Asylum & withholding of removal; Whether petitioner established that he was “persecuted” because of membership in a particular social group; Preserving a claim; Forfeiture; Exhaustion of administrative remedies requirement; 8 USC § 1252(d); Whether the Immigration Judge (IJ) misapplied the “more likely than not” standard under the Convention Against Torture Act (CAT); Board of Immigration Appeals (BIA)

The court denied petitioner-Gamas-Vicente’s petition for review of the BIA’s denial of his application for asylum, withholding of removal, and CAT protection, holding that he forfeited his claims about the particular social groups he identified before the agency and that he failed to exhaust the three new ones he presented in his petition. His claims related to his alleged experiences with a “gang in Guatemala and his Mayan ethnicity.” An IJ rejected his application, ruling that the first three social groups he identified “swept too broadly and weren’t sufficiently particular to be recognized as a discrete group by Guatemalan society. The IJ also rejected all four groups for an independent reason: Gamas-Vicente failed to show that the gang targeted him because of his membership in any of them.” His CAT claim was also rejected on the basis he did not show “he was likely to be tortured or that the government would initiate, consent to, or acquiesce in any torture.” The BIA affirmed. On appeal, he brought various challenges to the BIA’s rejection of his claims. The court found that they all suffered “from the same flaw: Gamas-Vicente forfeited his arguments about the particular social groups he identified before the agency. And he failed to exhaust the three new groups he presents in his petition for review. Without membership in a particular persecuted social group,” his claims failed. It held that he forfeited the social groups he identified to the agency because in his petition for review, he did not contest the rejection of those groups. As to the three new groups he named in his petition, he failed to “‘preserve each claim’ by exhausting his remedies before the” BIA. Thus, he did not exhaust the new claims he made in his petition. The court also rejected his challenges that did not “depend on the particular-social-group requirement.” As to his claim that the IJ misapplied CATS’s “more likely than not” standard, it noted that the BIA determined he waived his CAT claim by not challenging it on appeal, and that he failed to challenge that waiver finding in his opening brief. Thus, he “forfeited any argument that he preserved the issue before the” BIA. He also did not exhaust his due process claim.