Gomez-Abrego v. Garland

• Decision Date: 16 February 2022
• Docket Number: No. 20-2175,20-2175
• Parties: Cecilia Raquel GOMEZ-ABREGO and K.R.H.G., Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

26 F.4th 39

Cecilia Raquel GOMEZ-ABREGO and K.R.H.G., Petitioners,

v.Merrick B. GARLAND,^* Attorney General, Respondent.

No. 20-2175

United States Court of Appeals, First Circuit.

February 16, 2022

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.

Before Thompson and Kayatta, Circuit Judges, and Katzmann, Judge.^**

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, ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021) renders her Notice to Appear ("NTA") defective so that it failed to confer jurisdiction on the Immigration Court.

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. 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 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 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 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 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...