William Gonzalez-Valencia v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 19, 2019
• Docket: 18-3334
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0133n.06

No. 18-3334

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED WILLIAM YOVANNY GONZALEZ-VALENCIA, ) Mar 19, 2019 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) v. ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES WILLIAM P. BARR, Attorney General ) BOARD OF IMMIGRATION ) APPEALS Respondent. ) )

Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.

KETHLEDGE, Circuit Judge. William Yovanny Gonzalez-Valencia, a citizen of

El Salvador, petitions for review of the Board of Immigration Appeals’ denial of his application

for asylum, withholding of removal, and protection under the Convention Against Torture. His

lone argument on appeal is that the Board erred by relying on its earlier precedent. We see no

error and thus deny his petition.

I.

In December 2015, Gonzalez-Valencia crossed the United States border from Mexico into

Texas. The Department of Homeland Security arrested him the same day. Soon thereafter, the

government began removal proceedings, alleging that Gonzalez-Valencia was removable because

he had no visa or entry document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Gonzalez-Valencia

conceded that he was removable, but applied for asylum under 8 U.S.C. § 1158(b), withholding of

removal under 8 U.S.C. § 1231(b)(3)(A), and protection under the Convention Against Torture, 8 No. 18-3334, Gonzalez-Valencia v. Barr

C.F.R. § 1208.16(c)(2). To obtain asylum or withholding of removal, Gonzalez-Valencia must

show that he has, at least, a “well-founded fear of persecution on account of . . . membership in a

particular social group.” See 8 U.S.C. § 1101(a)(42)(A); Umana-Ramos v. Holder, 724 F.3d 667,

674 (6th Cir. 2013).

In his application, Gonzalez-Valencia argued that he would be persecuted for (among other

things) belonging to a “particular social group” composed of “young men of gang age.” The

Immigration Judge denied Gonzalez Valencia’s application for several reasons. As relevant here,

the IJ held that a social group comprising “young men of gang age” did not qualify as a “particular

social group” under the statute. The IJ also determined that Gonzalez-Valencia had failed to show

that he would be tortured if he returned to El Salvador.

Gonzalez-Valencia appealed the IJ’s decision to the Board of Immigration Appeals,

arguing for the first time that he would be persecuted for belonging to a “particular social group”

composed of “poor male youth.” The Board affirmed the IJ’s denial of Gonzalez-Valencia’s

application, holding (among other things) that he had forfeited this argument by failing to raise it

before the IJ. To support this holding, the Board relied on its earlier decision in Matter of W-Y-C

& H-O-B, 27 I. & N. Dec. 189 (BIA 2018). Gonzalez-Valencia then filed this petition for review

of the Board’s decision.

II.

Gonzalez-Valencia’s petition challenges only the Board’s application of its earlier decision

in Matter of W-Y-C. He primarily argues that Matter of W-Y-C was wrongly decided. We review

questions of law de novo. See Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2016).

In Matter of W-Y-C, the Board refused to consider an applicant’s argument for relief based

on membership in a “particular social group,” because the applicant had failed to raise that

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particular group before the IJ. 27 I. & N. Dec. at 190. The Board explained that, because it was

“an appellate body whose function is to review, not to create, a record,” it had “long held” that it

“generally will not consider an argument or claim that could have been, but was not, advanced

before the Immigration Judge.” Id. And when an applicant has failed to identify a “particular

social group” during the IJ proceedings, the IJ “will not have had an opportunity to make [the]

relevant factual findings[.]” Id. at 191. The Board therefore held that, during IJ proceedings, an

applicant “has the burden to clearly indicate the exact delineation of any particular social group(s)

to which she claims to belong.” Id.

Gonzalez-Valencia challenges Matter of W-Y-C on several grounds. First, he argues that

the Board’s forfeiture standard—which requires applicants to “clearly indicate the exact

delineation of any particular social group[]” before the IJ—conflicts with this court’s caselaw,

which says parties must “adequately raise” an argument before the Board to obtain judicial review.

See Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir. 2005) (citing Hasan v. Ashcroft, 397 F.3d 417,

419 (6th Cir. 2005)). But that caselaw merely interprets 8 U.S.C. § 1252(d)(1), which limits our

jurisdiction to review only those arguments that a party raised during administrative proceedings.

See Hasan, 397 F.3d at 419-20. And Gonzalez-Valencia cites no authority for his assertion that

this standard also governs the Board’s review of IJ proceedings. Hence this argument fails.

Second, Gonzalez-Valencia argues that the Board erred in Matter of W-Y-C when it said

that an IJ’s analysis of a “particular social group” involves fact finding. But the question whether

an applicant’s “fear of persecution is on account of his membership in a particular social group is

ultimately a question of fact.” See Zaldana Menijar v. Lynch, 812 F.3d 491, 499 n.4 (6th Cir.

2015) (internal quotation marks omitted). Thus, Matter of W-Y-C correctly held that an IJ must

make factual findings to decide an applicant’s claim for relief based on membership in a “particular

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social group.”

Next, Gonzalez-Valencia points to cases where, he says, the Board allowed an applicant to

recast his definition of a “particular social group” on appeal. That the Board allowed a party to

assert a forfeited argument in a particular case, however, does not mean that the Board is required

to consider forfeited arguments in every case. And nothing in those cases otherwise conflicts with

Matter of W-Y-C’s holding that the Board need not consider forfeited arguments.

Finally, Gonzalez-Valencia argues that, even if Matter of W-Y-C is correct, the Board

should not have applied it here, because Gonzalez-Valencia’s IJ proceeding had concluded before

the Board decided Matter of W-Y-C. Thus he says that the Board applied the “new rule” of Matter

of W-Y-C “retroactively.” But in Matter of W-Y-C itself, the Board said that it had “long held” that

the Board “generally will not consider an argument or claim that could have been, but was not,

advanced before the Immigration Judge.” 27 I. & N. Dec. at 190 (citing Matter of J-Y-C, 24 I. &

N. Dec. 260, 261 n.1 (BIA 2007)). Gonzalez-Valencia cites no precedent that holds to the contrary.

That arguments not presented to the IJ are forfeited before the Board, therefore, was hardly a new

rule when the Board applied it here.

The petition for review is denied.

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