Extortion Threats Without a Protected-Ground Nexus Do Not Support Asylum; Unexhausted CAT Claims Are Unreviewable When the Government Invokes Exhaustion

1. Introduction

In Carlos Marcos Salas v. Attorney General United States (3d Cir. Mar. 10, 2026) (non-precedential), the Third Circuit summarily denied a petition for review filed by Carlos Eduardo Marcos Salas, Estefanny Lujan Herrera, and their minor children, natives and citizens of Peru. The family entered the United States in October 2022 and was charged as inadmissible for lacking valid entry documents under 8 U.S.C. § 1182(a)(7)(A)(i)(I).

The core factual predicate was a short sequence of alleged extortion-related events in Peru: a vague note left at the family business, an assault accompanied by instructions to “comply,” a vehicular incident involving armed motorcyclists, threatening calls, and—after arrival in the United States—a funeral flower arrangement sent to Herrera’s brother in Peru.

Key legal issues included (i) whether the family established eligibility for asylum/withholding by showing persecution “on account of” a protected ground, (ii) whether the “past persecution” presumption applied, (iii) whether a CAT argument was reviewable when not raised to the BIA, and (iv) whether the IJ’s discussion of generalized criminality implicated due process.

2. Summary of the Opinion

The Third Circuit granted the Government’s motion for summary disposition under 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6, concluding the petition presented “no substantial question.” The court held:

  • The agency did not apply (and therefore did not misapply) any presumption of future persecution because it found no past persecution on a protected ground.
  • Substantial evidence supported the agency’s “nexus” determination: the threats and violence were, at most, extortion attempts motivated by financial gain, not by a protected ground.
  • The CAT challenge was unexhausted because it was not presented to the BIA and the BIA deemed it waived; because the Government invoked exhaustion, the court could not review it.
  • The due process argument rested on a misreading: the IJ did not announce that private criminal activity can never support asylum; rather, the IJ denied relief for lack of nexus to a protected ground.

3. Analysis

3.1. Precedents Cited

Espinosa-Cortez v. Att'y Gen., 607 F.3d 101 (3d Cir. 2007)

The panel cited Espinosa-Cortez v. Att'y Gen. for the rule that establishing past persecution on account of a protected ground triggers a rebuttable presumption of a well-founded fear of future persecution. The citation framed the petitioners’ primary appellate mistake: they argued the Government failed to rebut a presumption that never arose. Because the IJ and BIA found no past persecution tied to a protected ground, the Espinosa-Cortez presumption was inapplicable.

Thayalan v. Att'y Gen., 997 F.3d 132 (3d Cir. 2021)

The panel relied on Thayalan v. Att'y Gen. to underscore the statutory “nexus” requirement: persecution is “on account of” a protected ground only if that ground “was or will be at least one central reason for persecuting the applicant” (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). This precedent supplied the doctrinal lens through which extortion-motivated threats are assessed: even serious harm does not qualify for asylum/withholding if the reason for the harm is not centrally tied to protected status.

Aguilar v. Att'y Gen., 107 F.4th 164 (3d Cir. 2024)

The panel invoked Aguilar v. Att'y Gen. to enforce the exhaustion requirement when properly raised by the Government. Here, the petitioners did not present their CAT challenge to the BIA and the BIA found the issue waived. Under Aguilar, once the Government invokes exhaustion, the court must enforce it—making the CAT claim unreviewable. The same reasoning supported the court’s refusal to consider a newly articulated “particular social group” theory that was not pressed to the BIA.

3.2. Legal Reasoning

  1. Asylum/withholding turns on nexus, not merely danger. The IJ accepted that Peru faced an “aggressive wave of extortion” and treated the communications and incidents as, at most, threats for money. But the agency found the threats “extremely vague” and—critically—motivated by financial gain, i.e., criminals “targeting Salas for money” rather than for any protected characteristic. The BIA affirmed this “nexus” finding, and the Third Circuit saw no substantial question in that conclusion.
  2. No past-persecution finding means no presumption to rebut. Petitioners argued the Government failed to rebut presumed future persecution. The court clarified that the presumption never triggered because the agency did not find past persecution “on account of” a protected ground.
  3. Issue exhaustion and waiver are dispositive in court. The CAT argument was not raised to the BIA and the BIA deemed it waived; with the Government invoking exhaustion, the court treated the claim as unexhausted and outside its review.
  4. Due process claim failed because it attacked a strawman. Petitioners characterized the IJ as holding that harm by private criminals can never support asylum. The court rejected that characterization: the IJ’s decision rested on absence of nexus, not a categorical exclusion of private-actor persecution.

3.3. Impact

Although designated “NOT PRECEDENTIAL,” the decision is instructive in three recurring immigration-litigation contexts:

  • Extortion-asylum claims: The opinion exemplifies the common failure mode where applicants credibly fear criminals but cannot link the targeting to a protected ground. It reinforces that extortion ordinarily reflects a profit motive, which—without more—does not satisfy nexus.
  • Appellate framing: It highlights the importance of accurately identifying what the agency found. Arguments about the Government’s “rebuttal burden” are irrelevant if the agency never found past persecution on a protected ground.
  • Exhaustion discipline: The decision underscores that CAT and PSG theories must be clearly presented to the BIA; once the Government invokes exhaustion, the court will not entertain unexhausted issues, even if the underlying record could support them.

4. Complex Concepts Simplified

  • “Protected ground”: Asylum law protects people persecuted because of “race, religion, nationality, membership in a particular social group, or political opinion.” Being a victim of crime is not itself a protected ground.
  • “Nexus” (“on account of”): The applicant must show the persecutor’s reason for targeting them is centrally connected to a protected ground. If criminals target someone mainly for money, the required nexus is usually missing.
  • “Past persecution presumption”: If an applicant proves past persecution on a protected ground, the law presumes future persecution unless the Government rebuts it. If past persecution is not established on a protected ground, there is no presumption to rebut.
  • “Exhaustion” (8 U.S.C. § 1252(d)(1)): Before a federal court can review an issue, the applicant generally must have raised it to the BIA. If the issue was not raised and the Government invokes exhaustion, the court will not review it.
  • CAT relief: A separate protection requiring proof that torture is more likely than not, typically with government involvement or acquiescence. Even strong CAT facts cannot be considered on judicial review if the CAT claim was not properly exhausted to the BIA.

5. Conclusion

The Third Circuit’s disposition turns on two gatekeeping principles: (1) asylum/withholding requires a protected-ground nexus, and extortion-motivated harm—without more— does not satisfy that requirement; and (2) appellate review is constrained by issue exhaustion, particularly where the BIA has found waiver and the Government invokes 8 U.S.C. § 1252(d)(1). In practical terms, the opinion illustrates that credible fear of criminal violence, standing alone, is not enough for asylum—and that failing to squarely present PSG and CAT theories to the BIA can be outcome-determinative in federal court.