Cite as 27 I&N Dec. 189 (BIA 2018) Interim Decision #3912
Matter of W-Y-C- & H-O-B-, Respondents
Decided January 19, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An applicant seeking asylum or withholding of removal based on membership in a
particular social group must clearly indicate on the record before the Immigration Judge
the exact delineation of any proposed particular social group.
(2) The Board of Immigration Appeals generally will not address a newly articulated
particular social group that was not advanced before the Immigration Judge.
FOR RESPONDENT: Omar O. Vargas, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate
Legal Advisor
BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members.
MALPHRUS, Board Member:
In a decision dated December 28, 2016, an Immigration Judge denied the
respondents’ applications for asylum and withholding of removal and
ordered them removed from the United States. The respondents have
appealed from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondents are a mother and her minor son, who are natives and
citizens of Honduras. They entered the United States without being admitted
or paroled and have conceded removability under section 212(a)(6)(A)(i) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012).
The female respondent, who was represented during the proceedings below,
is seeking asylum and withholding of removal based on her membership in
a particular social group.1 She argued that she was a member of a social
group comprised of “[s]ingle Honduran women age 14 to 30 who are victims
of sexual abuse within the family and who cannot turn to the government.”
The Immigration Judge concluded that this group was not cognizable under
1 The respondents’ claim is based on the female respondent’s application for relief, and
we therefore refer to her when we reference a single respondent.
Cite as 27 I&N Dec. 189 (BIA 2018) Interim Decision #3912
190
the Act and found that the respondent did not establish that the harm she
suffered and fears was or would be inflicted “on account of” her membership
in the claimed group.
The respondent concedes on appeal that the group she articulated before
the Immigration Judge does not constitute a valid particular social group
based on existing precedent. Instead, she asserts that she is eligible for
asylum and withholding of removal based on her membership in a new
particular social group that she has articulated for the first time on appeal,
namely, “Honduran women and girls who cannot sever family ties.”2
II. ANALYSIS
“The Board is an appellate body whose function is to review, not to
create, a record.” Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984).
It is therefore imperative that the parties fully develop the record before the
Immigration Judge. We have long held that we generally will not consider
an argument or claim that could have been, but was not, advanced before the
Immigration Judge. See, e.g., Matter of J-Y-C-, 24 I&N Dec. 260, 261 n.1
(BIA 2007) (declining to consider for the first time on appeal a basis for
asylum that was not raised below); Matter of R-S-H-, 23 I&N Dec. 629, 638
(BIA 2003); Matter of Jimenez, 21 I&N Dec. 567, 570 n.2 (BIA 1996).
Circuit courts, including the United States Court of Appeals for the Fifth
Circuit, in whose jurisdiction this case arises, have upheld our authority to
not consider such arguments. See Eduard v. Ashcroft, 379 F.3d 182, 195
n.14 (5th Cir. 2004); see also Prabhudial v. Holder, 780 F.3d 553, 555
(2d Cir. 2015) (“It is a basic rule of appellate review, judicial or
administrative, that the appellate body may conclude that an argument not
advanced before a lower court has been waived.”); Larios v. Holder, 608
F.3d 105, 110 (1st Cir. 2010); Pinos-Gonzalez v. Mukasey, 519 F.3d 436,
440–41 (8th Cir. 2008) (holding that the Board, as an appellate body, has
discretionary authority to refuse to consider arguments not raised below);
Torres de la Cruz v. Maurer, 483 F.3d 1013, 1022–23 (10th Cir. 2007).
Removal proceedings, which are adversarial in nature, are designed to
provide the parties with an opportunity to develop the record by presenting
evidence and testimony before an Immigration Judge, who makes the
necessary factual findings and legal conclusions based on the claims
2 On the notice of appeal, the respondent also argues that she was a member of a social
group comprised of “[t]eenage daughters with nowhere to go for protection.” However,
she does not advance this argument in her appellate brief, so we decline to address it. See
Claudio v. Holder, 601 F.3d 316, 319 (5th Cir. 2010) (holding that arguments raised in a
notice of appeal that are not advanced in an appellate brief may be deemed waived).
Cite as 27 I&N Dec. 189 (BIA 2018) Interim Decision #3912
191
presented. See Matter of L-A-C-, 26 I&N Dec. 516, 521 (BIA 2015). It is an
applicant’s burden to establish her claim for relief or protection on the record
before the Immigration Judge. See id. at 518–24. Therefore an applicant for
asylum or withholding of removal must “clearly indicate” on the record
before the Immigration Judge “what enumerated ground(s) she is relying
upon in making her claim.” Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009).
Where an applicant raises membership in a particular social group as the
enumerated ground that is the basis of her claim, she has the burden to clearly
indicate “the exact delineation of any particular social group(s) to which she
claims to belong.” Id. (citing Matter of A-T-, 24 I&N Dec. 617, 623 n.7 (A.G.
2008)).
While it is an applicant’s burden to specifically delineate her proposed
social group, the Immigration Judge should ensure that the specific group
being analyzed is included in his or her decision. If an applicant is not clear
as to the exact delineation of the proposed social group, the Immigration
Judge should seek clarification, as was done in this case. It is important to
our appellate review that the proposed social group is clear and that the
record is fully developed. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA
2002).
The importance of articulating the contours of any proposed social group
before the Immigration Judge is underscored by the inherently factual nature
of the social group analysis. “A determination whether a social group is
cognizable is a fact-based inquiry made on a case-by-case basis, depending
on whether the group is immutable and is recognized as particular and
socially distinct in the relevant society.” Matter of L-E-A-, 27 I&N Dec. 40,
42 (BIA 2017). Moreover, even if a particular social group is deemed
cognizable, an applicant must establish her “membership in that group, and
persecution or fear of persecution on account of [her] membership in that
group.” Id. at 43. The resolution of such issues is also inherently factual in
nature. See id. at 44 (citing Matter of N-M-, 25 I&N Dec. 526, 532 (BIA
2011)).
While we review the ultimate determination whether a proposed group is
cognizable de novo, we review an Immigration Judge’s factual findings
underlying that determination for clear error. See Matter of W-G-R-, 26 I&N
Dec. 208, 209–10 (BIA 2014), vacated in part and remanded on other
grounds by Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016); 8 C.F.R.
§ 1003.1(d)(3)(i), (ii) (2017). Where, as here, an applicant delineates a social
group for the first time on appeal, the Immigration Judge will not have had an
opportunity to make relevant factual findings, which we cannot do in the first
instance on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv); see also Matter of S-H-,
23 I&N Dec. at 465. Indeed, absent other dispositive findings, a remand for
further fact-finding and a new decision may be unavoidable if an applicant is
Cite as 27 I&N Dec. 189 (BIA 2018) Interim Decision #3912
192
allowed to “change the description of her purported social group midstream.”
Arévalo-Girón v. Holder, 667 F.3d 79, 82 n.2 (1st Cir. 2012) (declining to
address a particular social group that is articulated for the first time on
appeal). Moreover, it would further strain the limited resources of our
already overburdened Immigration Court system to remand a case to develop
a claim that could have been raised previously.
This case illustrates the point. Before the Immigration Judge, the
respondent, through counsel, articulated a single particular social group to
which she claimed to belong. The Immigration Judge considered the group
articulated by the respondent and, based on his factual findings regarding
the lack of perceptions of Honduran society toward members of the
defined group, concluded that it lacked social distinction. See, e.g.,
Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 787 (5th Cir. 2016)
(recognizing that factual findings underlie the analysis of a group’s social
distinction); Sanchez-Robles v. Lynch, 808 F.3d 688, 691 (6th Cir. 2015). In
addition, the Immigration Judge concluded, based on the group articulated
below, that the respondent did not establish that the harm she suffered and
fears was or would be inflicted “on account of” her membership in that group,
a determination that also depends on findings of fact.
Rather than asking us to review these findings, the respondent has
articulated a new social group that is substantially different from the one
delineated below. Because this group was not advanced below, the
Immigration Judge did not have the opportunity to make the underlying
findings of fact that are necessary to our analysis of the respondent’s
eligibility for asylum and withholding of removal, and we cannot make these
findings for the first time on appeal.
The respondent was represented by counsel below and could have
advanced this newly delineated group before the Immigration Judge.3 Even
if we construed the articulation of a new social group for the first time on
appeal as a motion to remand, such a motion would not be based on new,
previously unavailable material evidence. See Matter of Coelho, 20 I&N
Dec. 464, 471–73 (BIA 1992) (outlining the requirements for a motion
to remand). Accordingly, we decline to remand proceedings for the
Immigration Judge to make factual findings regarding the respondent’s new
particular social group, and we will not consider this group in the first
instance on appeal. See, e.g., Baltti v. Sessions, 878 F.3d 240, 244–45
(8th Cir. 2017) (finding no jurisdiction to review a newly defined social
3 The respondent argues that the newly defined social group is supported by Matter of
A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). That case was decided prior to the respondent’s
removal proceedings, so she had ample opportunity before the Immigration Judge to
articulate a proposed particular social group on this basis.
Cite as 27 I&N Dec. 189 (BIA 2018) Interim Decision #3912
193
group because the claim based on “membership in that narrowed social
group” had not been raised below); Juarez v. Sessions, 693 F. App’x 668,
669 (9th Cir. 2017) (same); Duarte-Salagosa v. Holder, 775 F.3d 841, 845
(7th Cir. 2014) (declining to address a particular social group raised for the
first time on appeal); Arévalo-Girón, 667 F.3d at 82 n.2 (same).4
III. CONCLUSION
The Immigration Judge found that the social group articulated by the
respondent was not cognizable, and the respondents do not dispute this
finding on appeal. We decline to consider the proposed social group
that has been presented for the first time on appeal. We will therefore
affirm the Immigration Judge’s denial of the applications for asylum and
withholding of removal. 5 Accordingly, the respondents’ appeal will be
dismissed.
ORDER: The appeal is dismissed.
4 Our decision in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), does not endorse
allowing applicants to change their particular social group claims on appeal. But see
Paloka v. Holder, 762 F.3d 191, 198 (2d Cir. 2014) (citing Matter of M-E-V-G- and
remanding where the applicant “refined her particular social group during her appeal”).
We decided M-E-V-G- after it had been litigated at length before the Third Circuit,
during which time the court modified the contours of the applicant’s proposed
particular social group. See Matter of M-E-V-G-, 26 I&N Dec. at 252 n.17 (citing
Valdiviezo-Galdamez v. Att’y Gen. of U.S., 502 F.3d 285, 290 & n.3 (3d Cir. 2007));
see also Valdiviezo-Galdamez v. Att’y Gen. of U.S., 663 F.3d 582, 588–89 (3d Cir. 2011).
In that case, we were bound to follow the Third Circuit’s decision, including its
modification of the proposed social group.
5 The Immigration Judge also denied the respondent’s application for protection under
the Convention Against Torture. Because she has not meaningfully challenged that denial,
we deem the issue waived. See Matter of N-A-I-, 27 I&N Dec. 72, 73 n.1 (BIA 2017).