Unreported / Non-Citable
Background
Petitioners Carlos Amado Valencia-Valencia, his wife Katherine Portocarrero-Rios, and their two minor children, natives and citizens of Colombia, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An Immigration Judge (IJ) denied their applications, and the Board of Immigration Appeals (BIA) dismissed their appeal. The petitioners now challenge the BIA's order before the Ninth Circuit. The panel, consisting of Circuit Judges Callahan and Lee and District Judge Ezra sitting by designation, determined the case suitable for decision without oral argument.
The court's jurisdiction arises under 8 U.S.C. § 1252. Review is limited to the grounds explicitly relied upon by the BIA. Because the BIA issued its own decision, the court reviews the BIA's reasoning, except where it expressly adopts the IJ's decision. The court reviews de novo the BIA's determination that an issue was waived. Under binding precedent, a petitioner's failure to include an issue in their brief to the BIA constitutes waiver of that issue, and a panel may only affirm on the grounds set forth in the BIA's decision.
The Court’s Holding
The Ninth Circuit denied the petition for review. The court held that the BIA did not err in determining that the petitioners waived their ability to challenge the IJ's particular social group (PSG) determination. The petitioners proposed a cognizable PSG—or a different protected ground—for the first time on appeal to the BIA, rather than raising it before the IJ. The court cited Honcharov v. Barr for the principle that the Board does not err when it declines to consider PSGs raised for the first time on appeal.
Additionally, the petitioners' opening brief to the Ninth Circuit did not meaningfully challenge the BIA's findings regarding the two new PSGs they described: (1) 'person taking concrete steps to oppose gang activity and gang persecution' and (2) 'victims of gang violence and persecution.' Because they had previously waived any challenge to the IJ's PSG determination by omitting it from their BIA briefing, the court could not review those dispositive issues. The petitioners also waived their CAT claim by failing to meaningfully challenge the agency's finding that the Colombian government would not acquiesce to any future torture. The motion to stay removal was also denied.
Key Takeaways
- Failure to raise a particular social group or protected ground before the IJ and in the brief to the BIA results in waiver of that issue on appeal.
- A petitioner's opening brief to the circuit court must meaningfully challenge the BIA's specific findings; perfunctory mentions are insufficient to preserve issues.
- CAT claims are waived if the petitioner does not meaningfully contest the agency's finding on government acquiescence to torture.
- The Ninth Circuit reviews de novo the BIA's determination that an issue was waived, but is bound to review only the grounds explicitly relied upon by the BIA.
- The court cannot review dispositive issues that were waived before the BIA, even if raised for the first time in the petition for review.
Why It Matters
This memorandum disposition reinforces the strict exhaustion and waiver requirements in Ninth Circuit immigration practice. It clarifies that proposing a new particular social group for the first time on appeal to the BIA—rather than before the IJ—constitutes waiver, barring appellate review of the asylum and withholding claims. The decision also underscores that CAT claims require specific, meaningful challenges to the agency's acquiescence findings at every stage. Practitioners must ensure all legal theories and factual challenges are fully briefed before the BIA to preserve them for judicial review.