounted, Thayalan supported denying the past-persecution theory.
  • Inestroza-Tosta v. Att’y Gen., 105 F.4th 499 (3d Cir. 2024): Cited to underscore that the agency can weigh threats and other record evidence and that substantial evidence review is deferential—used to uphold rejection of a “clear probability” of future religious harm.
  • Ghebrehiwot v. Att’y Gen., 467 F.3d 344 (3d Cir. 2006): Provided the “pattern or practice” threshold—persecution must be “systematic, pervasive, or organized.” The court used this to affirm the agency’s finding that the record did not compel a conclusion that Christians in India face a qualifying pattern-or-practice of persecution.
  • Long Hao Li v. Att’y Gen., 633 F.3d 136 (3d Cir. 2011): Supported denying political-opinion withholding where the petitioner lacked past political harm, lacked ongoing activism, and offered insufficient individualized evidence of future persecution.
  • Chavarria v. Gonzalez, 446 F.3d 508 (3d Cir. 2006): Anchored the line between hardship/discrimination and “persecution,” emphasizing that persecution is not all unfair or unlawful treatment and must involve a real threat to life or freedom. This framed the rejection of claims predicated on limited mental-health treatment and stigma.
  • Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Used to decline review of a newly minted “imputed Muslim” theory as unexhausted—reinforcing that petitioners generally must present issues to the agency first.
  • Radiowala v. Att’y Gen., 930 F.3d 577 (3d Cir. 2019) and S.E.R.L. v. Att’y Gen., 894 F.3d 535 (3d Cir. 2018): These cases supplied the governing “social distinction” requirement for PSGs and the evidentiary demand for “proof of societal views.” They were decisive: even if laws or hostility toward conversion exist, the record must show that the relevant society perceives the proposed group as distinct.
  • Myrie v. Att’y Gen., 855 F.3d 509 (3d Cir. 2017): The opinion’s key doctrinal move on CAT was procedural: the agency may dispose of a CAT claim at Myrie step one (what is likely to happen) without reaching step two (whether it is torture) if the likelihood of harm is not proven.
  • Herrow v. Att’y Gen., 93 F.4th 107 (3d Cir. 2024): Provided the “aggregate risk > 50%” framing for CAT. The court used it to evaluate Jaiswal’s cumulative theories (family, religion, politics, mental health) and to conclude the record did not compel a finding meeting that threshold.
  • Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993): Invoked twice for abandonment: (i) the PSG originally framed around “immediate family members of Anup Jaiswal” was treated as abandoned, and (ii) asylum challenges were deemed abandoned when not argued. This case thus functioned as an appellate gatekeeping rule.

3.2 Legal Reasoning

  1. Withholding requires a protected-ground nexus and a “more likely than not” future risk. The court accepted the agency’s key factual determinations under substantial evidence review: Jaiswal did not carry the burden to tie childhood abuse to religious motive because the IJ provided permissible reasons to discount motive testimony (youth at the time, passage of time, and memory issues), leaving no other nexus evidence.
  2. Future persecution was not shown for religion. Even crediting evidence of religious tension and a claimed threat, the agency permissibly weighed countervailing facts: limited contact with family, geographical distance, lack of prior attention from “Hindu nationalists,” and failure to prove a Ghebrehiwot-level pattern-or-practice against Christians. The Third Circuit emphasized that the question on review is not whether another inference is possible, but whether the record compels the opposite result.
  3. Future persecution was not shown for political opinion. The absence of past political harm, the lack of continued activism, and only generalized evidence of deteriorated conditions for Congress Party adherents did not compel a finding of individualized future persecution.
  4. Mental health evidence showed hardship, not persecution. The court treated evidence about stigma and limited treatment access as insufficient to constitute persecution absent a “real threat to life or freedom,” tracking Chavarria v. Gonzalez.
  5. PSG failed for lack of social distinction. Under Radiowala v. Att’y Gen. and S.E.R.L. v. Att’y Gen., the petitioner needed evidence that Indian society perceives “individuals who no longer practice the Hindu religion and were raised in strictly observant families” as a distinct group. Articles about anti-conversion laws and mistreatment of minorities did not fill the specific “societal perception of the group” evidentiary gap.
  6. CAT claim may be denied at Myrie step one. Applying Myrie v. Att’y Gen. and Herrow v. Att’y Gen., the agency concluded (and the court affirmed) that Jaiswal did not prove a >50% likelihood of harm in the first place, even aggregating all asserted sources. Because step one failed, the agency was not required to decide step two (whether the harm would be “torture”).
  7. Issue preservation mattered. The court refused to consider the “imputed Muslim” theory as unexhausted under Santos-Zacaria v. Garland and deemed several issues abandoned under Kost v. Kozakiewicz.

3.3 Impact

Although designated “not precedential,” the decision is instructive in three practical ways for Third Circuit immigration litigation:

  • Nexus proof must be concrete, especially when motive is inferred from old events. Where past harm occurred in early childhood, the court signaled receptivity to agency skepticism of motive testimony if supported by “specific, cogent reasons” (Dia v. Ashcroft).
  • PSG social distinction demands society-specific evidence. General evidence of religious hostility or laws may not establish that the particular proposed group is perceived as distinct (S.E.R.L. v. Att’y Gen.), reinforcing the need for tailored country-condition evidence about social recognition.
  • CAT adjudication can be streamlined. The opinion clarifies that when the applicant fails to prove the probability of harm (>50%) under Herrow v. Att’y Gen., the agency may deny CAT at Myrie v. Att’y Gen. step one without analyzing the legal “torture” definition—an important procedural point for briefing and agency decision-writing.

4. Complex Concepts Simplified

  • Withholding of removal: A form of protection requiring proof that persecution is more likely than not (over 50%) if returned, and that it would be because of religion, political opinion, or another protected ground.
  • Nexus (“on account of”): The protected ground must be a reason for the harm. It is not enough that harm happened and the person has a protected characteristic; the motive link must be proven.
  • Substantial evidence review: On petition for review, factual findings stand unless the record compels the opposite conclusion—meaning the petitioner must clear a very high bar.
  • Pattern or practice: A way to prove future risk without individualized targeting by showing systematic, pervasive, or organized persecution of a group (Ghebrehiwot v. Att’y Gen.).
  • Particular social group & social distinction: A PSG must be recognized by the society in question as a distinct group; it is an evidence-based inquiry into societal perception, not merely how the applicant defines the group (Radiowala v. Att’y Gen.; S.E.R.L. v. Att’y Gen.).
  • CAT and the Myrie framework: Under Myrie v. Att’y Gen., (1) decide what is likely to happen (fact), then (2) decide if it amounts to “torture” (law). If step one fails (not likely to happen), step two need not be reached.
  • Exhaustion / abandonment: Courts generally will not consider theories not presented to the agency (exhaustion), and issues not argued in the petition can be treated as waived or abandoned (Santos-Zacaria v. Garland; Kost v. Kozakiewicz).

5. Conclusion

The Third Circuit’s denial of review in Rutul Jaiswal v. Attorney General United States of America rests on deferential review of agency factfinding and insistence on proof-driven elements of protection claims: a supported nexus for past persecution, individualized or pattern-or-practice evidence for future persecution, society-specific evidence for PSG social distinction, and—under CAT—proof that the aggregate likelihood of harm exceeds 50%. Procedurally, the opinion highlights that CAT claims may be resolved at Myrie step one where the probability of harm is not established, and that unexhausted or unbriefed theories will not be entertained on judicial review.