“No Resurrection by Silence” – Third Circuit Clarifies that a BIA Summary Affirmance Does Not Cure Failure to Exhaust

Introduction

In A. G.-G. v. Attorney General United States of America, No. 24-2559 (3d Cir. 2025), the United States Court of Appeals for the Third Circuit confronted a recurring procedural puzzle: when the Board of Immigration Appeals (BIA) summarily affirms an Immigration Judge (IJ) under 8 C.F.R. § 1003.1(e)(4), may a petitioner raise in federal court issues that were never presented to the BIA? The Court answered with a resounding no, holding that summary affirmance “does not resuscitate unexhausted claims.”

The petitioners—Lidia Gomez-Gabriel and her minor son, indigenous Mayam Mam nationals of Guatemala—sought asylum, withholding of removal, and Convention Against Torture (CAT) protection after fleeing gang extortion. The IJ denied all relief; the BIA affirmed without opinion. On petition for review, the Third Circuit:

Confirmed that statutory exhaustion under 8 U.S.C. § 1252(d)(1) applies to each discrete issue, even after a BIA summary affirmance.
Held that the asylum and CAT claims were unreviewable because petitioners never raised the time-bar or CAT issues before the BIA.
Denied withholding of removal on the merits, finding substantial evidence that the gang’s motive was pecuniary, not protected-ground persecution.

Summary of the Judgment

1. Asylum & CAT – Unexhausted. Neither the notice of appeal nor the brief to the BIA challenged the IJ’s asylum time-bar finding or the CAT denial. Because the government invoked § 1252(d)(1), the court enforced the exhaustion bar and declined review.

2. Withholding of Removal – Denied. Although petitioners minimally preserved the withholding claim, substantial evidence supported the IJ’s conclusion that the harassment stemmed from general criminality, not animus toward Gomez-Gabriel’s Mayam Mam ethnicity or her gender.

3. Precedential Holding. A summary affirmance under 8 C.F.R. § 1003.1(e)(4) does not itself constitute BIA consideration of matters never raised; thus it cannot “waive” exhaustion. Petitioners must have placed each issue before the BIA for federal court review to lie.

Analysis

Precedents Cited

Yan Lan Wu v. Ashcroft, 393 F.3d 418 (3d Cir. 2005) – Articulates the exhaustion requirement under § 1252(d)(1).
Joseph v. Attorney General, 465 F.3d 123 (3d Cir. 2006) – Establishes the “some effort” notice standard to the BIA.
Lin v. Attorney General, 543 F.3d 114 (3d Cir. 2008) – Earlier suggestion that summary affirmance does not relax exhaustion.
Aguilar v. Attorney General, 107 F.4th 164 (3d Cir. 2024) – Clarifies § 1252(d) is non-jurisdictional but mandatory once raised by the government.
Weinberger v. Salfi, 422 U.S. 749 (1975) – Describes policy rationales for administrative exhaustion.
Out-of-Circuit confirmations: Sidabutar (10th Cir.), Karaj (2d Cir.), Zara (9th Cir.) – All holding summary affirmance does not obviate exhaustion.

Cumulatively, these authorities configured a doctrinal mosaic the panel solidifies: exhaustion is issue-specific and unmoved by the BIA’s procedural election to affirm without opinion.

Legal Reasoning

Textual Anchor – § 1252(d)(1). The Court starts with statutory text requiring exhaustion of “all administrative remedies.” Because exhaustion is framed in absolute terms, the panel asserts that only the BIA—not the federal courts—can forgive failures, and it does so expressly, not silently.
Separation of Functions. A central theme is deference to agency expertise. If courts reach issues never ventilated before the BIA, they leapfrog the agency’s fact-finding role, contrary to Salfi.
Practical Record Concerns. Summary affirmance leaves no agency reasoning to review. Allowing new issues would force courts to decide with “no indication the agency considered” them.
Scope of Summary Affirmance Rule. The panel dismantles the notion that § 1003.1(e)(4) is a waiver device. Rather, it is an internal efficiency mechanism; nothing in its text purports to override statutory exhaustion.

Impact on Future Litigation

Clear Bright-Line Rule. Litigants must place every material challenge before the BIA, even if they suspect a future summary affirmance. “Safety-net” strategies—saving arguments for federal court—are foreclosed.
BIA Practice. The decision preserves the BIA’s discretion: it may sua sponte reach an unraised issue and issue a reasoned opinion, “curing” exhaustion, but silence never does so.
Counsel Diligence. Immigration practitioners must draft Notices of Appeal and BIA briefs comprehensively. Failure to mention the asylum time-bar or CAT arguments will now inevitably doom them in the Third Circuit.
Substantive Asylum Strategy. Because equitable tolling of the one-year filing deadline must be raised administratively, advocates are incentivized to build robust factual records at the IJ level to preserve such arguments.
Consistency Among Circuits. The Third Circuit aligns with the Second, Ninth, and Tenth Circuits. Litigants nationwide will rely on this concurrence to forecast similar outcomes elsewhere, limiting circuit-splits.

Complex Concepts Simplified

Exhaustion of Administrative Remedies: Think of it as a procedural checkpoint. Before going to the federal courthouse, you must first ask the agency to fix the problem. Skip the checkpoint, and the federal judge won’t hear you.
BIA Summary Affirmance: When the BIA “AFFIRMS WITHOUT OPINION,” it means, “We agree with the IJ and have nothing to add.” It is not an endorsement of every conceivable issue—only those actually presented.
Withholding of Removal vs. Asylum: Both protect non-citizens from persecution, but asylum offers more benefits and has a filing deadline; withholding has no deadline but a higher burden of proof and no path to permanent residence.
“One Central Reason” Test: To win withholding/asylum, the protected ground (race, religion, etc.) must be a principal reason for harm, not a minor or speculative factor.
Pecuniary Motive vs. Protected-Ground Persecution: Violence for money is ordinary crime, not persecution. Persecution must be tied to who the victim is, not what the victim has.

Conclusion

A. G.-G. sets a decisive procedural marker: a BIA summary affirmance is not a magic wand that revives arguments never made. Petitioners must proactively preserve each issue—time-bars, CAT theories, nexus arguments—before the BIA to open the doors of the Third Circuit. Substantively, the decision reiterates that generalized criminality, even when laced with occasional epithets, rarely satisfies the “one central reason” persecution standard.

In the broader legal landscape, the ruling strengthens the integrity of administrative review, curtails piecemeal litigation, and harmonizes Third Circuit precedent with sister circuits. For practitioners, the message is unambiguous: litigate all issues early, clearly, and thoroughly—or risk forfeiture when the case reaches the appellate stage.