73 F.4th 208
4th Cir.2023Background
- Jose I. Trejo Tepas, a native of El Salvador, entered the U.S. in April 2016 at age 16 as an unaccompanied minor; he was later released to his father in Maryland.
- He filed an asylum/withholding/CAT application in May 2018 (prepared with help from Catholic Charities) asserting fear of gangs but stating neither he nor his family had been threatened or harmed.
- At removal hearings before an IJ (appearing pro se), Trejo Tepas testified he feared gangs, could not attend school, but that no gang had directly confronted him or his family.
- The IJ found him credible and subjectively fearful but denied asylum/withholding/CAT relief because he showed no past persecution and no nexus between his fear and a protected ground (concluding his fear was generalized gang violence).
- Trejo Tepas appealed to the BIA arguing the IJ failed to develop the record per Quintero and later argued before this Court that USCIS (not the IJ) had initial jurisdiction as an unaccompanied child; the BIA affirmed the IJ.
- The Fourth Circuit denied review of the jurisdictional claim for failure to exhaust and affirmed the BIA’s conclusion that the IJ satisfied its duty to develop the record and that Trejo Tepas failed to establish eligibility for relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ failed to develop the record under Quintero | Trejo Tepas: IJ did not explain procedures or probe facts sufficiently to help articulate a cognizable social group | Gov/BIA: IJ questioned the applicant, provided forms/instructions, and probed the fear; facts did not give rise to further duties | Held: IJ satisfied Quintero given the record; further probing would not have produced a viable claim |
| Whether USCIS (not IJ) had initial jurisdiction because he was an unaccompanied alien child | Trejo Tepas: as UAC, his asylum application should have been adjudicated by USCIS | Gov: issue was not administratively exhausted before the BIA; thus court review is barred | Held: Petition denied for failure to exhaust; Court declined to consider on merits |
| Whether the IJ had to inform him of pre‑ or post‑hearing voluntary departure | Trejo Tepas: IJ failed to advise of all available relief including both forms of voluntary departure | Gov/BIA: he was ineligible for pre‑hearing voluntary departure (did not waive appeal) and showed no eligibility for post‑hearing departure | Held: Issue waived (no argument on appeal) and BIA correctly found him ineligible |
| Whether Trejo Tepas met asylum/withholding/CAT requirements (particular social group/nexus) | Trejo Tepas: he feared gangs as a classmate/witness of classmates killed by gangs — members of cognizable social groups | Gov/BIA: record shows only a generalized fear of gang violence without past harm or nexus to a protected ground | Held: BIA decision affirmed — no past persecution, no cognizable particular social group or nexus, and CAT requirements unmet |
Key Cases Cited
- Quintero v. Garland, 998 F.3d 612 (4th Cir. 2021) (establishes IJ duty to develop the record and to assist pro se applicants in articulating viable particular social groups when facts warrant)
- Santos‑Zacaria v. Garland, 143 S. Ct. 1103 (2023) (§ 1252(d)(1) is a mandatory claim‑processing rule but not jurisdictional)
- Kontrick v. Ryan, 540 U.S. 443 (2004) (distinguishes jurisdictional rules from claim‑processing rules)
- Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) (well‑founded fear standard and protected‑ground analysis for asylum)
- Oliva v. Lynch, 807 F.3d 53 (4th Cir. 2015) (social‑distinction requirement for particular social group analysis)
- Claudio v. Holder, 601 F.3d 316 (5th Cir. 2010) (when a brief is filed on appeal to the BIA, issues must be raised in the brief to preserve them for review)