Exhaustion-Enforced Waiver and CAT Acquiescence: Failure to Challenge Nexus Before the BIA Bars Asylum/Withholding Review

1. Introduction

In Cesar Plaza Rivera v. Attorney General United States of America (3d Cir. Aug. 21, 2026) (non-precedential), Cesar Augusto Plaza Rivera and his minor daughter (together, “Petitioners”) sought asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) after entering the United States to escape threats and extortion from a Colombian criminal gang known as the “Death Line.”

The Immigration Judge (“IJ”) denied relief and ordered removal; the Board of Immigration Appeals (“BIA”) affirmed. The Third Circuit denied the petition for review principally on two grounds: (1) Petitioners did not exhaust (and thus could not obtain judicial review of) the IJ’s dispositive “nexus” ruling for asylum/withholding; and (2) substantial evidence supported the IJ’s determination that Petitioners did not show a likelihood of torture with the consent or acquiescence of the Colombian government for CAT purposes.

Although labeled “NOT PRECEDENTIAL,” the decision is a useful synthesis of two recurring constraints in immigration litigation: administrative issue exhaustion/waiver and the evidentiary showing required to prove government “acquiescence” under CAT.

2. Summary of the Opinion

• Asylum & withholding: The IJ denied relief because Rivera failed to establish a nexus between the feared harm and a protected ground (here, “membership in a particular social group”). Petitioners appealed to the BIA but did not meaningfully challenge the IJ’s nexus determination. The Third Circuit enforced exhaustion under 8 U.S.C. § 1252(d)(1) (as raised by the Government) and refused to consider a newly articulated social group theory presented for the first time on judicial review.
• CAT: The IJ found no past harm amounting to torture, no evidence the gang was currently seeking Rivera to torture him, and no showing that Colombian officials would consent or acquiesce to torture—especially given that Rivera never reported threats to police and the record reflected Colombian investigation/prosecution efforts. The Third Circuit held substantial evidence supported the denial. It also noted Petitioners did not meaningfully challenge the IJ’s specific factual findings/reasoning before the BIA (or in the Third Circuit), rendering their generalized assertions waived.

3. Analysis

3.1. Precedents Cited

A. Scope of review and standards

• Doe v. Att'y Gen., 956 F.3d 135 (3d Cir. 2020): Cited for the review framework when the BIA affirms the IJ without rejecting findings and adds “gloss”—the court may review both decisions.
• Herrera-Reyes v. Att'y Gen., 952 F.3d 101 (3d Cir. 2020): Cited for de novo review of pure legal determinations.
• Thayalan v. Att'y Gen., 997 F.3d 132 (3d Cir. 2021): Cited for substantial-evidence review of fact findings and for the “central reason” nexus requirement applying to both asylum and withholding.

B. Nexus requirement for asylum/withholding

• Gonzalez-Posadas v. Att'y Gen., 781 F.3d 677 (3d Cir. 2015): Cited for the proposition that a protected ground must be “an essential or principal reason for the persecution.”
• Gomez-Zuluaga v. Att'y Gen., 527 F.3d 330 (3d Cir. 2008): Quoted via Thayalan for the principle that failing the asylum standard generally means failing the withholding standard (given the higher burden for withholding).

C. Exhaustion as a claim-processing rule and enforcement when raised

• Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Cited for the key clarification that 8 U.S.C. § 1252(d)(1) is a claim-processing rule (not jurisdictional) and thus subject to waiver/forfeiture.
• Aguilar v. Att'y Gen., 107 F.4th 164 (3d Cir. 2024): Cited for the Third Circuit’s obligation to enforce exhaustion when the Government properly raises it.
• Fort Bend Cnty. v. Davis, 587 U.S. 541 (2019): Quoted (via Aguilar) for the general rule that courts must enforce a properly invoked claim-processing rule.
• Gomez-Gabriel v. Att'y Gen. United States, 146 F.4th 327 (3d Cir. 2025): Cited for the “notice” principle—exhaustion is not satisfied unless the petitioner places the BIA on notice of the issue with sufficient clarity to permit administrative resolution.
• United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005): Cited for appellate waiver—issues not identified/argued in the opening brief are waived. Here, it reinforced that Petitioners’ failure to engage the BIA’s waiver determination created an additional waiver problem on judicial review.

D. CAT “acquiescence” framework and waiver of undeveloped arguments

• Myrie v. Att'y Gen., 855 F.3d 509 (3d Cir. 2017): Central to the CAT analysis. It supplies (i) the definition of torture requiring action “by or at the instigation of or with the consent or acquiescence of a public official,” (ii) the “aware of” or “willfully blind” standard for acquiescence, and (iii) the two-part analytical structure separating factual predictions of official response from the legal determination whether that response constitutes acquiescence.
• Khan v. Att'y Gen., 691 F.3d 488 (3d Cir. 2012): Cited for deeming undeveloped arguments waived; the court declined to address Petitioners’ conclusory, record-uncited assertions regarding police ineffectiveness.

3.2. Legal Reasoning

A. Asylum/withholding: nexus and exhaustion

The IJ denied asylum and withholding because Petitioners did not establish the required nexus: persecution must be “on account of” a protected ground (race, religion, nationality, particular social group, political opinion). The case is notable not because it resolves what Rivera’s social group should be, but because it illustrates how nexus determinations become effectively unreviewable if not preserved.

Critically, Petitioners were unrepresented and did not propose a particular social group. The IJ suggested two potential groups—“Colombians with many friends” and “Colombians believed to be wealthy”—but ultimately found them not cognizable and found no nexus. When Petitioners appealed, they argued only that they had shown past persecution (and thus a presumption of future persecution) but did not contest the dispositive nexus ruling. The BIA therefore dismissed, deeming the nexus issue waived.

On petition for review, Petitioners tried a new theory: “Colombians who oppose gang recruitment.” The Third Circuit treated this as an unexhausted issue because it was not fairly presented to the BIA. Under 8 U.S.C. § 1252(d)(1), and consistent with Santos-Zacaria v. Garland, exhaustion is a claim-processing rule; but once the Government invoked it, Aguilar v. Att'y Gen. required enforcement. Gomez-Gabriel v. Att'y Gen. United States supplied the practical test: the BIA must be put “on notice” of the issue. Petitioners did not do so, so the court declined review.

The opinion also underscores layered forfeiture: Petitioners did not even address the BIA’s finding of waiver in their opening brief, triggering appellate waiver under United States v. Pelullo.

B. CAT: likelihood of torture and government acquiescence

For CAT protection, Petitioners had to prove it is “more likely than not” they would be tortured if removed. But even a credible fear of brutal gang violence is insufficient unless the torture would occur “by or at the instigation of or with the consent or acquiescence of a public official.” Applying Myrie v. Att'y Gen., the court emphasized:

1. Predictive fact finding: How Colombian officials would likely respond to the feared harm.
2. Legal characterization: Whether that predicted response amounts to “consent” or “acquiescence” (including willful blindness).

The IJ relied on two categories of evidence: (i) Rivera never reported threats to the police (limiting any inference that officials would turn a blind eye), and (ii) country-conditions evidence indicating that the Colombian government generally investigates and prosecutes gang violence and takes steps to identify and punish official human-rights abusers. From those facts, the IJ found no showing of acquiescence. The Third Circuit held that substantial evidence supported this conclusion.

The court also highlighted that Petitioners’ appellate presentation was largely conclusory: they asserted officials are “ineffective” and police would do nothing, but did not tether those claims to record evidence or meaningfully attack the IJ’s specific findings—triggering waiver principles (citing Khan v. Att'y Gen.).

3.3. Impact

Even as a non-precedential decision, the opinion offers concrete guidance for practitioners and pro se litigants in the Third Circuit:

• Issue preservation is outcome-determinative. A petitioner cannot salvage an asylum/withholding case by reframing the social group on judicial review if the nexus determination was not challenged before the BIA. The result is denial without reaching the merits of the newly formulated theory.
• Post–Santos-Zacaria reality: Because exhaustion is claim-processing (not jurisdictional), petitioners may hope for forfeiture. But this case illustrates that when the Government raises exhaustion, courts will enforce it, making strategic preservation before the BIA indispensable.
• CAT claims require a government-link showing. Evidence of general violence or even a risk of torture by non-state actors must be paired with proof that officials would consent, acquiesce, or be willfully blind—supported by record citations and targeted challenges to IJ findings.
• “Meaningful challenge” matters. Both the BIA and the Third Circuit signaled that generic disagreement is not enough; appellants must engage specific findings and reasoning to avoid waiver.

4. Complex Concepts Simplified

Nexus (“on account of” a protected ground)

To win asylum/withholding, it is not enough to show danger. The harm must be connected to a legally protected reason (race, religion, nationality, political opinion, or membership in a particular social group). If criminals target someone for money, opportunism, or generalized intimidation, that often fails the nexus test unless tied to a protected ground.

Particular social group (PSG)

A PSG is a defined group recognized under asylum law. Courts and the BIA require the group to satisfy legal criteria (often discussed as immutability, particularity, and social distinction). In this case, the IJ proposed candidate groups due to Petitioners’ pro se status, then found them not cognizable. Because Petitioners did not challenge that ruling before the BIA, the courts would not consider a new PSG later.

Exhaustion of administrative remedies

Before going to federal court, the petitioner must first present the issue to the BIA so the agency has a fair chance to correct errors. After Santos-Zacaria v. Garland, exhaustion is not jurisdictional, but if the Government invokes it, courts will generally enforce it.

CAT “acquiescence” and “willful blindness”

CAT can cover torture by gangs only if government officials would consent to it, participate in it, or knowingly ignore it. “Willful blindness” means officials would effectively look the other way despite awareness of the likely torture. Evidence that a government investigates/prosecutes crimes can undercut acquiescence, while evidence of systemic corruption or routine nonresponse can support it— but it must be developed and tied to the record.

Derivative relief

Rivera’s daughter could be a “derivative” beneficiary for asylum, but not for withholding of removal (the statute does not authorize derivative withholding). This can affect how families structure claims and what relief is practically available to each family member.

5. Conclusion

The Third Circuit denied review because Petitioners failed to exhaust a dispositive asylum/withholding issue—nexus to a protected ground—by not meaningfully challenging the IJ’s nexus determination before the BIA, and because substantial evidence supported the denial of CAT relief for lack of proof that Colombian officials would consent or acquiesce to torture.

The decision’s central takeaway is procedural and practical: immigration cases are frequently won or lost on preservation. A petitioner must squarely contest the IJ’s dispositive rulings before the BIA and must support CAT arguments with record-based, specific challenges to predicted official conduct and the legal “acquiescence” standard articulated in Myrie v. Att'y Gen..