Telephonic Threats from Abroad and Speculative Risk Do Not Establish Withholding or CAT Eligibility Absent Concrete Evidence of Future Harm and Government Acquiescence

1. Introduction

In Selassie Atoklo v. Attorney General United States of America (3d Cir. Mar. 2, 2026) (not precedential), the Third Circuit reviewed a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ’s) denial of (1) withholding of removal and (2) deferral of removal under the Convention Against Torture (CAT).

Petitioner Selassie Atoklo, a Ghanaian citizen and lawful permanent resident, became removable after federal convictions for fraud- and laundering-related offenses deemed aggravated felonies. He sought protection on the theory that members of a Ghana-based criminal scheme (the “Enterprise”) would retaliate against him in Ghana because he cooperated with U.S. authorities and testified against a member of the Enterprise. The key issues were whether the record compelled a finding of: (a) a clear probability of future persecution (withholding), and (b) a likelihood of torture with government consent or acquiescence (CAT).

2. Summary of the Opinion

The Third Circuit denied the petition for review. It held substantial evidence supported the BIA’s conclusion that Atoklo failed to establish an objectively reasonable fear of future persecution for withholding purposes. The court emphasized that, although Atoklo received threats, neither he nor his family in Ghana had been harmed, and the IJ found the Enterprise would be unlikely to learn of his return.

The court also upheld denial of CAT relief. It rejected Atoklo’s claim that the IJ applied an incorrect legal standard, explaining that any imprecise reference to “complicity” did not drive the outcome and that the IJ otherwise applied the correct CAT framework. Critically, the IJ found (and the BIA affirmed) that Atoklo had not shown he would be tortured at all, relying on findings that his fear of the Enterprise’s reach was speculative and that his family lived safely in Ghana.

3. Analysis

3.1 Precedents Cited

  • Cortez- Amador v. Att'y Gen., 66 F.4th 429, 434-35 (3d Cir. 2023)
    Cited for the governing evidentiary framework: the court reviews whether substantial evidence supports the agency’s determination that an applicant failed to establish an objectively reasonable fear of future persecution. The citation signals deference to the agency’s predictive and factual findings unless the record compels the opposite conclusion.
  • Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006)
    Central to the withholding analysis. The court relied on Chavarria for the proposition that “sinister and credible” threats—without being “highly imminent or concrete” or resulting in physical violence—often do not suffice to establish a qualifying fear. This precedent framed the court’s treatment of anonymous threats as inadequate, absent concrete evidence of likely follow-through.
  • Nasrallah v. Barr, 590 U.S. 573, 584 (2020)
    Used to articulate the “compelled” standard on review of factual determinations (including CAT-related factfinding): the court may not disturb agency findings unless the record compels a contrary conclusion. This precedent underwrote the Third Circuit’s refusal to reweigh predictions about whether the Enterprise would locate or harm Atoklo in Ghana.
  • Lopez v. Att'y Gen., 142 F.4th 162, 170 (3d Cir. 2025)
    Provided the two-prong CAT test applied by the court: the applicant must show (1) likely torture upon return and (2) government acquiescence (including willful blindness) to that torture. The court used Lopez to assess Atoklo’s argument that the IJ used an incorrect prong-two standard.
  • Galeas Figueroa v. Att'y Gen., 998 F.3d 77, 86-87 (3d Cir. 2021)
    Cited to clarify terminology: “complicit” is a concept associated with persecution analysis, whereas CAT requires “consent or acquiescence.” The panel treated the IJ’s use of “complicit” as an imprecise label that did not change the operative legal test actually applied.
  • Huang v. Att'y Gen., 620 F.3d 372, 384-85 (3d Cir. 2010)
    Addressed standards of review within the agency: legal conclusions are reviewed de novo by the BIA, while factual findings are reviewed for clear error. The panel used Huang to reject the claim that the BIA applied the wrong standard, concluding the BIA used clear-error review only for factual issues.

3.2 Legal Reasoning

A. Withholding of Removal: threats and speculative future harm

The court affirmed the agency’s conclusion that Atoklo did not meet the withholding standard because the record did not establish an objectively reasonable fear (i.e., a clear probability) of future persecution in Ghana. The reasoning turned on three related agency findings the court deemed supported by substantial evidence:

  1. Threats without harm were insufficient on this record. Invoking Chavarria v. Gonzalez, the court treated threats—without physical harm to Atoklo or his family and without concrete evidence that the threats would be executed—as inadequate to satisfy the “objectively reasonable fear” requirement.
  2. The Enterprise’s awareness and intent were unproven. The IJ found the Enterprise would not know of Atoklo’s return; the BIA found no clear error; the Third Circuit held nothing compelled the contrary. That predictive finding substantially weakened the causal link between past cooperation and future persecution.
  3. Family safety in Ghana undercut likelihood of targeted harm. The agency relied on the fact that Atoklo’s family in Ghana had not been threatened or harmed, even though (per the IJ) a “key player” in the Enterprise knew where they lived. The court treated this as probative against future persecution.

The panel also rejected a “past persecution” angle, noting that threats received while Atoklo lived in the United States could not qualify as past persecution in Ghana under 8 C.F.R. § 1208.16(b)(1)(i).

B. CAT: correct legal test; denial supported by prong-one factfinding

On CAT, Atoklo primarily attacked the prong-two “government acquiescence” analysis, arguing the IJ applied the wrong standard. The court disagreed:

  • The IJ articulated the correct CAT concepts despite imprecise wording. The IJ stated that Ghana must “instigate, consent to,” or “acquiesce”/be “willfully blind” to torture. The panel acknowledged the IJ’s use of “complicit” was imprecise (citing Galeas Figueroa v. Att'y Gen.) but concluded the analysis itself tracked CAT’s correct legal requirements.
  • The case effectively turned on CAT prong one: likelihood of torture. The IJ found Atoklo could reside safely in Ghana; allegations of the Enterprise’s nationwide reach were “purely speculative”; and the family’s safety further undermined the likelihood of torture. The Third Circuit emphasized that, even if prong two were debated, the IJ’s prong-one finding was independently sufficient and not compelled to be reversed under Nasrallah v. Barr.
  • Issue preservation mattered at the BIA. The BIA found Atoklo failed to “meaningfully challenge” certain predictive findings on appeal. The Third Circuit noted this deficiency, and in any event held the record did not compel a different factual outcome.

3.3 Impact

Although designated “not precedential,” the decision reflects several practical signals consistent with Third Circuit doctrine:

  • Threat evidence must be made concrete. Applicants relying on threats—especially anonymous or remote threats—should expect close scrutiny under Chavarria v. Gonzalez. Corroboration (who threatened, how they can act, escalation, attempts to locate the applicant, harm to similarly situated people, or harm to family) may be decisive.
  • Predictive findings are hard to overturn. The court’s reliance on Nasrallah v. Barr underscores that predictions about future harm and an organization’s ability to locate a returnee are treated as factfinding reviewed deferentially; petitioners must point to record evidence that compels a contrary conclusion.
  • CAT claims often fail at prong one before prong two matters. Even where country conditions show corruption, the court accepted the agency’s view that “general corruption” is not enough without a specific nexus between officials and the feared torturers—especially when the applicant cannot first establish a likelihood of torture.
  • Appellate framing at the BIA is critical. The “meaningfully challenge” language highlights that petitioners must directly attack key IJ predictive findings before the BIA or risk losing the issue on judicial review.

4. Complex Concepts Simplified

Withholding of removal
A mandatory protection if an applicant shows it is more likely than not (a “clear probability”) they would be persecuted in the country of removal on a protected ground. It is harder to obtain than asylum and is unavailable to some criminals, but can remain available even when asylum is barred.
CAT protection (deferral/withholding under CAT)
Protection based on likelihood of torture, not on a protected ground. The applicant must prove (1) likely torture and (2) that government officials would consent, acquiesce, or be willfully blind to it. CAT “deferral” is a more temporary form of protection often available even when other relief is barred by criminal history.
Government “acquiescence” / “willful blindness”
The government does not need to directly torture the applicant; it is enough if officials would knowingly turn a blind eye or effectively allow it. General corruption alone, without evidence tying officials to the feared harm, may be treated as insufficient.
Substantial evidence / “compelled” reversal
On petition for review, courts do not re-decide facts. They uphold agency factfinding unless the record requires (compels) the opposite result—an intentionally high bar reflected in Nasrallah v. Barr.
Clear error vs. de novo review at the BIA
The BIA reviews an IJ’s factual findings for clear error (deference) and legal conclusions de novo (fresh review). The court rejected the claim that the BIA used the wrong standard because it treated the “objective reasonableness” dispute as turning on factual predictions.

5. Conclusion

The Third Circuit’s decision affirms that, for withholding and CAT claims grounded in fear of criminal retaliation, applicants must do more than show past threats and generalized country conditions. Consistent with Chavarria v. Gonzalez and Nasrallah v. Barr, the court deferred to agency findings that the threats had not materialized into harm, that the feared actors were unlikely to learn of the applicant’s return, and that family safety undermined claims of targeted danger. For CAT, the panel emphasized that imprecise wording about “complicity” is not reversible error when the adjudicator applies the correct “consent/acquiescence” framework and, in any event, denies relief based on a supported finding that torture is not likely to occur.