United States Court of Appeals For the First Circuit
No. 24-1895
GESSIKA ALVES-PAINS; IURI SILVA-GONCALVES; R.S.P.; I.F.G.P.; E.S.P.,
Petitioners,
v.
TODD W. BLANCHE,* Acting Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Dunlap, Lynch, and Kayatta, Circuit Judges.
Randy Olen on brief for petitioners. Arthur L. Rabin, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Brett A. Shumate, Assistant Attorney General, Civil Division, and Anna Juarez, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.
June 18, 2026
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Todd W. Blanche is automatically substituted for former Attorney General Pamela J. Bondi as respondent. LYNCH, Circuit Judge. Gessika Alves-Pains, her three
minor children, I.F.G.P., R.S.P., and E.S.P., listed from oldest
to youngest, and her husband, Iuri Silva-Goncalves, the father of
the two younger children, are natives and citizens of Brazil who
entered the United States near Otay Mesa, California, without
inspection in 2021. They petition for review of a decision by the
Board of Immigration Appeals ("BIA") denying their joint motion to
reconsider its dismissal of their appeal from the Immigration
Judge's ("IJ") denial of asylum. Petitioners did not petition for
review of the BIA's earlier decision dismissing their appeal from
the denial of relief.
Our jurisdiction is limited to the BIA's denial of the
motion to reconsider. See Diaz-Valdez v. Garland, 122 F.4th 436,
442 (1st Cir. 2024). We review that denial of reconsideration for
abuse of discretion and will thus uphold it "unless it lacks 'a
rational explanation, inexplicably depart[s] from established
policies, or rest[s] on an impermissible basis.'" Id. (alterations
in original) (some internal quotation marks omitted) (quoting
Onwuamaegbu v. Gonzales, 470 F.3d 405, 407 (1st Cir. 2006)). In
the context of removal proceedings, a motion to reconsider "shall
specify the errors of law or fact in the previous order and shall
be supported by pertinent authority." 8 U.S.C. § 1229a(c)(6)(C).
Such a motion is "intended only to cure errors (factual or legal)
in the prior BIA decision," and it may not merely "regurgitate[]
- 2 - contentions that were previously made and rejected" or "submit, in
essence, the same brief presented on appeal." Kuffour v. Sessions,
907 F.3d 112, 114 (1st Cir. 2018) (alteration in original) (first
quoting Martinez-Lopez v. Holder, 704 F.3d 169, 172 (1st Cir.
2013); then quoting Liu v. Mukasey, 553 F.3d 37, 39 (1st Cir.
2009); and then quoting In re O-S-G-, 24 I. & N. Dec. 56, 58
(B.I.A. 2006)). Here, petitioners argued in their motion to
reconsider that the BIA's direct appeal decision contained errors
of law or overlooked aspects of the case as to the two proposed
particular social groups ("PSGs") on which Alves-Pains relied.
Alves-Pains's asylum application was based on her
alleged abuse by Jose Antonio de Oliveira Gomes, whom she never
married but who is the father of her eldest child, I.F.G.P. They
had an approximately two-year relationship in Brazil, which ended
when she left him in late 2009. She later began a relationship
with Silva-Goncalves, now her husband, and had her two younger
children with him, all before they entered the United States.1
1 At the time of their entry into the United States, I.F.G.P. was twelve years old, R.S.P. was three, and E.S.P. was one. Alves-Pains's asylum application included Silva-Goncalves and the three children as derivative beneficiaries. "[D]erivative asylum refers to the fact that certain family members of asylees can be granted asylum as derivatives (or 'riders' as they are also sometimes called) of their family member's asylum application." Pazine v. Garland, 115 F.4th 53, 61 n.2 (1st Cir. 2024). Because "noncitizens cannot derive withholding of removal or [Convention Against Torture ("CAT")] protection," id., each family member also filed an individual application for relief. Those individual
- 3 - Represented by counsel, Alves-Pains argued that Gomes's abuse of
her constituted past persecution and supported a fear of future
persecution on account of two different proposed PSGs. The first
PSG she proposed was "Brazilian women who are unable to leave
relationships with the fathers of their children." The second PSG
she proposed was "perceived immediate family member of . . . Gomes
as mother in a nuclear family where the persecutor is the father
and [I.F.G.P.] . . . is the child."
The BIA denied reconsideration. As to the first proposed
PSG, the BIA reiterated that Alves-Pains had not "establish[ed]
that she was at any time a member of the proposed" group because
she had "left the relationship with [Gomes] many years ago," and
the record did not show that she was "ever unable [to] leave that
relationship." As to the second proposed PSG, the BIA adhered to
its conclusion that petitioners could not "establish the requisite
particularity" because the group was "defined explicitly by the
subjective perception of an unknown viewer or viewers." Because
petitioners have not shown that either PSG argument met the
requirements for reconsideration, we deny the petition.
applications relied on Alves-Pains's account of Gomes's abuse, and no petitioner besides Alves-Pains submitted a written declaration. On direct appeal, the BIA affirmed the IJ's denial of withholding of removal and CAT protection. Petitioners did not seek reconsideration of those aspects of the BIA's decision, nor do they attempt to develop any withholding or CAT argument before us.
- 4 - I.
To understand the issues here, it helps to briefly
outline what happened in the IJ's initial denial of asylum and the
BIA's dismissal of the appeal from that denial of relief. In joint
removal proceedings before the IJ, petitioners, through counsel,
admitted the factual allegations in the notices to appear and
conceded inadmissibility, and each sought asylum, withholding of
removal, and protection under the Convention Against Torture.
At the two day merits hearing, Alves-Pains was the
principal witness.2 Because the BIA assumed her credibility in
dismissing petitioners' appeal,3 and because the government makes
no argument to us that Alves-Pains was not credible, we recount,
in the light most favorable to her credibility, the basic facts
drawn from her testimony and July 28, 2023, written declaration.
While living in Brazil, Alves-Pains began dating Gomes
in 2007, when she was fifteen. About a year later, she moved in
2 At the first merits hearing on August 31, 2023, Alves-Pains testified at length as the only witness. When the hearing resumed on January 30, 2024, the IJ and counsel questioned her further, and Silva-Goncalves testified only about when he met Alves-Pains and when their romantic relationship began. Petitioners also relied on documentary evidence, including Alves-Pains's July 28, 2023, written declaration, a Brazilian police report documenting her complaint against Gomes, letters from her mother and brother, materials pertaining to her reported psychological treatment and evaluation, and country conditions evidence concerning domestic violence and violence against women in Brazil. 3 As we explain later, the IJ had found Alves-Pains not credible and had stated his reasons on the record.
- 5 - with him, and three months after that she became pregnant with her
first child, I.F.G.P. During her pregnancy, Gomes kept Alves-Pains
locked inside the house while he was at work. After their baby
was born, Gomes became physically and sexually abusive toward
Alves-Pains. In January 2009, about three weeks after I.F.G.P.'s
birth, Alves-Pains left Gomes with her family's help and stayed at
her mother's home for a week, but returned to Gomes after he
apologized and promised not to abuse her again. Within two months
of her return, the abuse resumed and worsened. She testified that
Gomes beat her on numerous occasions, raped her more than twenty
times, threatened her with a knife, called her a whore, pressed a
broomstick against her neck, and told her that he would kill her.
By early October 2009, Alves-Pains had permanently
separated from Gomes. She testified that, in response, Gomes soon
made threats to "invade" her home and kill her relatives, and he
loitered near her house almost every day. In December 2009,
Alves-Pains reported Gomes's threats to the police and obtained a
restraining order. She testified that Gomes did not respect the
restraining order and continued to threaten her after she left the
relationship.
In 2014, Alves-Pains began a relationship with
Silva-Goncalves, with whom she had two children while they lived
together in the city of Governador Valadares. Over the decade
from 2010 until 2021, Alves-Pains did not see Gomes in person. In
- 6 - April 2021, Alves-Pains met Gomes at the local registrar's office
so that he could sign I.F.G.P.'s passport application, which he
did without incident. Petitioners left Brazil together three
months later. Alves-Pains testified that Gomes had not contacted
her since she arrived in the United States.
The IJ denied relief to petitioners and ordered them
removed to Brazil. He found Alves-Pains not to be credible based
on what he believed were significant, unexplained inconsistencies
among her testimony, written declaration, and other documentary
evidence.
Petitioners timely appealed to the BIA. On June 14,
2024, the BIA dismissed their appeal, assuming Alves-Pains's
credibility but reasoning that she had not established eligibility
for asylum. The BIA determined that Alves-Pains was not a member
of the first proposed PSG, "Brazilian women who are unable to leave
relationships with the fathers of their children," because, by her
own testimony, she had left Gomes "years ago" and was now in a
relationship with Silva-Goncalves. The BIA also held that the
second proposed PSG, "perceived immediate family member of . . .
Gomes as mother in a nuclear family where the persecutor is the
father and [I.F.G.P.],"4 lacked particularity because it was
4 As petitioners pointed out in their motion for reconsideration, the BIA's decision dismissing their appeal omitted the words "is the child" after the reference to I.F.G.P.
- 7 - defined not by "immutable family relationships[] but by the
subjective perception of an unknown viewer or viewers," such that
membership in the proposed group could change "depending on whose
viewpoint is used." Petitioners did not petition for review of
the BIA's decision dismissing their appeal.
On July 15, 2024, petitioners filed a timely joint
motion asking the BIA to reconsider its dismissal of their appeal
solely as to asylum. The motion challenged the BIA's analysis of
Alves-Pains's two proposed PSGs.5 On August 30, 2024, the BIA
denied reconsideration, stating the reasons we described earlier.
Petitioners timely petitioned this court for review.
II.
An applicant for asylum must qualify as a "refugee"
within the meaning of the INA. 8 U.S.C. § 1158(b)(1)(A). A
refugee is someone who is "unable or unwilling to return [to] or
to avail herself of the protection of her own country because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a [PSG], or political
opinion." Espinoza-Ochoa v. Garland, 89 F.4th 222, 230 (1st Cir.
in this PSG definition. This omission is not material to our resolution of the claims now before us. See infra note 10. 5 Petitioners' motion also asked the BIA to revisit all arguments raised in their appeal brief. The BIA rejected that request because it did not specify, or even allege, any factual or legal error in the prior decision, as required by 8 U.S.C. § 1229a(c)(6)(C).
- 8 - 2023) (first alteration in original) (internal quotation marks
omitted) (quoting De Pena-Paniagua v. Barr, 957 F.3d 88, 92 (1st
Cir. 2020)); see also 8 U.S.C. § 1101(a)(42)(A).
"[A]n applicant seeking relief based on his membership
in a PSG 'must establish that the group is: (1) composed of members
who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in
question.'" Espinoza-Ochoa, 89 F.4th at 231 (quoting Paiz-Morales
v. Lynch, 795 F.3d 238, 244 (1st Cir. 2015)). "[A] group is
considered particularly defined where it is discrete and ha[s]
definable boundaries -- it must not be amorphous, overbroad,
diffuse[,] or subjective." Alvarado-Reyes v. Garland, 118 F.4th
462, 472 (1st Cir. 2024) (second alteration in original) (internal
quotation marks omitted) (quoting Cabrera v. Garland, 100 F.4th
312, 321 (1st Cir. 2024)). "Whether a proposed PSG is cognizable
is ultimately a legal question," Ramos-Hernandez v. Bondi, 163
F.4th 44, 51 (1st Cir. 2025), while whether an applicant is a
member of a proposed PSG is a question of fact, Matter of W-Y-C- &
H-O-B-, 27 I. & N. Dec. 189 (B.I.A. 2018). And "[t]he burden of
showing membership in a legally cognizable group rests with the
applicant." Espinoza-Ochoa, 89 F.4th at 231.
III.
We see no abuse of discretion in the BIA's conclusion
that petitioners had shown no factual or legal error in its earlier
- 9 - decision dismissing their appeal from the IJ's denial of relief.
Petitioners' arguments to us rely on mischaracterizations of what
the BIA actually held in denying reconsideration.
Petitioners first argue that the BIA abused its
discretion in denying reconsideration as to the proposed PSG of
"Brazilian women who are unable to leave relationships with the
fathers of their children." They contend that the BIA erred as a
matter of law by treating Alves-Pains's eventual separation from
Gomes as defeating her claimed membership in that PSG and, in turn,
her asylum claim based on that PSG, rather than asking whether she
was unable to leave during the period of alleged persecution. That
argument misstates what the BIA actually held. In its decision
denying reconsideration, the BIA explained that it had rejected
Alves-Pains's "claim of past and feared future persecution" on
account of that PSG because she "did not establish that she was at
any time a member" of the group: She had "left the relationship
with [Gomes] many years ago," and "the record does not establish
that [she] was ever unable [to] leave that relationship." In doing
so, the BIA acknowledged that "'societal expectations about gender
and subordination, as well as legal constraints regarding divorce
and separation' may determine whether a woman can leave a domestic
relationship." (quoting Matter of A-R-C-G-, 26 I. & N. Dec. 388,
393 (B.I.A. 2014)). The BIA also reasoned that, "even if"
Alves-Pains had been "previously unable to leave the relationship
- 10 - and only later became able to leave," "the group membership would
not be immutable, and would not be cognizable as a [PSG] for that
reason." (citing Matter of W-G-R-, 26 I. & N. Dec. 208, 212-13
(B.I.A. 2014); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237
(B.I.A. 2014)).6
As the government points out, an applicant who relies on
a PSG must show not only that the group is cognizable, but also
that she is a member of that group. See Paiz-Morales v. Lynch,
795 F.3d 238, 243-44 (1st Cir. 2015). Contrary to petitioners'
argument, the BIA did not deny reconsideration on the categorical
ground that a woman who later escapes an abusive relationship can
never belong to a so-called "unable to leave" PSG. Rather, the
BIA made a case-specific determination that Alves-Pains had not
established that she was ever unable to leave Gomes. The record
supports the conclusion that, even during the period of Gomes's
abuse, Alves-Pains was not unable to leave the relationship. At
no point were Alves-Pains and Gomes married. Their relationship
lasted only about two years. The physical abuse started around
6 Petitioners' reply brief makes an argument that they did not make to the BIA. They refer to Gomes's threat, recounted in Alves-Pains's written declaration, that she would leave the relationship only "in a coffin," as evidence that she was unable to leave him during the period of alleged abuse. The BIA did not abuse its discretion by not mentioning an argument that was not made to it. See, e.g., Hurtado v. Lynch, 810 F.3d 91, 93 (1st Cir. 2016) (holding that the BIA did not abuse its discretion in denying reconsideration where petitioner's new arguments were "previously available but not previously asserted").
- 11 - January 2009, and Alves-Pains quickly left Gomes. Although she
returned to Gomes that time, she did so of her own volition, under
no threat from Gomes. And when the abuse restarted, she left again
a few months later, this time for good, more than a decade before
she entered the United States. She also obtained an immediate
restraining order against Gomes and in 2014, began a new
relationship with Silva-Goncalves. By her own account, she did
not see Gomes in person for more than a decade, from 2010 until
April 2021, and Gomes had not contacted her since she arrived in
the United States in July 2021. See Cardona v. Sessions, 848 F.3d
519, 522-24 (1st Cir. 2017) (holding that the BIA did not abuse
its discretion in denying reconsideration where petitioner had not
shown she was a member of her own proposed PSGs); Rivas-Durán v.
Barr, 927 F.3d 26, 30, 32-33 (1st Cir. 2019) (denying petition for
review of BIA decision vacating IJ's grant of asylum where
applicant failed to demonstrate membership in proposed PSG of
"women in El Salvador unable to leave a domestic relationship"
because the record did not show a domestic or ongoing
relationship); Miranda-Bojorquez v. Barr, 937 F.3d 1, 6 (1st Cir.
2019) (denying petition for review of BIA decision dismissing
appeal where substantial evidence supported finding that
petitioner was not a member of proposed PSG of "male minor children
dependent on and who cannot leave their families" because he was
- 12 - no longer a minor and had been able to leave abusive relatives).7
Petitioners' reliance on Matter of A-R-C-G-, 26 I. & N.
Dec. 388 (B.I.A. 2014), is mistaken. Before it was overruled,
A-R-C-G- held only that, on the facts and evidence presented there,
"married women in Guatemala who are unable to leave their
relationship" could constitute a cognizable PSG.8 Id. at 392-93,
overruled by Matter of S-S-F-M-, 29 I. & N. Dec. 207 (A.G. 2025).
There, the BIA emphasized that the proposed group was "not defined
by the fact that the applicant is subject to domestic violence."
Id. at 393 n.14. It explained that whether an applicant is unable
to leave a relationship depends on the "particular facts and
evidence in a case," including the applicant's "own experiences";
whether dissolution of the marriage would be "contrary to religious
or other deeply held moral beliefs" or possible "in light of
7 Petitioners are not helped by citing to Juan Antonio v. Barr, 959 F.3d 778 (6th Cir. 2020), which concerned issues in fact not present in this case. There, on a petition for review of a BIA decision affirming the IJ's denial of asylum and withholding, the Sixth Circuit held that physical separation did not necessarily defeat membership in a PSG of "married (indigenous) women in Guatemala who are unable to leave their relationships" where the applicant remained married to her abuser, had been unable to obtain a divorce, continued to face death threats from him after separation, and later learned that he had submitted a petition to attempt to locate her and compel her return. See id. at 788-92. 8 After petitioners filed their opening brief, the Attorney General expressly overruled A-R-C-G-. See Matter of S-S-F-M-, 29 I. & N. Dec. 207, 207 (A.G. 2025). We need not decide what effect, if any, S-S-F-M- has on this petition because, as we explain, A-R-C-G- does not support petitioners' argument in any event.
- 13 - religious, cultural, or legal constraints"; and "more objective
evidence, such as background country information." Id. at 393.
The facts in A-R-C-G- were materially different as well: The
applicant was married to her abuser, repeatedly tried to leave the
relationship, was found by her husband and threatened with death
if she did not return to him, and was told by police that they
"would not interfere in a marital relationship." See id. at 389.
Nor is this case at all like De Pena-Paniagua v. Barr,
957 F.3d 88 (1st Cir. 2020). The BIA here did not adopt any
categorical rule such as was involved in De Pena-Paniagua. See
id. at 89, 92-93. And De Pena-Paniagua did not decide whether the
petitioner belonged to any proposed PSG, noting that the IJ had
not addressed that issue and that the government had not contested
it. See id. at 91, 94, 98. No decision that petitioners cite
relieves an applicant of the burden to establish membership in the
PSG on which she relies.9 See Espinoza-Ochoa, 89 F.4th at 231.
Petitioners also argue that the BIA abused its
9 Petitioners also argue that the BIA failed to consider Alves-Pains's eligibility for humanitarian asylum based on her first proposed PSG. That argument is mistaken. The BIA expressly addressed that theory and rejected it because Alves-Pains had not shown membership in that PSG and, for that reason, had not established past persecution on account of a protected ground. See De La Cruz-Quispe v. Bondi, 161 F.4th 17, 22 n.2 (1st Cir. 2025) (explaining that humanitarian asylum is available only where the applicant first establishes past persecution on account of a protected ground); see also 8 C.F.R. § 1208.13(b)(1)(iii). We thus need not decide whether asylum could have been granted under either § 1208.13(b)(1)(iii)(A) or (B).
- 14 - discretion in denying reconsideration as to Alves-Pains's proposed
PSG of "perceived immediate family member of . . . Gomes, as mother
in a nuclear family where the persecutor is the father and
[I.F.G.P.] . . . is the child."10 They contend that the BIA,
despite their chosen wording, should have treated their counsel's
formulation as being a "clearly delineated" nuclear family group
consisting of Alves-Pains, Gomes, and I.F.G.P. Not so.
The BIA did not question that a nuclear family may, in
appropriate circumstances, be a cognizable PSG. See Sanchez v.
Garland, 74 F.4th 1, 6 (1st Cir. 2023). Rather, the BIA reiterated
that petitioners could not establish particularity because the
group that counsel proposed was "defined explicitly by the
subjective perception of an unknown viewer or viewers." In doing
so, the BIA applied the requirement, articulated in its decisions
in M-E-V-G-, 26 I. & N. Dec. 227, 239 (B.I.A. 2014), and W-G-R-,
26 I. & N. Dec. 208, 214 (B.I.A. 2014), that a PSG be defined by
characteristics providing "a clear benchmark for determining who
falls within the group." The BIA also explicitly cited to
Petitioners argued in their motion to reconsider that the 10
BIA had misarticulated the second proposed PSG by omitting the phrase "is the child" after its reference to I.F.G.P., which they said changed, or possibly obscured, the meaning of the proposed group. The BIA held, however, that the omission did not affect its determination that the proposed group lacked particularity. Petitioners have not developed any separate challenge to that ruling before this court, so any such argument is waived. See United States v. Abbas, 165 F.4th 659, 676 n.16 (1st Cir. 2026).
- 15 - Perez-Rabanales v. Sessions, 881 F.3d 61 (1st Cir. 2018), which
explained that a group description "so amorphous as to preclude a
rational determination of group membership" cannot be sufficiently
particular. Id. at 66. The BIA then rejected petitioners'
contention that the issue with its proposed PSG was "nothing more
than semantics." The BIA quoted Varela-Chavarria v. Garland, 86
F.4th 443 (1st Cir. 2023), to hold that an applicant bears the
burden to "clearly indicate" the "exact delineation" of the PSG on
which she relies, id. at 452 (citation modified), and concluded
that the flaws it had identified in petitioners' proposed PSG were
"based on substance, not semantics," because "[d]efining the same
group using other language would not cure its lack of
cognizability." As the government notes, the BIA's reference to
the perception of an "unknown viewer or viewers" tracked the word
"perceived" in petitioners' own formulation of the group.
To be sure, the agency may not assess a proposed PSG by
taking only a "superficial 'quick look'" at the words used, but
must instead conduct a "substantive analysis." Espinoza-Ochoa, 89
F.4th at 233. The BIA's decision meets that analytical standard.
As the BIA recognized, petitioners' counsel did not formulate a
PSG defined simply by Alves-Pains's actual membership in a nuclear
family. As worded, the proposed group required some unidentified
viewer or viewers to perceive Alves-Pains as Gomes's immediate
family member and as the mother in a nuclear family, Gomes as both
- 16 - the father and the persecutor in that family, and I.F.G.P. as the
child. See Aguilar-De Guillen v. Sessions, 902 F.3d 28, 36 (1st
Cir. 2018) (holding that a proposed PSG lacked particularity where
one component of membership in the group was an "'open question,'
and possibly a subjective determination" (quoting Paiz-Morales,
795 F.3d at 244)). The BIA properly declined, on reconsideration,
to replace the PSG that counsel crafted and proposed to the IJ
with one that was substantively different. See Varela-Chavarria,
86 F.4th at 452; see also Matter of W-Y-C- & H-O-B-, 27 I. & N.
Dec. 189, 192 (B.I.A. 2018) (noting that the BIA will generally
not consider "a new social group that is substantially different
from the one delineated below"); Barnica-Lopez v. Garland, 59 F.4th
520, 532 (1st Cir. 2023) (finding no error where the BIA declined
to consider proposed PSGs that were, "on their face, linguistically
and logically different from th[e] [PSG] proposed to the IJ").
The petition for review is denied.
- 17 -