Elements-First, Facts-Second: The Fourth Circuit Enforces the Sequential Two-Step Test for the “Particularly Serious Crime” Bar

1. Introduction

In Warner Guevara Martinez v. Todd Blanche (4th Cir. July 7, 2026), the Fourth Circuit reviewed a Board of Immigration Appeals (“BIA”) decision affirming an immigration judge (“IJ”)’s denial of three forms of relief from removal: asylum, withholding of removal, and Convention Against Torture (“CAT”) protection.

The case turned on two distinct tracks. First, the IJ found the petitioner not credible and denied CAT relief on the merits. Second, the IJ concluded the petitioner was statutorily barred from asylum and withholding because of a Virginia misdemeanor conviction for assault and battery against a family member, which the agency treated as a “particularly serious crime”. The central legal issue on appeal was not whether the petitioner’s testimony was believable (the court agreed it was not), but whether the agency applied the correct legal framework for the “particularly serious crime” bar.

2. Summary of the Opinion

The Fourth Circuit granted the petition in part and denied it in part. It:

  • Vacated and remanded the BIA’s decision on asylum and withholding because the IJ and BIA failed to apply the required two-step, sequential analysis for determining whether a non-per-se offense is a “particularly serious crime.”
  • Affirmed the adverse credibility determination under the substantial-evidence standard.
  • Affirmed the denial of CAT protection, concluding the IJ’s findings were supported by substantial evidence and the denial was not an abuse of discretion.

Judge Wilkinson dissented, arguing remand was “gratuitous” because, in his view, the adverse credibility finding independently doomed asylum and withholding and the particularly-serious-crime analysis was therefore immaterial.

3. Analysis

A. Precedents Cited

1) The governing “particularly serious crime” framework

The court anchored its holding in Fourth Circuit and BIA precedent requiring a structured analysis for non-automatic “particularly serious crime” findings:

  • Annor v. Garland, 95 F.4th 820 (4th Cir. 2024): The key Fourth Circuit precedent. It requires IJs to apply a two-step test and to do so in order: (1) assess whether the elements of the offense place it “within the ambit” of a particularly serious crime; and only then (2) consider whether the facts and circumstances confirm it is particularly serious. The Martinez panel treated failure to conduct a meaningful step-one analysis—and swapping the order—as reversible legal error.
  • Matter of N-A-M-, 24 I & N Dec. 336 (BIA 2007): The BIA decision from which Annor derives the two-step structure. Martinez enforces the requirement that step one be a genuine elements-based analysis, not a conclusory statement.
  • In re B-Z-R-, 28 I & N Dec. 563 (A.G. 2022): Cited for the proposition that non-per-se crimes are assessed on a “case-by-case basis.”
  • Ojo v. Garland, 25 F.4th 152 (2d Cir. 2022): Endorsed by Annor and again by Martinez for the point that it is inadequate to label an offense merely as a “crime against persons” without analyzing its elements.
  • Diahn v. Blanche, 175 F.4th 291 (4th Cir. 2026): Cited for the label “particularly serious crime bar” and to situate the doctrine within the circuit’s immigration jurisprudence.

2) Jurisdiction to review legal errors in “particularly serious crime” analysis

  • Steel Co. v. Citizens for a Better Env., 523 U.S. 83 (1998): Cited for the principle that jurisdiction is addressed first.
  • Orellana v. Bondi, 141 F.4th 560 (4th Cir. 2025): Used to emphasize that even where an agency determination may be characterized as discretionary, courts retain jurisdiction over “questions of law” under 8 U.S.C. § 1252(a)(2)(D), and agency action is invalid when it fails to follow binding procedures.
  • Annor v. Garland and Hussen v. Bondi, 135 F.4th 150 (4th Cir. 2025): Cited for the Fourth Circuit’s repeated holding that it has jurisdiction to review claims that the BIA failed to adhere to its own precedent.
  • Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), and Amos v. U.S. Att’y Gen., 157 F.4th 313 (3d Cir. 2025): Cited in a footnote to note that other circuits generally treat the ultimate “particularly serious crime” determination as reviewable when it involves applying a legal standard to established facts, though the Martinez panel did not need to decide that question.

3) Credibility and CAT review standards

  • Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014): When the BIA adopts and affirms the IJ and supplements, the court reviews both.
  • Hui Pan v. Holder, 737 F.3d 921 (4th Cir. 2013); Dankam v. Gonzalez, 495 F.3d 113 (4th Cir. 2007): Adverse credibility must rest on “specific, cogent reasons” under a totality-of-the-circumstances approach.
  • Biestek v. Berryhill, 587 U.S. 97 (2019), and Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938): Define “substantial evidence.”
  • Rusu v. I.N.S., 296 F.3d 316 (4th Cir. 2002), and Ayala-Osegueda v. Garland, 92 F.4th 220 (4th Cir. 2024): Due process in immigration requires a meaningful opportunity to be heard plus prejudice.
  • McDougall v. Bondi, 150 F.4th 637 (4th Cir. 2025): CAT denial reviewed for abuse of discretion; factual findings for substantial evidence.
  • Portillo Flores v. Garland, 3 F.4th 615 (4th Cir. 2021) (en banc); Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012); Alfaro-Zelaya v. Bondi, 157 F.4th 587 (4th Cir. 2025): CAT “more likely than not” standard and requirement of government consent or acquiescence.
  • Lopez Sorto v. Garland, 103 F.4th 242 (4th Cir. 2024), and In re J-F-F-, 23 I & N Dec. 912 (A.G. 2006): The “chain of events” approach to proving likelihood of torture.
  • Ibarra Chevez v. Garland, 31 F.4th 279 (4th Cir. 2022): An IJ acts within discretion where it considers record evidence and explains its reasoning, even if contrary evidence exists.

B. Legal Reasoning

1) Jurisdiction: legal error is reviewable even in the shadow of discretionary labeling

The government argued the “particularly serious crime” decision is an “unbounded judgment call” beyond review. The court rejected that framing, holding it had jurisdiction because the petition raised a question of law: whether the agency followed binding BIA precedent. Invoking 8 U.S.C. § 1252(a)(2)(D) and cases like Annor v. Garland and Orellana v. Bondi, the court reaffirmed a crucial administrative-law principle in immigration adjudication: discretion does not excuse legal noncompliance.

2) The new enforcement point: the “two-step” test must be meaningful and sequential

The heart of the published holding is procedural-legal, not outcome-driven: when an offense is not automatically a particularly serious crime (i.e., not a per-se category like certain aggravated felonies), the IJ must (a) conduct a meaningful elements-based analysis to decide whether the offense can fall within the “ambit” of a particularly serious crime, and then (b) move to the facts and circumstances.

The IJ’s analysis failed in two ways the court treated as independently problematic:

  • Conclusory step one: the IJ stated, without reasoning, that “the elements of the offense fall within the ambit of a particularly serious crime.” The Fourth Circuit held that under Annor v. Garland this is not enough; “crime against a person” labeling is precisely the defect criticized in Ojo v. Garland.
  • Swapped sequence: the IJ discussed the factual narrative first and only later gestured to the “ambit” inquiry, contrary to the required step-by-step order. The court treated this sequencing as part of the legal error because BIA precedent requires the steps be taken “in order.”

Importantly, the court emphasized that the BIA “may very well reach the same end conclusion” on remand. But it may not “act contrary to law and flout its own precedents,” citing Mouns v. Garland.

3) Credibility and CAT: procedural protections survive disbelief

While the court’s opening frames the judiciary’s role in “ensuring adequate procedural protections” even for non-credible applicants, it did not dilute review standards. It upheld the adverse credibility finding as supported by “specific, cogent reasons” under Hui Pan v. Holder, and rejected the due process claim under Rusu v. I.N.S. for lack of prejudice. For CAT, it affirmed denial under McDougall v. Bondi, holding the IJ permissibly discounted an unauthenticated threat letter and reasonably limited the probative value of expert conclusions that depended on the petitioner’s discredited narrative.

4) The dissent’s theory of harmlessness and the majority’s implicit rejection

Judge Wilkinson’s dissent argued remand is unnecessary because the adverse credibility determination already dooms asylum and withholding, making the particularly-serious-crime analysis irrelevant “process for the sake of process.” The majority did not directly label the error “harmless” or “not harmless”; it instead treated misapplication of the agency’s binding framework as requiring vacatur and remand—consistent with its administrative-law framing that failure to follow binding procedures is generally invalid (Orellana v. Bondi). Practically, the majority’s approach signals that when a statutory bar is invoked and adjudicated, it must be adjudicated lawfully, even if the agency also relied on other adverse findings.

C. Impact

The decision’s most concrete prospective effect is doctrinal discipline in “particularly serious crime” adjudications in the Fourth Circuit:

  • For IJs and the BIA: When applying Matter of N-A-M-, they must provide a real step-one elements analysis and must do it before turning to case-specific facts. A bare statement that an offense is a “crime against a person” is not a substitute.
  • For litigants: The opinion supplies a clear, reviewable legal hook: failure to follow the sequential two-step test is a “question of law” under 8 U.S.C. § 1252(a)(2)(D), preserving appellate jurisdiction even where the government argues the inquiry is discretionary.
  • For the development of the law: The published opinion deepens a growing tension highlighted by the dissent: whether enforcing the “ambit” threshold risks resembling a categorical approach. Future cases may further define what constitutes an adequate step-one “elements” explanation—especially for broadly defined state misdemeanors such as domestic assault statutes.

4. Complex Concepts Simplified

  • Asylum vs. withholding of removal: Both require fear of persecution on protected grounds, but asylum is discretionary and has a lower proof threshold (“well-founded fear”), while withholding is mandatory if proven and requires a higher threshold (“clear probability”). (See Salgado-Sosa v. Sessions.)
  • CAT protection: Separate from asylum/withholding; requires proof it is “more likely than not” the applicant will be tortured, and that the torture involves government involvement or acquiescence. (See Alfaro-Zelaya v. Bondi; Turkson v. Holder.)
  • “Particularly serious crime” bar: A statutory bar: if the applicant was convicted of a particularly serious crime and is a danger to the community, asylum/withholding are unavailable. Some crimes are automatically included; others require a case-by-case determination.
  • The two-step test (key holding): For non-automatic offenses, the agency must (1) analyze the elements of the offense to see if it can qualify in principle, and only then (2) consider the facts of the applicant’s conduct.
  • Substantial evidence: A deferential review standard for factual findings; the court asks whether a reasonable mind could accept the evidence as adequate. (See Biestek v. Berryhill.)
  • Vacate and remand: The appellate court sets aside the agency decision and sends it back for a new decision using the correct legal standard.

5. Conclusion

Warner Guevara Martinez v. Todd Blanche is a procedural-rule decision with practical teeth. Even while affirming an adverse credibility finding and a CAT denial, the Fourth Circuit vacated and remanded because the agency did not follow its own required method for applying the “particularly serious crime” bar. The published precedent reinforces two linked principles: (1) courts retain jurisdiction to correct legal errors in agency adjudication, and (2) when the agency invokes the “particularly serious crime” bar for non-per-se offenses, it must conduct a meaningful, sequential elements-then-facts analysis under Matter of N-A-M- as enforced by Annor v. Garland.