Issue Preservation Rule in Asylum Appeals: Challenging PSG Law Does Not Preserve “Unable or Unwilling to Protect” Element

1. Introduction

This immigration petition for review arose from a Honduran mother’s application for asylum, withholding of removal, and CAT protection based on domestic-partner abuse and threats by the father of her children. Senia Matute-Rivera sought relief for herself, with her daughter Sofia as a derivative beneficiary on the asylum claim.

The Immigration Judge (IJ) denied relief, finding (among other things) that (i) her asserted “particular social group” (PSG) was not cognizable and (ii) she failed to prove the Honduran government was unwilling or unable to protect her from a private actor. On appeal, the Board of Immigration Appeals (BIA) dismissed on waiver grounds, concluding she did not meaningfully challenge the IJ’s “unwilling or unable” determination. The Eleventh Circuit’s core issue was whether an argument about an intervening change in PSG law implicitly preserved a challenge to the separate government-protection element.

2. Summary of the Opinion

The Eleventh Circuit denied the petition. It emphasized that asylum and withholding claims based on harm by private actors require proof not only of a protected-ground nexus (e.g., PSG), but also that the home government cannot or will not provide protection. Because Matute-Rivera did not argue that point to the BIA, the BIA could treat it as waived and affirm on that basis without reaching the merits (including any intervening PSG precedent changes).

3. Analysis

3.1 Precedents Cited

Standards of Review and BIA-Centric Review

• Alvarado v. U.S. Att'y Gen., 984 F.3d 982 (11th Cir. 2020): The court reiterated that it generally reviews only the BIA’s decision unless the BIA expressly adopts or agrees with the IJ’s reasoning. This mattered because the operative decision under review was the BIA’s waiver dismissal, not the IJ’s merits analysis.
• Lapaix v. U.S. Att'y Gen., 605 F.3d 1138 (11th Cir. 2010): This was the central waiver authority. The opinion relied on Lapaix for two propositions: (i) the BIA has discretion to summarily dismiss claims when the record indicates waiver, and (ii) the waiver determination is reviewed for abuse of discretion—i.e., whether the BIA acted arbitrarily or capriciously.

Substantive Asylum Element: Government “Unable or Unwilling” to Protect from Private Actors

• Lopez v. U.S. Att'y Gen., 504 F.3d 1341 (11th Cir. 2007): Cited for the requirement that an applicant must show not only persecution/fear on a protected ground but also inability to avail herself of home-country protection.
• Ayala v. U.S. Att'y Gen., 605 F.3d 941 (11th Cir. 2010): Reinforced that when persecution is by a private actor, the applicant must prove the home government is unable or unwilling to protect because asylum/withholding cover harm by non-governmental groups the government cannot control.

Domestic-Violence PSG Framework in Immigration Adjudication (Context, Not Merits-Reached)

• Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018): The IJ cited this in assessing private-violence claims and the “unable or unwilling” showing.
• Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) and Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021): The petitioner argued that changes in these decisions affected whether her PSG should be reconsidered. The Eleventh Circuit, however, held that even if PSG law shifted, it did not cure waiver of the separate government-protection element.
• Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014): Discussed as the framework Matute-Rivera urged the agency to apply. The court underscored an important limiting point noted in the opinion itself: even under Matter of A-R-C-G-, the applicant must still show the government was unwilling or unable to control the private actor—making the waived element dispositive regardless of which PSG precedent governed.
• The opinion also noted a later agency development: Matter of S-S-F-M-, 29 I. & N. Dec. 207 (A.G. 2025) (mentioned in a footnote) as yet another swing in the Attorney General’s approach—highlighting volatility in PSG doctrine, but not altering the court’s waiver analysis.

Reasoned Consideration

• Jathursan v. U.S. Att'y Gen., 17 F.4th 1365 (11th Cir. 2021): Used to reject the petitioner’s “reasoned consideration” challenge. The BIA’s reliance on waiver doctrine was sufficient reasoning; it did not have to reach the merits once it found the dispositive issue unpreserved.

Regulatory Preservation Requirement

• 8 C.F.R. § 1003.3(b): Quoted for the requirement that the Notice of Appeal (or attachments) must identify the findings of fact and/or conclusions of law being challenged, with supporting authority for legal issues and identification of contested facts for factual disputes. This regulation supplied the formal backbone for the BIA’s waiver ruling.

3.2 Legal Reasoning

The Eleventh Circuit’s reasoning was structurally straightforward:

1. Asylum/withholding include multiple independent elements. For private-actor harm, the “government unable or unwilling to protect” requirement is a distinct element (per Lopez and Ayala), not merely a sub-argument within PSG cognizability.
2. Appellate preservation requires meaningful challenge. Under Lapaix and 8 C.F.R. § 1003.3(b), failing to argue an issue results in waiver/abandonment.
3. An attack on the PSG legal framework did not implicitly attack the protection finding. The court acknowledged that “hyper-technical or perfectly labeled arguments are not required,” but held that Matute-Rivera’s BIA brief—focused on PSG precedent changes—did not fairly present any contention that Honduras was unable or unwilling to protect her (or that the IJ erred on that finding).
4. Waiver was dispositive, making remand unnecessary. Even if the PSG jurisprudence had changed, the unchallenged “unable or unwilling” element independently defeated eligibility. Thus, the BIA’s refusal to remand was not arbitrary or capricious.

3.3 Impact

Although unpublished, the decision reinforces a practical, litigation-shaping rule in Eleventh Circuit immigration practice:

• Element-by-element issue preservation: Petitioners must separately and expressly challenge each dispositive IJ ground (e.g., PSG cognizability, nexus, and government inability/unwillingness). Merits arguments on one element will not automatically preserve another.
• Intervening precedent does not excuse waiver of an independent element: Even significant changes in PSG doctrine (as shown by the oscillation among Matter of A-B- iterations and Matter of A-R-C-G-) will not matter if the appeal fails to contest a separate, independently sufficient denial ground.
• Agency economy and “reasoned consideration”: The BIA may resolve appeals on waiver grounds without addressing shifting substantive frameworks; courts will generally uphold that approach if the BIA explains the waiver clearly enough for review.

4. Complex Concepts Simplified

• “Particular social group” (PSG): A protected category under asylum law (like race or religion). The applicant must define a group that the law recognizes and show persecution “on account of” membership in that group.
• “Unable or unwilling to protect”: When the persecutor is a private person (not the government), asylum generally requires showing that the home government cannot or will not provide effective protection. This is often proved through police reports, protective-order efforts, country conditions evidence, and credible testimony explaining why seeking help was futile or dangerous.
• Waiver/abandonment before the BIA: If an IJ denies relief for multiple reasons, and the appeal brief contests only some reasons, the unaddressed reason can be treated as conceded—ending the case even if the contested issue has merit.
• “Reasoned consideration” review: A limited judicial check that the BIA actually considered the issues presented and explained its decision; it does not require discussion of every argument, and it does not require reaching merits the BIA deems waived.
• Derivative beneficiary (asylum): A child may “derive” asylum from a parent’s successful asylum claim, but cannot derive withholding of removal in the same way.
• CAT relief: A separate protection requiring a likelihood of torture with government involvement or acquiescence; here, the CAT denial was not contested on petition for review.

5. Conclusion

The decision’s key takeaway is procedural but consequential: in Eleventh Circuit practice, an asylum applicant must explicitly challenge the IJ’s “government unwilling or unable to protect” finding when persecution is by a private actor. Arguing that PSG law changed (or that the IJ used the wrong PSG framework) does not, by itself, preserve that separate element. As a result, waiver can foreclose merits review and remand—even amid significant shifts in domestic-violence PSG precedent.