Conspiracy Is Not Enough: Third Circuit Requires PSC Analysis to Include the Object Offense’s Elements

Key Precedents and Authorities Cited

• In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007): Establishes the two-step PSC test. Step one asks whether the elements of the offense “potentially” bring it within PSC; step two allows consideration of “all reliable information” about the conduct.
• Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982) and Matter of Carballe, 19 I. & N. Dec. 357 (BIA 1986): Earlier PSC frameworks emphasizing case-by-case analysis and the nature of the crime as indicative of dangerousness.
• Luziga v. Attorney General, 937 F.3d 244 (3d Cir. 2019): Explains that if step one fails, the inquiry ends; warns against using a hybrid of elements and facts at step one.
• Annor v. Garland, 95 F.4th 820 (4th Cir. 2024): Persuasive authority distinguishing conspiracy from completion of the object offense; conspiracy does not require proof of all elements of the substantive crime.
• Myrie v. Attorney General, 855 F.3d 509 (3d Cir. 2017) and Kaplun v. Attorney General, 602 F.3d 260 (3d Cir. 2010): Articulate the two-step CAT framework and the two-part government-acquiescence analysis.
• Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001): Requires a three-part corroboration inquiry when the agency expects corroborative evidence from an otherwise-credible applicant.
• B.C. v. Attorney General, 12 F.4th 306 (3d Cir. 2021) and Serrano-Alberto v. Attorney General, 859 F.3d 208 (3d Cir. 2017): Emphasize due process, interpreter competence, and prejudice standards in removal proceedings.
• Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020); Patel v. Garland, 596 U.S. 328 (2022): Confirm jurisdiction over constitutional and legal questions, and over CAT claims, notwithstanding 8 U.S.C. § 1252(a)(2)(C).
• Wilkinson v. Attorney General, 131 F.4th 134 (3d Cir. 2025) and Pareja v. Attorney General, 615 F.3d 180 (3d Cir. 2010): Clarify that cancellation’s “exceptional and extremely unusual hardship” is a higher bar than § 1182(h)’s “extreme hardship.”
• Regulatory authority: 8 C.F.R. § 1240.11(a)(2) (duty to inform of apparent eligibility for relief); 8 C.F.R. § 208.16(c) (CAT standards).
• Statutes: 18 U.S.C. § 371 (general conspiracy); 18 U.S.C. § 1542 (passport fraud); 8 U.S.C. §§ 1158, 1231(b)(3)(B), 1252(a)(2)(C)-(D), 1182(h), 1229b(b)(1)(D).

Legal Reasoning

1) Jurisdiction and Standard of Review

Although Amos’s conviction implicated § 1252(a)(2)(C), the court retained jurisdiction over constitutional claims and questions of law, and to review CAT determinations. Where the BIA affirms the IJ and adds analysis, both decisions are reviewed. Mixed questions (e.g., application of Myrie or N-A-M-) were reviewed de novo; certain factual components (e.g., “what is likely to happen”) are assessed within those frameworks.

2) Due Process—Interpreter

The court reiterated that due process guarantees a “full and fair hearing,” which includes effective communication through a competent interpreter when needed, not only for respondents but also for witnesses. However, on this record, the transcript reflected that the witness (the mother of Amos’s children) was responsive and articulate—even on technical or nuanced points—and counsel had represented she would testify in English. The presence of “indiscernible” notations, without other strong indicia of misunderstanding (non sequiturs, consistent confusion), was insufficient to show substantial prejudice. Still, the court underscored the IJ’s continuing duty to monitor for language issues during testimony.

3) Particularly Serious Crime—The New Rule for Conspiracy Convictions

The court’s central precedential holding concerns how the agency must perform PSC analysis under In re N-A-M- when the conviction is conspiracy under § 371. At step one, the agency must evaluate whether the elements of the offense “potentially” bring it within PSC territory. Where the conviction is for conspiracy, step one necessarily includes the elements of both the conspiracy statute and the underlying object offense (here, § 1542 passport fraud). Merely analyzing § 371 is inadequate because conspiracy is a broad inchoate offense—“not all conspiracies are created equal.” The nature of the object offense matters, and there is a “significant difference between agreeing to [commit a crime] and carrying it out.” The agency may only proceed to step two (considering “all reliable information” about the conduct) if the combined elements of conspiracy and the object offense “potentially” implicate PSC. The court cautioned against a “hybrid” element-fact approach at step one—a practice foreclosed by Luziga—because it collapses the two-step structure and risks error.

Applying these principles, the court held the BIA erred by focusing solely on § 371 and the generic conspiracy elements. It remanded with instructions to:

• Evaluate at step one the elements of both § 371 and § 1542 to determine whether they potentially comprise a PSC.
• Only if the answer is yes, proceed to step two to assess the “facts and circumstances” of the conviction using “all reliable information.”

4) CAT—Reinforcing Myrie’s Two-Step Inquiry and Government Acquiescence

The court (with government concession) found the agency failed to apply the Myrie framework:

• First step (Kaplun/Myrie): Determine “what is likely to happen” to the applicant upon return, considering all evidence, including recent affidavits (e.g., 2019 threats and searches of the mother’s home).
• Second step: Decide whether those likely events meet the legal definition of “torture.”
• Government acquiescence (Myrie’s separate two-part analysis): Make factual findings about how public officials are likely to respond and then assess whether that response constitutes “acquiescence,” including situations of willful blindness or breach of legal duty to intervene. The inability to identify individual perpetrators cannot, standing alone, defeat a claim of state involvement or acquiescence.

The BIA committed additional legal error by treating remoteness and uncertainty as determinative (labeling fear “entirely speculative”), ignoring corroborating affidavits about more recent threats, and implying that failure to identify attackers defeats proof of government acquiescence. The court reminded that circumstantial evidence can establish acquiescence and that future predictions necessarily involve some uncertainty, which is accommodated by the “more likely than not” standard rather than absolute certainty.

5) Corroboration—Abdulai Inquiry Required

When the IJ expects corroboration from an otherwise-credible applicant, Abdulai requires a three-step process: identify the facts reasonably expected to be corroborated; check whether such corroboration was provided; and if not, assess whether the applicant adequately explained the absence. The IJ and BIA referenced corroboration but did not perform this structured inquiry. On remand, in tandem with the Myrie analysis, the agency must apply Abdulai to the affidavits and other evidence.

6) Duty to Inform—Apparent Eligibility for § 1182(h) Waiver

The IJ must advise respondents of apparent eligibility for relief (8 C.F.R. § 1240.11). Amos, as the parent of four U.S.-citizen children, met the threshold relationship requirement for § 1182(h)(1)(B). Failure to advise violated the regulation and caused prejudice because the BIA incorrectly assumed that § 1182(h)’s hardship standard is more stringent than cancellation’s. The court clarified the law: § 1182(h) requires “extreme hardship” (a lower bar), whereas cancellation requires “exceptional and extremely unusual hardship” (a higher bar). The mistaken premise undermined the agency’s prejudice analysis; moreover, the record contained potential hardship evidence (including the children’s disabilities and health conditions) that could warrant favorable discretion. Remand was therefore required.

Impact and Forward-Looking Consequences

• PSC Determinations in Conspiracy Cases: The core precedential holding reshapes PSC analysis within the Third Circuit for convictions under § 371 or other inchoate offenses. Agencies must analyze the object offense’s elements at N-A-M- step one, then (and only then) proceed to step two. This curtails overbroad PSC findings premised on the generic conspiracy statute alone and aligns with persuasive reasoning from the Fourth Circuit (Annor).
• Guardrails Against “Hybrid” Analysis: By reiterating that step one is purely an elements review, the court prevents agencies from shortcutting the two-step structure. Practitioners should insist on a clean separation of steps and object-offense analysis.
• CAT Adjudication Quality: The opinion reinforces that CAT claims demand holistic review of current risk, including circumstantial evidence of state acquiescence. The inability to identify specific perpetrators does not defeat CAT, and predictions cannot be dismissed as “speculative” merely because they concern future events.
• Corroboration Discipline: Abdulai’s structured, three-part test remains mandatory when corroboration is expected. Unexplained rejections of affidavits or failure to engage the Abdulai steps will compel remand.
• IJ’s Duty to Inform of Relief: The decision underscores the IJ’s regulatory duty to advise respondents of apparent eligibility, especially for § 1182(h) relief, and clarifies that § 1182(h)’s “extreme hardship” is a lower standard than cancellation’s. This will likely increase the visibility and invocation of § 1182(h) in removal proceedings where qualifying relatives exist.
• Interpreter Vigilance: Although the due process claim failed on these facts, the court reaffirmed the constitutional and procedural imperative for IJs to ensure language access, including for witnesses, and to monitor for comprehension issues throughout the hearing.