Denys Honcharov v. William Barr, 924 F.3d 1293

Petitioner Denys Honcharov, a Ukrainian national, conceded removability and sought asylum, withholding of removal, and CAT protection; an IJ denied relief after finding his stated groups did not qualify as "particular social groups."
At the IJ hearing Honcharov identified "Ukrainian businessmen" and "witness victim to crime," but on appeal to the Board he proposed three new particular social groups not raised below.
The Board declined to consider the new particular social groups because they were presented for the first time on appeal.
Honcharov petitioned this Court contending the Board erred by refusing to consider those newly raised groups.
The Ninth Circuit panel held that the Board does not per se err in declining to entertain arguments raised first on appeal and denied the petition.
The court expressly left for another case the questions of (1) the standard of review for the Board’s invocation of procedural default and (2) what showing a noncitizen must make before the IJ to preserve an argument for Board review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA may refuse to consider arguments raised for the first time on appeal	Honcharov: Board erred by declining to consider his newly pleaded particular social groups	Government/Board: Board may apply procedural default/waiver/forfeiture to first‑time arguments on appeal	Court: BIA may apply a procedural default rule; declining to consider first‑time appellate arguments is not per se error; petition denied
What standard of review applies to the BIA’s invocation of procedural default and what showing preserves an argument at the IJ	Honcharov: Implicitly urged review and that his groups should have been considered	Government: No need for the court to resolve standards here	Court: Left these questions open for another case; did not decide standard or preservation showing

Torres de la Cruz v. Maurer, 483 F.3d 1013 (10th Cir. 2007) (discussing waiver/forfeiture and appellate fact‑finding limits)
Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13 (U.S. 2017) (distinguishing forfeiture and waiver)
United States v. Depue, 912 F.3d 1227 (9th Cir. 2019) (defining forfeiture vs. waiver)
Maronyan v. Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038 (9th Cir. 2011) (appellate courts as review, not first view)
In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988 (9th Cir. 2010) (waiver is discretionary)
Cutter v. Wilkinson, 544 U.S. 709 (U.S. 2005) (appellate courts’ review function)
Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004) (exhaustion under 8 U.S.C. § 1252(d)(1) is jurisdictional)
Ocasio v. Ashcroft, 375 F.3d 105 (1st Cir. 2004) (BIA may apply procedural default to new arguments)
Prabhudial v. Holder, 780 F.3d 553 (2d Cir. 2015) (same)
Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) (same)
Pinos‑Gonzalez v. Mukasey, 519 F.3d 436 (8th Cir. 2008) (same)
Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. 2005) (BIA/IJ cannot wholly ignore arguments raised by petitioner)