Gomez-Abrego v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-2175
CECILIA RAQUEL GOMEZ-ABREGO and K.R.H.G.,
Petitioners,
v.
MERRICK B. GARLAND,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Thompson and Kayatta, Circuit Judges,
and Katzmann, Judge.**
Thomas Stylianos, Jr. for petitioner.
Abigail E. Leach, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Brian Boynton, Acting Assistant Attorney General, Civil
Division, and Anthony C. Payne, Assistant Director, Office of
Immigration Litigation, were on brief, for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr as the respondent.
** Of the United States Court of International Trade, sitting
by designation.
February 16, 2022
THOMPSON, Circuit Judge. Petitioners, Cecelia Raquel
Gomez-Abrego and her minor daughter1 (referred to collectively as
"Petitioner" or "Gomez-Abrego"), seek judicial review of a Board
of Immigration Appeals ("BIA") opinion affirming an Immigration
Judge's ("IJ") decision denying her asylum relief, withholding of
removal under the Immigration and Nationality Act ("INA"),
protection pursuant to the Convention Against Torture Act ("CAT"),
and ordering her removed. She claims the BIA erred in affirming
the IJ's findings that: (1) she had not established that she
suffered past persecution on account of a protected ground (here,
membership in a particular social group); and (2) she was not
entitled to protection under the CAT. She also challenges the
implementing regulations governing CAT protection, 8 C.F.R.
§ 1208.18, and contends that the BIA should have remanded the case
to the IJ to consider an alternate formulation of her social group.
Finally, Petitioner submitted a 28(j) letter arguing that the
Supreme Court decision in Niz-Chavez v. Garland, 141 S. Ct. 1474(2021) renders her Notice to Appear ("NTA") defective so that it
failed to confer jurisdiction on the Immigration Court.
1 Because the claims of Ms. Gomez-Abrego's minor daughter are
dependent on her mother's, we will refer only to Ms. Gomez-Abrego
throughout, unless specifically noted otherwise.
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Given the record before us, we deny the petition for
judicial review in part, and remand to the BIA for further
consideration in accordance with our decision that follows.
BACKGROUND
Life Prior to Arriving in the U.S.2
Petitioner and her minor daughter are natives and
citizens of El Salvador. During the proceedings at the Immigration
Court, Gomez-Abrego testified about the difficulties of her life
in El Salvador and the frightening experiences she and her daughter
endured prior to arriving in America. Gomez-Abrego ran a small
food business, and gang members would go to her store and ask her
for "rent," or payment on a weekly basis. One day, armed gang
members showed up at Gomez-Abrego's home finding her there with
her young daughter. After barging in, they asked her for more
money than what she had already been giving them. She implored
she could not provide them with the amount of money they requested
because her business did not produce the kind of money they were
seeking. In response, the gang members told her that if she did
not give them the money they demanded, they would kill her and her
daughter. She testified that she believed these threats because
gang members did not just threaten harm when people did not pay.
2 The details of Gomez-Abrego's life in El Salvador are
elicited from her testimony in front of the IJ at her removal
hearing on October 24, 2018. The IJ found her testimony to be
credible.
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Rather, when they wanted something, they really wanted it and if
they did not get it, they not only threatened to kill but did in
fact kill people. When gang members saw that she (or anybody) was
earning just a little bit of money, they wanted that person to
start sponsoring them or give them money.
Gomez-Abrego testified that she never called the police
or asked them to protect her because she believed the police in
the area did not really do anything, but instead were "in cahoots"
with the gang members. She believed that if someone told the
police about the gang activity, that person would "get in trouble."
When asked who that person would be in trouble with, Gomez-Abrego
testified that the police were corrupt, so if you reported
something to them, they generally got upset and, instead of
helping, would do something to the individual reporting the
trouble.
These are the reasons why she decided to enter the United
States in search of work with her young daughter at or near Otay
Mesa, California on or about March 1, 2016, without having been
admitted or paroled after inspection by an immigration officer.
Gomez-Abrego believed that if she and her daughter had to return
to El Salvador, the gangs would probably kill her because the
situation there was very dangerous. If the gangs did not kill
her, they would likely extort her for money which would put her
life in danger again. When asked what would happen to her daughter
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if forced to go back, she believed that she, too, would also likely
be killed.
Upon arriving in the United States in early March, agents
of the Department of Homeland Security ("DHS") served Gomez-Abrego
with an NTA which charged her with removability pursuant to INA
§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as a noncitizen
present in the United States without having been admitted or
paroled, or who arrived in the United States at any time or place
other than as designated by the Attorney General. Proceedings
before the IJ commenced a few months later.
IJ Hearing
On November 2, 2016, Gomez-Abrego appeared before the IJ
and admitted to all the charges in the NTA and conceded
removability. Before the IJ, Petitioner timely filed applications
seeking relief, including asylum, withholding of removal, and
relief under the CAT. The IJ found Gomez-Abrego removable as
charged and designated El Salvador as the country of removal should
it become necessary. The hearing on her applications for relief
did not occur until almost two years later on October 24, 2018.
At that hearing, the IJ asked Gomez-Abrego's counsel to
state the particular social group for which she claimed
persecution. Her attorney explained that, "[w]ith regard to [the]
particular social group for the actions of the gangs, [Gomez-
Abrego] would be a victim of gang violence and threats which the
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police either actively collaborate with or ignore because of their
affiliation with gang members." In support of her request for
relief, Gomez-Abrego went on to testify about her life in El
Salvador and the circumstances that caused her to flee to America.
In addition to her own testimony, Petitioner submitted a 2015 State
Department country condition report highlighting the violence in
El Salvador relating to gangs and the police's ongoing struggle to
manage the difficult situation. She also submitted letters from
her mother-in-law and her sister-in-law, which reflected what life
in El Salvador was like from their vantage point and which
corroborated Gomez-Abrego's story of violence and fear. The
letters also described the predominance of gangs in their
community, and the "extortions and threats by . . . people who
have no heart for anyone."
At the conclusion of the hearing, the IJ orally issued
a decision denying Petitioner's applications for asylum,
withholding of removal, and protection under the CAT. Even though
the IJ found Gomez-Abrego credible and a victim of extortion and
threats, with respect to asylum and withholding of removal, the IJ
determined that she had not suffered past persecution or held a
well-founded fear of future persecution. The IJ explained that,
although taken in the aggregate, the harm Petitioner suffered could
rise to the level of persecution, it was not persecution under the
law because Gomez-Abrego failed to show it occurred on account of
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race, religion, political opinion, nationality, or a particular
social group of which she was a member. The social group she
claimed to be a part of was not cognizable because it was not a
social group that existed independently of the harm she suffered.
The only harm she advanced at the hearing was on account of her
particular social group, which the IJ already found did not meet
the threshold requirements of a cognizable social group. Despite
her credibility and the horrific situation Gomez-Abrego and her
daughter had experienced in El Salvador, because she failed to
establish eligibility for asylum, she likewise failed to establish
eligibility for withholding of removal.
With respect to Gomez-Abrego's request for protection
under the CAT, the IJ found that she failed to meet her burden of
proof to show it was more likely than not that she would be tortured
in El Salvador for any reason. Although she "was subjected to
criminal harm and a terribly frightening experience . . . in the
presence of her young daughter," she was unable to show that she
was more likely than not to suffer torture in the future. Further,
the IJ noted that although Gomez-Abrego testified that she believed
the police would not protect her, and in fact calling them might
make the situation even worse for her, the record "d[id] not
support a finding of [police] acquiescence or turning a blind eye"
to any torture Gomez-Abrego might experience. Similarly, she
concluded the State Department 2015 country conditions report was
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insufficient to meet the burden required under the CAT to show it
was more likely than not that Petitioner would be tortured in the
future with the acquiescence of the Salvadoran government.
Appeal to BIA
On November 16, 2020, the BIA dismissed Petitioner's
timely filed appeal. The BIA found no clear error as to the IJ's
factual findings in denying Petitioner's applications for asylum
and withholding of removal and agreed that she failed to establish
the harm she suffered and feared in El Salvador was on account of
a particular social group or other protected basis. The BIA
similarly found that Petitioner did not establish that it was more
likely than not that she would be tortured by or with the
acquiescence of the Salvadoran authorities.
DISCUSSION
Seeking review of the dismissal, Petitioner not only
takes issue with the BIA's decision in affirming the IJ's findings,
but also complains of additional errors. She claims the BIA erred
in affirming the IJ's findings that: (1) she had not established
that she suffered past persecution on account of a protected ground
(here, membership in a particular social group); and (2) she was
not entitled to protection under the CAT. Gomez-Abrego also
challenges the implementing regulations governing CAT protection,
specifically, 8 C.F.R. § 1208.18, and further contends that the
BIA should have remanded her case to the IJ to consider an
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alternate formulation of her social group. Finally, Petitioner
submitted a 28(j) letter arguing that the Supreme Court decision
in Niz-Chavez v. Garland, 141 S. Ct. at 1474 renders her NTA
defective and fails to confer jurisdiction on the Immigration
Court. After going over some standard of review principles, we
will first address Gomez-Abrego's asylum claim (and additional
argument regarding her social group), and then her CAT claim (and
new argument regarding the CAT regulations). Her 28(j) letter
will be our last point of discussion.
Standard of Review
Where, as here, "the BIA adopt[ed] portions of the IJ's
findings while adding its own gloss" the court reviews the IJ's
and the BIA's decisions as one. Martínez-Pérez v. Sessions, 897
F.3d 33, 39 (1st Cir. 2018) (quoting Paiz-Morales v. Lynch, 795
F.3d 238, 242 (1st Cir. 2015)); see also Ordonez-Quino v. Holder,
760 F.3d 80, 87 (1st Cir. 2014).
The court reviews the BIA's factual findings under the
substantial evidence standard, "meaning we accept the findings 'as
long as they are supported by reasonable, substantial and probative
evidence on the record considered as a whole.'" Aguilar-De Guillen
v. Sessions, 902 F.3d 28, 32 (1st Cir. 2018) (quoting Singh v.
Holder, 750 F.3d 84, 86 (1st Cir. 2014)).
The BIA's conclusion regarding the definition and scope
of the term "particular social group" is a legal determination
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that is reviewed de novo. Id. at 33. That said, deference is
given to the interpretation of the term "social group" formulated
by the BIA "even if we conclude that the term is susceptible to
more than one permissible interpretation." Id. (citation
omitted).
Asylum Claim
The court need not touch on all the specifics of
Petitioner's asylum claim because on the record before the court,
she fails to meet the threshold requirements for asylum relief,
most notably persecution on account of a protected social group.
To be eligible for asylum, a petitioner must establish that she is
a refugee within the definition of the immigration laws. To do
so, she has the burden of demonstrating she cannot return to her
home country because she has suffered persecution on account of a
legally protected ground in one of two ways: (1) past persecution
(which gives rise to a rebuttable presumption of future
persecution); or (2) a well-founded fear of future persecution.
See Aguilar-De Guillen, 902 F.3d at 33 (citing Albathani v. INS,
318 F.3d 365, 373 (1st Cir. 2003)); 8 U.S.C. § 1158(b)(1); 8 U.S.C.
§ 1101(a)(42)(A); 8 C.F.R. § 208.13. The persecution must be on
account of an enumerated ground -- "race, religion, nationality,
membership in a particular social group, or political opinion."
Olujoke v. Gonzáles, 411 F.3d 16, 21 (1st Cir. 2005) (quoting 8
U.S.C. § 1101(a)(42)(A)). Gomez-Abrego maintains that she was
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persecuted because of her membership in a particular social group.
The BIA determined, and we agree, that the particular social group
for which she claimed membership in front of the IJ ("victims of
gang violence and threats which the police ignore or collaborate
with because of their affiliation with gangs") does not aid her in
establishing persecution (past or future) on account of that
identity under the INA.
On appeal, Gomez-Abrego does not challenge that the
purported particular social group for which she claimed membership
is not legally cognizable. Switching horses, she argues the record
evidence before us instead supports her membership in a different
social group, in particular, Salvadoran female small business
owners. Petitioner contends that "[s]uch a group shares a common
characteristic, [is] defined with reasonable precision, is readily
identified by persons in El Salvador, and is not defined by [the]
persecution experienced by its members." While Gomez-Abrego did
not argue in front of the IJ that it should consider this
alternative social group, in her briefing before the BIA, she did
argue that the BIA should remand her claims to the IJ to consider
this alternative formulation. The BIA did not address her argument
on this point. Given the BIA's failure to weigh in on this new
social group formulation, we remand to the BIA for its
consideration thereof. See Pina v. Mukasey, 542 F.3d 5, 12 n.7
(1st Cir. 2008) (finding that "the BIA did not address [an] issue,
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and we may not conduct our own de novo inquiry") (citing INS v.
Orlando Ventura, 537 U.S. 12, 16 (2002)).
CAT Claim
Gomez-Abrego argues that she is entitled to relief under
the CAT because the BIA misapplied the "legal standard"3 as to the
definition of "torture" in assessing the likelihood of her being
subjected to torture. For the reasons that follow, there is
substantial evidence to support the BIA's decision denying CAT
protection.
Pursuant to Article 3 of the CAT, the United States has
an obligation under international law not to "expel, return
(refouler) or extradite a person" to a country "where there are
substantial grounds for believing that he [or she] would be in
danger of being subjected to torture." CAT Art. 3, § 1. An
applicant seeking relief must show two things. First, that he or
she is "more likely than not" to be tortured if removed to a
particular country. 8 C.F.R. § 208.16(c)(2). Second, the torture
must be "inflicted by or at the instigation of or with the consent
or acquiescence of a public official acting in an official capacity
3While Gomez-Abrego argues that the "legal standard" as to
the definition of torture was misapplied, it appears what she means
is that the BIA could have come to a different conclusion on the
facts based on the definition of torture. As we mentioned above,
we review for substantial evidence.
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or other person acting in an official capacity." 8 C.F.R.
§ 208.18(a)(1). There must be a nexus between these two elements.
Gomez-Abrego maintains that there was sufficient
evidence in front of the BIA to show a probability of torture and
government involvement therein and acquiescence thereof. On the
other hand the government argues that Gomez-Abrego failed to
establish that it was more likely than not that she would be
tortured with the acquiescence of a public official or person
acting in an official capacity. The record does not compel a
finding contrary to the decision reached by the BIA. Gomez-Abrego
fails to point out any specific evidence on the record beyond her
belief that the police were "in cahoots" with gang members and the
country report showing widespread violence and police corruption
in El Salvador that would compel a result different from that of
the BIA. Put simply, Gomez-Abrego reiterates arguments made in
front of the BIA, but fails to explain how the BIA got it wrong.
She does not provide -- in her brief to this court or elsewhere -
- any evidence establishing that she was harmed by police or any
government official, or any probability that she would be tortured
if she is returned to El Salvador by or with the consent or
acquiescence of a government official. Accordingly, the decision
of the BIA was supported by substantial evidence. See Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 221 (1st Cir. 2007)
(considering country condition evidence reflecting violence and
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corruption, but ultimately finding that "the petitioner has not
adduced any evidence that the prospective torturers were state
actors or alternatively, that the authorities would be in some way
complicit (or, at least, acquiescent) in the torture. This is
important because the infliction of harm does not constitute
torture within the meaning of the CAT unless that harm is inflicted
by, at the direction of, or with the acquiescence of government
officials." (footnote omitted)).
Gomez-Abrego makes a secondary argument involving the
CAT for the first time in her briefing to this court. She argues
that the regulations that implement the CAT, promulgated by the
Department of Justice at 8 C.F.R. § 1208.18, are ultra vires
because they depart from the language of the CAT as ratified by
the Senate, and therefore the BIA did not make a proper inquiry
into whether there was government acquiescence for the purpose of
her CAT claim.
The regulations Gomez-Abrego refers to are the Foreign
Affairs Reform and Restructuring Act ("FARRA"), Pub. L. No. 105-
277, § 2242(b), 112 Stat. 2681-822 (codified as a note to 8 U.S.C.
§ 1231), which instructed agencies to implement the obligations of
the United States under Article 3 of the Convention. While we
could get into the nitty-gritty of the CAT regulations, we need
not do so here. Since Petitioner failed to bring this argument to
the BIA in the first instance, it has not been exhausted, and we
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are without jurisdiction to review it. See Makhoul v. Ashcroft,
387 F.3d 75, 80 (1st Cir. 2004) ("[T]heories not advanced before
the BIA may not be surfaced for the first time in a petition for
judicial review of the BIA's final order.")
Petitioner's 28(j) Letter
Gomez-Abrego filed a letter pursuant to Fed. R. App.
Proc. 28(j) submitting a notice of supplemental authority
highlighting the Supreme Court's April 29, 2021 decision in Niz-
Chavez v. Garland, 141 S. Ct. at 1474. In this letter, Petitioner
argues that the Supreme Court again held, as it did in Pereira v.
Sessions, 138 S. Ct. 2105, 2113-14 (2018), that 8 U.S.C.
§ 1229(a)(1) requires that an NTA must contain all of the
information required (including the time and place of the hearing)
on a single document, streamlining the holding of Pereira to
conclude that documents served seriatum over time would not trigger
the Illegal Immigration Reform and Immigrant Responsibility Act's
stop-time rule (a rule not at issue in this case). Petitioner
argues that as a result of Niz-Chavez, a defective NTA (i.e. one
without the date and time to appear), such as her own, "fails to
confer jurisdiction on the receiving Immigration Court."
This court need not delve into the merits of Petitioner's
challenge because we are without jurisdiction to review this
question. Before the IJ, Gomez-Abrego indeed attempted to make
this same argument based on Pereira, but her motion was denied and
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the IJ specifically noted that the argument was preserved for
appeal. But Petitioner did not raise this issue to the BIA. See
Ahmed, 611 F.3d at 97 (stating that "[i]t is settled beyond hope
of contradiction that judicial review of a final order of the BIA
may proceed only if, and to the extent that, the alien has
exhausted all administrative remedies available to the alien as of
right" (quotation marks omitted)). "Faithful to this rule, we
consistently have held that arguments not made before the BIA may
not make their debut in a petition for judicial review of the BIA's
final order." Id. Consequently, this court lacks jurisdiction to
hear this unexhausted claim.
CONCLUSION
For the foregoing reasons, we deny in part the petition
for judicial review, and remand to the BIA for further
consideration in accordance with the court's decision.
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