                                          PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                  ___________

                       No. 19-3550


              DAVID CASTILLO ROMERO,


                                        Petitioner

                             v.

ATTORNEY GENERAL UNITED STATES OF AMERICA




On Petition for Review of an Order of the U.S. Department of
     Justice Executive Office for Immigration Review
                     Immigration Court
          (Immigration Court No.: A201-067-060)
             Immigration Judge: Alice S. Hartye


       Submitted under Third Circuit L.A.R. 34.1(a)
                      July 2, 2020

             (Opinion Filed: August 25, 2020)
 Before: GREENAWAY, JR., SHWARTZ, and RENDELL,
                 Circuit Judges

Sandra L. Greene
Greene Fitzgerald Advocates and Consultants
2575 Eastern Boulevard
Suite 208
York, PA 17402

             Counsel for Petitioner

Anthony C. Payne
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Washington, DC 20044

Kathleen K. Volkert
United States Department of Justice
Office of Immigration Litigation
LSB 10234
P.O. Box 878
Washington, DC 20044

             Counsel for Respondent



                     O P I N I O N


RENDELL, Circuit Judge.




                             2
       David Castillo Romero (“Romero”) petitions for review
of an Immigration Judge’s (“IJ”) determination that Romero
was not entitled to relief from reinstatement of his prior
removal order.      The IJ affirmed the asylum officer’s
determination that Romero did not have a reasonable fear of
torture as required for relief under the Convention Against
Torture (“CAT”) or a reasonable fear of persecution as
required for withholding of removal.            Although the
government argues that we should review the IJ’s decision
under the “facially legitimate and bona fide reason” standard,
we will instead look to whether the IJ’s determinations are
supported by substantial evidence. We find that they are. We
will therefore deny Romero’s petition for review.

                               I

       Romero is a native and citizen of Mexico. DHS
Administrative Record (“D.A.R.”) at 28. In 2011, Romero
sought admission to the United States at an airport in Houston,
Texas. Id. Relying on a fraudulent United States passport, he
claimed to be a United States citizen. Id. DHS issued a Notice
and Order of Expedited Removal to Romero under 8 U.S.C.
§ 1225(b)(1), charging him with inadmissibility on three
grounds: under 8 U.S.C. § 1182(a)(6)(C)(i) as an alien who by
fraud or willfully misrepresenting a material fact sought
admission to the United States; under 8 U.S.C.
§ 1182(a)(6)(C)(ii) as an alien who falsely represented himself
as a United States citizen; and under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) as an alien who at the time of his
application for admission was not in possession of a valid entry
document. Id. at 10-11. Romero was eventually removed to
Mexico.       Executive Office for Immigration Review
Administrative Record (“E.A.R.”) at 125.




                               3
      In July 2013, Romero reentered the United States. Id.
DHS issued to Romero a Notice of Intent/Decision to Reinstate
Prior Order pursuant to 8 U.S.C. § 1231(a)(5), reinstating
Romero’s removal order from 2011. Id. Romero was then
removed to Mexico. Id.

       In September 2013, Romero reentered the United States
again. Id. at 124. Romero evaded immigration officials for
almost six years until July 24, 2019. Id. DHS again issued to
Romero a Notice of Intent/Decision to Reinstate Prior Order
under 8 U.S.C. § 1231(a)(5), D.A.R. 2, which states:

       If the Attorney General finds that an alien has
       reentered the United States illegally after having
       been removed or having departed voluntarily,
       under an order of removal, the prior order of
       removal is reinstated from its original date and is
       not subject to being reopened or reviewed, the
       alien is not eligible and may not apply for any
       relief under this chapter, and the alien shall be
       removed under the prior order at any time after
       the reentry.

Id.

        Although the plain text of this provision appears to
prohibit any application for relief, other statutory provisions
require that an alien like Romero who is subject to removal
under § 1231(a)(5) be given the opportunity to seek two forms
of relief. First, pursuant to 8 U.S.C. § 1231(b)(3)(A), an alien
subject to reinstatement of a removal order may seek
withholding of removal if the alien has a reasonable fear that
he or she will be subject to persecution based on his or her race,
religion, nationality, membership in a particular social group,




                                4
or political opinion. Bonilla v. Sessions, 891 F.3d 87, 90-91
(3d Cir. 2018) (citing Fernandez-Vargas v. Gonzales, 548 U.S.
30, 35 n.4 (2006) (citing 8 U.S.C. § 1231(b)(3)(A))); 8 C.F.R.
§§ 208.31, 241.8(e) (2020).

        Second, pursuant to Congress’s adoption of the
Convention Against Torture in the Foreign Affairs Reform and
Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277,
div. G, § 2242, 112 Stat. 2681-761, 2681-822, the United
States will not “expel, extradite, or otherwise effect the
involuntary return of any person to a country in which there are
substantial grounds for believing the person would be in danger
of being subjected to torture.” Id. § 2242(a). Pursuant to this
requirement, an alien subject to reinstatement of a removal
order may not be removed if he or she is likely to be subject to
torture, defined as “any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person . . . by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1) (2020).

       These two forms of relief are available to aliens subject
to removal under 8 U.S.C. § 1231(a)(5). That is so because
when such an alien “expresses a fear of returning to the country
designated” in his or her prior removal order, he or she must
be “immediately referred to an asylum officer for an interview
to determine whether [he or she] has a reasonable fear of
persecution or torture.” 8 C.F.R. § 241.8(e) (2020). This type
of interview is often referred to as a “reasonable fear”
interview.

        In a “reasonable fear” interview, pursuant to the
relevant legal standards for withholding of removal and CAT
relief, the asylum officer looks to whether the alien has




                               5
demonstrated “a reasonable possibility that he or she would be
persecuted on account of his or her race, religion, nationality,
membership in a particular social group or political opinion, or
a reasonable possibility that he or she would be tortured in the
country of removal.” 8 C.F.R. § 208.31(c) (2020). The alien
“may present evidence, if available, relevant to the possibility
of persecution or torture.” Id. The alien may also be
represented by counsel or “an accredited representative,” his or
her representative may “present a statement at the end of the
interview,” and the alien must be provided an “opportunity to
correct errors” in the asylum officer’s summary of the material
facts. Id.

        If the asylum officer finds that the alien meets this
standard, the asylum officer must refer the case to an IJ for a
full proceeding to determine if the alien is eligible for relief
from removal. 8 C.F.R. § 208.31(e) (2020). But if the officer
finds that the alien has not established a reasonable possibility
of persecution or torture, the alien may appeal the asylum
officer’s determination to an IJ, id. § 208.31(f)-(g) (2020), who
must conduct “an expeditious review of the negative screening
determination.” Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999). If
the IJ “concurs with the asylum officer’s determination that the
alien does not have a reasonable fear of persecution or torture,”
the alien is removed. 8 C.F.R. § 208.31(g)(1). If, on the other
hand, the IJ determines that the asylum officer’s determination
was wrong, then the IJ must give the alien an opportunity for a
full hearing on his or her claims for withholding of removal or
relief under the CAT. 8 C.F.R. § 208.31(g)(2) (2020).

       Romero told immigration officials that he feared
returning to Mexico. E.A.R. 9-10. Therefore, pursuant to 8
C.F.R. § 241.8(e), Romero was referred to an asylum officer,




                               6
who conducted a “reasonable fear” interview of Romero, who
was represented by counsel. Id. At Romero’s reasonable fear
interview, Romero expounded on his fear of returning to
Mexico. He testified that he is afraid to return to Mexico
because a man named Arturo Valencia will harm him. E.A.R.
95, 101. Romero testified that Valencia had a prior
relationship with Romero’s wife, that Valencia was the father
of his wife’s daughter, that Valencia had been deported from
the United States to Mexico, and that Valencia was a member
of the New Generation Cartel in Mexico. Id. at 101-02.
Romero indicated that Valencia had threatened, over the
phone, to kill him and his wife if they did not give Valencia his
daughter. Id. Romero testified that in May 2013, Valencia and
others went to Romero’s house in Mexico and shot at the house
as a warning, although Romero was not there at the time. Id.
Valencia never physically harmed Romero. Id.

       Romero testified that he is afraid to return to Mexico
because Valencia may find out through acquaintances or
through Facebook that he has returned. Id. at 114-15. Romero
stated that he has never been harmed or threatened by a
Mexican public official; that he does not fear future harm from
a Mexican public official; and that he has no evidence that
Valencia is connected to any Mexican public official. Id. 116-
17. He also stated that he has never been harmed, nor does he
fear harm in Mexico based on his race, religion, sex, political
opinion, or membership in a particular social group. Id. at 116.

        The asylum officer assigned to Romero’s case
determined that Romero had not demonstrated a reasonable
fear of persecution or torture under the relevant legal standards,
and the supervisory asylum officer approved that
determination. E.A.R. at 89-97. The officer found that
Romero had not shown that the harm he fears from Valencia




                                7
was on account of a protected ground as required for
withholding of removal or that the Mexican government would
consent or acquiesce to the harm that he fears as required for a
reasonable fear determination.1 E.A.R. 96.

       Romero appealed the officers’ determinations to an IJ.
E.A.R. 88. The IJ reviewed Romero’s reasonable fear
interview and heard Romero’s testimony. E.A.R. 5-20.
Romero reiterated his statement that he fears returning to
Mexico because he had been threatened by Valencia by phone
but that Valencia had never acted on the threats. E.A.R. 11.
He stated that he did not report the threats to the police or seek
the protection of the police in Mexico. E.A.R. 13.

       The IJ concurred with the asylum officer’s decision.
The IJ explained that Romero’s persecution claim failed
because he had not “established a nexus to a protected ground”
and therefore had not “established a reasonable possibility of
being persecuted based upon a protected ground.” Executive
Office for Immigration Review Administrative Record at 17.
As to his CAT claim, Romero’s counsel argued that Romero
had a reasonable fear of torture because he feared that Valencia
would harm him and that the Mexican government would
acquiesce to such gang-related violence as part of a strategy to
“allow the cartels to fight each other, so the government
doesn’t have to do it because the government has been unable
to.” Id. at 16. The IJ rejected this argument:

       I would recognize that crime, corruption, and
       gang violence are problematic and prevalent in

1
 The asylum officer also made a finding, not at issue on
appeal, that Romero’s testimony was partially not credible.
E.A.R. 94-95.




                                8
       Mexico, but the country is taking steps to address
       that issue.    Here, [Romero] did not seek
       protection from the authorities. He does assert
       that he believes that [the government’s policies
       and the harm he fears] are connected, but I don’t
       have persuasive or specific evidence establishing
       that. So I’m not able to find that he’s established
       his burden.

Id. at 17.

                               II

       We have jurisdiction under 8 U.S.C. § 1252(a)(1). See
Bonilla, 891 F.3d at 90 n.4 (holding that when an IJ concurs
with the asylum officer’s negative reasonable fear
determination, the IJ’s decision “constitutes a final order of
removal over which we have jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1)”).

                              III

       We must first decide which standard of review applies
to the IJ’s determination that Romero does not have a
reasonable fear of persecution or torture. Despite the
government’s urging to the contrary, we will apply the
substantial evidence standard. Generally, when we review
findings of fact in the immigration context, we review the
findings for substantial evidence. See, e.g., Herrera-Reyes v.
Att’y Gen., 952 F.3d 101, 106 (3d Cir. 2020) (citing INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). Under this
“extraordinarily deferential standard,” we uphold the IJ’s
findings if they are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”




                               9
Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011)
(quotation marks and citations omitted). When we review for
substantial evidence, “findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to
the contrary.” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir.
2009) (quoting 8 U.S.C. § 1252(b)(4)(B)).

       The government argues that we should look only to
whether the IJ furnished a “facially legitimate and bona fide
reason” for her determination that Romero did not have a
reasonable fear of torture or persecution. Specifically, the
government urges that because “a negative reasonable fear
determination . . . is similar to other kinds of executive
decisions to which the courts have” applied the deferential
“facially legitimate and bona fide reason” standard, we should
apply it here as well. Resp’t’s Br. at 20-21. The government’s
argument relies in part on its assertion that a reasonable fear
determination is only a threshold agency assessment of the
merits of an alien’s claims, not a final order of removal or a
decision denying an alien’s application for asylum,
withholding of removal, or relief under the CAT.

       Courts initially developed and applied the “facially
legitimate and bona fide reason” standard in a limited and
distinctive setting: challenges to government decisions to deny
visas. Because “the power to exclude aliens is inherent in
sovereignty, necessary for maintaining normal international
relations and defending the country against foreign
encroachments and dangers,” it is “a power to be exercised
exclusively by the political branches of government.”
Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) (quotation
marks and citation omitted). Accordingly, for the most part,
the Executive’s decisions about visa eligibility are not
reviewable in court.




                              10
        However, a court may review a visa denial in the limited
circumstance where the visa denial potentially infringes on the
constitutional rights of American citizens. See, e.g., id. at 765–
70 (reviewing American citizens’ First Amendment challenge
to denial of an alien’s visa application where American citizens
sought to but could not hear from the alien at an academic
conference because the alien was denied a visa). In such cases,
because of the “plenary congressional power to make policies
and rules for exclusion of aliens” and because “Congress has
delegated conditional exercise of this power to the Executive,”
courts review the Executive’s exercise of this delegated
discretion only to ensure that the decision-maker proffers “a
facially legitimate and bona fide reason,” but “the courts will
[not] look behind the exercise of that discretion,” even when
the constitutional rights of American citizens are indirectly
implicated. Id. at 769–70.

       Other courts have extended this standard of review to
review of denials of temporary admission to the United States
via parole, see Andrade-Garcia v. Lynch, 828 F.3d 829, 835
(9th Cir. 2016) (citing Nadarajah v. Gonzales, 443 F.3d 1069,
1082 (9th Cir. 2006); Mason v. Brooks, 862 F.2d 190, 193-94
(9th Cir. 1988)), and we have applied it to certain constitutional
challenges to immigration statutes, see, e.g., Flores-Nova v.
Att’y Gen., 652 F.3d 488, 492 (3d Cir. 2011) (“The standard of
review applied in equal protection cases that do not involve
suspect classes or the exercise of a fundamental constitutional
right requires a ‘facially legitimate and bona fide’ rationale
supporting the immigration statute in question.”); Kamara v.
Att’y Gen., 420 F.3d 202, 217 (3d Cir. 2005) (applying the
“facially legitimate and bona fide reason” standard to
determine that the state-created danger doctrine did not
“extend[] . . . to final orders of removal”).




                               11
       But we reject the government’s argument that the
“facially legitimate and bona fide reason” standard should
govern our review of the IJ’s determination here. In rejecting
the government’s argument on this issue, we follow the lead of
the Ninth Circuit in Andrade-Garcia v. Lynch, in which the
court held that the “facially legitimate and bona fide reason”
standard, which was developed in and applied to cases in the
“related, but different, context” described above, should not
apply to reasonable fear determinations. 828 F.3d at 833-36.
We note two reasons for so holding.

       First, as explained in Andrade-Garcia, unlike in the
relatively unconstrained visa application context, Congress has
indicated an intent to limit the Executive’s discretion to impose
a reinstated order of removal. Although it is true that the text
of § 1231(a)(5) itself precludes applications for relief,
Congress has nonetheless restrained the Executive from
removing an alien to a country in which there are substantial
grounds for believing the alien would be subject to torture.
Fernandez-Vargas, 548 U.S. at 35 n.4 (aliens subject to
reinstatement of removal may still apply for and be awarded
CAT relief). And Congress has also acted to ensure that
petitioners subject to reinstatement of a prior removal order
may petition for withholding of removal if they fear
persecution in the country to which they would be removed.
See id. Accordingly, Congress has also given us express
authority to review Executive-branch decision-making in final
orders of removal like the reinstatement order at issue in this
case to ensure, among other things, that the Executive’s
decision-making accords with the statutory requirements
described above. 8 U.S.C. § 1252(a); see Bonilla, 891 F.3d at
90 n.4 (IJ’s negative reasonable fear decision “constitutes a




                               12
final order of removal over which we have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(1)”).

        Second, we note that the substantive and procedural
similarities in reasonable fear proceedings and removal
proceedings support our decision to apply the same standard of
review—substantial evidence—in both settings. Although
these two types of cases are not identical, in reasonable fear
proceedings, as in removal proceedings, asylum officers make
findings of fact based on evidence presented by the alien. See,
e.g., 8 C.F.R. §§ 208.31(c); 241.8(e) (2020); Bonilla, 891 F.3d
at 91. In both settings, there are procedures for an initial fact-
finding interview about an immigrant’s eligibility for relief as
well as a procedure for appealing this initial determination to
an IJ. And, in both proceedings, if the alien’s case fails, he or
she faces the severe consequence of removal from the United
States. In other words, we reject the government’s assertion
that a reasonable fear determination, unlike a traditional
removal proceeding, is only a discretionary, threshold agency
assessment of the merits of an alien’s claims for withholding
of removal and relief under the CAT. Instead, the similarities
between these two types of proceedings bolster our decision to
apply the substantial evidence standard to fact-finding
determinations by immigration officials in both scenarios.

       For these reasons, we will review the IJ’s denial of
Romero’s petitions for CAT relief and withholding of removal
for substantial evidence. See Andrade-Garcia, 828 F.3d at
833-36.

                               IV

       The IJ’s denials of Romero’s persecution and CAT
claims are supported by substantial evidence. As noted above,




                               13
under the “extraordinarily deferential” substantial evidence
standard, we uphold the IJ’s determination if it is “supported
by reasonable, substantial, and probative evidence on the
record considered as a whole.” Garcia, 665 F.3d at 502. When
we review for substantial evidence, “findings of fact are
conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Sandie, 562 F.3d at
251.

       Substantial evidence supports the IJ’s denial of
Romero’s persecution claim. The IJ determined that Romero’s
claim failed because he had not shown that the harm that he
fears from Valencia is connected or related to a statutorily
protected ground, such as Romero’s race, religion, nationality,
membership in a particular social group, or political opinion.

        We agree. There is no indication that Romero would
likely be persecuted based on any of these characteristics.
Rather, based on the evidence in the record, Romero could only
conceivably have asserted that he fears persecution based on
his membership in his stepdaughter’s family, which we have
ruled does not qualify as a “particular social group” for these
purposes. See, e.g., S.E.R.L. v. Att’y Gen., 894 F.3d 535, 556-
57 (3d Cir. 2018) (affirming BIA’s determination that alien
“had not identified sufficient evidence that immediate family
members of Honduran women unable to leave a domestic
relationship are viewed as socially distinct within Honduran
society”); Matter of L-E-A-, 27 I. & N. Dec. 581, 582 (U.S.
Att’y Gen. 2019) (“[A]n alien’s family-based group will not
constitute a particular social group unless it has been shown to
be socially distinct in the eyes of its society, not just those of
its alleged persecutor.”). Similarly, Romero’s fear of personal
conflict with Valencia does not suffice to entitle him to relief
on this basis. See Gonzalez-Posadas v. Att’y Gen., 781 F.3d




                               14
677, 684-85 (3d Cir. 2015) (“Conflicts of a personal nature and
isolated criminal acts do not constitute persecution on account
of a protected characteristic.”). Therefore, because the record
does not compel a contrary result, substantial evidence
supports the IJ’s finding that Romero did not have a reasonable
fear of persecution in Mexico. Sandie, 562 F.3d at 251.

       The IJ’s denial of Romero’s torture claim is also
supported by substantial evidence. In order to show a
reasonable fear of torture under the CAT and its implementing
regulations, an alien must show that he has a reasonable fear
of:

       (1) an act causing severe physical or mental pain
       or suffering; (2) intentionally inflicted; (3) for an
       illicit or proscribed purpose; (4) by or at the
       instigation of or with the consent or acquiescence
       of a public official who has custody or physical
       control of the victim; and (5) not arising from
       lawful sanctions.

Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017) (quoting
Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005)); see also
8 C.F.R. § 208.18(a)(1) (2020). The IJ determined that
Romero did not have a reasonable fear of torture under this
standard because Romero had not indicated that the torture he
feared would be executed “by or at the instigation of or with
the consent or acquiescence of a public official who has
custody or physical control of the victim,” id., because
although “crime corruption, and gang violence are problematic
and prevalent in Mexico, . . . the country is taking steps to
address that issue” and, in any case, Romero has not sought
“protection from the authorities,” Executive Office for
Immigration Review Administrative Record at 17.




                                15
       The record evidence does not compel a contrary result.
See Sandie, 562 F.3d at 251. Romero’s testimony and the
record’s evidence about torture in Mexico are not sufficient to
require us to conclude that Romero has a reasonable fear of
being tortured “by or at the instigation of or with the consent
or acquiescence of” an official in the Mexican government.
The IJ’s finding that Romero did not have a reasonable fear of
torture is therefore supported by substantial evidence.2

                              V

       Because substantial evidence supports the IJ’s
determinations that Romero did not have a reasonable fear of
torture or a reasonable fear of persecution, we will deny his
petition for review.




2
  Romero also presents indistinct and unclear constitutional
claims, including claims that he was denied continuances and
that because United States Citizenship and Immigration
Services “misapplied the correct legal standard,” it “violated
[his] due process rights.” Pet’r’s Br. at 23-26. First, as the
government correctly points out, there is no evidence to
suggest that Romero requested any continuances in this case,
so we reject his constitutional claim on this basis. Second, we
reject Romero’s claim that the IJ applied the wrong standard
for his CAT claim: as noted above, the IJ appropriately
identified the standard for CAT relief and appropriately
applied it in Romero’s case. Therefore, we reject Romero’s
constitutional claims.




                              16
