Wendy Cantarero-Lagos v. William Barr, U. S
924 F.3d 145
5th Cir.2019Background
- Wendy Cantarero-Lagos and her minor son entered the U.S. from Honduras, conceded removability, and sought asylum and withholding of removal based on threats by gangs and a past attempted rape by her father.
- At the IJ hearing, counsel initially proposed the PSG "single Honduran women, aged 14–30, victims of intrafamilial sexual abuse whom the government fails to protect," and later revised it to those "who cannot turn to the government." The IJ found her credible but denied relief, concluding the PSG was not cognizable and lacked nexus.
- On appeal to the BIA, petitioners conceded the IJ-presented PSG "fails" and asked the BIA to consider a newly formulated PSG: "Honduran women and girls who cannot sever family ties."
- The BIA, in Matter of W-Y-C- & H-O-B-, declined to consider a PSG first articulated on appeal, explaining the IJ had no opportunity to make necessary factual findings and refusing to remand because petitioners were represented and could have presented the group below.
- Petitioners sought review in the Fifth Circuit, arguing the BIA erred by refusing to consider the reformulated PSG, applied an overly strict "exact delineation" standard, and improperly applied its rule retroactively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA must consider a PSG first raised on appeal | Cantarero-Lagos: BIA should evaluate reformulated PSG because it naturally arises from the record and PSG cognizability is legal | Government/BIA: BIA is appellate; it need not consider issues not presented to IJ because factual findings are required and IJs must have opportunity to develop record | BIA did not err; it may refuse to consider a PSG not presented to the IJ because cognizability requires factual findings the IJ must make |
| Whether the BIA’s “exact delineation” requirement is unduly strict | Petitioners: requirement is excessive, undermines IJs' role and conflicts with Fifth Circuit practice of liberally construing asylum claims | Government/BIA: Applicants bear burden to identify PSG; IJs may and should seek clarification but responsibility remains with applicant | Requiring articulation of PSG to the IJ is reasonable and consistent with burden of proof; IJs may assist but BIA’s rule is acceptable |
| Whether cognizability of a PSG is a purely legal question | Petitioners: cognizability is legal and can be decided on appeal without new factual findings | Government/BIA: Cognizability depends on factual determinations (particularity, social distinction, nexus) | Court: Cognizability presents legal question but depends on factual findings reviewed for substantial evidence; BIA may decline to make facts in first instance |
| Whether Matter of W-Y-C- & H-O-B- should be applied retroactively | Petitioners: law was unsettled; they justifiably relied on prior practice of accepting reformulations on appeal; retroactive application is unfair | Government: Precedent shows BIA need not consider issues raised first on appeal; reliance was not justified; no due process violation | Court: Petitioners’ reliance was not justified; established practice put parties on notice; retroactive application not barred |
Key Cases Cited
- Shaikh v. Holder, 588 F.3d 861 (5th Cir.) (describing standard of review of BIA decisions)
- Ghotra v. Whitaker, 912 F.3d 284 (5th Cir.) (substantial-evidence review of BIA factual findings and legal standards)
- Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir.) (PSG must be immutable, particular, and socially distinct)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretation of its regulations)
- McDonald v. Watt, 653 F.2d 1035 (5th Cir.) (Chenery balancing test for prospective application of new agency rules)
- Eduard v. Ashcroft, 379 F.3d 182 (5th Cir.) (BIA need not consider issues raised first on appeal)
- Ardestani v. I.N.S., 502 U.S. 129 (1991) (noting complexity of immigration procedures)