Untimely BIA Appeals and Gang-Recruitment PSGs: Particularity/Social-Distinction Limits and CAT Acquiescence Proof Requirements

1. Introduction

Case: Melvin Mendoza-Perez v. Attorney General United States of America (Third Circuit, Apr. 17, 2026) (not precedential).
Posture: Petition for review of a BIA final order of removal following an Immigration Judge’s denial of asylum, withholding of removal, and CAT protection, and the BIA’s dismissal of Mendoza-Perez’s administrative appeal as untimely.
Parties: Petitioner Melvin Alexander Mendoza-Perez (a Guatemalan citizen) vs. the Attorney General of the United States (respondent).

Mendoza-Perez entered the United States as an undocumented child and conceded removability under 8 U.S.C. § 1182(a)(6)(A)(i). He sought relief based on fear of gang-related harm if returned to Guatemala. His asylum/withholding claim turned on whether he belonged to a cognizable “particular social group” (PSG) that he framed as “young men without a parent or guardian who are actively recruited by gangs.” His CAT claim turned on whether he was more likely than not to be tortured, and whether any torture would occur with government “consent or acquiescence.”

The Third Circuit denied the petition, primarily because the BIA properly dismissed the administrative appeal as untimely and, alternatively, because the claims failed on the merits.

2. Summary of the Opinion

  • Timeliness: The BIA received the notice of appeal three days after the 30-day deadline. Under the regulations, filing occurs upon receipt by the BIA. The Third Circuit held the BIA properly dismissed as untimely, and further treated Mendoza-Perez’s failure to challenge that ruling in his opening brief as waiver.
  • Asylum/Withholding: The proposed PSG failed the particularity and social distinction requirements. The group was not meaningfully distinguishable from the broader population that gangs recruit, and “actively recruited” was too subjective/indeterminate to provide definable boundaries.
  • CAT: Mendoza-Perez did not point to record evidence compelling the conclusion that he would more likely than not be tortured in Guatemala with the consent or acquiescence of public officials.

3. Analysis

A. Precedents Cited

1) Waiver on petition for review: issues not raised are forfeited

The court relied on Khan v. Att'y Gen., 691 F.3d 488, 495 n.4 (3d Cir. 2012) for the proposition that an issue is waived if not raised in the opening brief. This mattered because Mendoza-Perez did not challenge the BIA’s timeliness dismissal; the court therefore treated that dispositive ground as waived.

2) Substantial-evidence review of agency factfinding

The opinion reiterated the deferential review standard from Galeas Figueroa v. Att'y Gen. United States, 998 F.3d 77, 91 (3d Cir. 2021), which in turn cites 8 U.S.C. § 1252(b)(4)(B): agency findings stand unless a reasonable adjudicator would be compelled to conclude otherwise. The same case later supports the court’s CAT analysis. See Galeas Figueroa, 998 F.3d at 92. The court also cited Espinosa-Cortez v. Att'y Gen., 607 F.3d 101, 106 (3d Cir. 2010) to emphasize how “highly deferential” substantial-evidence review is in this context.

3) PSG framework: immutable characteristic, particularity, social distinction

The operative PSG test came from S.E.R.L. v. Att'y Gen. United States of Am., 894 F.3d 535, 547 (3d Cir. 2018). That tripartite framework structured the court’s analysis and led directly to the conclusion that Mendoza-Perez’s group failed.

4) Particularity and social distinction elaboration

The court invoked Inestroza-Tosta v. Att'y Gen., 105 F.4th 499, 518 (3d Cir. 2024), abrogated in part on other grounds, by Riley v. Bondi, 606 U.S. 259, 267-73 (2025) to explain:

  • Particularity: requires definable boundaries; the group cannot be overbroad and must provide a clear standard for membership.
  • Social distinction: asks whether the society in question perceives the group as distinct.

The court’s parenthetical about abrogation is important: it signals the court continued to rely on Inestroza-Tosta for PSG definitional principles even though some unrelated aspect was later abrogated by Riley v. Bondi.

5) Persecution cannot define the group; “targeted by gangs” logic

The opinion emphasized the Third Circuit’s line that “persecutory conduct alone cannot define a group,” citing Radiowala v. Att'y Gen. United States, 930 F.3d 577, 585 (3d Cir. 2019) (citing S.E.R.L., 894 F.3d at 549). It also relied on Radiowala, 930 F.3d at 584, to support the “indistinguishable from the general public” critique—i.e., if the proposed group largely collapses into the set of people a gang might target anyway, it is not meaningfully particular or socially distinct.

6) Subjective or value-laden group definitions

The court cited Khan v. Att'y Gen. of United States, 691 F.3d 488, 498 (3d Cir. 2012) for the principle that groups defined by subjective value judgments are not easily definable. Here, “actively recruited by gangs” was treated as subjective/indeterminate in application, undermining particularity.

7) CAT definitions and acquiescence standard

For the elements of torture, the court cited Myrie v. Att'y Gen. United States, 855 F.3d 509, 515 (3d Cir. 2017), and for acquiescence/willful blindness it cited Myrie, 855 F.3d at 516. The regulation governing the ultimate likelihood standard was 8 C.F.R. § 1208.16(c)(2) (2020).

B. Legal Reasoning

1) The procedural gate: BIA receipt rule and finality

The opinion begins with a procedural holding that is outcome-determinative in many immigration cases: a BIA appeal is “filed” when received, and it must be received within 30 days. Applying 8 C.F.R. § 1003.38(b) and § 1003.38(c), the BIA properly dismissed because it received the appeal on September 17, 2020, after the September 14, 2020 deadline. Under 8 C.F.R. § 1003.3(a)(1) and § 1003.38(d), an appeal not received on time is not “properly filed,” and under 8 C.F.R. § 1003.39 the IJ decision becomes final.

The Third Circuit then layered on an appellate waiver rationale: because Mendoza-Perez did not contest the timeliness dismissal in his opening brief, the court treated that independent basis as waived, providing a second, doctrinally distinct reason to deny relief.

2) PSG merits: failure of particularity and social distinction

On the merits, the court accepted the BIA’s framing: even assuming Mendoza-Perez suffered harassment/attack and feared future harm, his asylum/withholding claim depended on membership in a cognizable PSG. The court focused on two PSG elements:

  • Particularity: The phrase “actively recruited by gangs” lacks clear, objective boundaries. It invites disagreement about what counts as “active” recruitment, when recruitment begins and ends, and how to verify membership—precisely the indeterminacy particularity doctrine is designed to prevent.
  • Social distinction / “general public” problem: Even if “young men without a parent or guardian” narrows the group, Mendoza-Perez did not explain how the group is meaningfully distinct from the broad category of people gangs recruit. Put differently, the court treated the group as functionally overlapping with the ordinary pool of potential gang recruits, which undermines social distinction and renders the group too diffuse to administer.

The opinion also guarded against defining PSGs by the persecution itself, echoing Radiowala and S.E.R.L.: if the group’s defining feature is essentially “people targeted by gangs,” that is not an acceptable PSG definition.

3) CAT merits: likelihood of torture and state acquiescence not compelled by the record

CAT relief requires proof that torture is more likely than not, and that it will occur with official involvement or acquiescence. The court emphasized the missing evidentiary link: Mendoza-Perez identified no record evidence that would compel the conclusion that Guatemalan officials would consent to or be willfully blind to his torture. Because substantial-evidence review requires deference absent compulsion, the court upheld the denial.

C. Impact

  • Procedural discipline in BIA appeals: The decision reinforces that immigration appellate deadlines are enforced via a strict “receipt by the BIA” rule. Practically, it underscores that late delivery—even by a few days—can end the case, and that petitioners must preserve challenges to timeliness dismissals in their opening brief or risk waiver.
  • Continued narrowing of gang-recruitment PSG theories: Although nonprecedential, the reasoning tracks the Third Circuit’s broader PSG jurisprudence: groups centered on gang recruitment often fail where they are hard to define (subjective triggers like “active recruitment”) or where they blur into the general population vulnerable to gangs.
  • CAT evidentiary burden on acquiescence: The opinion highlights that generalized risk of gang violence is not enough; applicants must connect likely harm to government “consent or acquiescence” with concrete record support.

4. Complex Concepts Simplified

  • “Particular social group (PSG)”: A legally recognized group for asylum/withholding purposes. It must be defined clearly enough that a decision-maker can tell who is in and who is out (particularity), and the society must generally recognize it as a distinct group (social distinction).
  • “Particularity”: The group’s boundaries must be objective and administrable. If membership depends on vague judgments (e.g., what counts as “active recruitment”), it fails.
  • “Social distinction”: Not whether the persecutor can identify you, but whether the society would view the group as a recognized, separate class. A group that looks like “people a gang might target” often fails because it mirrors general societal vulnerability rather than a socially distinct category.
  • “Persecutory conduct alone cannot define a group”: A PSG cannot be defined primarily by the fact that its members are harmed or targeted; the group must exist independently of the persecution.
  • CAT “acquiescence” / “willful blindness”: The government need not directly torture someone. But CAT requires proof that officials would know (or be willfully blind) and fail to intervene—more than mere inability to control crime.
  • “Substantial-evidence review”: A highly deferential appellate standard. The reviewing court does not reweigh evidence; it asks only whether the record compels the opposite conclusion.

5. Conclusion

Melvin Mendoza-Perez v. Attorney General United States of America illustrates two recurring fault lines in removal litigation: (1) procedural finality driven by strict BIA receipt-based filing deadlines and appellate waiver rules, and (2) the difficulty of framing gang-related asylum claims within the Third Circuit’s PSG requirements—especially where the proposed group is difficult to define with objective boundaries or is indistinguishable from the broader population subject to gang recruitment. On CAT, the decision reiterates that applicants must marshal record evidence showing not just danger from gangs, but a likelihood of torture connected to official consent or willful-blind acquiescence.