WENDY YESSENIA CANTARERO-LAGOS; HENRY OMAR BONILLA-CANTARERO, Petitioners
WILLIAM P. BARR, U.S. ATTORNEY GENERAL, Respondent
Petition for Review of an Order of the Board of Immigration
DAVIS, JONES, and DENNIS, Circuit Judges.
H. JONES, CIRCUIT JUDGE.
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
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. 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.
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." 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.
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
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.
and Bonilla-Cantarero filed this petition for review.
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).
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
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