Honcharov v. Barr, No. 15-71554 (9th Cir. 2019)
Annotate this CaseThe Ninth Circuit joined its sister circuits and held that the BIA does not per se err when it concludes that arguments raised for the first time on appeal do not have to be entertained. The panel held that the rationales supporting the practice of waiver and forfeiture hold in the context of removal proceedings in the Executive Office of Immigration review. The panel explained that the BIA is an appellate body whose function is to review, not create, a record, and it would be inappropriate to force it to consider new issues on appeal by judicial fiat. In this case, the BIA did not err by declining to consider petitioner's proposed particular social groups that were raised for the first time on appeal. Accordingly, the panel denied his petition for review.
Court Description: Immigration. Denying a petition for review, the panel held that the Board of Immigration Appeals does not per se err when it concludes that arguments raised for the first time on appeal do not have to be entertained. The panel held that the rationales behind waiver and forfeiture apply in the context of removal proceedings in the Executive Office of Immigration Review, and that the Board may apply a procedural default rule to arguments raised for the first time on appeal. Applying that holding, the panel concluded that the Board did not err when it declined to consider petitioner’s proposed particular social groups that were raised for the first time on appeal. Because it did not affect the resolution of the present petition, the panel noted that it would leave it for another case to decide what standard of review applies to the Board’s decision to invoke such default, and what showing a non- citizen must make to the immigration judge to preserve an argument for Board review. The panel addressed petitioner’s other arguments in a concurrently filed memorandum disposition.
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