No Cognizable PSG for Americanized or Wealth-Perceived Guatemalan Returnees; CAT Relocation Is a Factor, Not a Burden

Introduction

In Osman Cordon-Osario v. Attorney General United States of America, the Third Circuit denied a Guatemalan citizen’s petition for review of the Board of Immigration Appeals’ decision affirming the denial of withholding of removal and protection under the Convention Against Torture.

Petitioner Osman A. Cordon-Osario claimed that members of Mara Salvatrucha, or MS, extorted him several times in Guatemala, threatened him, and struck him on the lip with a gun when he could no longer pay. He argued that these events amounted to past persecution and that, if removed, he would face future persecution or torture.

The Court held that substantial evidence supported the agency’s denial of relief. Although the Immigration Judge erred by treating internal relocation as Cordon-Osario’s burden in the CAT analysis, the Court concluded that the record still did not establish that he was more likely than not to be tortured in Guatemala.

Summary of the Opinion

The Third Circuit denied the petition for review. The Court reached three principal conclusions:

• No past persecution: The extortion, threats, and one physical assault were serious but did not compel a finding of persecution under the governing substantial-evidence standard.
• No cognizable particular social group: The proposed group of “individuals who lived and worked in the United States” was too amorphous and lacked sufficient particularity and social distinction. The family-based PSG argument was not exhausted before the agency.
• No CAT protection: The IJ incorrectly placed a burden on the petitioner to disprove internal relocation, but the evidence still did not show that Cordon-Osario was more likely than not to be singled out for torture.

The opinion is expressly nonprecedential, meaning it is not binding precedent under the Third Circuit’s internal rules, but it remains useful as an illustration of how the Court evaluates gang-extortion claims, PSG formulations based on perceived Americanization or wealth, and CAT claims involving relocation evidence.

Analysis

Precedents Cited

Cortez-Amador v. Att'y Gen.

The Court cited Cortez-Amador v. Att'y Gen. for the definition of persecution. Persecution requires extreme conduct, such as threats to life, confinement, torture, or severe economic restrictions threatening life or freedom. This standard shaped the Court’s conclusion that ordinary criminal extortion, even when frightening and accompanied by threats, does not automatically rise to persecution.

Herrera-Reyes v. Att'y Gen.

Herrera-Reyes v. Att'y Gen. was central to the past-persecution analysis. That case instructs courts to assess the cumulative effect of the petitioner’s experiences and to examine threats within the “overall trajectory” of harassment. Threats alone can constitute persecution only when they are sufficiently concrete and menacing.

Applying that framework, the Court found that Cordon-Osario’s threats were not accompanied by escalating violence, serious harm to him or his family, or comparable corroborating circumstances. The Court contrasted his case with the more severe pattern in Herrera-Reyes v. Att'y Gen., where the petitioner faced destruction of property, an armed attack, murder of a political compatriot, robbery, and death threats.

Urias-Orellana v. Bondi

The Court cited Urias-Orellana v. Bondi for the standard of review. Whether a petitioner has shown past persecution is treated as a mixed question reviewed under the substantial-evidence standard. This mattered because the Court did not decide de novo whether it would have reached the same conclusion; it asked whether the agency’s conclusion was supported by substantial evidence.

Hernandez Garmendia v. Att'y Gen.

Hernandez Garmendia v. Att'y Gen. was cited twice. First, it supplied the rule that when the BIA adopts the IJ’s reasoning and issues its own decision, the Court reviews both agency decisions. Second, it provided the CAT principle that an applicant must present specific evidence showing that he is more likely than not to be singled out for torture.

Gomez-Gabriel v. Att'y Gen.

The Court relied on Gomez-Gabriel v. Att'y Gen. for two points. First, it explained administrative exhaustion: although the exhaustion requirement is no longer treated as jurisdictional, courts must enforce it when the government raises it. Second, the case reinforced that people targeted merely because criminals believe they have money are not persecuted “on account of” membership in a protected social group.

Tr. Under Tr. of Charles G. Berwind Tr. v. Comm'r of Internal Revenue

Tr. Under Tr. of Charles G. Berwind Tr. v. Comm'r of Internal Revenue was cited for forfeiture. Because Cordon-Osario did not meaningfully develop his political-opinion theory in his opening brief, and mentioned it only cursorily in reply, that theory was forfeited.

Herrow v. Att'y Gen.

Herrow v. Att'y Gen. supplied the three-part test for a cognizable particular social group: immutability, particularity, and social distinction. It also clarified that CAT torture requires severe physical or mental pain or suffering. The Court used this authority to reject the proposed PSG and to find that the isolated injury to Cordon-Osario’s lip was not severe enough to constitute torture.

Khan v. Att'y Gen.

The Court cited Khan v. Att'y Gen. to reject PSGs based on Americanization or acculturation. In that case, the Third Circuit rejected a proposed group of Pakistanis who had become more acculturated to American culture, language, and values. Here, that reasoning supported rejecting “individuals who lived and worked in the United States” as too amorphous.

Lizama v. Holder and Ahmed v. Holder

The Court also cited Lizama v. Holder and Ahmed v. Holder, decisions from other circuits rejecting similar “Americanized” or “westernized” social-group theories. These cases supported the conclusion that broad identity labels based on perceived Americanization, deportee status, or westernization generally lack the precision and social recognition required for PSG status.

Thayalan v. Att'y Gen.

Thayalan v. Att'y Gen. was referenced through the Court’s discussion of Gomez-Gabriel v. Att'y Gen.. It reinforces the rule that targeting motivated by a desire for money is not enough to show persecution based on a protected ground.

Matter of A-M-E- & J-G-U-

Matter of A-M-E- & J-G-U- was cited for the proposition that “affluent Guatemalans” do not constitute a cognizable PSG. This precedent was especially relevant because Cordon-Osario’s claim depended heavily on the theory that people with U.S. ties are perceived as wealthy.

Myrie v. Att'y Gen.

Myrie v. Att'y Gen. guided the CAT analysis. It requires adjudicators to determine both what is likely to happen to the petitioner upon removal and whether that likely harm satisfies the legal definition of torture.

Manning v. Barr and Maldonado v. Lynch

Manning v. Barr and Maldonado v. Lynch were cited to explain that internal relocation in CAT cases is not governed by the same burden-shifting approach used in asylum cases. Relocation is one relevant factor, not an independent burden that the applicant must disprove.

Manuel-Soto v. Att'y Gen.

Finally, the Court cited Manuel-Soto v. Att'y Gen. for the proposition that repeated threats and extortion by Guatemalan gangs do not necessarily amount to torture. That precedent helped defeat Cordon-Osario’s CAT claim.

Legal Reasoning

1. Withholding of Removal

Withholding of removal requires a showing that the applicant’s life or freedom would be threatened in the proposed country of removal because of a protected ground, including membership in a particular social group.

The Court first rejected the claim of past persecution. Although Cordon-Osario had been extorted multiple times, threatened, and struck once with a gun, the Court held that the agency could reasonably conclude this did not rise to persecution. The key point was not that the events were trivial, but that the record did not compel a finding of extreme mistreatment under the governing standard.

The Court then addressed the proposed PSGs. The family-based PSG was not considered because Cordon-Osario had not exhausted it before the agency. The remaining PSG—“individuals who lived and worked in the United States”—failed because it lacked particularity and social distinction. In the Court’s view, traits such as accent, clothing, behavior, perceived wealth, or Americanization do not create a discrete, legally cognizable social group.

2. Convention Against Torture

For CAT relief, the petitioner had to show that he would more likely than not be tortured if removed to Guatemala. The Court acknowledged that the IJ made a legal mistake by placing the burden on Cordon-Osario to prove that he could not safely relocate within Guatemala. In CAT analysis, relocation is only one factor among several.

Nevertheless, the Court found the error did not require relief because the broader record did not establish likely torture. The petitioner had not suffered past torture, the gun strike to his lip was not severe enough to qualify, and the record did not show that MS would single him out for torture upon return. The murder of his cousin did not change the analysis because the evidence indicated the cousin was targeted for refusing to join the gang, not because of a connection to Cordon-Osario.

Impact

Although nonprecedential, the decision has practical significance for immigration litigation in the Third Circuit.

• PSG formulations based on U.S. ties remain difficult: Applicants claiming fear because they are perceived as Americanized, wealthy, or connected to the United States must overcome substantial doctrinal barriers.
• Exhaustion matters: A PSG not clearly raised before the IJ or BIA may be unavailable on petition for review.
• Gang extortion alone is often insufficient: Threats, extortion, and isolated violence may not constitute persecution or torture unless the record shows severe harm, escalation, or a protected-ground nexus.
• CAT relocation analysis is clarified: The opinion reinforces that internal relocation is a factor in CAT analysis, not a burden the applicant must independently disprove.

Complex Concepts Simplified

Particular Social Group

A particular social group is a legally recognized group whose members share an immutable characteristic, whose boundaries are clear, and which society views as distinct. A broad category like “people who lived in the United States” is usually too vague.

Past Persecution

Past persecution means more than harassment, crime, or threats. It usually requires extreme conduct, such as serious violence, detention, torture, or threats so concrete and menacing that they severely threaten life or freedom.

Administrative Exhaustion

Exhaustion means the applicant must first present an issue to the immigration agency before asking a federal court to review it. Courts generally will not consider a new theory raised for the first time on appeal.

Substantial Evidence Review

Under substantial-evidence review, the Court does not simply decide what it would have done. It asks whether the agency’s decision was reasonable based on the record. The petitioner must show that the evidence compels the opposite result.

CAT Protection

CAT protection prevents removal to a country where the applicant is more likely than not to be tortured. Torture requires severe pain or suffering and must involve government action, consent, or acquiescence under the CAT regulations.

Conclusion

The Third Circuit denied Cordon-Osario’s petition because the record did not compel findings of past persecution, future persecution on account of a cognizable PSG, or likely torture. The opinion reinforces strict limits on PSG claims based on perceived Americanization or wealth and emphasizes that criminal gang targeting for money is not necessarily persecution on account of a protected ground.

The most notable doctrinal point is the Court’s recognition that internal relocation in CAT cases is only one factor, not a burden placed on the applicant. Even so, because the remaining evidence did not show a likelihood of torture, the denial of relief was affirmed.