Lidia Gomez-Gabriel; A. G.-G. v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of a Final Order…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-2559
_______________
LIDIA GOMEZ-GABRIEL; A. G.-G.,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
Agency Nos. A208-681-927; A208-681-928
Immigration Judge: Mary C. Lee
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on April 28, 2025
Before: KRAUSE, BIBAS, and MONTGOMERY-REEVES,
Circuit Judges
(Opinion Filed: July 24, 2025)

-- 1 of 8 --

2
Abdoul A. Konare
5235 Westview Drive, Suite 101
Frederick, MD 21703
Counsel for Petitioners
Spencer Shucard
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
PER CURIAM
Guatemalan native and citizen Lidia Gomez-Gabriel
and her son A.G.-G. (collectively, Petitioners) petition for
review of a final order of removal issued by the Board of
Immigration Appeals (BIA) denying their application for
asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Our law was not clear as
to whether a BIA summary affirmance, as the agency
employed here, resuscitates unexhausted claims, so we
confirm, today, that it does not. Because the BIA did not err in
denying Petitioners’ withholding of removal application and
Petitioners failed to exhaust their administrative remedies with

-- 2 of 8 --

3
respect to their asylum and CAT claims, we will deny the
petition.
I. BACKGROUND
Gomez-Gabriel, who is indigenous Mayam Mam,
testified that Guatemalan gang members harassed her for
money on her way to work on about ten occasions, and on at
least one occasion threatened her with a weapon. After that
incident, however, she avoided the road on which she was
targeted and had no further interactions with the criminals.
Fearing for her safety, she and her son fled Guatemala
and entered the United States without inspection in November
2015. The Department of Homeland Security promptly
initiated removal proceedings and detained Petitioners for
twelve days, after which, it informed Petitioners about the one-
year deadline to file an asylum application and released them.
Petitioners conceded removability but filed an application for
asylum, withholding of removal, and CAT protection on
August 21, 2017. The Immigration Judge (IJ) denied the
petition determining (1) that the asylum application was time
barred and (2) that the asylum, withholding of removal, and
CAT applications were without merit. Petitioners timely
appealed to the BIA, which affirmed without opinion under 8
C.F.R. § 1003.1(e)(4).

-- 3 of 8 --

4
II. DISCUSSION1
The government contends that we cannot review
Petitioners’ claims because they failed to exhaust their
administrative remedies before the BIA. We agree in part.
Petitioners did fail to exhaust their asylum and CAT claims,
but they adequately challenged their withholding of removal
claim. Nevertheless, that claim fails on the merits.
A. Exhaustion Before the BIA
Under 8 U.S.C. § 1252(d)(1), a petitioner must “exhaust
all remedies available to her in order to preserve her right to
appellate review of a final order of removal.” Yan Lan Wu v.
Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005). This requirement
applies to “each particular issue raised by the petitioner.”
Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012).
Although we no longer treat § 1252(d) as a jurisdictional bar,
once the government raises the issue, we must enforce it.
Aguilar v. Att’y Gen., 107 F.4th 164, 168–69 (3d Cir. 2024).
Still, the standard is not high; we require only that the
“petitioner makes some effort, however insufficient, to place
the Board on notice of a straightforward issue being raised on
appeal.” Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.
2006) (quoting Yan Lan Wu, 393 F.3d at 422). But when
petitioners make “no such effort,” we will not disturb the
agency’s conclusions. Lin v. Att’y Gen., 543 F.3d 114, 122 (3d
1 The BIA had appellate jurisdiction under 8 C.F.R.
§ 1003.1(b)(3) and § 1240.15. We have jurisdiction under 8
U.S.C. § 1252(a)(1).

-- 4 of 8 --

5
Cir. 2008), abrogated on other grounds by Santos-Zacaria v.
Garland, 598 U.S. 411 (2023).
Petitioners here did nothing to put the agency on notice
that they took issue with the IJ’s conclusions regarding the
asylum time-bar or CAT. When Petitioners appealed to the
BIA, they challenged only the IJ’s substantive asylum and
withholding of removal analysis. Neither the notice of appeal
nor the brief before the BIA mentioned CAT or challenged the
IJ’s determination that the asylum claim was untimely.
Because Petitioners failed to raise these dispositive issues
before the BIA, they failed to exhaust their administrative
remedies, as necessary “to preserve [their] right to appellate
review” of their removal order. Yan Lan Wu, 393 F.3d at 422.
In short, Petitioners’ arguments on appeal come too little
before the BIA and too late before the IJ, so given their failure
to challenge the time-bar or CAT determinations, we cannot
consider either. See Lin, 543 F.3d at 122 (observing petitioner
failed to raise an issue before the BIA because he failed to
mention it in his notice of appeal or brief); Abdulrahman v.
Ashcroft, 330 F.3d 587, 595 (3d Cir. 2003) (same).
The fact that the BIA summarily affirmed the IJ’s
opinion does not rescue Petitioners’ arguments. The BIA, in
exercising its congressionally delegated authority, is free to
enforce or waive compliance with its rules, including its
requirement that a petitioner “must specifically identify the
findings of fact, the conclusions of law, or both, that are being
challenged” on appeal. Lin, 543 F.3d at 124–25 (quoting 8
C.F.R. § 1003.3(b)). As we observed in Lin, when the BIA sua
sponte considers an issue and issues a reasoned opinion, “the

-- 5 of 8 --

6
record is adequate for our review,” id. at 125, so we may “look
past a petitioner’s failure to make an argument to the BIA,”
Aguilar, 107 F.4th at 169. But where the BIA merely affirms
without an opinion, as it did here, its decision does not displace
the mandatory exhaustion requirement, see Lin, 543 F.3d at
125–26; Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir.
2007), abrogated on other grounds by Santos-Zacaria, 598
U.S. 411; Karaj v. Gonzales, 462 F.3d 113, 120 (2d Cir. 2006);
Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004), abrogated
on other grounds by Santos-Zacaria, 598 U.S. 411; see also
Al-Fara v. Gonzales, 404 F.3d 733, 737, 743 (3d Cir. 2005)
(declining to review unexhausted claims after BIA summary
affirmance).
This distinction respects the exhaustion requirement’s
purpose because reviewing arguments that the BIA has not
expressly considered encourages “premature interference with
agency processes” and robs the agency of the “opportunity to
correct its own errors, to afford the parties and the courts the
benefit of its experience and expertise, and to compile a record
which is adequate for judicial review.” Weinberger v. Salfi,
422 U.S. 749, 765 (1975). When the BIA summarily affirms,
the reviewing board member must consider the complexity and
clarity of the issues raised on appeal but cannot provide an
explanation for her decision, leaving a reviewing court without
any indication that the agency considered something other than
the issues a petitioner presented. 8 C.F.R. § 1003.1(4); Zara,
383 F.3d at 931. Reviving issues that the BIA presumably did
not consider would put us in the position of leapfrogging over

-- 6 of 8 --

7
the agency’s first-line review and interfering with the authority
Congress delegated to the agency.
B. Withholding of Removal
Without their asylum and CAT claims Petitioners are
left to appeal only the denial of their withholding of removal
application, which they raised, albeit opaquely, before the BIA.
To qualify for withholding, petitioners must establish that their
membership in a cognizable social group “is ‘one central
reason’ why [they were] or will be targeted for persecution.”
Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 684–85 (3d Cir.
2015). We review the IJ’s determination on this front for
substantial evidence, deferring “unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B); see Gonzalez-Posadas, 781 F.3d at
686. Here, substantial evidence supports the IJ’s determination
that Gabriel-Gomez’s membership in a protected group,
including her tribal membership, was a not a central reason for
her alleged persecution; rather, she was a victim of generalized
gang violence.
Gomez-Gabriel asserts that the gangs targeted her
because she is Mayam Mam and because she is a woman, but
when the criminals threatened her with a weapon, they did not
mention anything about those characteristics. As the IJ
acknowledged, Gomez-Gabriel testified that the thieves at
some point “mocked” her for being a Mayam woman when
shaking her down, A.R. 131, but she could only provide a
vague recollection without context or detail. Her other
testimony indicates that her harassers did not target her

-- 7 of 8 --

8
specifically but, rather, were “constantly harming and beating
up people” for money. A.R. 150. She initially stated that she
feared becoming a target if returned to Guatemala because
gangs believe people returning from the United States are “full
of money,” A.R. 147, although when the IJ asked whether she
had any other reason to fear returning to Guatemala, she added
that the gang members would “see” that she is
“indigenous,” id.
In sum, substantial evidence supports the IJ’s
conclusion that, despite the attackers’ alleged use of ethnic
slurs on some occasions, they were motivated, not by animus
towards Gabriel-Gomez’s group membership, but by financial
gain. See Lopez v. Att’y Gen., No. 24-1444, 2025 WL
1790265, at *7 (3d Cir. June 30, 2025); Lie v. Ashcroft, 396
F.3d 530, 535 (3d Cir. 2005). And a petitioner “targeted out of
a simple desire for money has not experienced persecution on
account of a ground protected by the INA.” Thayalan v. Att’y
Gen., 997 F.3d 132, 144 (3d Cir. 2021). Thus, although the
Court sympathizes with Gabriel-Gomez’s fear of gang
violence, Petitioners are ineligible for withholding of removal.
III. CONCLUSION
For the foregoing reasons, we will deny the petition for
review.

-- 8 of 8 --