Precision Required: Exhaustion and Forfeiture Bar New or Unbriefed “Particular Social Group” Theories on Petition for Review

I. Introduction

In Juan Gamas-Vicente v. Todd Blanche (6th Cir. Apr. 7, 2026), Juan Luis Gamas‑Vicente, a Guatemalan national who entered the United States unlawfully as an unaccompanied minor, sought asylum, withholding of removal, and Convention Against Torture (CAT) protection based on alleged threats and violence by the Mara 18 gang and his Mayan/indigenous background. An Immigration Judge (IJ) denied relief, and the Board of Immigration Appeals (BIA) adopted and affirmed the IJ’s decision as to asylum/withholding, while finding the CAT claim waived.

The central appellate issue became procedural rather than factual: whether Gamas‑Vicente preserved and exhausted the “particular social group” (PSG) theories necessary for asylum and withholding. The Sixth Circuit held he did not—because he (1) failed to brief on petition for review the PSGs he presented to the agency (forfeiture), and (2) attempted to substitute new, more granular PSG formulations that he had not presented to the BIA (lack of exhaustion).

II. Summary of the Opinion

The Sixth Circuit denied the petition for review. It held:

  • Forfeiture: Although Gamas‑Vicente advanced four PSGs before the IJ/BIA, he “mention[ed] none of those groups” in his opening brief in the Sixth Circuit, thereby forfeiting review of those agency-presented PSG theories.
  • Exhaustion: He proposed three new PSGs for the first time in the petition for review. Because “precision” is required and PSG contours are assessed granularly, resemblance to earlier PSGs was insufficient; the new PSGs were unexhausted under 8 U.S.C. § 1252(d).
  • Merits consequence: Without a preserved/exhausted PSG, his asylum and withholding claims necessarily failed.
  • Other claims: Challenges to the IJ’s assessment of discrepancies failed because the IJ found him credible and considered contextual factors. The CAT argument failed because he did not challenge the BIA’s waiver ruling in his opening brief (forfeiture). A due-process/interpretation-access claim was unexhausted because it was not presented to the BIA as a constitutional claim.

III. Analysis

A. Precedents Cited

1. Scope and standard of review

  • Kilic v. Barr, 965 F.3d 469 (6th Cir. 2020): The court relied on this framework to review the BIA’s opinion as the final order while also reviewing the IJ’s decision to the extent the BIA “adopted and affirmed” it. This mattered because Gamas‑Vicente tried to characterize the BIA’s action as an improper “summary affirmance.”
  • Nasrallah v. Barr, 590 U.S. 573 (2020): Cited for the “highly deferential” substantial-evidence standard for factual findings (with statutory reinforcement in 8 U.S.C. § 1252(b)(4)(B)). Although the case ultimately turned on procedural default, the citation situates the court’s general posture: it will not reweigh facts absent compelling contrary evidence.
  • Cristales-de Linares v. Bondi, 161 F.4th 401 (6th Cir. 2025): Used both for de novo review of legal questions and—critically—for the proposition that asylum/withholding require persecution “on account of” a PSG and for illustrating the granular parsing of PSG formulations.

2. Asylum and withholding elements

  • Vasquez-Rivera v. Garland, 96 F.4th 903 (6th Cir. 2024): Provided the court’s stated elements for asylum, including the “because of” nexus to a PSG and the requirement that persecution be by government actors or private actors the government is unable/unwilling to control.
  • INS v. Stevic, 467 U.S. 407 (1984): Anchored the “clear probability” standard for withholding of removal and supported the court’s point that withholding is more stringent than asylum, so a failure on asylum typically forecloses withholding on the same theory.

3. Exhaustion and forfeiture as decisive constraints

  • Herrera v. Bondi, 162 F.4th 617 (6th Cir. 2025): The court invoked this case to classify exhaustion under 8 U.S.C. § 1252(d) as a mandatory claim-processing rule (not jurisdictional) that must be enforced when the government raises it—exactly what occurred here.
  • Cuevas-Nuno v. Barr, 969 F.3d 331 (6th Cir. 2020): Supplied two essential moves in the court’s analysis: (1) comparing the brief to the BIA with the brief to the court to test exhaustion, and (2) the requirement of “precision” in preserving each claim (including each PSG theory) before the agency.
  • Mbonga v. Garland, 18 F.4th 889 (6th Cir. 2021): Provided the appellate briefing rule: an immigration petitioner must raise claims in the opening brief to preserve them. The court used this to hold that even properly exhausted PSGs can be lost by failing to argue them on petition for review.
  • Ramani v. Ashcroft, 378 F.3d 554 (6th Cir. 2004): Supported the policy rationale for exhaustion: the BIA must have a full opportunity to review claims and to develop an administrative record for judicial review.

4. PSG “granularity” and particularity/social distinction

  • Cristales-de Linares v. Bondi (again): The opinion’s analogy to “Salvadoran women,” “single Salvadoran women who are working professionals,” and “salon owners in El Salvador” did doctrinal work: it justified treating slight wording changes as legally meaningful differences requiring separate exhaustion.
  • Reyes Galeana v. Garland, 94 F.4th 555 (6th Cir. 2024): Cited for the requirement that a PSG be perceived by society as a distinct class subject to persecution—supporting the court’s explanation that adding “rural” and specifying “Mara 18” could change the particularity/social distinction analysis, and thus constitutes a new claim.

5. BIA “adopt and affirm” is not arbitrary summary action

  • Gishta v. Gonzales, 404 F.3d 972 (6th Cir. 2005): Used to reject the argument that the BIA acted arbitrarily by “summary affirmance.” The court emphasized that adopting and affirming reflects independent review authority.

B. Legal Reasoning

1. The dispositive rule: PSG theories must be both exhausted and preserved

The court treated the PSG requirement as the gateway element for both asylum and withholding. Even if an applicant has credible evidence of harm or threats, relief fails absent a cognizable PSG and a nexus (“because of”) to that PSG. Here, the court did not reach the granular merits of whether any PSG was valid or whether the harm rose to “persecution,” because it found procedural defaults that prevented review of any PSG theory.

2. Two procedural filters applied sequentially

  • Forfeiture (court-level briefing default): Gamas‑Vicente had advanced four PSGs before the agency, but did not argue them in his opening Sixth Circuit brief. Under Mbonga v. Garland, that omission forfeited those theories, leaving the court with no preserved PSG claim to evaluate.
  • Exhaustion (agency-level presentment default): He attempted to replace the forfeited PSGs with new ones (e.g., “indigenous Q'eqchi' families in Ixcan resisting gang membership”). But under 8 U.S.C. § 1252(d) and Cuevas-Nuno v. Barr, each distinct PSG formulation must be presented to the BIA first. The court underscored that PSG analysis is sensitive to modifiers; narrowing terms can change particularity and social distinction. Thus, “resemblance” between old and new PSGs cannot satisfy exhaustion.

3. Why “minor” PSG edits are treated as new claims

The opinion offers a practical doctrinal explanation: the agency rejected certain PSGs as “too broad” or “not sufficiently particular.” If petitioners could then refine wording in federal court (adding geography, a specific gang, or a resistance characteristic) without returning to the BIA, they would bypass the statutory structure that assigns initial PSG evaluation to the agency and would deprive the court of a developed record. Accordingly, the court framed its approach as preventing a “second bite at the apple.”

4. Disposition of ancillary claims

  • “Discrepancies” challenge: The court found no unfairness in the IJ’s discussion of discrepancies because the IJ still found Gamas‑Vicente credible and expressly considered literacy/age as contextual explanations.
  • CAT: The BIA deemed CAT waived for failure to brief it to the BIA; the petitioner then failed to contest the BIA’s waiver determination in his opening appellate brief, resulting in forfeiture of the CAT issue in the Sixth Circuit as well.
  • Due process/interpretation access: Even though interpretation issues were mentioned, the petitioner did not present a constitutional due-process claim to the BIA. Under § 1252(d) as enforced via Herrera v. Bondi, and guided by Cuevas-Nuno v. Barr, the court declined review when the government invoked nonexhaustion.

C. Impact

1. Litigation discipline in PSG pleading

The opinion’s most significant contribution is its clear procedural warning: PSG claims are not interchangeable labels. Each formulation is its own claim that must be (a) articulated to the BIA with specificity and (b) then carried forward in the opening brief on petition for review. This incentivizes applicants to present alternative PSGs to the agency early and precisely, anticipating possible “particularity” or “social distinction” objections.

2. Limits on appellate “reframing” after an adverse agency decision

The court’s insistence that adding narrowing modifiers (e.g., “rural,” a specific region, a specific gang) can materially alter the PSG analysis makes it harder to salvage a case on petition for review by rebranding a PSG. Practically, counsel must either (i) present multiple variants to the IJ/BIA, or (ii) move to reopen/remand at the agency level if a refined PSG becomes central.

3. Broader administrative-law message

By emphasizing the record-development function of exhaustion (citing Ramani v. Ashcroft), the decision strengthens an agency-first model in immigration adjudication. Even though exhaustion is “not jurisdictional,” the opinion illustrates that it is often outcome-determinative once the government invokes it.

4. CAT and due-process claims: preservation matters

The CAT and interpretation-access portions reinforce that petitioners must explicitly challenge adverse BIA rulings (such as a waiver finding) and must squarely present constitutional claims to the BIA when required. Vague references to “issues” will not necessarily preserve a due-process theory.

IV. Complex Concepts Simplified

  • Particular Social Group (PSG): A protected category for asylum/withholding. Courts examine whether the group has clear boundaries (“particularity”) and is recognized as distinct in the relevant society (“social distinction”). Small wording changes can change whether these requirements are met.
  • Exhaustion (8 U.S.C. § 1252(d)): Before a federal court can review a claim, the petitioner must first present that claim to the BIA. It is a mandatory rule when the government invokes it.
  • Forfeiture: Even if a claim was exhausted, it can be lost if not argued in the petitioner’s opening appellate brief.
  • Asylum vs. Withholding of Removal: Asylum is discretionary and has a lower burden; withholding is mandatory if proven but has a higher burden (“clear probability” of persecution).
  • CAT protection: A separate form of relief requiring proof that torture is “more likely than not,” with government involvement or acquiescence. It does not require a PSG, but it must be properly preserved and appealed.
  • Adopt and affirm: The BIA may adopt the IJ’s reasoning while issuing its own order; that is treated as an exercise of independent review, not necessarily an improper “summary affirmance.”

V. Conclusion

Juan Gamas-Vicente v. Todd Blanche is a procedural turning-point opinion in practice, if not in black-letter asylum doctrine: it underscores that PSG litigation is claim-specific and wording-sensitive, and that federal appellate review is tightly constrained by both exhaustion and forfeiture rules. The decision instructs practitioners that PSG theories must be presented to the BIA with “precision” and then preserved in the opening petition-for-review briefing; otherwise, even potentially sympathetic factual narratives will not be reached on the merits.