Wendy Cantarero-Lagos v. William Barr, U. S

Case: 18-60115 Document: 00514945222 Page: 1 Date Filed: 05/06/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-60115

FILED

May 6, 2019

Lyle W. Cayce

Clerk

WENDY YESSENIA CANTARERO-LAGOS;

HENRY OMAR BONILLA-CANTARERO,

Petitioners

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before DAVIS, JONES, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Petitioners Wendy Cantarero-Lagos and her minor son, Henry Bonilla-

Cantarero, filed a petition for review challenging an order by the Board of

Immigration Appeals (“BIA”) denying their applications for asylum and

withholding of removal. They claim that the BIA reversibly erred by refusing

to consider a reformulated particular social group (“PSG”) on appeal. Because

the BIA is not required to consider a PSG on appeal that was never presented

to the immigration judge (“IJ”), the BIA’s order is AFFIRMED.

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BACKGROUND

Petitioner Wendy Cantarero-Lagos came to the United States from

Honduras with her minor son, Petitioner Henry Bonilla-Cantarero, in June

2014. After they were apprehended by Border Patrol agents, Petitioners

admitted to crossing the border illegally, conceded removability, and filed

applications for asylum and withholding of removal. At their hearing before

an IJ, Cantarero-Lagos testified that she and her son left Honduras because,

in 2012, she had been threatened by gang members who were trying to extort

her and, in 2001, her father had attempted to rape her. 1 She did not report

either incident to the police, nor did she experience continued threats from

either the gang members or her father after the 2012 and 2001 incidents.

Cantarero-Lagos told the IJ that she feared returning to Honduras with her

son because gang activity and rapes were on the rise and she doubted the

ability of law enforcement to provide protection.

After Cantarero-Lagos finished testifying, her attorney defined her PSG

as “single Honduran women, aged 14 to 30, who are victims of sexual abuse

within the family and whom the government fails to protect.” 2 However, when

the IJ expressed skepticism about this definition, her attorney revised the PSG

to “single Honduran women, age 14 to 30, who are victims of sexual abuse

within the family and who cannot turn to the government.” In an oral decision,

the IJ denied the petitions for relief. Although the IJ found Cantarero-Lagos’s

testimony credible, he concluded that her PSG was not cognizable and that it

lacked any nexus to her cited harms.

1In her briefing to this court, Cantarero-Lagos stated that “[t]he gangs threatened

and harassed her for ten years prior to her leaving Honduras.” However, her testimony only

identified three incidents in 2012, and the IJ’s decision only referenced those three 2012

incidents.

2 Bonilla-Cantarero’s application is based on his mother’s claims.

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On appeal before the BIA, Cantarero-Lagos conceded that the PSG she

presented to the IJ “fails for many reasons.” Arguing, however, that “the

evidence lends itself to a more cognizable and logically sound group,”

Cantarero-Lagos asked the BIA to consider a reformulated PSG: “Honduran

women and girls who cannot sever family ties.” She asserted that this new

PSG “naturally [arose] from the substance of the evidence presented at the

merits hearing” and was thus appropriate for the BIA’s consideration.

In a published opinion, the BIA dismissed her appeal, holding that “[a]n

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.” Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189 (BIA 2018). Reasoning

that “[t]he Board is an appellate body whose function is to review, not to create

a record,” the BIA explained that “[w]here, 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, [and the BIA] cannot do

[so] in the first instance on appeal.” Id. at 190–91 (internal quotation marks

and citations omitted); cf. id. at 189 (“The [BIA] generally will not address a

newly articulated particular social group that was not advanced before the

[IJ].”). Furthermore, because “respondent was represented by counsel below

and could have advanced this newly delineated group before the Immigration

Judge,” the BIA decided not to remand the case back to the IJ. Id. at 192.

Cantarero-Lagos and Bonilla-Cantarero filed this petition for review.

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STANDARD OF REVIEW

On a petition for review, this court “review[s] the BIA’s decision and only

consider[s] the IJ’s decision to the extent that it influenced the BIA.” Shaikh

v. Holder, 588 F.3d 861, 863 (5th Cir. 2009). “The BIA’s factual findings are

reviewed for substantial evidence.” Ghotra v. Whitaker, 912 F.3d 284, 287 (5th

Cir. 2019). The BIA’s legal determinations—“including whether the Board

applied an inappropriate standard or failed to make necessary findings”—are

generally reviewed de novo, “unless a [legal] conclusion embodies the BIA’s

interpretation of an ambiguous provision of a statute that it administers,” in

which case its interpretation may be entitled to Chevron deference. Id.

(internal citation omitted); Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th

Cir. 2012) (internal citation and alteration omitted). Auer deference may be

appropriate if the BIA’s legal conclusion interprets a regulation it administers.

See Auer v. Robbins, 519 U.S. 452, 461–63, 117 S. Ct. 905, 911–12 (1997).

Here, the government argues that the BIA’s opinion is entitled to both

Chevron and Auer deference. These doctrines do not apply. Although the BIA’s

opinion is “a precedential decision, which relies in part on the Board’s

interpretation of the adjudication scheme set forth in the [Immigration and

Nationality Act (“INA”)],” the government has not identified any ambiguous

phrase in the INA that the BIA’s opinion interpreted. Thus, Chevron deference

is inappropriate. Similarly, although “the agency’s decision rested, in part, on

[an invocation] of its standard of review regulation, 8 C.F.R. § 1003.1(d)(3),”

the BIA’s opinion does not purport to interpret the regulation but rather to

apply it. Consequently, Auer deference is also inappropriate, and this court

will review the BIA’s legal determinations de novo.

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DISCUSSION

Petitioners contend that the BIA reversibly erred by refusing to consider

their reformulated PSG. They further claim that the BIA announced “an

excessively strict standard” when it concluded that applicants must give an

“exact delineation” of their PSG to the IJ. Finally, Petitioners argue that even

if the BIA did not err in its legal holdings, the legal standards announced in its

opinion should not be “retroactively” applied to their case. Petitioners’

arguments are unavailing.

“To qualify for asylum, an applicant must establish that he is ‘unable or

unwilling to return to . . . [and] avail himself or herself of the protection of [his

home] country because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group,

or political opinion.’” Ghotra, 912 F.3d at 288 (brackets in original) (quoting

8 U.S.C. § 1101(a)(42)(A)); see also 8 U.S.C. § 1158(b)(1)(B)(i). “To qualify for

withholding of removal, an applicant must establish that ‘it is more likely than

not’ that ‘his life or freedom would be threatened’ in the proposed country of

removal due to his race, religion, nationality, membership in a particular social

group, or political opinion, which poses a higher bar than the ‘well-founded

fear’ standard for asylum.” Id. (internal citations omitted); accord

8 U.S.C. § 1231(b)(3).

For both asylum and withholding of removal, “to establish persecution

based on membership in a particular [social] group, the petitioners must show

that they are members of a group of persons that share a common immutable

characteristic that they either cannot change or should not be required to

change because it is fundamental to their individual identities or consciences.”

Orellana-Monson, 685 F.3d at 518 (internal quotation marks and citations

omitted). To be cognizable, a PSG must have sufficient particularity that its

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membership is “delimit[ed]” and its members must have sufficient “shared

characteristics” that the group is “readily identifiable in society.” Id. at 519.

As a third requirement, an applicant must prove a nexus between her PSG and

feared persecution. Failing any of these criteria, a request for relief may be

denied.

I. Refusal to Consider a Reformulated PSG

Petitioners advance three arguments why the BIA reversibly erred by

refusing to consider their reformulated PSG on appeal. First, they contend,

whether a PSG is cognizable presents a question of law whose resolution does

not require the IJ to make specific factual findings. Second, to the extent a

PSG depends on factual findings, the IJ in this case made factual findings that

would allow the BIA to assess the reformulated PSG on appeal. Third, the

reformulated PSG is not “substantially different” from the PSG presented to

the IJ. Primarily on these bases, Petitioners argue that the BIA abdicated its

responsibility by refusing to evaluate their reformulated PSG. Each argument

is wanting.

First, although the cognizability of a PSG presents a legal question, its

answer indisputably turns on findings of fact. See, e.g., Hernandez-De La Cruz

v. Lynch, 819 F.3d 784, 786–87 (5th Cir. 2016) (noting that “social distinction”

is premised on “factual findings”); Thuri v. Ashcroft, 380 F.3d 788, 791 (5th Cir.

2004) (per curiam) (“[W]hether an alien has demonstrated the requisite nexus

between persecution and [a protected ground] is a question of fact reviewed for

substantial evidence.”); S.E.R.L. v. Attorney Gen. United States of Am.,

894 F.3d 535, 555 (3d Cir. 2018) (“The BIA has repeatedly stated that the

particular social group determination depends on the facts of the case at

hand.”). Because factual findings are the province of the IJ, the BIA did not

err by refusing to find facts in the first instance. See 8 C.F.R. § 1003.1(d)(3).

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Second, the record does not support Petitioners’ claim that the IJ made

factual findings in this case that would have enabled the BIA to evaluate their

reformulated PSG on appeal. The PSG presented to the IJ was “single

Honduran women, age 14 to 30, who are victims of sexual abuse within the

family and who cannot turn to the government,” while the reformulated PSG

was “Honduran women and girls who cannot sever family ties.” Although

Petitioners are correct that a woman’s inability to turn to the government may

contribute to her inability to sever family ties, the two PSGs lend themselves

to different inquiries. For instance, the IJ made no findings on whether

Cantarero-Lagos could sever ties with her father—i.e., whether she belonged

to the reformulated PSG. 3 Nor did the IJ make findings to support the

particularity or social distinctiveness of the reformulated PSG—i.e., whether

the PSG was cognizable—or the nexus between the reformulated PSG and

Cantarero-Lagos’s cited harms. Therefore, although it is within the BIA’s

prerogative to evaluate a reformulated PSG based on the record below, the BIA

did not reversibly err by concluding in this case that the IJ “did not have the

opportunity to make the underlying findings of fact that are necessary to our

analysis.” Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at 192.

For similar reasons, Petitioners’ third claim that the reformulated PSG

is not “substantially different” from the original PSG fails. In addition to

raising different factual questions as to cognizability and nexus, the

reformulated PSG is either incomprehensibly vague or impermissibly

overbroad. Being unable to “sever family ties” can mean anything from a

requirement to care for a debilitated family member to a social system that

3As the government points out, the record actually supports a finding that Cantarero-

Lagos could sever family ties, as she testified that she never saw her father again after the

attempted rape.

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forbids marriage without patriarchal consent. This description is hardly

confined to the actions of police, criminal gangs, or intrafamilial sexual

predators. It is linguistically and logically “substantially different” from the

original PSG.

II. “Exact Delineation” Standard

Petitioners next argue that the BIA’s opinion announced “an excessively

strict standard for waiver of a claim” when it concluded that applicants must

give an “exact delineation” of their PSG to the IJ, and essentially “short

shrifted the role that IJs play in helping formulate social groups.” The premise

of this argument is that courts generally only require applicants to “adequately

raise” an issue to preserve it, and thus the “exact delineation” standard is both

“excessively strict” and “inconsistent with Fifth Circuit cases more liberally

construing claims for asylum and related forms of relief.” In addition,

Petitioners point out that “although the burden of proof is ultimately on the

[applicant],” “[t]he BIA has previously explained that . . . the [IJ] should take

an active role in helping the [applicant] develop her legal theory from the facts

presented.” Petitioners (and amici) forecast that, by requiring applicants to

provide an exact delineation of their PSGs to the IJ, the BIA’s opinion will

contravene longstanding practice and good policy by discouraging IJs from

assisting applicants in formulating their PSGs.

Petitioners’ concerns are overblown. In the first place, as Petitioners

concede, the Immigration and Nationality Act places the burden on the

applicant to demonstrate eligibility for asylum and withholding of removal.

8 U.S.C. § 1158(b)(1)(B)(i) (asylum); 8 U.S.C. § 1231(b)(3)(C) (withholding of

removal). Requiring asylum and withholding applicants to delineate their PSG

to an IJ is simply a logical extension of this burden of proof. Cf. Matter of A-

T-, 24 I. & N. Dec. 617, 623 n.7 (2008) (“[B]ecause it is the applicant’s burden

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in the first instance . . . the applicant must initially identify the particular

social group or groups in which membership is claimed.”).

In addition, the BIA’s acknowledgement that applicants have a

responsibility to articulate their PSG to the IJ does not in any way impede IJs’

ability to assist applicants in carrying out that responsibility. Indeed, the BIA

itself noted the IJs’ obligation to “seek clarification, as was done in this case,”

where “an applicant is not clear as to the exact delineation of the proposed

social group.” Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at 191. As the IJ’s

exchange with Petitioners’ attorney demonstrates, seeking clarification can

include expressing skepticism at the viability of a PSG and sharing substantive

concerns about why the definition is not cognizable. Nothing in the BIA’s

opinion forbids or inhibits IJs from continuing this practice.

Finally, the rule advocated by Petitioners that would require the BIA to

adjudicate reformulated PSGs on appeal is incompatible with a rational

administrative process. Petitioners conceded the problems in their briefing to

the BIA by acknowledging the “notice issue” that would arise as reformulated

PSGs deprived the government of its opportunity to develop relevant facts

before the IJ. Such a rule would thwart the appellate scheme, posing proof

problems or requiring remands to the IJ where, as here, the IJ was unable to

develop the record to account for issues material to a reformulated PSG. See

8 C.F.R. § 1003.1(d)(3)(iv) (explaining that, aside from one narrow exception,

“the Board will not engage in factfinding in the course of deciding appeals” and

that “[a] party asserting that the Board cannot properly resolve an appeal

without further factfinding must file a motion for remand”). The BIA’s

practice, mirroring conventional appellate practice throughout our judicial and

administrative systems, is acceptable.

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III. “Retroactive” Application

Finally, Petitioners contend that even if the BIA did not err in its

holdings, the legal standards its opinion announced should not be applied

“retroactively” to their case. In support, they point to this court’s decision in

McDonald v. Watt, which held that “in appropriate cases the Court may in the

interest of justice make [a new agency rule announced in adjudication]

prospective.” 653 F.2d 1035, 1042 (5th Cir. 1981) (internal citation omitted).

In McDonald, this court adopted the Chenery balancing test to decide whether

a new adjudicative rule should be applied retroactively. The test weighs “the

frustration of the expectations of those who have justifiably relied on a prior

rule” against “the partial frustration of the statutory purpose” that results

from purely prospective relief. Id. at 1043–44. Applying that test, the

McDonald court refused retroactively to apply an adjudicative rule that did not

“technically overrule any ‘official decision’” because “it was unquestionably ‘an

abrupt departure from a well established practice’ of the agency’” and “the

harm to plaintiffs’ justifiable reliance interests [was] substantial[,] . . . unfairly

and unnecessarily inflicted.” Id. at 1044–45 (internal citation and alteration

omitted).

Petitioners contend that this case is like McDonald: even though Matter

of W-Y-C- & H-O-B- does not overrule any express precedent, it deviates from

the BIA’s past practices of considering reformulated PSGs on appeal and

sometimes reformulating PSGs on its own initiative. They insist that the law

in this area was unsettled before the BIA’s opinion, as evidenced by the BIA’s

felt need for supplemental briefing and DHS’s failure to object to their

reformulated PSG until after the BIA requested further briefing. Petitioners

assert they relied on the ambiguity: “Had the requirement of exact delineation

and prohibition on reformulation already been rules at the time,” they claim,

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“[we] would have taken more care to delineate the group clearly and precisely

early on in the proceedings.” While characterizing their own reliance interests

as great, Petitioners insist that any burden imposed on the administrative

process by a prospective application of Matter of W-Y-C- & H-O-B- would be

minimal. Petitioners conclude by asserting that the outcome in Matter of W-

Y-C- & H-O-B- deprived them of “a fundamentally fair proceeding” in violation

of due process.

This court disagrees. Even if Matter of W-Y-C- & H-O-B- announced a

new legal rule, which is dubious, Petitioners must possess a “justifiable

reliance interest” to avoid retroactive application. See McDonald, 653 F.2d at

1042–45. Here, although Petitioners arguably relied on their belief that the

BIA would accept reformulated PSGs on appeal, that reliance was not justified.

This court has long held that “the BIA need not consider an issue raised for the

first time on appeal.” Eduard v. Ashcroft, 379 F.3d 182, 195 n.14 (5th Cir.

2004). Several other circuits agree. 4 In addition, recent decisions in this court

and others confirm that this principle applies to PSGs. 5 See, e.g., Antunez-

Blanco v. Whitaker, 744 F. App’x 886, 886 (5th Cir. Dec. 10, 2018) (per curiam)

(BIA did not err by refusing to consider a PSG that was not presented to the

IJ); Franco-Reyes v. Sessions, 740 F. App’x 420, 421–22 (5th Cir. Oct. 19, 2018)

(per curiam) (same); Duarte-Salagosa v. Holder, 775 F.3d 841, 845 (7th Cir.

2014) (same); Rasiah v. Holder, 589 F.3d 1, 6 (1st Cir. 2009) (same). Given the

BIA’s role as an appellate body, Petitioners had notice that the BIA need not

4See, e.g., Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir. 2015) (per curiam) (“[T]he

BIA may refuse to consider an issue that could have been, but was not, raised before an IJ.”);

Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 440–41 (8th Cir. 2008) (same); Torres de la Cruz v.

Maurer, 483 F.3d 1013, 1022–23 (10th Cir. 2007) (same).

5These Fifth Circuit cases are unpublished and thus not binding on this court;

however, they are persuasive as evidence of this court’s prior practice under similar facts.

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consider claims raised for the first time on appeal. 6 Indeed, Petitioners’

briefing to the BIA suggests an awareness that their reformulated PSG rested

on tenuous ground. 7 Reliance under these circumstances was not justified.

Nor does the outcome in Matter of W-Y-C- & H-O-B- deprive Petitioners

of due process. Given the well-established principles and precedents cited

above, Petitioners were on notice that appellate bodies like the BIA are not

required to consider arguments made for the first time on appeal. Moreover,

Petitioners were represented by counsel at each material stage of their

proceedings, and the IJ gave their counsel multiple opportunities at the

hearing to clarify or revise their proposed PSG in view of his concerns about

6 That the BIA, on its own initiative, at times considers reformulated PSGs on appeal

or itself reformulates PSGs sua sponte does not change this result. There is a vast difference

between recognizing a discretionary practice of the BIA and claiming it as an entitlement.

7 In her briefing to the BIA, Cantarero-Lagos stated:

It is arguable that a respondent may adopt a new particular social

group on appeal when that social group so naturally arises from the

substance of the evidence presented at the merits hearing. . . . There

does not appear to be, however, a statutory nor judicially-made

requirement that the particular social group be articulated in the

course of proceedings. Nor does there seem to be a bar on utilizing on

appeal a particular social group that is distinct from the one

articulated during the merits hearing. Counsel acknowledges that

using a new and distinct particular social group, even one that arises

so naturally from the testimony and other admitted evidence, creates

a notice issue because the government did not have the opportunity

to cross examine the Respondents with respect to this group they

claim to belong to. However, it is also true that . . . counsel for DHS

was not allowed such an opportunity [in this case] as the I.J. did not

ask for an articulation [of a PSG] until the beginning of Respondents’

counsel’s closing statement. This lends further support to the

argument that an articulated particular social group is not required

to carry out proceedings and therefore a respondent should not be

bound to any articulated particular social group.

(emphasis added).

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its viability. That Petitioners failed to substantively revise their PSG based

on the IJ’s concerns does not entitle them to a second bite at the apple.

CONCLUSION

For the foregoing reasons, this court AFFIRMS the BIA’s order.

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JAMES L. DENNIS, Circuit Judge, concurring in the judgment.

I agree with the majority’s conclusion that the BIA does not err when it

chooses not to consider whether a person is entitled to asylum protection based

on asserted membership in a particular social group (PSG) that is articulated

for the first time on appeal. I write separately, however, to express

disagreement with the exacting and unnecessary “exact delineation”

requirement.

The BIA has explained that “a cooperative approach in Immigration

Court is particularly appropriate” because the BIA, Immigration Judges, and

the Immigration and Naturalization Service “all bear the responsibility of

ensuring that refugee protection is provided where such protection is

warranted by the circumstances of an asylum applicant’s claim.” In Re S-M-

J-, 21 I. & N. Dec. 722, 723-24 (BIA 1997). A person’s circumstances warrant

protection when she is persecuted or fears persecution on account of her race,

religion, nationality, membership in a particular social group, or political

opinion. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1101(a)(42)(A).

Under the majority’s decision, however, the BIA is permitted to deny

relief to people who have satisfied these asylum requirements but have failed

to navigate the labyrinth of “exact[ly] dilenat[ing]” a PSG. Defining a PSG is

unspeakably complex and the requirements ever-changing. See generally

Ardestani v. I.N.S., 502 U.S. 129, 138 (1991) (noting “the complexity of

immigration procedures[] and the enormity of the interests at stake”); Rojas-

Pérez v. Holder, 699 F.3d 74, 81-82 (1st Cir. 2012) (noting a “growing circuit

split on the” social visibility requirement for articulating a valid PSG); Fatin

v. I.N.S., 12 F.3d 1233, 1238 (3d Cir. 1993) (“Both courts and commentators

have struggled to define ‘particular social group.’ Read in its broadest literal

sense, the phrase is almost completely open-ended.”). Even experienced

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immigration attorneys have difficulty articulating the contours of a PSG. And

if this “exact delineation” requirement is further imposed on pro se asylum

seekers, they will not stand a chance.

Someone who faces persecution on account of a protected ground is no

less deserving of asylum’s protections because of her inability to exactly

delineate a convoluted legal concept. Such a requirement runs counter to the

BIA’s responsibility to ensure that refugee protection is provided where the

circumstances warrant it, thwarts the cooperative approach emphasized by the

BIA, and is devoid of any connection to the substance of an individual’s claim.

Accordingly, I cannot join the majority opinion.

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