Exhaustion and Issue-Preservation Rule for Particular Social Group (PSG) Theories in Asylum Appeals

1. Introduction

In Miryam Soler-Martinez v. Attorney General United States of America (3d Cir. Apr. 2, 2026) (non-precedential), the Third Circuit summarily denied a petition for review from a Board of Immigration Appeals (“BIA”) decision affirming an Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and Convention Against Torture (“CAT”) protection.

The lead petitioner, Miryam Paola Soler-Martinez, a citizen of Colombia who entered the United States unlawfully, claimed fear of harm from FARC and the ELN based on (i) recruitment attempts and retaliation against her family in the early 1990s and (ii) threats after her husband recovered a stolen car with police assistance in 2022. Her asylum/withholding theory rested on membership in a proposed particular social group (“PSG”), while CAT required proof of likely torture with government involvement or acquiescence.

The central appellate issues became procedural and issue-preservation questions: whether Soler-Martinez exhausted new PSG theories raised late in the process, and whether she adequately presented claims (including CAT) to the BIA and the court of appeals.

2. Summary of the Opinion

The Third Circuit granted the Government’s motion for summary action and denied the petition for review because the petition raised no substantial question. The court held, in substance:

  • Newly articulated PSG theories (including a “family-based” PSG presented for the first time on petition for review) were not exhausted because they were not raised before the IJ and/or BIA, so the court would not consider them under 8 U.S.C. § 1252(d)(1).
  • The BIA permissibly declined to consider a different PSG first proposed on appeal to the BIA because it had not been presented to the IJ, and the petitioner did not meaningfully challenge that procedural ruling on review.
  • The CAT claim was deemed waived at the BIA level because it was not raised on appeal, and the petitioner did not provide a basis to disturb that ruling.
  • Even if the court treated certain issues as exhausted, it discerned no error in the IJ’s determinations that (a) the proposed PSG was not cognizable because it was defined by the persecution itself, and (b) the feared harm lacked the required “nexus” to a protected ground where the motivating factor was financial gain.
  • If the petitioner had new evidence or an ineffective-assistance claim, the appropriate vehicle would be a motion to reopen before the BIA—not direct appellate review on the existing administrative record.

3. Analysis

3.1. Precedents Cited

Guzman Orellana v. Attorney General, 956 F.3d 171 (3d Cir. 2020)

The IJ sua sponte considered a PSG suggested by Guzman Orellana: “witnesses who publicly assist law enforcement against certain criminal organizations.” The IJ rejected it because there was no evidence the husband’s assistance to police was “publicly visible.” The Third Circuit noted the IJ’s consideration and observed the petitioner neither challenged that rejection before the BIA nor pursued it on review—reinforcing that even potentially viable PSG frameworks must be preserved and argued.

Manuel-Soto v. Att'y Gen., 121 F.4th 468 (3d Cir. 2024)

The court relied on Manuel-Soto for the principle that a PSG must exist independently of the persecution. The IJ applied this rule to Soler-Martinez’s proposed PSG—“victims of armed conflict targeted by FARC for refusing to engage or be complicit in criminal activities”—and found it improperly persecution-defined. The Third Circuit endorsed that analysis as a sufficient basis to deny asylum and withholding on PSG cognizability grounds.

Gomez-Gabriel v. Att'y Gen., 146 F.4th 327 (3d Cir. 2025) (per curiam)

Gomez-Gabriel was used in two ways. First, procedurally, the opinion cited it in discussing exhaustion theory—whether issues may be treated as exhausted when the BIA reaches them sua sponte (contrasted with cases where the BIA issues an affirmance without opinion). Second, substantively, the opinion cited Gomez-Gabriel for the nexus principle that threats motivated by financial gain do not establish persecution “on account of” PSG membership. Here, the IJ found FARC’s threats after the car recovery were motivated by economic retaliation/self-interest rather than any protected ground; the Third Circuit deemed that determination permissible.

Quintero v. Garland, 998 F.3d 612 (4th Cir. 2021)

The Third Circuit referenced Quintero for the proposition (recognized in some authority) that IJs may have a duty to consider all PSGs suggested by the record when an applicant is pro se. The court expressly declined to opine on that question because Soler-Martinez was represented before the IJ. The reference nonetheless signals a boundary: where counsel is present, the applicant generally bears responsibility for articulating the PSG theory at the IJ stage, and cannot rely on later reformulations to cure omissions.

Suchite-Salguero v. Att'y Gen., 147 F.4th 355 (3d Cir. 2025)

The opinion cited Suchite-Salguero for the procedural route to present “new evidence”: a motion to reopen before the BIA. This underscores the record-based nature of petitions for review and the limited ability of courts of appeals to consider new factual material.

Saint Ford v. Att'y Gen., 51 F.4th 90 (3d Cir. 2022)

The opinion cited Saint Ford for the proposition that ineffective assistance of counsel is typically raised via a motion to reopen (subject to the governing administrative requirements), not as a free-standing assertion on petition for review absent proper development.

3.2. Legal Reasoning

The court’s reasoning is best understood as a layered screening analysis—procedural first, merits second:

  1. Exhaustion/Issue preservation (8 U.S.C. § 1252(d)(1)): The court refused to consider a newly minted “family members” PSG because it had not been presented to the agency. Likewise, it deferred to the BIA’s refusal to entertain a PSG newly presented on BIA appeal (having not been raised to the IJ), and noted the petitioner did not meaningfully challenge that procedural disposition.
  2. Waiver of CAT at the BIA: Because Soler-Martinez failed to raise CAT on appeal to the BIA, the BIA treated it as waived, and the Third Circuit found no basis to revisit that conclusion where the petition offered only a bare request for “CAT protection.”
  3. Merits as an alternative backstop: Even assuming exhaustion, the court agreed that (a) the proposed PSG was impermissibly defined by the harm feared (a cognizability defect), and (b) the threats tied to the stolen car dispute were motivated by financial/self-interested reasons, undermining the required “nexus” between persecution and a protected ground.
  4. Procedural channeling of “new evidence” and counsel-ineffectiveness: The court directed those claims to a motion to reopen, preserving the separation between appellate record review and agency factfinding.

3.3. Impact

Although designated “NOT PRECEDENTIAL,” the decision concretely illustrates practice-critical rules that recur in Third Circuit immigration litigation:

  • PSG theories must be articulated early: A petitioner who reshapes the PSG on appeal risks dismissal on exhaustion and preservation grounds, especially when represented before the IJ.
  • Briefing matters: Bare requests to “review” findings (without developed argument) may be treated as forfeiture in the court of appeals, and failure to brief CAT to the BIA can be fatal.
  • Nexus remains a major barrier in extortion/retaliation fact patterns: Where the record supports a financial motive, asylum/withholding claims often fail even if dangerous actors are involved.
  • Correct procedural vehicle: New evidence and ineffective assistance are channeled to motions to reopen, reinforcing the importance of preserving and compiling the record before the agency.

4. Complex Concepts Simplified

  • Particular Social Group (PSG): A protected class for asylum/withholding purposes. A PSG generally must be defined by characteristics that exist apart from the harm feared; it cannot simply be “people persecuted by X.”
  • Cognizable PSG: A PSG that satisfies legal requirements (including not being defined circularly by persecution). If the PSG is not cognizable, the asylum/withholding claim fails regardless of danger.
  • Nexus: The applicant must show the persecution is “on account of” the protected ground. If the persecutor’s motive is primarily money, revenge over property, or general criminality, nexus is often not established.
  • Exhaustion (8 U.S.C. § 1252(d)(1)): Before a federal court can review an issue, the applicant must first present it to the agency (IJ/BIA) so the agency has a fair opportunity to decide it.
  • Waiver/Forfeiture: If a claim is not raised in the BIA appeal brief (or not developed on petition for review), it may be treated as abandoned.
  • Motion to reopen: The usual mechanism to present new evidence or argue ineffective assistance after the BIA decision, rather than trying to introduce those matters directly on petition for review.
  • Summary action: A streamlined appellate disposition used when the appeal presents “no substantial question,” allowing the court to affirm/deny without full briefing and argument.

5. Conclusion

The Third Circuit’s decision emphasizes that immigration protection claims often rise or fall on procedural discipline: PSG theories must be presented to the IJ, preserved to the BIA, and meaningfully argued on petition for review. Substantively, the opinion applies familiar Third Circuit principles that (1) PSGs cannot be defined by the persecution itself and (2) criminal threats motivated by financial gain commonly fail the “nexus” requirement. Finally, it reinforces that new evidence and ineffective-assistance assertions belong in a motion to reopen—maintaining the appellate court’s role as a reviewer of the administrative record, not a finder of new facts.