noting that the BIA will not consider a particular social group that was not first presented to the IJ
How later courts described this case
- noting that the BIA will not consider a particular social group that was not first presented to the IJ
- finding that a social group “must exist independently of the persecution suffered by the applicant.”
- “But because [the petitioner] failed to raise that issue in his appeal to the [BIA], we do not have jurisdiction to consider the question.”
- affirming the requirement that a petitioner must provide an “exact delineation” of his particular social group before the IJ
Written by the judges who cited it.
The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-1132
______________
OMAR VACARO CARGOSO
a/k/a Omar Vaquero Cardoso,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA
______________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(A077-937-545)
Immigration Judge: Jason L. Pope
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 17, 2020
______________
Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges.
(Opinion Filed: April 21, 2021)
______________
OPINION *
______________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Omar Vacaro Cargoso petitions for review of an order of the Board of
Immigration Appeals (“BIA”) dismissing his appeal and affirming an Immigration
Judge’s (“IJ”) decision to deny his request for withholding of removal under the
Immigration and Naturalization Act (“INA”). For the reasons that follow, we will
dismiss the petition for review.
I. Background
Cargoso, a native and citizen of Mexico, arrived in the United States in 1995 after
the gang Los Vatos Locos tried to recruit him. In February 2001, Cargoso was ordered
removed to Mexico. Later that same month, Cargoso left Mexico and returned to the
United States.
In 2018, the Department of Homeland Security reinstated the February 2001
removal order. Because Cargoso expressed a fear of returning to Mexico, he was referred
to an asylum officer for a reasonable fear interview pursuant to 8 C.F.R. § 208.31(b).
The asylum officer concluded that Cargoso did not have a reasonable fear of return to
Mexico.
Thereafter, Cargoso requested review of the negative reasonable fear
determination by an IJ. The IJ found that Cargoso had established a reasonable fear of
persecution and referred the matter to “withholding-only” proceedings pursuant to
8 C.F.R. § 1208.31(g)(2).
Subsequently, Cargoso submitted an application for withholding of removal under
2
the INA and the Convention Against Torture (“CAT”). In his application, Cargoso
asserted that he fears that he would be killed or tortured by Los Vatos Locos because they
had threatened him in the past, had extorted his father, and had killed his first cousin and
nephew. Cargoso, his sister, and his aunt testified before the IJ in support of his
application.
Cargoso also argued, inter alia, before the IJ that his life or freedom was
threatened on account of his membership in three particular social groups: (1) “males of
the Vaquero Cardoso family who have been the victims of repeated criminal attacks,
including extortion and murder, at the hands of the Vatos Locos gang;” (2) “males who
refuse to join the criminal gang of Vatos Locos;” and (3) “Mexican adult males who have
already lost male family members to gang violence and are more vulnerable to gang
violence themselves.” 1 A.R. 469–70.
After a hearing, the IJ denied Cargoso’s application for withholding for removal
and protection under CAT, despite finding Cargoso credible. The IJ determined that
Cargoso did not suffer harm rising to the level of past persecution and, as relevant here,
that Cargoso was not eligible for withholding of removal because the proposed particular
social group–“males of the Vaquero Cardoso family who have been victims of repeated
attacks, including extortion and murder by the gang Vatos Locos”–is not legally
cognizable.
1
Cargoso did not pursue the second and third iterations of his proposed particular
social groups before the BIA.
3
Cargoso appealed to the BIA, arguing that “males of the Vaquero Cardoso family
who have been victims of repeated attacks, including extortion and murder by the gang
Vatos Locos” qualified as a cognizable particular social group for the purposes of
withholding of removal eligibility. The BIA dismissed the appeal, affirming the IJ’s
decision regarding the single proposed social group and reasoning that Cargoso did not
establish that this group was legally cognizable. Cargoso filed this timely petition for
review.
II. Discussion
We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C.
§ 1252(a). Because the BIA invoked aspects of the IJ’s analysis and factual findings, we
review both the BIA’s decision and those aspects of the IJ’s. Ordonez-Tevalan v. Att’y
Gen., 837 F.3d 331, 340–41 (3d Cir. 2016).
Our jurisdiction is constrained by the requirement of exhaustion of administrative
remedies. We may review a final order of the BIA “only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). “[A]n
alien is required to raise and exhaust his or her remedies as to each claim or ground for
relief if he or she is to preserve the right of judicial review of that claim.” Abdulrahman
v. Ashcroft, 330 F.3d 587, 594–95 (3d Cir. 2003). As this Court has recognized, as long
as a petitioner makes “some effort, however insufficient, to place the [BIA] on notice of a
straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her
administrative remedies.” Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005)
4
(citing Bhiski v. Ashcroft, 373 F.3d 363, 367–68 (3d Cir. 2004)).
Cargoso now proposes for the first time that “males of the Vaquero Cardoso
family” is a cognizable particular social group. In doing so, Cargoso concedes that the
particular social group exhausted in his BIA appeal – “males of the Vaquero Cardoso
family who have been victims of repeated attacks, including extortion and murder by the
gang Vatos Locos” – is clearly precluded by our own precedent. See Lukwago v.
Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003) (finding that a social group “must exist
independently of the persecution suffered by the applicant.”). Instead, Cargoso asks us to
determine in the first instance whether both the IJ and BIA were required to determine
whether “males of the Vaquero Cardoso family” was a legally cognizable social group by
engaging in a “cooperative approach” 2 with Cargoso. Cargoso did not first present this
proposed particular social group before the BIA, nor did he argue that both the BIA and
2
Cargoso argues that pursuant to the United States’ so-called “nonrefoulement
obligations” under the 1967 United Nations Protocol Relating to the Status of Refugees,
the BIA and IJ were required to engage in a “cooperative approach” to reformulate an
otherwise insufficient proposed social group. By all accounts, Cargoso’s “cooperative
approach” appears to be a principle that requires the BIA and IJ to inject themselves into
the process of revising a proposed social group to ultimately be cognizable. This
approach would require the BIA and IJ to engage in the first instance a role neither
should play. Our Court has not embraced this approach in any precedent. As such,
Cargoso’s “cooperative approach” would create a shifting of burdens from the petitioner
to articulate a particular social group to the BIA and IJ to revise an articulated particular
social group that would otherwise be rejected. This is a process that we cannot endorse
or embrace. See Cantarero-Lagos v. Barr, 924 F.3d 145, 151–52 (5th Cir. 2019)
(affirming the requirement that a petitioner must provide an “exact delineation” of his
particular social group before the IJ); Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189,
192 (B.I.A. 2018) (noting that the BIA will not consider a particular social group that was
not first presented to the IJ).
5
IJ were required to engage in a process to help him reformulate his proposed particular
social group. Instead, Cargoso strictly argued before the BIA that “[t]he IJ erred in
determining that the proposed group of males of the Vaquero family who have been
victims of repeated attacks, including extortion and murder by the gang Los Vatos Locos,
is not a cognizable particular social group.” 3 A.R. 16.
Thus, because Cargoso did not raise this claim before the BIA, it is not exhausted.
Consequently, we lack jurisdiction to consider it. See Abdulrahman, 330 F.3d at 594
(“But because [the petitioner] failed to raise that issue in his appeal to the [BIA], we do
not have jurisdiction to consider the question.”).
III. Conclusion
For the foregoing reasons, we will dismiss the petition for review.
3
The BIA also determined that Cargoso waived any challenge to the IJ’s determination to
deny his request for protection under CAT. Cargoso does not challenge the BIA’s
finding and does not argue before us that he is entitled to CAT protection. Thus, his
claim for CAT protection has been waived.
6