Pennsylvania Intent-to-Terrorize Threats Are CIMTs, but Internal Relocation Is Not Dispositive of CAT Protection

Case: Jesus Diaz v. Attorney General United States of America
Court: United States Court of Appeals for the Third Circuit
Decision date: October 23, 2026
Docket: No. 25-2190
Opinion author: Circuit Judge McKee

Precedential status: The opinion is expressly designated nonprecedential and is not binding under Third Circuit Internal Operating Procedure 5.7. Its significance lies in applying existing precedent and clarifying the distinct treatment of internal relocation in asylum and Convention Against Torture claims, rather than establishing a new binding rule.

1. Introduction

Jesus Diaz, a Mexican citizen, petitioned for review of a Board of Immigration Appeals decision sustaining his removability and denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Immigration Judge Dennis Ryan had determined that Diaz was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been convicted of two crimes involving moral turpitude (“CIMTs”).

Diaz did not contest the classification of his Pennsylvania theft-by-deception conviction as a CIMT. Instead, he challenged whether his separate conviction under Pennsylvania’s terroristic-threats statute, 18 Pa. Cons. Stat. § 2706, supplied the second qualifying conviction. The dispute required the court to identify the statutory subsection underlying his guilty plea and determine its immigration consequences.

Diaz’s requests for protection rested on a 2015 encounter at his family’s property in Mexico. A cartel member attempted to recruit him to assist with illicit activities in Pennsylvania, where Diaz lived. When Diaz refused, the cartel member said that he “never want[ed] to see [him] again.” Diaz relied on that encounter and evidence of violence in Mexico to support his claims.

The principal questions were whether the conviction records established a CIMT, whether the cartel encounter amounted to persecution, whether Diaz had preserved his challenge to internal relocation, and whether the evidence established a sufficient likelihood of torture. The court denied the petition, although it expressly identified an error in the BIA’s CAT analysis.

2. Summary of the Opinion

  1. Removability: The criminal information and plea agreement established that Diaz was convicted under § 2706(a)(1), which covers threats to commit a crime of violence with intent to terrorize another. Binding circuit precedent classifies that offense as categorically involving moral turpitude.
  2. Asylum: Substantial evidence supported the finding that the single cartel encounter did not establish past persecution. Diaz also failed to preserve an administrative challenge to the finding that he could avoid future persecution by relocating within Mexico.
  3. Withholding of removal: Diaz’s failure to satisfy the relevant asylum standard also defeated his claim under withholding’s more demanding probability standard.
  4. CAT protection: The BIA incorrectly treated internal relocation as dispositive. Nevertheless, Diaz had not challenged that determination on judicial review, and remand would have been futile because the evidence did not establish that he would more likely than not suffer torture with official acquiescence.

The result was therefore a denial of relief, but not an unqualified endorsement of the agency’s reasoning.

3. Analysis: Precedents Cited and Legal Reasoning

A. Judicial Review and the Classification of the Criminal Conviction

The court recognized jurisdiction over final removal orders under 8 U.S.C. § 1252(a). Although § 1252(a)(2)(C) restricts review of certain criminal removal orders, § 1252(a)(2)(D) preserves review of constitutional claims and questions of law. Diaz’s challenge to the legal classification of his conviction fell within that preserved category.

The modified categorical approach

The court did not decide whether Diaz’s actual conduct was morally reprehensible. It examined the statutory elements of his offense. Because Pennsylvania’s terroristic-threats statute contains alternative offenses, the court first had to determine which alternative formed the basis of the conviction.

The criminal information expressly charged a violation of § 2706(a)(1): communicating a threat to commit a crime of violence with intent to terrorize another. The plea agreement acknowledged Diaz’s review of that information before pleading guilty. Read together, these records identified the relevant statutory alternative and defeated Diaz’s argument that the court had to assume conviction under the least culpable provision of the broader statute.

Precedents governing the conviction analysis

  • Ildefonso-Candelario v. Att'y Gen., 866 F.3d 102, 104 (3d Cir. 2017), supplied the standard of review: whether an offense constitutes a CIMT is a legal question reviewed de novo. The court therefore independently assessed the legal classification rather than deferring to the agency’s conclusion.

  • United States v. Brown, 765 F.3d 185, 192 (3d Cir. 2014), as amended November 4, 2014, established that § 2706(a) is divisible. That conclusion was the gateway to consulting conviction records: the records could identify an alternative offense, not simply supply facts about Diaz’s behavior.

  • Sasay v. Att'y Gen., 13 F.4th 291, 297 (3d Cir. 2021), explained the modified categorical approach’s limited purpose—determining which alternative elements formed the basis of the conviction. Its importance was methodological: it confined the inquiry to identifying the offense of conviction.

  • Descamps v. United States, 570 U.S. 254, 257 (2013), supplied the underlying formulation quoted through Sasay v. Att'y Gen.. The approach remains element-focused; it does not authorize a free-ranging investigation into the criminal episode.

  • Avila v. Att'y Gen., 826 F.3d 662, 666 (3d Cir. 2016), identified permissible conviction records, including charging documents, plea agreements, and judgments. It supported the court’s reliance on the particular documents in Diaz’s record.

  • Shepard v. United States, 544 U.S. 13, 16 (2005), was the foundational authority, cited through Avila v. Att'y Gen., for restricting the documentary inquiry. These “Shepard documents” protect the categorical analysis from becoming an unrestricted examination of allegations or underlying conduct.

  • Evanson v. Att'y Gen., 550 F.3d 284, 292–93 (3d Cir. 2008), specifically supported treating a criminal information as a relevant charging document. It confirmed that the information naming § 2706(a)(1) was an appropriate source for identifying Diaz’s offense.

Why the identified offense was a CIMT

Once the court identified § 2706(a)(1), the classification question was controlled by existing circuit law.

  • Javier v. Att'y Gen., 826 F.3d 127, 131–32 (3d Cir. 2016), held that a conviction under § 2706(a)(1) is categorically morally turpitudinous. That holding directly foreclosed Diaz’s alternative argument that even the intent-to-terrorize subsection was not a CIMT.

  • Larios v. Att'y Gen., 978 F.3d 62, 70 (3d Cir. 2020), reinforced the binding status of that rule by describing the issue as settled. Diaz argued that Javier v. Att'y Gen. was nonprecedential, but the court explained that it had been published following an August 3, 2016 order and subsequently treated as binding precedent.

Scope of the ruling: The court did not classify every offense under § 2706(a) as a CIMT. Its conclusion depended on identifying the specific intent-to-terrorize offense under subsection (a)(1). Together with the uncontested theft-by-deception conviction, that offense sustained the charged ground of removability.

B. Asylum: The Threat’s Severity and the Consequences of Nonpreservation

Asylum requires qualification as a refugee under the Immigration and Nationality Act. The applicant must establish persecution, or a well-founded fear of persecution, connected to race, religion, nationality, membership in a particular social group, or political opinion.

The court’s analysis turned on the severity of the 2015 encounter and the procedural treatment of future persecution. It did not resolve whether Diaz’s feared harm had the required connection to a protected ground.

Past persecution

The court assumed that the cartel member’s statement could be understood as a threat. Even so, the single statement, without resulting physical harm or sufficiently imminent and concrete danger, did not require a finding of past persecution.

  • Urias-Orellana v. Bondi, 607 U.S. 537, 539 (2026), supplied substantial-evidence review for the determination whether an applicant established past persecution. Under this deferential standard, the question was whether the agency’s finding could stand on the record, rather than whether the court would assess the encounter differently in the first instance.

  • Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006), supplied the governing treatment of threats. Although threats can constitute persecution, sinister or credible threats do not invariably meet that threshold when they lack sufficient imminence, concreteness, or resulting harm. The court applied that distinction to Diaz’s isolated encounter.

The reasoning should not be read as making physical injury indispensable to an asylum claim. The court expressly acknowledged that a threat may itself amount to persecution. Its conclusion concerned this threat in its particular context.

Future persecution and internal relocation

The IJ had determined that Diaz could avoid future persecution by relocating within Mexico. The BIA treated his failure to challenge that determination as waiver. The court found no abuse of discretion in that procedural ruling and enforced the government’s exhaustion objection.

  • Sanchez v. Att'y Gen., 147 F.4th 348, 352 (3d Cir. 2025), as amended March 24, 2026, established abuse-of-discretion review for BIA waiver determinations. It governed review of the BIA’s decision not to entertain the unpreserved relocation challenge.

  • Aguilar v. Att'y Gen., 107 F.4th 164, 168–69 (3d Cir. 2024), required enforcement of administrative exhaustion when the government properly invokes it. The court therefore declined to decide the substantive merits of Diaz’s relocation argument.

This distinction matters: the court upheld a preservation ruling; it did not independently undertake a fresh factual assessment of where Diaz could safely live in Mexico.

C. Withholding of Removal: A More Demanding Probability Standard

Withholding of removal requires a clear probability that the applicant would face persecution on a protected ground—meaning that persecution is more likely than not.

  • I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987), supported the distinction between asylum’s well-founded-fear standard and withholding’s more demanding probability requirement.

  • Gomez-Zuluaga v. Att'y Gen., 527 F.3d 330, 348–49 (3d Cir. 2008), supplied both the withholding standard and the proposition that failure to meet the lower asylum threshold necessarily defeats the higher withholding threshold when the same substantive evidentiary deficiency controls.

Applying those principles, the court concluded that the reasons defeating Diaz’s asylum claim also defeated withholding. This reasoning is tied to the nature of his claims; it should not be generalized into a rule that every asylum denial, including one based on a separate procedural or statutory bar, automatically defeats withholding.

D. CAT Protection: Correcting the Relocation Analysis Without Ordering Remand

The distinct CAT framework

CAT protection requires proof that the applicant would more likely than not be tortured in the proposed country of removal. Unlike asylum and withholding, CAT does not require a connection between the feared harm and one of the five protected grounds. It does, however, require the necessary relationship between the torture and public officials, including official acquiescence when private actors are responsible.

  • Kamara v. Att'y Gen., 420 F.3d 202, 212–13 (3d Cir. 2005), supplied the more-likely-than-not threshold governing CAT eligibility.

  • Saban-Cach v. Att'y Gen., 58 F.4th 716, 733 (3d Cir. 2023), organized the inquiry into two principal components: the likelihood of legally qualifying torture and the necessary official acquiescence. It directed attention to both the feared harm and the governmental response.

  • Myrie v. Att'y Gen., 855 F.3d 509, 516 (3d Cir. 2017), supplied the more detailed framework underlying those components. The adjudicator must determine what will likely happen and whether it legally constitutes torture, then determine how officials will likely respond and whether that response legally constitutes acquiescence.

Why the BIA’s relocation reasoning was incorrect

The BIA treated Diaz’s failure to challenge the internal-relocation finding as dispositive of his CAT claim. The court rejected that legal premise.

Kaplun v. Att'y Gen., 602 F.3d 260, 270 (3d Cir. 2010), citing 8 C.F.R. § 208.16(c)(3), established that internal relocation is only one factor in evaluating the likelihood of torture. Other considerations include past torture, gross or mass human-rights violations, and relevant country conditions.

The distinction is substantive, not merely procedural. A relocation finding relevant to future persecution cannot automatically substitute for the broader CAT assessment. Relocation evidence may weigh strongly against a CAT claim, but it is not a standalone legal bar.

Why the error did not require remand

The court observed that Diaz had not challenged the BIA’s determination on appeal. It also supplied an independent reason not to remand: correction of the error could not produce relief on this record.

  • Ricketts v. Att'y Gen., 955 F.3d 348, 352 (3d Cir. 2020), recognized a futility exception to the ordinary rule that judicial review is confined to the agency’s stated grounds. Where the BIA is unable as a matter of law to grant the requested relief, a reviewing court may deny the petition without requiring an ineffective remand.

  • Li Hua Yuan v. Att'y Gen., 642 F.3d 420, 427 (3d Cir. 2011), provided the related harmless-error principle: remand is unnecessary when it is highly probable that the agency’s error did not affect the outcome. It supported distinguishing an actual analytical mistake from one requiring further proceedings.

  • Tarrawally v. Ashcroft, 338 F.3d 180, 188 (3d Cir. 2003), explained why general reports of violence did not fill the evidentiary gap. Broad country-condition findings were insufficient here to show that this particular applicant would more likely than not be tortured.

The court relied on the absence of a history of torture, the lack of specifics about official acquiescence, and the generalized nature of the country reports. Taken together, those shortcomings meant Diaz had not established CAT eligibility.

Two limits are important. First, past torture is relevant evidence, not an indispensable prerequisite. Second, country reports remain relevant; the problem was their failure, on this record, to establish the necessary individualized probability. The court did not announce a general rule excluding such evidence.

4. Potential Impact

A. Conviction Documents Remain Central to Criminal-Removal Litigation

The opinion illustrates how the interaction between a charging document and a plea agreement can resolve uncertainty about a divisible statute. Challenges to CIMT classification must distinguish between two questions: which statutory alternative produced the conviction, and whether that alternative categorically qualifies. Diaz lost the first question on the documents and the second under binding precedent.

B. Current Publication Status Controls a Precedent’s Authority

The treatment of Javier v. Att'y Gen. is a practical reminder that an opinion’s original designation may not reflect its present authority. A later publication order can make reliance on the original nonprecedential label ineffective.

C. Preservation Must Be Considered at Each Review Stage

The decision demonstrates separate preservation risks before the BIA and the court of appeals. Failure to challenge internal relocation before the BIA prevented substantive judicial review of the asylum issue; failure to challenge the BIA’s CAT reasoning supplied an additional obstacle on judicial review.

D. CAT Requires Its Own Analysis

The opinion’s clearest substantive clarification is that an asylum-related relocation determination cannot automatically dispose of CAT protection. Future adjudicators should separately consider the likelihood of torture, relevant country evidence, relocation possibilities, and official involvement or acquiescence.

E. Agency Error Does Not Automatically Produce Remand

The decision also shows the limits of obtaining relief by identifying an analytical mistake alone. Where the record cannot support the requested protection and remand would be futile, the petition may still be denied. That exception does not authorize unrestricted judicial substitution for agency decision-making; the court grounded it in the inability to grant relief on the existing record.

Because this opinion is nonprecedential, these implications are primarily illustrative. The binding legal rules remain those established by the authorities the panel applied.

5. Complex Concepts Simplified

Crime involving moral turpitude
An immigration-law classification applied to certain offenses involving sufficiently culpable intent and reprehensible conduct. Here, existing precedent placed threats of violence made with intent to terrorize within that category.
Categorical approach
A method that examines an offense’s legal elements rather than deciding whether the person’s actual behavior was especially blameworthy.
Divisible statute
A statute containing alternative sets of elements that define different offenses. Identifying the relevant alternative may be necessary before determining immigration consequences.
Modified categorical approach
A limited examination of approved conviction records to identify which alternative offense resulted in conviction. It does not replace the element-based inquiry with a factual retrial.
Shepard documents
Approved judicial records, such as charging instruments and plea agreements, that may identify the offense of conviction.
De novo and substantial-evidence review
De novo review means independent consideration of a legal question. Substantial-evidence review is deferential: the reviewing court generally leaves the agency’s factual determination intact unless the record compels a contrary result.
Exhaustion and waiver
Exhaustion generally requires presenting an issue through the administrative process before seeking judicial review. Waiver, as used in this opinion, describes the agency’s treatment of an issue not adequately challenged before it.
Internal relocation
Moving to another part of the same country to avoid danger. For CAT purposes, the possibility of relocation is evidence to consider, not an automatic disqualification.
Official acquiescence
The legally sufficient governmental acceptance of or failure to intervene against feared torture by private actors. A CAT claimant must establish the required official connection, not merely the existence of violent criminals.
Futile remand
A return to the agency that cannot change the legally available outcome. In that limited situation, a court may decline to remand despite an agency error.

6. Conclusion

The Third Circuit denied Diaz’s petition because the conviction records established a binding-precedent CIMT, the asylum and withholding claims failed, and the evidence did not establish eligibility for CAT protection.

The opinion’s central qualification is equally important: internal relocation alone is not dispositive of a CAT claim. Although the BIA erred on that point, preservation problems and the futility of remand left the denial intact. As a nonprecedential decision, the opinion illustrates the application—and the limits—of established criminal-removal, protection, and administrative-review doctrines.