Marcel Pineda-Rojas v. Attorney General United States
684 F. App'x 182
| 3rd Cir. | 2017Background
- Marcel Pineda-Rojas, a Guatemalan national, entered the U.S. unlawfully in 2001 and was convicted of cocaine possession in 2015; DHS charged him with removability.
- At removal proceedings he conceded removability and applied for asylum, withholding of removal, and CAT protection, claiming fear of violence from a Guatemalan drug cartel because his brother and cousin were cartel members.
- He testified he had not personally dealt drugs, had not communicated with those relatives since 2009, and knew of a 2015 cocaine package addressed to his cousin that was seized at his home; he feared cartel retribution but admitted no past mistreatment or direct threats.
- The IJ found his asylum application untimely, denied relief on the merits for lack of nexus to a protected ground, and ordered removal.
- The BIA reversed the IJ on timeliness and recognized family as a particular social group, but: (1) held the CAT claim waived for failure to appeal it to the BIA, and (2) affirmed denial of asylum and withholding because Pineda-Rojas failed to show social distinctness, nexus to his family status, or an objectively reasonable fear of persecution.
- Pineda-Rojas petitioned for review; the Third Circuit limited review to asylum and withholding claims (other claims unexhausted) and applied de novo review to legal questions and substantial-evidence review to factual findings.
Issues
| Issue | Pineda-Rojas's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether IJ/BIA erred denying asylum (well‑founded fear/nexus) | He fears cartel violence because of his familial relationship to cartel members; family is a protected social group | Fear is speculative, based on cartel’s lost drugs not family membership; no past harm, no threats, no evidence cartel targets him for family ties | Denied: substantial evidence supports BIA that fear is speculative, lacks objective support and nexus to protected ground |
| Whether withholding of removal should have been granted (clear probability) | Same facts support heightened withholding standard | Fails higher burden because asylum not satisfied | Denied: failure to show well‑founded fear means withholding also fails |
| Whether IJ was biased (procedural due process) | IJ exhibited bias during proceedings (raised on petition) | Issue was not exhausted before BIA; no jurisdiction to consider | Dismissed for lack of jurisdiction (unexhausted) |
| Whether CAT protection required reversal | He would likely be tortured by cartel if returned | CAT claim not appealed to BIA; waived/unexhausted | Dismissed for lack of jurisdiction (unexhausted) |
Key Cases Cited
- Catwell v. Att’y Gen., 623 F.3d 199 (3d Cir. 2010) (standard of review for BIA legal determinations and factual findings)
- Caushi v. Att’y Gen., 436 F.3d 220 (3d Cir. 2006) (substantial‑evidence review of BIA factual findings)
- Toure v. Att’y Gen., 443 F.3d 310 (3d Cir. 2006) (standard for reversible error under substantial‑evidence review)
- Castro v. Att’y Gen., 671 F.3d 356 (3d Cir. 2012) (administrative exhaustion requirement for judicial review)
- Lin v. Att’y Gen., 543 F.3d 114 (3d Cir. 2008) (BIA may address unexhausted issues sua sponte)
- Abdille v. Ashcroft, 242 F.3d 477 (3d Cir. 2001) (asylum requires both subjective fear and objective showing of reasonable possibility of persecution)
- INS v. Stevic, 467 U.S. 407 (U.S. 1984) (withholding requires showing of clear probability of persecution)
- Kibinda v. Att’y Gen., 477 F.3d 113 (3d Cir. 2007) (higher standard for withholding than asylum)
- Ghebrehiwot v. Att’y Gen., 467 F.3d 344 (3d Cir. 2006) (applicant who fails asylum necessarily fails withholding)