Gomez-Abrego v. Garland, 26 F.4th 39

Background

Petitioner Cecilia Raquel Gomez-Abrego, a Salvadoran national, and her minor daughter fled El Salvador after repeated extortion and death threats by gang members at her home and small food business. She believed local police were corrupt and colluding with gangs.
Gomez-Abrego entered the U.S. without admission in March 2016, was served an NTA, conceded removability, and applied for asylum, withholding of removal, and CAT protection.
The IJ found her credible and that she suffered extortion and threats but denied asylum/withholding because the particular social group she claimed ("victims of gang violence and threats which the police ignore or collaborate with") was not legally cognizable and thus no persecution on account of a protected ground was established.
The IJ denied CAT relief, finding insufficient evidence that future torture was more likely than not or that Salvadoran authorities would acquiesce; the BIA affirmed both denials.
Gomez-Abrego later urged an alternative social-group formulation (Salvadoran female small-business owners); the BIA did not address that formulation. She also submitted a 28(j) letter invoking Niz-Chavez to challenge her NTA's validity, an argument not raised to the BIA.

Issues

Issue	Plaintiff's Argument (Gomez-Abrego)	Defendant's Argument (Garland)	Held
Whether petitioner suffered persecution on account of a particular social group ("victims of gang violence/police collusion")	She was persecuted by gangs because of group membership and feared future harm	The claimed group is not legally cognizable and record lacks nexus to a protected ground	Court agreed with BIA/IJ: group not cognizable; asylum/withholding denied
Whether the case should be remanded for consideration of an alternative social group (Salvadoran female small-business owners)	Argues that group is cognizable and fits statutory criteria; asked BIA to remand to IJ for consideration	Government relied on BIA denial; BIA did not address the alternative formulation	Court remanded to the BIA to consider the alternate social-group formulation because BIA failed to address it
Whether petitioner is entitled to CAT protection (likelihood of torture and government acquiescence) and challenge to CAT implementing regs	Asserts record shows probable future torture with police acquiescence; further contends regs (8 C.F.R. §1208.18) are ultra vires	Government: no evidence petitioner was harmed by state actors or likely to be tortured with official acquiescence; regs challenge unexhausted	Substantial evidence supports BIA denial of CAT relief; regs challenge was unexhausted, so court declined review
Whether Niz-Chavez renders the NTA defective and strips Immigration Court jurisdiction	Niz-Chavez (and Pereira) mean an NTA lacking time/place is jurisdictionally defective	Government: issue was not raised to the BIA; thus not exhausted	Court lacked jurisdiction to review Niz-Chavez/NTA claim because petitioner did not exhaust it before the BIA

Key Cases Cited

Martínez-Pérez v. Sessions, 897 F.3d 33 (1st Cir. 2018) (standard for reviewing combined BIA/IJ decisions)
Aguilar-De Guillen v. Sessions, 902 F.3d 28 (1st Cir. 2018) (deference to BIA on social-group legal questions; substantial-evidence review)
Singh v. Holder, 750 F.3d 84 (1st Cir. 2014) (substantial-evidence standard)
Albathani v. INS, 318 F.3d 365 (1st Cir. 2003) (asylum eligibility and persecution framework)
Pina v. Mukasey, 542 F.3d 5 (1st Cir. 2008) (court may not make de novo factual findings when BIA did not address an issue)
INS v. Orlando Ventura, 537 U.S. 12 (2002) (limits on appellate factfinding where agency did not rule)
Lopez de Hincapie v. Gonzales, 494 F.3d 213 (1st Cir. 2007) (CAT requires torture by or with acquiescence of a state official)
Makhoul v. Ashcroft, 387 F.3d 75 (1st Cir. 2004) (exhaustion requirement for BIA review)
Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA pleading requirements)
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (NTA service and content rule invoked by petitioner)