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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.
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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). 
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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 
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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. 
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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).