Harmless Error in CAT Review When Likelihood-of-Torture Fails at Myrie Step One

1. Introduction

In Rafael Aguilar-Ayala v. Attorney General United States of America (3d Cir. Sept. 4, 2026) (not precedential), the Third Circuit denied a petition for review challenging the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection.

The petitioner, a Salvadoran national, asserted fear of harm by MS-13 based on asserted “particular social groups” (PSGs)—including his nuclear family—and on political opinion. He also sought CAT relief based on gang violence and country conditions evidence. The central issues on appeal were (i) whether any feared persecution had the required “nexus” to a protected ground (especially family-based PSG membership), and (ii) whether the Agency properly analyzed CAT under the two-step framework the Third Circuit articulated in Myrie.

2. Summary of the Opinion

The court upheld the Agency’s denial of asylum and withholding because substantial evidence supported the finding that MS-13 targeted the petitioner for economic reasons (extortion), not “on account of” his family membership—even assuming the family-based PSG was cognizable. The court also upheld denial of CAT relief because substantial evidence supported the Agency’s conclusion that it was speculative that MS-13 would locate and torture him upon return after years away and without evidence the gang remained interested in him.

Notably, the court held that although the Agency failed to reach the second Myrie step (government “acquiescence”), that omission was harmless because the petitioner failed at Myrie’s first step (showing it is more likely than not he would be tortured).

3. Analysis

3.1. Precedents Cited

  • Herrera-Reyes v. Att'y Gen., 952 F.3d 101 (3d Cir. 2020): Cited for the standard of review—legal issues reviewed de novo; factual findings reviewed for substantial evidence. This framing mattered because the “nexus” determination (persecutor motive) is treated as a factual finding reviewed deferentially.
  • Nasrallah v. Barr, 590 U.S. 573 (2020): Quoted for the substantial-evidence formulation: factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise. The court used this to emphasize how difficult it is to overturn motive and likelihood findings on a petition for review.
  • S.E.R.L. v. Att'y Gen., 894 F.3d 535 (3d Cir. 2018): Cited for PSG requirements, including “social distinction within the society in question.” The petitioner challenged the Agency’s social-distinction analysis of the nuclear-family PSG, but the Third Circuit resolved the case on the separate “nexus” element.
  • In re Wettach, 811 F.3d 99 (3d Cir. 2016): Used for forfeiture: arguments not raised in the opening brief are forfeited. The court applied it to deem forfeited any challenge to the non-cognizability of the petitioner’s business-based PSGs.
  • Gonzalez-Posadas v. Att'y Gen., 781 F.3d 677 (3d Cir. 2015): Cited for the two-part asylum/withholding showing: (1) a cognizable PSG and (2) membership is “one central reason” for targeting. The court relied on this to affirm denial even assuming the PSG was cognizable.
  • Ndayshimiye v. Att'y Gen., 557 F.3d 124 (3d Cir.2009): Invoked by petitioner to argue the “mixed motive” rule—persecution need only be at least in part motivated by a protected ground. The court accepted the legal premise but found the record supported the Agency’s factual finding of no protected-ground motive.
  • Thayalan v. Att'y Gen., 997 F.3d 132 (3d Cir. 2021): Cited for two points: (i) persecutors may have more than one central motivation (mixed motives), and (ii) motive/nexus is reviewed for substantial evidence. The court used Thayalan to reinforce deference to the IJ’s factual nexus finding.
  • Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002): Cited for CAT’s “more likely than not” burden and the requirement of torture “at the instigation of or with the consent or acquiescence of” a public official. This provides the doctrinal baseline for the CAT discussion.
  • Myrie v. Att'y Gen., 855 F.3d 509 (3d Cir. 2017): Central to the CAT analysis. Myrie requires a two-step inquiry: (1) what is likely to happen and whether it meets the definition of torture; and (2) how public officials will likely respond and whether that response qualifies as acquiescence. The opinion’s key procedural holding is that skipping step two can be harmless if step one fails.
  • Quinteros v. Att'y Gen., 945 F.3d 772 (3d Cir. 2019): Cited for the proposition that the Agency “must answer” both steps in evaluating CAT. The court reconciled that requirement with harmless-error doctrine by concluding that omission of step two was harmless here.
  • Li Hua Yuan v. Att'y Gen., 642 F.3d 420 (3d Cir. 2011): Cited for harmless error analysis. The court used it to justify affirmance despite the Agency’s failure to address Myrie step two.
  • In re S-V-, 22 I. & N. Dec. 1306 (BIA 2000): Cited for the CAT principle that generalized patterns of human rights abuses do not, without more, establish that a particular applicant is more likely than not to be tortured upon return.
  • Hernandez Garmendia v. Att'y Gen., 28 F.4th 476 (3d Cir. 2022): Reinforces the need for “specific evidence” that the individual applicant is more likely than not to be singled out for torture—supporting the court’s conclusion that country-conditions evidence alone did not compel relief.
  • Aguilar-Quintanilla v. McHenry, 126 F.4th 1065 (5th Cir. 2025): Cited as a contrasting “cf.” example where remand was appropriate because the IJ failed to consider key affidavits indicating an elevated, individualized risk. The Third Circuit used it to underscore what was missing here: concrete evidence of ongoing pursuit or special targeting.

3.2. Legal Reasoning

A. Asylum/Withholding: PSG Cognizability vs. Nexus

The petitioner focused on whether his nuclear family PSG was “socially distinct.” The Third Circuit, however, affirmed on an analytically prior and independently dispositive ground: nexus.

Even assuming cognizability (as the BIA did), the court held substantial evidence supported the IJ’s finding that MS-13 targeted the petitioner and his brother because they were perceived as extortion victims (economic gain), and that threats continued when they refused to pay—not because of animus toward the family as such. The court treated this as a factual determination about persecutor motive, reviewed deferentially under substantial evidence.

The petitioner argued mixed motives—financial motive plus retaliation because the family “resisted gang authority.” The court accepted mixed motives can exist (Thayalan), and that a protected ground need only be “one central reason” (Gonzalez-Posadas; Ndayshimiye), but emphasized the IJ had found no evidence the persecution was due to family membership. On this record—repeated demands for money and threats tied to payment—the court held it was not compelled to reach a different conclusion.

B. CAT: Two-Step Myrie Framework and Harmless Error

The court clarified what happened procedurally: contrary to both parties’ assertions, the IJ and BIA did not “collapse” the Myrie framework or require “direct government participation.” Instead, they denied CAT relief solely on Myrie step one—finding the petitioner did not show he was more likely than not to be tortured by MS-13 upon return.

The Agency never reached step two (public official “acquiescence”). Under Quinteros, that is ordinarily error because both steps must be answered. But the Third Circuit held the error was harmless (Li Hua Yuan) because failure at step one makes step two irrelevant: if torture itself is not shown to be more likely than not, then whether officials would acquiesce cannot change the outcome.

On the merits of step one, the court credited the IJ’s reasoning that the feared future harm was speculative: four years had passed, there was no evidence MS-13 was looking for him, and family members continued to live in and travel around El Salvador. The court also invoked In re S-V- and Hernandez Garmendia to emphasize that generalized country conditions and impunity evidence does not compel a finding of individualized, more-likely-than-not torture risk.

3.3. Impact

  • Nexus remains a decisive gatekeeper: Even where a family PSG may be assumed cognizable, this decision underscores that asylum/withholding often turns on whether the record compels a finding that family membership is a central reason for the harm, as opposed to opportunistic criminal motives like extortion.
  • CAT claims require individualized risk proof: The opinion reinforces that past gang violence and broad country conditions do not automatically translate into meeting the “more likely than not” torture standard; applicants need specific evidence of continued interest, pursuit, or elevated individualized risk.
  • Procedural clarification on Myrie omissions: The court signals that an Agency failure to address Myrie step two can be treated as harmless where step one fails—reducing the likelihood of remand in cases where the torture-likelihood finding is independently sustainable under substantial evidence.
  • Appellate briefing discipline: By applying forfeiture (In re Wettach), the decision highlights that litigants who do not challenge PSG rulings in their brief will not receive merits review.

4. Complex Concepts Simplified

  • Particular Social Group (PSG): A protected category under asylum law. Courts require, among other things, that the group be recognized in the society (“social distinction”) and have defined boundaries.
  • “On account of” / Nexus: The applicant must show the persecutor targets them because of a protected ground. Criminal harm (like extortion) is not enough unless the protected ground is a central motivating reason.
  • Mixed motives: A persecutor can have more than one central reason. But the protected ground must still be shown—through record evidence—to be a central reason.
  • Substantial evidence review: The court does not reweigh facts; it asks only whether the record compels a contrary conclusion.
  • CAT “more likely than not”: A probability standard—greater than 50% likelihood of torture if removed.
  • Myrie two steps: (1) likelihood and severity of harm (does it amount to “torture”?) and (2) government involvement via instigation, consent, or “acquiescence” (including willful blindness).
  • Harmless error: Even if the Agency commits a legal/procedural mistake, the court may affirm if the mistake could not have changed the outcome.

5. Conclusion

The Third Circuit’s decision affirms that (i) assuming a family PSG exists does not establish asylum/withholding without compelling evidence that family membership is a central motive for the harm, and (ii) CAT relief demands specific, individualized proof of a more-likely-than-not torture risk. Procedurally, the opinion highlights that while Myrie requires a two-step CAT analysis, an Agency failure to address acquiescence may be deemed harmless where the applicant fails to establish the threshold likelihood of torture.