Rejected BIA eFilings Are Treated as Unfiled—and Thus Unreviewable on Petition for Review

1. Introduction

In Arefin Chowdhury v. Attorney General United States of America (3d Cir. Aug. 6, 2026) (nonprecedential), the Third Circuit reviewed the Board of Immigration Appeals’ (BIA) dismissal of Arefin Chowdhury’s applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Chowdhury, a Bangladeshi national and lawful permanent resident since 2014, was ordered removed after a New Jersey conviction for endangering the welfare of a child under N.J. Stat. Ann. § 2C:24-4(a)(1).

The case presented three main issues: (1) whether the conviction qualified as a “particularly serious crime,” barring asylum and withholding; (2) whether substantial evidence supported denial of CAT deferral based on alleged risks tied to bisexuality, a U.S. criminal conviction, and an asserted Bangladeshi warrant; and (3) whether the court could grant relief based on the BIA’s “rejection” (not adjudication) of a motion to remand that never became part of the administrative record.

2. Summary of the Opinion

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

  • The Immigration Judge (IJ) applied the correct framework to deem Chowdhury’s conviction a “particularly serious crime,” which disqualified him from relief other than CAT deferral.
  • The CAT claim failed because the record lacked particularized evidence making it “more likely than not” that Chowdhury would be tortured in Bangladesh; general country-conditions evidence about sexual minorities was insufficient.
  • The court could not review or fault the BIA regarding the motion to remand because it was “rejected” (and therefore treated as not filed), was not in the administrative record, and judicial review is confined to that record.

3. Analysis

A. Precedents Cited

Sunuwar v. Att'y Gen.

The court relied on Sunuwar v. Att'y Gen., 989 F.3d 239 (3d Cir. 2021), for two foundational propositions: (1) a “particularly serious crime” bars “all forms of relief from removal except deferral of removal under the CAT,” and (2) when the BIA explicitly adopts the IJ’s analysis, the Third Circuit reviews both decisions, applying de novo review to legal questions and substantial-evidence review to factual findings.

Luziga v. Att'y Gen.

The “particularly serious crime” inquiry followed Luziga v. Att'y Gen., 937 F.3d 244 (3d Cir. 2019). The court emphasized that the correct analysis is not whether the statute always defines a particularly serious crime, but rather: (1) whether the statute’s elements “potentially bring the offense within the ambit of a particularly serious crime,” and, if so, (2) whether the applicant’s “specific conduct” was particularly serious. The panel concluded the IJ “did just that.”

Tarrawally v. Ashcroft

On CAT risk, the panel invoked Tarrawally v. Ashcroft, 338 F.3d 180 (3d Cir. 2003), for the proposition that country-conditions evidence, standing alone, is typically “insufficient to demonstrate that it is more likely than not that a particular civilian . . . will be tortured.” This framed the court’s insistence on individualized proof tying general conditions to Chowdhury’s personal likelihood of torture.

Hernandez Garmendia v. Att'y Gen.

The court cited Hernandez Garmendia v. Att'y Gen., 28 F.4th 476 (3d Cir. 2022), both for the standard of review and to illustrate the individualized-evidence requirement (i.e., proof that the applicant is “more likely than not to be singled out” for torture). The court also used Hernandez Garmendia in its harmless-error discussion regarding the IJ’s treatment of Chowdhury’s testimony.

Matter of C-G-T-

Chowdhury argued the IJ effectively expected him to conceal his sexual orientation to avoid harm, which Matter of C-G-T-, 28 I. & N. Dec. 740 (BIA 2023), disallows (“We do not base consideration of an applicant's fear of future harm on the ability or requirement to hide his or her sexual orientation.”). The panel did not definitively resolve the error’s existence; instead, it treated any such error as harmless because the record still lacked sufficiently specific evidence of likely torture.

Matter of Burbano and Paripovic v. Gonzales

Addressing the claim that the BIA failed to exercise independent judgment, the court referenced Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and clarified via Paripovic v. Gonzales, 418 F.3d 240 (3d Cir. 2005), that BIA “adopt[ion] and affirm[ance]” signifies alignment with the IJ’s reasoning— not mere “rubber stamp[ing].”

Yoc-Us v. Att'y Gen.

On record-based review, Yoc-Us v. Att'y Gen., 932 F.3d 98 (3d Cir. 2019), reinforced the statutory limitation that the court may review only the “administrative record” before it, as required by 8 U.S.C. § 1252(b)(4)(A). This precedent supported the court’s refusal to evaluate the absent motion to remand.

B. Legal Reasoning

1) “Particularly Serious Crime” as a conduct-specific determination

Chowdhury attempted to frame the issue categorically—arguing that N.J. Stat. Ann. § 2C:24-4(a)(1) does not always constitute a particularly serious crime. The court rejected that framing as inconsistent with Luziga v. Att'y Gen.. The IJ’s task was twofold: determine whether the statute can fall within the ambit of “particularly serious crime” and then assess the seriousness of the conduct proven or admitted. Given the underlying allegations described in the indictment (repeated sexual acts involving a child relative) and the state court’s noted aggravating factor (“[t]he gravity and seriousness of harm inflicted on the victim”), the panel found no legal error in the agency’s particularly-serious-crime conclusion.

2) CAT deferral requires particularized evidence of likely torture

Chowdhury asserted likely torture based on (a) bisexuality, (b) a U.S. conviction, and (c) a Bangladeshi warrant related to political protests. The court found the evidence insufficient on each asserted pathway:

  • Sexual orientation: The record contained only generalized country-conditions evidence, which Tarrawally v. Ashcroft warns is inadequate without an individualized showing.
  • U.S. criminal conviction: The court noted the absence of evidence that Bangladeshi authorities torture returnees merely because they were convicted abroad.
  • Political warrant/protests: The court observed the political group Chowdhury supported is now in power, undermining the claim that state actors would torture him for that association.

Even assuming the IJ improperly relied on testimony suggesting Chowdhury would avoid same-sex relationships out of fear (implicating Matter of C-G-T-), the panel held the error harmless because the record still lacked the required “more likely than not” showing of torture.

3) A BIA “rejection” of an eFiled motion means it is treated as not filed, leaving nothing for judicial review

The opinion’s most practically significant procedural holding concerns the motion to remand. Chowdhury argued the BIA failed to adjudicate it and that this failure required granting the petition. The Third Circuit’s reasoning proceeded in three steps:

  1. Record limitation: Under 8 U.S.C. § 1252(b)(4)(A), the court can consider only what is in the administrative record. Because the motion to remand was not in the record, it could not be reviewed.
  2. Meaning of “rejected”: The BIA’s rejection notice indicated the filing was not considered and, per the BIA Practice Manual, a rejection “does not qualify as an adjudication of the filing or a decision regarding its content.”
  3. Consequences for timing and procedure: Motions to remand must be properly filed before a decision issues; after decision, the proper vehicle is generally a motion to reopen. The rejection notice also warned that rejection does not extend filing deadlines.

Because the court treated the motion as never having been filed, Chowdhury’s argument—premised on the existence of an adjudicable BIA error—collapsed. The panel also noted Chowdhury did not explain how the BIA erred in rejecting the filing, only that the stated reasons were “insufficient.”

C. Impact

Although designated “NOT PRECEDENTIAL,” the decision is a clear signal on several recurring issues in immigration litigation in the Third Circuit:

  • Procedural rigor for BIA eFiling: A “rejected” submission is functionally invisible for purposes of judicial review because it is treated as not filed and may not enter the administrative record. Practitioners must confirm acceptance (not merely “receipt”) and immediately cure eFiling defects, mindful that rejection does not extend deadlines.
  • CAT claims require individualized proof: The decision reiterates that general evidence of mistreatment of a group is rarely enough without showing why the applicant, personally, is more likely than not to be tortured.
  • PSC determinations remain fact-sensitive: Attempting to defeat a “particularly serious crime” finding by abstracting to the statute alone is unlikely to succeed where the agency ties seriousness to the applicant’s conduct.

4. Complex Concepts Simplified

  • “Particularly serious crime” (PSC): A category of convictions that bars asylum and withholding; the agency looks not only at the statute but also at the facts and circumstances of the specific offense.
  • CAT deferral vs. CAT withholding: Both are forms of protection under CAT; PSC bars can foreclose CAT withholding, leaving only the narrower remedy of CAT deferral.
  • “More likely than not”: The burden for CAT protection—showing a greater-than-50% chance of torture upon return.
  • “Substantial evidence” review: The court upholds agency factfinding unless the evidence compels a contrary conclusion.
  • Motion to remand vs. motion to reopen: A motion to remand is typically filed while an appeal is pending at the BIA; once the BIA has decided the appeal, a new request usually must be brought as a motion to reopen.
  • BIA “rejection”: A filing-status determination (often eFiling-related) meaning the BIA did not accept or consider the submission; it is not an adjudication on the merits.

5. Conclusion

The Third Circuit’s denial of relief in Chowdhury rests on two core themes: (1) substantive deference to the agency’s application of established frameworks for “particularly serious crime” and CAT likelihood-of-torture determinations, and (2) strict adherence to record-based judicial review and to the procedural consequences of a BIA eFiling “rejection.” The opinion’s most salient lesson is practical: if the BIA rejects an attempted filing, the courts will generally treat it as never filed—leaving no record basis for appellate review and no remedy via a petition for review.