On January 19, 2018, the Board of Immigration Appeals (BIA or Board), in dismissing the appeal of a Honduran citizen, issued a decision which arguably adds to the burden of proof a respondent in removal proceedings who files for political asylum and/or withholding of removal has historically faced. The instant applicant had entered the U.S. without inspection and before the Immigration Judge (IJ) sought asylum and withholding based on membership in a particular social group (PSG), in this case, single Honduran women aged 14 – 30 who are victims of sexual abuse within the family and cannot turn to the government.
The IJ found this PSG was not cognizable under the law and denied the claim. On appeal, respondent conceded that her original PSG was not a valid social group but asserted eligibility under a new formulation, articulated for the first time on appeal as “Honduran women and girls who cannot sever family ties.”
In the beginning of its analysis the BIA, in noting that its function is to “review, not to create, a record”, cited to the well-established axiom that it will generally not consider an argument that could have been, but was not, advanced before the IJ. The decision reiterated that it is an applicant’s burden to establish a claim for relief on the record before the IJ and affirmed that one must therefore “clearly indicate” (on the record before the IJ) what enumerated grounds he or she is relying on; where a respondent raises membership in a PSG as the enumerated ground, stated the Board, he or she has the burden to clearly indicate the exact delineation of any claimed group.
Further, concluded the opinion, the “importance of articulating the contours of any proposed social group” before the IJ is emphasized by the “inherently factual nature” of the court’s social group analysis. Thus, where as here, an applicant delineates a PSG for the first time on appeal, the IJ will never have had an opportunity to make the necessary factual findings, which the BIA will not do in the first instance. Further, the new PSG articulated in this appeal is substantially different from that delineated before the IJ, who “did not have the opportunity to make the underlying findings of fact that are necessary to” the Board’s analysis; again, such findings cannot be made for the first time on appeal.
The BIA thus declined to remand proceedings to the IJ for factual findings on the new PSG, affirmed the denial of the applications below and dismissed the appeal. Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).