No Safe Harbor in Broad, Circular “Professional” Groups: Eleventh Circuit Affirms Non‑Cognizability of Gang‑Targeted Professionals and Reiterates that Credibility Alone Does Not Compel Asylum

Case: Yessenia Elizabeth Padilla‑Banegas v. U.S. Attorney General

Court: U.S. Court of Appeals for the Eleventh Circuit (Non‑Argument Calendar; Not for Publication)

Date: August 27, 2025

Disposition: Petition for review denied

Introduction

In this unpublished but instructive decision, the Eleventh Circuit denied a Honduran mother’s petition for review of a Board of Immigration Appeals (BIA) decision that had affirmed the denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The petitioner, Yessenia Padilla‑Banegas, alleged she faced threats and coercion by Honduran gangs because of her and her husband’s activities and because gang members sought to conscript her professional skills as a psychologist to aid their criminal goals.

The central legal issue on review was whether the petitioner’s proposed “particular social group” (PSG)—formulated as “Honduran professionals subject to recruitment for forced labor as collaborators by the organized criminal gangs in Honduras”—is cognizable under the Immigration and Nationality Act (INA). The court held it is not, for two independent reasons: the PSG is overbroad and it is impermissibly circular because its defining trait is persecution itself. The court also rejected a due process claim premised on the immigration judge’s acceptance of the petitioner’s credibility but ultimate finding that her evidence was insufficient to carry the legal burden—an argument foreclosed by the Supreme Court’s decision in Garland v. Ming Dai.

Summary of the Judgment

The Eleventh Circuit affirmed the BIA’s dismissal of the appeal and denied the petition for review.
The court held the proposed PSG (“Honduran professionals subject to recruitment for forced labor as collaborators by organized criminal gangs”) is not cognizable:
- Overbreadth/indeterminacy: “Professionals” is too vague and encompasses a large, diverse population lacking the required narrowness, identity, homogeneity, and cohesiveness.
- Circularity: The group is defined by the very persecution feared—coercion by gangs—contrary to binding circuit precedent.
The court upheld the BIA’s refusal to consider newly reformulated PSGs raised for the first time on appeal, citing both regulation and BIA authority requiring that PSGs be clearly delineated before the immigration judge.
The petitioner’s credibility did not compel a grant of relief; under Garland v. Ming Dai, credibility does not equate to persuasiveness or sufficiency to meet the burden of proof.
Other issues (political/religious persecution claims, CAT, two additional PSGs based on family ties/opposition to gangs) were deemed forfeited for failure to raise or meaningfully brief on appeal to the BIA and/or the court.

Factual and Procedural Background

Padilla‑Banegas, a Honduran national, and her minor daughter entered the United States in 2021. Over roughly two decades in Honduras, her family experienced repeated gang threats and extortion:

Her husband, a public figure and former professional soccer player who ran a Christian sports program to keep youth out of gangs, faced threats from the “Maras.”
After he drove a taxi, the Maras extorted him; the family’s home was later ransacked; and the rival “Barrio‑18” gang threatened to kidnap their son.
In 2017, both spouses received threats and had security cameras destroyed; they were told to work for the gang (him as a driver; her as a psychologist). They refused.
Following 2021 elections, Andino’s social media criticism of the ruling party allegedly led to her job termination. Soon after, the Maras demanded she write psychological evaluations to label incarcerated members as mentally unstable for sentence reductions. She refused; threats followed; she fled with her daughter.

DHS charged removability under 8 U.S.C. § 1182(a)(6)(A)(i). She conceded removability and sought asylum, withholding, and CAT, asserting persecution on account of religion, political opinion, and membership in three PSGs. The immigration judge credited her statement but denied all relief, concluding no cognizable PSGs were presented, the record did not show persecution on account of religion or political opinion, and the harm did not amount to torture. The BIA dismissed her appeal, finding forfeiture of several theories and rejecting her surviving PSG as overbroad and circular; it also refused to consider new PSG formulations first offered on appeal.

Analysis

Precedents and Authorities Cited and How They Shaped the Decision

Ponce v. U.S. Attorney General (11th Cir. 2025): The court relied on Ponce’s articulated factors—immutability, identity, visibility, homogeneity, cohesiveness—to assess whether a PSG is “narrowly defined” rather than a “catch‑all.” Applying Ponce, the panel found “Honduran professionals” far too broad and indeterminate, akin to groups previously rejected (e.g., “business owners perceived as wealthy”).
Perez‑Zenteno v. U.S. Attorney General (11th Cir. 2019): Used both for standards of review and to reinforce that groups like “returnees targeted by criminal groups” are drawn too broadly, lacking obvious limiting principles. The court analogized petitioner’s formulation to those disallowed in Perez‑Zenteno.
Castillo‑Arias v. U.S. Attorney General (11th Cir. 2006): Cited for the non‑circularity principle: risk of persecution alone cannot define a PSG. This controlling precedent made short work of a group defined by being targeted for forced labor by gangs.
Rodriguez v. U.S. Attorney General (11th Cir. 2013): Reaffirmed Castillo‑Arias by holding incognizable a group defined by persecution at the hands of a drug‑trafficking organization. The panel treated “gangs coercing professionals” as the same circular problem.
Matter of W‑Y‑C‑ & H‑O‑B‑ (BIA 2018) and 8 C.F.R. § 208.1: Together, they require applicants to clearly delineate any PSG before the immigration judge; failure to do so waives the claim on appeal. The panel upheld the BIA’s refusal to entertain newly minted PSG formulations offered only at the BIA stage.
Cantarero‑Lagos v. Barr (5th Cir. 2019): Cited for the appellate principle that the BIA need not consider PSGs raised for the first time on appeal, reinforcing exhaustion and issue‑preservation requirements.
Garland v. Ming Dai (U.S. 2021): The Supreme Court held that even if an applicant is deemed credible, the agency may still find the evidence unpersuasive or insufficient. The petitioner’s due process theory was foreclosed by this rule.
Gonzalez v. U.S. Attorney General (11th Cir. 2016), Kazemzadeh v. U.S. Attorney General (11th Cir. 2009), Silva v. U.S. Attorney General (11th Cir. 2006): Provided the standards of review—de novo for legal issues, and substantial evidence for factual findings—and the scope of review when the BIA affirms and adds its own observations. The panel noted Loper Bright’s abrogation of Gonzalez “in part on other grounds” but it did not change the outcome here.
Diallo v. U.S. Attorney General (11th Cir. 2010): Reaffirmed that the asylum applicant bears the burden of proving refugee status.
Anthony v. Georgia (11th Cir. 2023): Cited for the forfeiture principle: issues not raised in the initial brief are deemed forfeited absent extraordinary circumstances. This governed petitioner’s unchallenged CAT claim and other theories.

Legal Reasoning

The court proceeded in two principal steps on the surviving asylum theory (membership in a PSG):

Overbreadth and lack of narrowness: A PSG must be narrowly defined and not serve as a “catch‑all” for all persons who are victims of crime. The term “professionals” sweeps in a vast, diverse group—lawyers, psychologists, electricians, and more—without obvious identity or cohesion. Relying on Ponce and Perez‑Zenteno, the court held the proposed group is not “easily cabined by any obvious guidepost or limiting principle,” thereby failing the particularity limitations the Eleventh Circuit uses to ensure PSGs are “discrete and measurable.”
Impermissible circularity: Independent of overbreadth, the group was defined by the very harm feared—coercive recruitment/forced collaboration by gangs. Under Castillo‑Arias and Rodriguez, a PSG cannot be defined primarily by persecution. The characteristics must exist independent of the feared harm. Because petitioner’s PSG failed this baseline, it could not anchor refugee status.

The court further upheld the BIA’s refusal to consider three newly framed PSGs (“college‑educated professionals,” “professionals with access to the criminal justice system,” and a variant limited to those whom criminals want to coerce) because they were not presented to the immigration judge. That is both a regulatory waiver (8 C.F.R. § 208.1) and a fact‑finding constraint: the BIA is an appellate body and does not find facts in the first instance, especially where PSG cognizability can turn on record facts. Matter of W‑Y‑C‑ & H‑O‑B‑ and Cantarero‑Lagos support this approach.

On due process, the court rejected the argument that accepting credibility compelled relief. Citing Ming Dai, it reiterated that credibility is distinct from persuasiveness and sufficiency. The immigration judge stated he considered all evidence but concluded that, even taking petitioner’s account as true, she did not meet the burden to prove eligibility under the INA. That is not a due process violation.

Finally, the court treated as forfeited a host of issues the petitioner did not meaningfully challenge on appeal—political and religious persecution theories, CAT protection, and two family‑based PSGs—leaving only the “professional” PSG issue and the due process claim for resolution.

Impact and Implications

While unpublished and therefore non‑binding as precedent in the Eleventh Circuit, this decision reinforces several entrenched principles that have concrete effects on future asylum litigation in gang‑violence cases:

Gang‑targeted “professional” groups will face steep hurdles. Labels like “professionals,” “business owners,” or “people perceived as wealthy/with access” are likely too broad and amorphous without strong, record‑based evidence of social distinction and narrow delimitation. This case, building on Ponce and Perez‑Zenteno, signals continued skepticism toward PSGs framed around general socio‑economic or occupational categories targeted by criminal organizations.
Circularity is a repeat fatal flaw. If the essence of the group is “people persecuted by gangs,” the PSG fails. Applicants must anchor the group in characteristics that exist independent of the persecution and then prove the persecution is “on account of” that protected ground.
Preserve and precisely define PSGs at the immigration judge stage. The BIA will not entertain new PSG formulations offered for the first time on appeal, and the courts of appeals will defer to that practice. Counsel should delineate all plausible, non‑circular, narrowly tailored PSGs—clearly and on the record—before the immigration judge.
Credibility is not a golden ticket. After Ming Dai, even a fully credible applicant can lose if the evidence does not persuasively establish statutory eligibility. Corroboration, legal theory, and nexus proofs matter as much as credibility.
Issue preservation and briefing discipline are crucial. Unbriefed or under‑briefed claims will be treated as forfeited. This decision exemplifies how much of a case can fall away on preservation grounds.
Loper Bright’s post‑Chevron landscape does not upend PSG analysis—yet. The court noted Loper Bright’s partial abrogation of Gonzalez but resolved the case under de novo review principles and well‑settled Eleventh Circuit and BIA PSG doctrine. Practitioners should not expect Chevron’s demise to open the floodgates in PSG litigation absent changed statutory interpretation.

Complex Concepts Simplified

Particular Social Group (PSG): One of five protected grounds for asylum (along with race, religion, nationality, political opinion). A PSG must be defined by characteristics that are:
- Immutable (cannot or should not be required to change),
- Particular (discrete, clearly defined, not amorphous), and
- Socially distinct (recognized in the society as a distinct group).
The Eleventh Circuit often describes “narrowness” using factors like identity, visibility, homogeneity, and cohesiveness. A PSG cannot be defined by persecution itself (no circularity).
Circular PSG: A group whose defining feature is being targeted or persecuted (e.g., “people targeted by gangs”). Such groups are not cognizable because the PSG must exist independently of the harm.
Overbroad PSG: A group so large or indeterminate that it lacks particularity or cohesion (e.g., “professionals” or “people perceived as wealthy”).
Nexus (“on account of”): The protected ground must be at least “one central reason” for the persecution. Opportunistic criminality (e.g., extortion, recruitment) often fails nexus unless closely tied to the protected trait.
Asylum vs. Withholding of Removal: Withholding has a higher burden (more likely than not standard) and no discretionary component. If asylum fails because the protected‑ground theory fails, withholding typically fails too.
CAT Protection: Requires proof that it is more likely than not the applicant would be tortured by or with the acquiescence of a public official. Harms must rise to the legal definition of torture.
Credibility vs. Persuasiveness (Ming Dai): An applicant’s testimony can be credible but still be insufficiently persuasive or inadequate to meet the legal burden. Credibility does not compel relief.
Issue Preservation / Forfeiture: Claims not raised with the BIA or not briefed on appeal are typically forfeited. New PSGs may not be introduced for the first time on appeal.
Standards of Review: Courts review legal issues de novo and factual findings for “substantial evidence,” meaning the agency’s decision stands if supported by reasonable, probative evidence on the record as a whole.

Practical Guidance for Future Cases

Define all plausible PSGs precisely and non‑circularly before the immigration judge. Consider whether the group is objectively narrow, recognizable in the relevant society, and independent of the feared harm.
Support PSG cognizability with country‑conditions evidence showing social distinction and particularity (e.g., how the society views the group, formal recognition, patterns of targeted harm specific to the group).
Build a clear nexus theory. Demonstrate that the persecution is “on account of” the protected group, not merely opportunistic criminal coercion or recruitment.
Do not rely solely on credibility. Offer corroboration where available and articulate how the facts satisfy statutory and regulatory requirements.
Preserve every claim at each administrative stage and brief them meaningfully on appeal. Avoid reformulating PSGs for the first time at the BIA or in the court of appeals.

Conclusion

The Eleventh Circuit’s decision in Padilla‑Banegas, though unpublished, consolidates three enduring rules in asylum law. First, broad occupational categories like “professionals” are unlikely to qualify as PSGs without narrow, socially distinct, and non‑circular definitions. Second, the BIA may refuse to consider PSG formulations not presented to the immigration judge, and applicants must delineate their PSGs at the earliest stage. Third, credibility does not equate to entitlement: even fully credited testimony must persuasively satisfy the legal elements of asylum, including a cognizable protected ground and nexus.

For practitioners navigating gang‑related persecution claims, the opinion underscores the importance of careful PSG drafting, rigorous proof of social distinction and nexus, and meticulous issue preservation. Within the Eleventh Circuit, it adds to a body of case law that takes a strict view of gang‑targeted PSGs and applies Ming Dai faithfully to distinguish credibility from sufficiency. Even as Chevron deference recedes after Loper Bright, this area continues to be driven by statutory text, circuit precedent, and the BIA’s established PSG framework.