Loan‑Shark Extortion, Nexus to Protected Grounds, and the Original Meaning of “Particular Social Group”: Commentary on Silvio Augusto Lima Carneiro v. Attorney General

Loan‑Shark Extortion, Nexus to Protected Grounds, and the Original Meaning of “Particular Social Group”

Commentary on Silvio Augusto Lima Carneiro v. Attorney General of the United States (3d Cir. Nov. 25, 2025)

I. Introduction

This decision of the United States Court of Appeals for the Third Circuit concerns a Brazilian family—Silvio Augusto Lima Carneiro, his wife, and their children—who entered the United States unlawfully in 2021 and sought protection from removal based on threats by a Brazilian loan shark. The case raises two central questions:

  • Whether threats and possible violence from a private creditor motivated by repayment of a debt qualify as persecution “on account of” a protected ground (such as membership in a “particular social group”) for asylum and withholding of removal purposes.
  • Whether those same circumstances satisfy the demanding standard for protection under the Convention Against Torture (CAT), including proof that Brazilian authorities would acquiesce in any torture.

The panel (Judge Fisher writing for the court, joined by Judge Shwartz) denies the petitions for review, upholding the Board of Immigration Appeals’ (BIA) dismissal of the family’s appeal from the immigration judge (IJ). It concludes that:

  • The petitioners failed to establish that any past or future harm would be “on account of” a protected ground, so they do not qualify for asylum or statutory withholding of removal.
  • They also failed to meet their burden for CAT relief under the analytical framework set out in Myrie v. Attorney General, 855 F.3d 509 (3d Cir. 2017).

Judge Matey files a separate concurrence that does not affect the outcome but is doctrinally significant. He uses this fact pattern—where the alleged “particular social group” reduces, in his view, to “me”—to launch a detailed, originalist re-examination of the term “particular social group” in refugee law, contending that modern case law has strayed far beyond the phrase’s historical and treaty-based meaning.

The opinion is designated “NOT PRECEDENTIAL” under the Third Circuit’s internal operating procedures and so does not constitute binding precedent. Still, its reasoning is instructive on recurring issues in asylum and CAT litigation involving private criminal actors and alleged governmental acquiescence, and the concurrence signals a possible future attempt to reshape Third Circuit doctrine on “particular social group” (PSG).

II. Summary of the Opinion

A. Factual and Procedural Background

The petitioners are natives and citizens of Brazil. They unlawfully entered the United States in September 2021. The Department of Homeland Security initiated removal proceedings within a month. The family:

  • Conceded removability.
  • Applied for:
    • Asylum,
    • Statutory withholding of removal under 8 U.S.C. § 1231(b)(3)(A), and
    • Protection under CAT.

Their claim turns on a debt Carneiro owed to a Brazilian loan shark named Fernando. After Carneiro failed to pay, Fernando:

  • Came to their home on three occasions.
  • Threatened that Carneiro would “pay one way or another.”
  • Warned that if Carneiro did not pay, his family would “pay with their lives.”

The IJ denied all forms of relief. The BIA dismissed the appeal, agreeing that the record did not show persecution on account of a protected ground and that the standards for CAT protection were not met. The family filed petitions for review in the Third Circuit.

B. Holdings

  1. Asylum and Withholding of Removal. The court accepts the BIA’s dispositive finding that the petitioners did not prove that any past or feared future harm in Brazil would be “on account of” a protected ground. Their proposed “particular social groups” were:
    • Debtors in Brazil who are not protected by the government.
    • People who borrow money from loan sharks.
    • Members of the family of the lead petitioner (Carneiro).
    The panel concludes that the threats arose solely from Fernando’s desire to recover his money and not from hostility toward any protected class; hence no required nexus exists for either asylum or statutory withholding.
  2. CAT Protection. Applying the four-step Myrie framework, the court affirms the denial of CAT relief on two grounds:
    • Likelihood of torture: Substantial evidence supports the IJ’s determination that it is not “more likely than not” that Fernando would seriously harm (let alone torture) the petitioners if they return to Brazil, particularly because they can either repay the debt or relocate internally.
    • Government acquiescence: Even assuming arguendo that torture were likely, the petitioners did not show that the Brazilian government would acquiesce. Carneiro never sought police help, and his assertions that police work for loan sharks were unsupported and conclusory.
    Therefore, the petitioners are not eligible for CAT protection.

C. The Concurrence

Judge Matey concurs in the judgment and in the panel opinion, but writes separately to question the modern scope of “particular social group”:

  • He argues that Carneiro’s PSG claim, properly understood, is effectively “me” —that is, a self-referential group defined solely by the fact of being the individual person facing harm.
  • He contends that existing case law, including the Third Circuit’s own decisions, has radically expanded the PSG category beyond its original meaning in the 1951 Refugee Convention and the 1967 Protocol.
  • Drawing on newly accessible historical sources, he argues that “particular social group” was initially intended to cover victims of persecution by totalitarian regimes (e.g., landowners, bourgeois class, political minorities in socialist states), and not the broad range of modern social, familial, or experiential groupings now recognized.
  • He suggests that courts should re-anchor PSG interpretation to this narrower, politically oriented understanding— and perhaps defer more fully to the Executive’s construction in light of recent Supreme Court developments (notably Loper Bright Enterprises v. Raimondo).

While the concurrence does not change the law in this case (and the decision is nonprecedential), it is a signal of possible future efforts to narrow PSG doctrine in the Third Circuit.

III. Analysis

A. Precedents and Authorities Cited

1. Jurisdiction and Standard of Review

  • Jurisdiction of the agency and court. The agency’s jurisdiction stemmed from 8 U.S.C. § 1103 and 8 C.F.R. § 1003.1(b); the Third Circuit’s jurisdiction over the petition for review derives from 8 U.S.C. § 1252(a).
  • Scope of review of IJ and BIA decisions. Where the BIA both affirms and partially reiterates the IJ’s reasoning, the court reviews both decisions: Sandie v. Attorney General, 562 F.3d 246, 250 (3d Cir. 2009). Where the BIA relies only on selected grounds of the IJ’s decision, the court reviews only those grounds: Chukwu v. Attorney General, 484 F.3d 185, 193 (3d Cir. 2007).
  • Standards of review.
    • Factual findings—including what harm is likely and how officials will respond—are reviewed for “substantial evidence,” meaning they must be upheld unless a reasonable adjudicator would be compelled to reach the opposite conclusion: INS v. Elias‑Zacarias, 502 U.S. 478, 481 (1992); see also 8 U.S.C. § 1252(b)(4)(B); Galeas Figueroa v. Attorney General, 998 F.3d 77, 93 (3d Cir. 2021).
    • Legal questions—including whether predicted harm amounts to “persecution” or “torture,” and whether the legal standard for government acquiescence is met—are reviewed de novo: Herrera‑Reyes v. Attorney General, 952 F.3d 101, 106 (3d Cir. 2020); Galeas Figueroa, 998 F.3d at 92–93.

2. Nexus and Economic Motives: Shehu, Thayalan, Gonzalez-Posadas

The majority relies heavily on prior Third Circuit decisions that distinguish between persecution based on a protected ground and harm driven by purely economic or personal motives:

  • Shehu v. Attorney General, 482 F.3d 652 (3d Cir. 2007). The court there held that a persecutor’s “bare desire for money,” without more, does not show hostility toward a protected group. This decision is directly quoted here: Fernando’s insistence on repayment and threats to coerce payment are characterized as a “bare desire for money,” not evidence of animus against any protected class (debtors, loan-shark borrowers, or family members).
  • Thayalan v. Attorney General, 997 F.3d 132 (3d Cir. 2021). Reiterates that an alien targeted out of a “simple desire for money” has not suffered persecution “on account of” a protected ground. This reinforces the idea that economic extortion—even with serious threats—does not by itself create the required nexus.
  • Gonzalez‑Posadas v. Attorney General, 781 F.3d 677 (3d Cir. 2015). Holds that “conflicts of a personal nature and isolated criminal acts” generally do not constitute persecution on account of a protected characteristic. Fernando’s threats are treated as a personal financial dispute, not group‑based persecution.

3. CAT Analysis: Myrie and Galeas Figueroa

The panel applies the CAT framework the Third Circuit adopted in Myrie v. Attorney General, a decision that sought to clarify how IJs and the BIA should analyze CAT claims:

  • Myrie v. Attorney General, 855 F.3d 509 (3d Cir. 2017). Myrie interprets the CAT regulation requiring an applicant to show that “it is more likely than not that he or she would be tortured if removed.” From this, the court distilled a two‑prong, four‑step analysis:
    1. (1A) What harm is likely to befall the applicant if removed?
    2. (1B) Does that harm legally qualify as “torture” under CAT?
    3. (2A) How are public officials likely to respond to that harm?
    4. (2B) Does that response amount to government “acquiescence” to torture (including willful blindness)?
    The panel here explicitly tracks this structure.
  • Galeas Figueroa v. Attorney General, 998 F.3d 77 (3d Cir. 2021). Clarifies standards of review within the Myrie framework: factual predictions at steps 1A and 2A are reviewed for substantial evidence, whereas the legal characterizations at steps 1B and 2B are reviewed de novo.

4. Concurrence’s Authorities on “Particular Social Group”

Judge Matey’s concurrence traverses a dense web of authorities to argue for a historically grounded, politically oriented understanding of “particular social group”:

  • Foundational refugee instruments:
    • 1951 Convention Relating to the Status of Refugees (Art. 1(A)(2)).
    • 1946 Constitution of the International Refugee Organization (IRO), which used “race, religion, nationality, or political opinions” as grounds.
    • 1967 Protocol Relating to the Status of Refugees, which removed the temporal and geographic limits but kept the same five grounds, including “particular social group.”
  • U.S. implementation:
    • Refugee Act of 1980, amending the Immigration and Nationality Act (INA) to adopt the Protocol’s definition of “refugee” (now at 8 U.S.C. § 1101(a)(42)(A)).
    • Legislative history indicating Congress intended the U.S. definition to be consistent with the Protocol.
  • Early Third Circuit precedent:
    • Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993): recognized PSG but found little helpful legislative history; now, Matey argues, a more complete historical record is available.
  • BIA’s evolving PSG jurisprudence:
    • Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985): classic “immutable characteristic” definition.
    • In re C‑A‑, 23 I. & N. Dec. 951 (BIA 2006); In re A‑M‑E‑ & J‑G‑U‑, 24 I. & N. Dec. 69 (BIA 2007); Matter of S‑E‑G‑, 24 I. & N. Dec. 579 (BIA 2008): added “social visibility” and “particularity.”
    • Matter of M‑E‑V‑G‑, 26 I. & N. Dec. 227 (BIA 2014): revised “social visibility” to “social distinction,” i.e., whether society perceives the group as a group.
    • Matter of K‑E‑S‑G‑, 29 I. & N. Dec. 145 (BIA 2025): restates the three‑part test: immutable characteristic, particularity, and social distinction.
  • Circuits pushing back on BIA formulations:
    • Examples include Valdiviezo‑Galdamez v. Attorney General, 663 F.3d 582 (3d Cir. 2011) (criticizing BIA’s then-visibility requirement), Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009), and others.
  • Recent separation-of-powers / deference decisions:
    • Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): rejects Chevron-style deference to agency interpretations of statutes and stresses a judicial duty to identify the “single, best meaning” of statutory text.
    • INS v. Aguirre‑Aguirre, 526 U.S. 415 (1999): emphasizes that deference to the Executive is especially appropriate in immigration matters.
    • Qatanani v. Attorney General, 144 F.4th 485 (3d Cir. 2025) (Matey, J., dissenting): raises similar concerns about the judiciary’s role in immigration matters.

B. Legal Reasoning of the Majority

1. Asylum and Withholding: Nexus to a Protected Ground

a. Legal Framework

To qualify for asylum, an applicant must show that they are a “refugee” as defined in 8 U.S.C. § 1101(a)(42)(A), which requires:

  • Past persecution or a well‑founded fear of future persecution,
  • “On account of” one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion.

For withholding of removal under 8 U.S.C. § 1231(b)(3)(A), the applicant must show that their “life or freedom would be threatened” in the proposed country of removal “because of” one of those same protected grounds. Withholding carries a higher probability standard (“more likely than not”), but shares the same nexus requirement. If there is no nexus, both claims fail, regardless of the level of risk.

b. The Petitioners’ Proposed Particular Social Groups

The petitioners advanced three PSG theories:

  1. “Debtors in Brazil who are not protected by the government.”
  2. “People who borrow money from loan sharks.”
  3. “Family members of Carneiro, the lead petitioner.”

The majority opinion does not engage in a detailed analysis of whether these are cognizable PSGs under current law (immutable characteristic, particularity, social distinction). Instead, the court assumes arguendo that they are protected grounds and focuses on the dispositive issue of nexus: whether Fernando harmed or would harm the petitioners because of their membership in any such group.

c. Application: Personal Debt Collection vs. Group‑Based Persecution

The record shows that Fernando:

  • Threatened Carneiro and his family after Carneiro defaulted on a loan.
  • Explicitly conditioned the threats on nonpayment: Carneiro testified that “only those who do not pay are harmed” by loan sharks.

From this, the court concludes:

  • Fernando’s threats are aimed at compelling payment of a private debt. He is targeting Carneiro because Carneiro owes him money and has not paid, not because Carneiro belongs to a particular family, class of debtors, or loan‑shark borrowers as a social category.
  • There is no evidence that Fernando harbors animus toward debtors in general, loan‑shark borrowers as a group, or Carneiro’s family as a family unit. The fact that he threatened the family is interpreted as leverage on Carneiro, not as an expression of hostility toward the family as a protected group.

In doctrinal terms, the problems are:

  • Circular group definition: Groups such as “people who owe money to Fernando” or “Carneiro and his family who borrowed from Fernando” risk being defined by the very harm complained of. The concurrence makes this point more directly, arguing the group reduces to “me.”
  • Economic motive: Under Shehu, Thayalan, and Gonzalez‑Posadas, purely financial motives and personal disputes generally do not satisfy the “on account of” requirement. Here, Fernando’s motive is to recover his loan, a paradigmatic economic motive.

The court specifically notes that Fernando’s “bare desire for money” is not equivalent to hostility against a protected group. Therefore, even if some PSG were cognizable on these facts, the essential nexus element is missing. Without that element, the panel denies asylum and withholding without needing to reach other elements (such as whether the threats rise to the level of “persecution,” or whether the Brazilian government is unable or unwilling to protect them for asylum/withholding purposes).

2. CAT Protection: Applying the Myrie Four‑Step Framework

a. Legal Standard

CAT relief does not require a nexus to a protected ground. Instead, the applicant must prove:

  • It is more likely than not that they would be subjected to “torture” if removed, and
  • The torture would occur with the consent or acquiescence (including willful blindness) of a public official or other person acting in an official capacity.

Under Myrie, the inquiry is broken into four steps:

  1. (1A) Factual prediction: what harm will occur if the person is returned?
  2. (1B) Legal characterization: does that harm qualify as “torture” under CAT?
  3. (2A) Factual prediction: how will public officials likely respond?
  4. (2B) Legal characterization: does that response (or lack of response) amount to “acquiescence”?

The IJ’s decision addressed these steps, and the BIA expressly affirmed that Myrie had been applied, contrary to the petitioners’ assertion that the BIA failed to do so. The Third Circuit therefore treats the issue on review as whether the IJ correctly applied Myrie.

b. Step 1A: Likelihood of Harm / Torture

The IJ concluded—and the Third Circuit found substantial evidence to support—that:

  • It is not “more likely than not” that Fernando would harm the petitioners if they return to Brazil, because:
    • The family could repay the debt, which would remove Fernando’s financial incentive.
    • They could relocate elsewhere in Brazil, reducing the risk of further contact.

The petitioners responded that Fernando would still seek revenge to avoid appearing weak in front of others, and that relocation would be ineffective because Carneiro’s daughter might reveal their location on social media. The court finds those arguments speculative:

  • There is no concrete evidence that Fernando would pursue them if the debt is paid off or after significant time passes; Carneiro’s belief is treated as his opinion, not proof.
  • Regarding internal relocation, Carneiro never tried to limit his daughter’s social media use, nor did he present evidence that Fernando has the means to track them through social media or nationwide networks.

Because substantial evidence supports the IJ’s factual prediction that torture is not more likely than not, the panel agrees with the agency on Step 1A, and effectively disposes of the CAT claim at this stage. There is no need to reach in detail whether the feared harm—if it occurred—would meet the regulatory definition of “torture” (Step 1B).

c. Steps 2A & 2B: Government Acquiescence

For completeness, the panel also reviews the second prong: even if torture were more likely than not, would the Brazilian government acquiesce?

The IJ found:

  • No persuasive evidence that Brazilian authorities are unable or unwilling to assist debtors in situations like this.
  • No evidence that the Brazilian government systematically tolerates or supports extortion by private actors such as loan sharks.

The Third Circuit emphasizes:

  • Brazil has “numerous local, state, and federal law enforcement entities.” Carneiro never attempted to contact any of them, which is often a crucial evidentiary step for showing official inability or unwillingness to help.
  • Although Carneiro claimed that Fernando was “in communication with the police” and that some police officers “work for the loan sharks,” he produced no corroborating evidence—no documentation, no specific incidents, no country conditions reports directly backing up his story about Fernando.

Under the deferential substantial evidence standard, mere conclusory statements—without corroboration or attempts to seek protection—do not compel a finding of government acquiescence. The panel explicitly notes that predictive judgments about foreign officials’ behavior are inherently uncertain and open to second‑guessing, but it reiterates that the court’s role is limited to asking whether a reasonable adjudicator could have reached the same conclusion. On this record, the answer is yes.

Accordingly, the court affirms the IJ and BIA’s conclusion that the petitioners failed to establish government acquiescence, and thus would not qualify for CAT relief even if they could show a likelihood of torture.

C. The Concurrence: Re‑Anchoring “Particular Social Group” to Its Original Meaning

1. Historical Origin: The Swedish Delegate and the Post‑War Context

Judge Matey’s concurrence offers an originalist reconstruction of “membership in a particular social group”:

  • The 1951 Refugee Convention initially mirrored the IRO Constitution and early drafts, which listed four protected grounds: race, religion, nationality, and political opinion.
  • The phrase “particular social group” was added during negotiations at the initiative of a Swedish delegate, who noted that some refugees had been persecuted due to belonging to “particular social groups” not covered by the four existing grounds.
  • The addition was adopted without extensive debate, but scholars like Goodwin‑Gill and McAdam have suggested that the drafters likely had in mind victims of totalitarian “social restructuring” in postwar Europe—such as landowners, capitalists, independent business people, and their families—who were targeted by communist regimes not exactly for their race or religion, but for their social and political status.

Importantly, at the time, the Convention:

  • Applied only to events occurring before January 1, 1951, and
  • Allowed states to limit their obligations to European refugees.

The Swedish delegate favored this European‑only option for Sweden and also sought to harmonize the Convention’s coverage with Swedish domestic law, which limited asylum primarily to political refugees. Matey argues that this suggests a narrow, primarily political conception of “particular social group,” rooted in:

  • Persecution by states (not purely private actors),
  • For reasons connected to political restructuring and class‑based targeting.

2. U.S. Adoption and BIA Expansion: From Acosta to M‑E‑V‑G‑ and K‑E‑S‑G‑

The concurrence then surveys the U.S. legal trajectory:

  • When Congress enacted the Refugee Act of 1980, it imported the Protocol’s and Convention’s definition of “refugee” essentially verbatim, expecting it to be interpreted consistently with those instruments. But Congress did not define “particular social group,” leaving the phrase to be elaborated in case law.
  • In Matter of Acosta (1985), the BIA—concluding that neither Congress nor the Protocol clarified the phrase—turned to the interpretive canon of ejusdem generis and UN guidance. It defined a PSG as a group whose members share a “common, immutable characteristic,” such as sex, color, kinship ties, or a shared past experience like former military leadership or land ownership. This became the baseline test widely adopted by courts.
  • Over time, in response to circuit court criticism, the BIA layered on additional requirements—“social visibility,” “particularity,” later reframed as “social distinction”—resulting in the current tripartite test set out in Matter of M‑E‑V‑G‑ and reiterated in Matter of K‑E‑S‑G‑:
    1. Shared immutable characteristic,
    2. Particularity (clear boundaries), and
    3. Social distinction (recognized as a group by society).

Matey characterizes this evolution as a “strange marriage” of judicial and administrative interpretations, driven by both Executive attempts to respond to conflicting circuit decisions and circuit courts’ own reformulations. The result, in his view, is a doctrinally unstable and ever‑expanding PSG concept that reaches myriad modern social configurations— such as certain victims of gangs, mental‑health‑related groups, single women living alone, or entire LGBTQI communities— that would have been beyond the contemplation of the drafters of the 1951 Convention.

3. Critique of Experience‑Based PSGs and the “Floodgates” Concern

A key target of the concurrence is the acceptance of “past experience” as an adequate basis for defining a PSG:

  • Drawing on Matter of Acosta and Third Circuit cases like Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003), which accepted shared past experiences as the relevant immutable characteristic, Matey argues this approach has no textual grounding in the refugee definition.
  • None of the other grounds—race, religion, nationality, political opinion—are defined by past experiences alone. Allowing any sufficiently traumatic or distinctive past experience to define a PSG risks swallowing the other four grounds.
  • In his view, recognizing experience‑based groups effectively opens the door for nearly any persecuted individual to define a bespoke “social group” around their particular narrative, leading to the “floodgates” concern (i.e., that asylum could become available to virtually any oppressed person who can describe a past experience as group‑defining).

He thus proposes a “straightforward” interpretation: a “particular social group” should be understood as a political category—victims of persecution by a foreign sovereign based on political disagreements or politically significant social classifications, akin to those contemplated in the European post–World War II context.

4. Deference and Separation of Powers

Finally, Matey questions whether the judiciary should be the primary architect of PSG doctrine at all:

  • He notes that asylum obligations arose in the United States via a treaty mechanism and that the Supreme Court has counseled respect for the Executive’s reasonable interpretations of treaties (El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999)).
  • He also points to the Supreme Court’s recent emphasis in Loper Bright on courts identifying the “single, best meaning” of statutes, but suggests that, particularly in immigration and foreign affairs, substantial interpretive weight may still belong to the Executive.

The concurrence closes by affirming agreement with the panel’s result on existing law, but indicating a desire to “return our application of the law to the parameters Congress set, and the Executive enjoys, in a future matter.” This is best read as an invitation—to colleagues, litigants, and perhaps the Supreme Court—to reconsider and possibly narrow the scope of PSG doctrine in the Third Circuit.

D. Likely Impact and Doctrinal Significance

1. Immediate Practical Impact: Cases Involving Private Criminal Actors

Although not precedential, the majority opinion reinforces several themes that already have strong support in Third Circuit law:

  • Distinguishing economic crime from persecution: Victims of extortion, debt collection, or other financially motivated private crime—whether by criminal gangs, loan sharks, or other private actors—will face significant hurdles in showing a nexus to a protected ground. Merely being targeted as a debtor, or as someone who refused to pay, is insufficient.
  • Personal disputes as non‑persecutory: The decision reiterates that private vendettas, business disputes, and isolated acts of violence or threats, absent evidence of protected‑ground animus, generally cannot sustain asylum or withholding claims.
  • CAT claims require specific, supported predictions of torture and acquiescence: Speculation that a private actor might still retaliate, without evidence of systematic government collaboration or tolerance and without attempts to seek official protection, will rarely satisfy the “more likely than not” standard combined with the “acquiescence” requirement.

2. Internal Relocation and Debt Repayment in CAT Analysis

The IJ’s—and the court’s—reliance on two specific mitigation possibilities is notable:

  • Internal relocation: The possibility of safely moving to another part of Brazil counts heavily against a finding that torture is more likely than not. Applicants who fail to show why relocation is not possible or would not reduce risk will struggle on Step 1A.
  • Repayment of the debt: The court accepts the IJ’s view that repaying Fernando would substantially undercut the risk of future harm. This is a relatively concrete, individualized factor often missing in more generalized gang violence cases.

For future CAT litigants, this emphasizes the need to:

  • Address internal relocation in detail,
  • Explain why repayment or other practical steps do not realistically reduce risk, and
  • Offer evidence (not speculation) of ongoing threats independent of the original triggering event (such as nonpayment of a debt).

3. The Concurrence’s Potential to Shape Future PSG Doctrine

While the concurrence has no immediate doctrinal effect, it is potentially influential:

  • It provides a detailed historical and textual account of PSG that other judges may find persuasive, especially post–Loper Bright, where courts may feel freer to revisit long‑standing agency and circuit interpretations.
  • It frames current PSG jurisprudence as unmoored from its original, treaty‑based meaning and suggests that modern categories (including many recognized by the Third Circuit and other circuits) may be inconsistent with the refugee regime Congress incorporated in 1980.
  • It hints at greater deference to the Executive (rather than to evolving UNHCR guidelines or judicial creativity) in defining treaty terms and statutory refugee categories.

If this view gains traction, future cases might see:

  • Stricter scrutiny of proposed PSGs, especially those defined by past experiences or by broad social identities.
  • Renewed arguments that PSG should be interpreted narrowly to cover only politically oriented, state‑targeted groups.
  • Possible tension between existing Third Circuit precedents recognizing various modern PSGs and a more historically constrained reading.

For now, however, existing Third Circuit PSG precedents remain binding on future panels, and this concurrence is best seen as an early marker in what could become an important doctrinal debate.

IV. Key Concepts Simplified

1. “Not Precedential” Opinions

A “NOT PRECEDENTIAL” designation under the Third Circuit’s Internal Operating Procedure 5.7 means:

  • The decision does not bind future panels of the Third Circuit.
  • It can still be cited for persuasive value, especially on similar fact patterns.
  • It resolves the parties’ dispute but is not intended to clarify or change the law in a generally binding way.

2. Asylum vs. Withholding of Removal

  • Asylum:
    • Discretionary relief.
    • Requires the person to be a “refugee” (persecution or well‑founded fear; nexus to a protected ground).
    • Lower burden of proof than withholding (“well‑founded fear” can be met by a lower probability than “more likely than not”).
  • Withholding of removal:
    • Mandatory if the standard is met, but offers narrower protection than asylum (no pathway to permanent residency, for example).
    • Requires showing that the applicant’s life or freedom would be threatened “because of” a protected ground if removed.
    • Higher burden of proof: “more likely than not.”

Both require a causal link (nexus) between the harm and a protected ground. No nexus, no protection, regardless of the severity of harm.

3. “Particular Social Group” (PSG)

Under current BIA (and Third Circuit) doctrine:

  • A PSG must generally:
    1. Share a common, immutable characteristic (something that cannot or should not be changed),
    2. Have clear boundaries (particularity), and
    3. Be perceived as a distinct group in the relevant society (social distinction).

The concurrence urges a narrower, historically grounded understanding: a PSG should consist of politically relevant groups targeted by the state (e.g., class enemies under totalitarian regimes), not the broader range of modern social formations currently recognized.

4. “Nexus”: “On Account Of” or “Because Of”

Nexus means that the protected ground must be a reason (under asylum law, usually “at least one central reason”) why the persecutor targets the applicant. It is not enough that:

  • The applicant happens to belong to some group and is also harmed, if the harm is actually for another reason (money, personal rivalry, random crime).
  • The protected characteristic is incidental or merely a background feature; it must be causally significant.

In this case, the cause of harm is Fernando’s desire to get his money back, not any animus toward a particular family, debtor class, or loan‑shark borrowers as such.

5. “Torture” and “More Likely Than Not” Under CAT

Under CAT regulations, “torture” is:

  • Severe physical or mental pain or suffering
  • Intentionally inflicted
  • For a specified purpose (e.g., information, punishment, intimidation)
  • By or with the consent/acquiescence of a public official or person acting in an official capacity.

“More likely than not” means the applicant must show a probability greater than 50% that they would be tortured if removed. General fears of crime or speculative threats often will not satisfy this high standard.

6. Government “Acquiescence” to Torture

For CAT, it is not enough that the torturer is a private actor. The government must:

  • Be aware (or deliberately ignorant) of the torture, and
  • Fail to take reasonable steps to prevent it.

Evidence that the applicant never sought police help, or that assertions of police collusion are wholly uncorroborated, weighs heavily against a finding of acquiescence. On the other hand, evidence of systemic corruption, documented collusion between gangs and police, and failed attempts to obtain protection can support a CAT claim.

V. Conclusion

The Third Circuit’s nonprecedential decision in Silvio Augusto Lima Carneiro v. Attorney General reaffirms several key principles:

  • Threats and harm arising from private, economically motivated disputes—such as loan‑shark extortion—typically lack the required nexus to a protected ground for asylum and withholding of removal absent evidence of group‑based animus.
  • CAT claims remain demanding: applicants must show that torture is more likely than not and that their home government would acquiesce. Speculation about future harm and unsubstantiated allegations of official corruption are insufficient, especially where the applicant made no attempt to seek official protection or to relocate.

Judge Matey’s concurrence, although not binding, is doctrinally notable. It invites a fundamental rethinking of “particular social group,” urging that courts return to a historically and politically focused interpretation anchored in the original understanding of the 1951 Convention and 1967 Protocol. If that view gains traction, it could significantly narrow the range of PSG-based asylum claims in the Third Circuit and beyond.

For now, practitioners should treat the majority’s reasoning as a strong, though nonbinding, signal on two points: (1) economic crimes and private disputes generally do not amount to protected‑ground persecution, and (2) CAT protection requires rigorous, well‑supported proof of both likely torture and state acquiescence. At the same time, the concurrence flags a live and potentially far‑reaching debate about the proper scope of “particular social group” that may shape future litigation and, perhaps, future precedent.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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