Romero-De Guzman v. Garland, 20-9540

Background:

Romero and her minor daughter, Salvadoran nationals, entered the U.S. without authorization in July 2014; removal proceedings followed and Romero applied for asylum, withholding, and CAT protection.
At an IJ hearing Romero testified to (1) an attempted gang rape motivated by revenge after her husband was found with a gang leader’s girlfriend, and (2) long‑term sexual abuse by her stepfather from ages 5–16; she fled to the U.S. thereafter.
The IJ denied relief, finding the gang attack was personal vengeance (not on account of membership in a protected group); the BIA affirmed in 2015; proceedings were administratively closed, later reopened, and the BIA issued a final single‑member affirmance in March 2020 incorporating the earlier decision.
Romero failed to file a supplemental brief after receiving and accepting an extension from the BIA; she later claimed her counsel had not been served and raised a due‑process challenge.
The BIA rejected claims for asylum (including family‑as‑particular‑social‑group theory), humanitarian asylum (declining that past harm met the threshold for compelling reasons and noting Romero had not shown persecution on account of a protected ground), and CAT relief (finding no likelihood of government torture/acquiescence or willful blindness).

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Due process — failure to receive BIA orders / prejudice from not filing supplemental brief	Romero: counsel never received post‑remand BIA decisions and she was prejudiced by inability to file a supplemental brief	Government/BIA: record shows counsel received the revised briefing schedule and an extension; Romero did not file the brief	Denied — Romero’s counsel received the briefing schedule and extension; due‑process claim unsupported by record
Asylum — membership in a "particular social group" (husband’s nuclear family) and persecutors’ motivation	Romero: gang targeted her as member of husband’s nuclear family (or similar family‑based group)	BIA/IJ: BIA deferred group question but affirmed IJ’s factual finding that attack was personal vengeance, not on account of group membership	Denied — substantial evidence supports conclusion attackers were motivated by personal revenge, not protected‑group membership
Humanitarian asylum — compelling reasons or other serious harm based on past abuse and gang threat	Romero: stepfather abuse and ongoing gang threat provide compelling reasons or at least other‑serious‑harm to merit humanitarian asylum	BIA: Romero did not meet threshold of past persecution on account of a protected ground; alternatively, stepfather abuse not severe/systemic enough for compelling‑reasons prong; BIA did not fully analyze other‑serious‑harm but found threshold lacking	Denied — Romero did not challenge BIA’s threshold finding of no past persecution on account of a protected ground; alternative BIA finding that abuse not severe enough also affirmed
CAT — government acquiescence / willful blindness and consideration of totality of evidence	Romero: Salvadoran authorities would be willfully blind or acquiescent to gang torture; BIA overlooked favorable evidence (police advice not to report, relative’s murder after reporting, country conditions)	BIA: considered willful blindness and country‑condition evidence and found record does not show likely acquiescence; government has made efforts against gangs; evidence is equivocal but sufficient for substantial‑evidence standard	Denied — BIA addressed willful blindness and considered the evidence; substantial evidence supports denial of CAT relief

Key Cases Cited

Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006) (standards for reviewing BIA single‑member decisions and consulting IJ reasoning)
Vatulev v. Ashcroft, 354 F.3d 1207 (10th Cir. 2003) (personal hostility alone is insufficient to establish persecution on account of a protected ground)
Krastev v. INS, 292 F.3d 1268 (10th Cir. 2002) (standards for humanitarian asylum: "compelling reasons" and "other serious harm")
Garcia‑Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010) (requirement to present same legal theory to the BIA before raising it on appeal)
Lindstrom v. United States, 510 F.3d 1191 (10th Cir. 2007) (arguments not raised in an opening brief are waived)