Issue Exhaustion and Jurisdictional Limits in Removal Appeals: Waiver, One-Year Asylum Bar, and Substantial-Evidence Review

1. Introduction

In Quadri Ademola Bankole v. Attorney General United States of America (3d Cir. June 12, 2026) (non-precedential), the Third Circuit reviewed a final removal order entered by the Board of Immigration Appeals (BIA), which had adopted and affirmed an Immigration Judge’s (IJ) decision. The petitioner, Quadri Ademola Bankole, a Nigerian citizen who entered the United States in 2017 on a B-2 visa, was charged as removable for overstaying under 8 U.S.C. § 1227(a)(1)(B).

Bankole sought protection-based relief—asylum, withholding of removal, and Convention Against Torture (CAT)—claiming fear of harm by Nigerian authorities due to his association (and his father’s stronger association) with the Oduduwa Nation / Yoruba Nation, a secessionist movement in western Nigeria. In parallel, he attempted to pursue family-based adjustment of status via his U.S.-citizen wife’s I-130 petition and sought continuances to await USCIS action.

The case presented three recurring appellate gatekeeping issues in immigration litigation: (i) administrative issue exhaustion (whether certain arguments were preserved before the BIA), (ii) limits on judicial review of the asylum one-year filing-bar determination, and (iii) merits review of withholding/CAT under the substantial-evidence standard.

2. Summary of the Opinion

The Third Circuit dismissed in part and denied in part the petition for review:

  • Continuance / adjustment-related issues: The court held Bankole did not raise before the BIA the IJ’s denial of an additional continuance (to pursue adjustment) or the IJ’s pretermission of the I-130-related adjustment path; those issues were therefore waived/unexhausted, and the court enforced exhaustion when invoked by the Government.
  • Asylum: The IJ found the asylum application untimely under 8 U.S.C. § 1158(a)(2)(B), and the Third Circuit held it lacked jurisdiction to review that determination absent a constitutional claim or question of law.
  • Withholding of removal: The court upheld the agency’s denial, agreeing that Bankole failed to demonstrate past persecution or a likelihood of future persecution on account of a protected ground, and emphasizing that withholding requires a higher showing than asylum.
  • CAT: The court upheld the denial because substantial evidence supported the conclusion that Bankole did not show he was more likely than not to be tortured in Nigeria.

3. Analysis

A. Precedents Cited

The panel’s reasoning is anchored in established Third Circuit and Supreme Court doctrines governing (1) scope and standard of review, (2) issue exhaustion and waiver in immigration appeals, (3) jurisdictional bars in asylum timeliness disputes, and (4) substantive standards for persecution and CAT.

1) Review framework: adoption-and-affirmance; standards of review

  • S.E.R.L. v. Att'y Gen., 894 F.3d 535, 543 (3d Cir. 2018): The court relied on this to explain that when the BIA both adopts/affirms the IJ and provides its own analysis, the reviewing court examines both decisions. This matters because Bankole challenged determinations appearing across both the IJ’s findings (merits) and the BIA’s procedural holdings (waiver).
  • Herrera-Reyes v. Att'y Gen., 952 F.3d 101, 106 (3d Cir. 2020): Cited for the standard division—de novo review for legal determinations; substantial evidence for factual findings.
  • Nasrallah v. Barr, 590 U.S. 573, 584 (2020): Used to emphasize the deferential substantial-evidence formulation: factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise. The court applied that deference to the agency’s evaluation of harm, nexus, and likelihood of torture.

2) Waiver and issue exhaustion before the BIA

  • Sanchez v. Att'y Gen., 147 F.4th 348, 352 (3d Cir. 2025): Cited to establish that appellate review of the BIA’s determination that an issue was waived is for abuse of discretion. Applying that lens, the court accepted the BIA’s conclusion that Bankole did not raise the continuance issue in his administrative appeal.
  • Gomez-Gabriel v. Att'y Gen., 146 F.4th 327, 330 (3d Cir. 2025) (per curiam): Invoked for the proposition—linked to 8 U.S.C. § 1252(d)(1)—that a petitioner must exhaust available administrative remedies for each issue to preserve it for judicial review. The court used this to dispose of the adjustment/pretermission arguments.
  • Aguilar v. Att'y Gen., 107 F.4th 164, 168-69 (3d Cir. 2024): Provided the enforcement principle: when the Government properly invokes exhaustion, the court enforces it. This is the “trigger” that converted Bankole’s omission before the BIA into a judicially dispositive barrier to review of those claims.

3) Jurisdictional limits on reviewing the asylum one-year bar

  • Tarrawally v. Ashcroft, 228 F.3d 180, 185-86 (3d Cir. 2003) and Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006): These cases support the panel’s conclusion that 8 U.S.C. § 1158(a)(3) bars judicial review of timeliness determinations when the challenge does not present a constitutional claim or question of law. Here, the IJ found Bankole failed to prove by clear and convincing evidence that he filed within one year; the Third Circuit treated this as an unreviewable determination on this record.

4) Substantive protection standards: withholding and persecution; CAT

  • Blanco v. Att'y Gen., 967 F.3d 304, 310 (3d Cir. 2020): Used for the key comparative rule: withholding of removal imposes a higher burden than asylum. Thus, failure to satisfy asylum’s substantive persecution showing typically forecloses withholding on the same factual theory.
  • Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006) and Voci v. Gonzales, 409 F.3d 607, 614 (3d Cir. 2005): These cases inform the court’s treatment of threats and harm. Chavarria is cited for the limitation that threats constitute persecution only in a narrow class of cases where they are so menacing as to cause significant suffering or harm. Voci is used as a contrasting example where severe repeated beatings and intimidation of family supported a past-persecution finding. The panel positioned Bankole’s experiences closer to Chavarria than Voci.
  • Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002): Cited for the CAT standard and evidentiary burden—showing it is more likely than not that the applicant would be tortured. The court concluded the record did not compel a contrary finding.
  • S.E.R.L. v. Att'y Gen., 894 F.3d 535, 552 (3d Cir. 2018): Also central to the panel’s treatment of “particular social group” (PSG), emphasizing PSGs must have discrete, definable boundaries and cannot be amorphous or overbroad. The IJ relied on this framework to reject a broad PSG formulation and then evaluated a narrower “immediate relatives” group for nexus.

B. Legal Reasoning

1) Continuances and adjustment-related claims: forfeiture at the BIA level

The court’s first move was procedural. Bankole asserted the BIA erred by concluding he failed to challenge the IJ’s continuance denial. The Third Circuit reviewed the record and agreed with the BIA that the issue was not raised in the administrative appeal, so the BIA did not abuse its discretion in deeming it waived (Sanchez v. Att'y Gen.).

Similarly, Bankole attempted to contest the IJ’s pretermission of the I-130-related path, but the court treated that argument as unexhausted under 8 U.S.C. § 1252(d)(1), citing Gomez-Gabriel v. Att'y Gen.. Because the Government invoked exhaustion, the court enforced it (Aguilar v. Att'y Gen.), resulting in dismissal of those portions.

2) Asylum timeliness: jurisdiction barred absent legal/constitutional issue

The IJ denied asylum as time-barred because Bankole did not prove timely filing by clear and convincing evidence. The Third Circuit held it lacked jurisdiction to review that determination under 8 U.S.C. § 1158(a)(3), where the challenge presented no constitutional claim or question of law, consistent with Tarrawally v. Ashcroft and Sukwanputra v. Gonzales. This resulted in dismissal of review over the timeliness ruling (and, practically, asylum relief).

3) Withholding: no compelled finding of persecution or required nexus

On the merits, the court sustained the agency’s conclusion that Bankole did not establish past persecution or a well-founded fear of future persecution “on account of” a protected ground.

  • PSG definition: The IJ rejected counsel’s proposed PSG—“people who are opposed to the existing government and who are engaged in political activity against government authorities”— as impermissibly broad and amorphous, consistent with S.E.R.L. v. Att'y Gen..
  • Alternative PSG and nexus: Even considering a narrower family-based PSG (“immediate relatives of [Bankole’s father]”), the IJ found insufficient nexus between anticipated harm and the protected ground (and also insufficient nexus to political opinion).
  • Harm level and attribution: The court credited the IJ’s emphasis that Bankole’s personal participation was limited (a few secret meetings), and that officials repeatedly sought the father—not Bankole—and did not arrest or injure Bankole in those incidents. Threats alone, without the requisite severity, did not compel a persecution finding under Chavarria v. Gonzalez, and the facts did not resemble the severe harm in Voci v. Gonzales.

Finally, because withholding carries a higher burden than asylum, the court accepted the agency’s logic that failing asylum’s persecution showing necessarily defeated withholding on the same evidence (Blanco v. Att'y Gen.).

4) CAT: failure to show likelihood of torture

Applying Sevoian v. Ashcroft and the CAT regulation (8 C.F.R. § 1208.16(c)(2)), the court held substantial evidence supported the finding that Bankole did not establish he was more likely than not to be tortured in Nigeria. The panel also noted Bankole’s briefing did not meaningfully explain how the agency misapplied law to facts.

C. Impact

Although designated “not precedential,” the decision reflects and reinforces practical rules that often decide immigration petitions:

  • Appellate outcomes turn on preservation: Arguments about continuances and adjustment strategy must be explicitly raised to the BIA. Failure to do so can eliminate judicial review entirely under 8 U.S.C. § 1252(d)(1).
  • Asylum timeliness is frequently unreviewable: Unless framed as a constitutional claim or question of law, timeliness disputes are jurisdictionally barred under 8 U.S.C. § 1158(a)(3).
  • PSG discipline and nexus remain central: Broad “anti-government” group formulations are vulnerable under S.E.R.L. v. Att'y Gen., and family-based theories require a developed nexus showing that harm is because of the family relationship (not merely incidental to pursuit of another person).
  • Threats and targeting analysis: The opinion illustrates how courts distinguish threatening encounters from persecution, and how the “who is the target?” question can be decisive where authorities primarily seek a politically active relative.

4. Complex Concepts Simplified

  • Exhaustion (8 U.S.C. § 1252(d)(1)): Before asking a federal court to review an issue, the noncitizen must first present that specific issue to the BIA. If not, the court typically cannot review it.
  • Waiver vs. exhaustion: “Waiver” often refers to failing to argue an issue at the proper stage (e.g., failing to brief it to the BIA). “Exhaustion” is the statutory requirement that the agency be given the first opportunity to address the claim. In practice, the concepts overlap: if it was not raised to the BIA, it is commonly treated as unexhausted/waived for judicial review.
  • Asylum one-year bar (8 U.S.C. § 1158(a)(2)(B)): Most applicants must file within one year of arrival. If the agency finds the applicant did not meet that requirement, courts often lack jurisdiction to review the fact-bound timeliness determination (8 U.S.C. § 1158(a)(3)), unless a legal/constitutional question is presented.
  • Substantial-evidence review: The court does not decide what it would find in the first instance. It asks whether the evidence compels the opposite conclusion—an intentionally high bar for petitioners (Nasrallah v. Barr).
  • Particular social group (PSG): A PSG must be clearly defined and not overly broad or vague. Generalized political opposition categories can be rejected as amorphous under S.E.R.L. v. Att'y Gen..
  • Nexus (“on account of”): Even if bad things happened, the applicant must show the harm is because of a protected ground (e.g., political opinion or PSG membership), not for some other reason (such as the government’s effort to locate someone else).
  • CAT standard: CAT protection requires showing it is more likely than not the applicant will be tortured (severe harm, with government involvement or acquiescence), which is distinct from persecution and often harder to prove.

5. Conclusion

The Third Circuit’s disposition underscores that removal appeals can be decided as much by procedural preservation and jurisdiction as by merits. Bankole’s adjustment/continuance arguments were dismissed because they were not properly raised to the BIA, and his asylum claim was effectively unreviewable because the IJ’s one-year-bar ruling presented no reviewable legal or constitutional question. On the merits, substantial evidence supported the agency’s denial of withholding and CAT relief, especially given the limited evidence that Bankole himself was targeted “on account of” a protected ground and the absence of a compelled likelihood-of-torture showing.