Inconsistencies Support Adverse Credibility; Gang Extortion Alone Is Not Persecution; CAT Requires Specific Risk of Being Singled Out

Introduction

In Consuelo de Maria Mejia Romero v. Attorney General United States of America (3d Cir. Jan. 21, 2026) (non-precedential), the Court of Appeals reviewed a final order of removal after the Board of Immigration Appeals (BIA) affirmed an Immigration Judge’s (IJ) denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection.

The petitioner, a Guatemalan salon owner, alleged gang victimization shortly before her 2015 departure: armed robbery/extortion, followed days later by a return visit in which her purse was taken and she was pushed down stairs. She also entered the United States using a counterfeit visa and conceded removability. The central issues on review were:

  • Credibility: whether discrepancies between written and oral accounts supported an adverse credibility finding.
  • Nexus to a protected ground: whether gang extortion/assault constituted “persecution” on account of a protected characteristic.
  • CAT likelihood: whether generalized gang violence and family tragedies established a particularized likelihood of torture.

Although the disposition is expressly “NOT PRECEDENTIAL,” it is a useful synthesis of Third Circuit doctrine on credibility, criminal violence versus protected-ground persecution, and the evidentiary demands of CAT claims.

Summary of the Opinion

The Third Circuit denied the petition for review. It held:

  • Adverse credibility was supported by substantial evidence because the petitioner’s trial testimony (two incidents in March 2015) conflicted with prior statements describing gangs as “frequent[ing]” her salon and threatening her on “several occasions.”
  • Even crediting the March 2015 events, the record showed “ordinary isolated criminal acts,” not persecution tied to race, religion, nationality, particular social group, or political opinion; thus asylum and withholding failed on the merits as an alternative ground.
  • CAT relief was properly denied because evidence of widespread gang violence and deaths of relatives, without specific evidence that the petitioner was more likely than not to be singled out for torture, did not meet the CAT standard.

The Court also noted a harmless factual mistake by the IJ about where one statement was made, but concluded the error did not affect the outcome.

Analysis

Precedents Cited

1) Standards of review and deference

  • Cortez-Amador v. Att'y Gen., 66 F.4th 429 (3d Cir. 2023): cited for de novo review of legal conclusions and substantial-evidence review of factfinding; also for the principle that failure to meet the asylum burden generally defeats withholding as well.
  • Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003): used to frame the substantial-evidence “reasonable factfinder” lens and, later, to underscore that (here) credibility can be dispositive of asylum and withholding.
  • Kang v. Att'y Gen., 611 F.3d 157 (3d Cir. 2010): cited for the “compels a different result” formulation—reversal is warranted only when the record compels contrary findings.
  • Li Hua Yuan v. Att'y Gen., 642 F.3d 420 (3d Cir. 2011): supports applying harmless-error analysis to immigration adjudications; the IJ’s mischaracterization of the statement’s source did not alter the credibility calculus in a way requiring remand.

2) What qualifies as “persecution” and the protected-ground nexus requirement

  • Voci v. Gonzales, 409 F.3d 607 (3d Cir. 2005): invoked to emphasize persecution as “extreme conduct,” not every unfair or unlawful act.
  • Gonzalez-Posadas v. Att'y Gen., 781 F.3d 677 (3d Cir. 2015): relied upon for the rule that isolated criminal acts do not constitute persecution on account of a protected characteristic.
  • Shehu v. Att'y Gen., 482 F.3d 652 (3d Cir. 2007): supports the conclusion that being targeted by a gang for money (rather than a protected ground) does not establish a well-founded fear of protected-ground persecution.
  • Abdille v. Ashcroft, 242 F.3d 477 (3d Cir. 2001): similarly rejects treating random or financially motivated street violence as persecution “on account of” group membership.
  • Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003): used twice: (i) to explain the presumption of future persecution arises only upon proof of past persecution; and (ii) in a footnote, for the requirement that a “particular social group” must exist independently of the persecution suffered, i.e., cannot be defined circularly by the harm.

3) CAT distinctiveness and “particularized risk”

  • Myrie v. Att'y Gen., 855 F.3d 509 (3d Cir. 2017): supplies the “more likely than not” standard for CAT eligibility.
  • Tarrawally v. Ashcroft, 338 F.3d 180 (3d Cir. 2003): cited for the principle that an adverse credibility determination is not automatically dispositive of a CAT claim.
  • Hernandez Garmendia v. Att'y Gen., 28 F.4th 476 (3d Cir. 2022): anchors the requirement of “specific evidence” showing the applicant is more likely than not to be singled out for torture.

Collectively, these cases frame a consistent doctrinal pathway: credibility findings receive heavy deference; criminal violence must be tied to a protected ground to become “persecution” for asylum/withholding; and CAT requires a forward-looking, individualized showing of torture risk.

Legal Reasoning

1) Credibility: inconsistency between “frequent threats” and “two incidents”

The Court affirmed the adverse credibility determination under the substantial-evidence standard. The key reasoning was straightforward: the petitioner’s written materials described gang visits as “frequent” and threats as occurring on “several occasions,” while her in-court testimony narrowed the experience to two incidents in one month. Under 8 U.S.C. § 1158(b)(1)(B)(iii), adjudicators may rely on the consistency between written and oral statements and on inaccuracies/falsehoods. Because a reasonable factfinder could view the accounts as materially inconsistent, the record did not “compel” reversal.

Importantly, the panel acknowledged the IJ’s nuance: the IJ found the petitioner “partially credible” and specifically credited testimony about the March 2015 extortion and assault. The BIA did not address how that partial crediting affected the outcome. To avoid a remand on that ambiguity, the Court effectively assumed credibility as to the March 2015 events and proceeded to the alternative merits analysis—an appellate technique that tests whether the claim fails even under the applicant’s best plausible version of key facts.

2) Asylum/withholding: criminal extortion without protected-ground nexus

Even crediting the March 2015 assaults, the Court agreed with the IJ that they were “ordinary isolated criminal acts” and therefore not past persecution. The reasoning turned on the nexus requirement: the record lacked evidence that the gang acted because of race, religion, nationality, political opinion, or membership in a cognizable particular social group.

The petitioner advanced a particular social group formulation centered on “unprotected single women of Guatemala who own businesses” and described them as “economically marginalized, socially isolated, stigmatized, and persecuted by violent gangs.” The Court rejected this framing as circular: it defined the group by the fact of being persecuted and by harms suffered, rather than by independent, socially distinct characteristics. Citing Lukwago v. Ashcroft, the panel reiterated that a social group must “exist independently of the persecution.”

Once past persecution failed, the petitioner could not obtain the presumption of future persecution. And with the asylum burden unmet, withholding failed as well, consistent with Cortez-Amador v. Att'y Gen. and the higher burden for withholding.

3) CAT: generalized violence is not enough without a particularized showing

The Court treated the CAT claim separately, consistent with Tarrawally v. Ashcroft. But it agreed with the BIA that the evidence did not show it was “more likely than not” the petitioner would be tortured if removed, as required by Myrie v. Att'y Gen..

The additional evidence—widespread gang violence in Guatemala and killings of family members—was deemed insufficient absent “specific evidence” that the petitioner herself would be singled out. This reflects the individualized-risk demand articulated in Hernandez Garmendia v. Att'y Gen..

4) Harmless error: mislabeling the source of a sworn statement

The IJ mistakenly attributed a statement to a credible fear interview rather than to a separate DHS sworn statement. The Court deemed the mistake harmless under Li Hua Yuan v. Att'y Gen. because the content of the statement—and its inconsistency with later testimony—remained the operative credibility point.

Impact

Although non-precedential, the decision signals several practical lessons for immigration litigation in the Third Circuit:

  • Consistency is central: applicants and counsel should reconcile affidavits, DHS statements, and testimony; terms like “frequent” and “several” can become decisive when later narrowed.
  • Crime versus persecution remains a hard line: gang extortion and assault—without proof of protected-ground motive—will typically be treated as criminality rather than asylum-qualifying persecution, consistent with the Court’s earlier nexus jurisprudence.
  • Particular social group drafting must avoid circularity: definitions built around being “persecuted,” “stigmatized,” or otherwise harmed risk rejection for failing to exist independently of persecution.
  • CAT requires individualized proof: country conditions and generalized violence help contextualize risk but rarely substitute for evidence of specific targeting or likely torture of the applicant.

The opinion also illustrates an appellate pattern: when credibility rulings are potentially overbroad or partially qualified, courts may “assume credibility” on key events and affirm on alternative merits grounds—encouraging litigants to build both credibility and merits records rather than relying on either alone.

Complex Concepts Simplified

Substantial evidence review
A highly deferential standard: the court upholds the agency’s factual findings if a reasonable factfinder could reach the same conclusion; reversal occurs only if the evidence compels the opposite result.
Adverse credibility determination
A finding that the applicant’s testimony is not reliable—often based on inconsistencies, omissions, or implausibilities across interviews, declarations, and testimony. Under the statute, decisionmakers may consider consistency between written and oral statements.
Persecution
More than hardship or ordinary crime; it denotes extreme mistreatment. Even serious criminal acts may not qualify unless they are tied to a protected ground.
Nexus (“on account of”)
The requirement that the harm occurred because of a protected characteristic (race, religion, nationality, political opinion, or membership in a particular social group), not merely because the perpetrator wanted money or acted opportunistically.
Particular social group (PSG) and circularity
A PSG must be identifiable in society independent of the persecution. If the group is defined as “people who are persecuted,” it becomes circular and typically fails.
CAT “more likely than not” and “singled out”
The applicant must show a greater-than-50% chance of torture upon return, supported by specific evidence that she faces a particularized risk—not only that the country is dangerous in general.

Conclusion

The Third Circuit’s decision affirms three core propositions: (1) material inconsistencies between sworn writings and testimony can sustain adverse credibility findings under deferential review; (2) gang extortion and assault, without evidence of protected-ground motive and without a non-circular social group, are treated as criminal acts rather than asylum-qualifying persecution; and (3) CAT protection demands an individualized, specific showing that torture is more likely than not, beyond generalized country violence.

Even as a non-precedential disposition, the opinion consolidates and applies established Third Circuit doctrine in a way that will likely shape how future applicants present consistent narratives, articulate cognizable social groups, and substantiate particularized CAT risk.