Post–Loper Bright in the Eleventh Circuit: Perez‑Zenteno Factors Govern “Particular Social Group”; No Unsettled‑Caselaw Exception to Exhaustion for NTA Defects

Introduction

In Esperanza Francisca Baltazar‑Miranda de Velasquez v. U.S. Attorney General (No. 24‑14117, Oct. 1, 2025) (per curiam) (non‑argument calendar) (unpublished), the Eleventh Circuit reviewed a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ) denial of asylum and withholding of removal for a Guatemalan mother and her minor son. The petitioners advanced two proposed “particular social groups” (PSGs): (1) “young Guatemalan men who have been actively recruited by gangs and who have refused to join the gangs,” and (2) “Guatemalan families targeted by transnational criminal organizations due to having immediate relatives in the United States.” They also argued that their Notices to Appear (NTAs), which omitted a date and time, were defective.

Two issues framed the case:

First, whether the petitioners’ proposed PSGs were cognizable under the Immigration and Nationality Act (INA) in light of post–Loper Bright Enterprises v. Raimondo developments eliminating Chevron deference.
Second, whether the omission of a hearing date/time on the NTA rendered the removal proceedings invalid where the petitioners did not raise the issue to the BIA.

The government countered that the NTA challenge was unexhausted because it was not presented to the BIA.

Summary of the Opinion

The Eleventh Circuit denied the petition in part and dismissed it in part. On the merits, the court held that neither proposed PSG is cognizable under the INA when evaluated against the Perez‑Zenteno factors—immutability, identity, visibility, homogeneity, and cohesiveness—an approach the court reaffirmed after Loper Bright via Mejia Ponce v. U.S. Attorney General. On the procedural issue, the court dismissed the NTA defect argument as unexhausted because it was not raised to the BIA, expressly rejecting any “unsettled caselaw” exception to the INA’s administrative exhaustion requirement.

Detailed Analysis

Precedents and Authorities Cited

Standards of Review
- Kazemzadeh v. U.S. Attorney General: The court reviews the BIA decision and will also review the IJ decision where the BIA agrees with the IJ’s reasoning; factual findings are reviewed for substantial evidence; legal questions de novo.
- Diallo v. U.S. Attorney General: The asylum applicant bears the burden of proof.
- Sanchez Jimenez v. U.S. Attorney General: Withholding of removal requires a “more likely than not” showing of persecution on a protected ground.
PSG Framework and Post–Loper Bright Landscape
- Loper Bright Enterprises v. Raimondo: Overruled Chevron, instructing courts to exercise independent judgment on statutory interpretation.
- Perez‑Zenteno v. U.S. Attorney General: Articulated factors for assessing PSGs—immutability, identity, visibility, homogeneity, cohesiveness—and rejected a broad, persecutor‑defined group (“Mexican citizens targeted by criminal groups because they have been in the United States and have families in the United States”).
- Mejia Ponce v. U.S. Attorney General: After Loper Bright, reaffirmed that Perez‑Zenteno’s factors govern PSG analysis in the Eleventh Circuit; rejected “Honduran business owners targeted by gangs for extortion based on perceived wealth” for lack of objective membership criteria and definitional precision.
NTA Requirements and Exhaustion
- Niz‑Chavez v. Garland: The NTA must be a single document containing all statutorily required information, including date and time.
- Perez‑Sanchez v. U.S. Attorney General: NTA defects are claim‑processing issues, not jurisdictional defects.
- Kemokai v. U.S. Attorney General: The exhaustion requirement is a claim‑processing rule invoked by a party; if invoked, courts will enforce it.
- Amaya‑Artunduaga v. U.S. Attorney General: Issues not raised to the BIA are unexhausted and cannot be reviewed.

Legal Reasoning

1) Particular Social Group after Loper Bright: Perez‑Zenteno Factors Control

The court emphasized that, even after Loper Bright’s elimination of Chevron deference, Eleventh Circuit precedent already provides a judicial framework for PSG analysis. In Mejia Ponce, the court explained that Perez‑Zenteno conducted the plenary statutory analysis and set out the controlling factors—immutability, identity, visibility, homogeneity, and cohesiveness—to assess whether a group qualifies as a PSG. Thus, de novo judicial interpretation post–Loper Bright leads back to Perez‑Zenteno’s factors.

PSG One: “Young Guatemalan men who have been actively recruited by gangs and who have refused to join the gangs”

The court found the group non‑cognizable because:

Lack of objective boundaries: There is no age threshold for “young”—no start or end point for membership.
Ambiguous criteria: “Actively recruited” and “refused to join” can encompass a broad array of contexts; the terms do not yield a clear line for inclusion or exclusion.
Persecutor‑defined membership: The group is largely defined by the conduct of gangs (the persecutor), not by intrinsic characteristics of group members.
Failure under Perez‑Zenteno factors: These indeterminacies undermine identity, visibility, homogeneity, and cohesiveness. The group lacks the discrete, measurable attributes needed to mark out who is in the group and why.

This reasoning tracks Mejia Ponce’s rejection of wealth‑based business‑owner PSGs for lack of measurable criteria and mirrors Perez‑Zenteno’s concern with broad, persecutor‑defined formulations.

PSG Two: “Guatemalan families targeted by transnational criminal organizations due to having immediate relatives in the United States”

The court also rejected this group, reasoning that:

Overbreadth and indeterminacy: As in Perez‑Zenteno, the group sweeps in a large, undefined population (families in Guatemala with relatives in the United States).
Persecutor‑ and risk‑defined: Membership is framed by being “targeted” by transnational criminal organizations—again, by perpetrator conduct and by the risk of harm, rather than by intrinsic characteristics of the members.
Failure under Perez‑Zenteno factors: Because the group is largely defined by external actors and harm, it lacks cohesive identity, visibility, and homogeneity as a social group with observable boundaries.

The court underscored that a PSG should not be a catch‑all for persons at risk of general criminality; it must instead be tied to protected‑ground characteristics that are internally coherent and objectively definable.

Consequences for Asylum and Withholding

Because neither proposed PSG is cognizable, the asylum claim fails at the threshold “refugee” definition. Withholding of removal, which requires an even higher probability of persecution (“more likely than not”) on a protected ground, also fails for the same reason—no protected ground has been established.

2) NTA Defect Claim: Exhaustion Required; No “Unsettled‑Caselaw” Exception

The petitioners argued their NTAs were defective because they omitted a hearing date and time. The Eleventh Circuit agreed that statutes and Supreme Court precedent require a single, compliant NTA, and acknowledged that NTA defects are claim‑processing issues (not jurisdictional). However, the court dismissed the petitioners’ NTA challenge because they did not raise it to the BIA.

Key points:

Exhaustion rule enforced: A petitioner must present an issue to the BIA to preserve it for judicial review. Raising it to the IJ alone is insufficient when an appeal to the BIA follows.
No “unsettled‑caselaw” exception: The court rejected the argument that an unsettled legal landscape excused the failure to exhaust. By the time of briefing to the BIA, both Niz‑Chavez and Perez‑Sanchez had clarified the governing standards; the argument should have been made to the BIA.
Claim‑processing posture matters: Because the government invoked the exhaustion requirement, the court enforced it and dismissed that part of the petition.

Impact and Forward‑Looking Implications

A. PSG Litigation in the Eleventh Circuit Post–Loper Bright

This decision, though unpublished, reinforces a critical point: Loper Bright’s end of Chevron deference does not unsettle the Eleventh Circuit’s PSG jurisprudence. Perez‑Zenteno provides the operative analytical framework, as reaffirmed in Mejia Ponce, and courts will require:

Objective, measurable criteria that define group membership ex ante (e.g., specific age ranges, kinship relationships that are intrinsic and not defined by harm).
Characteristics intrinsic to the members themselves (immutability, cohesive identity) rather than definitions anchored in the actions of persecutors (“targeted by,” “recruited by,” “extorted by”).
Groups not circularly defined by the very risk of persecution or criminal victimization at issue.

Practically, common formulations in Central American gang‑related claims—such as broad “resisters of gang recruitment” or “families targeted because they have relatives in the U.S.”—face steep headwinds in the Eleventh Circuit unless rearticulated with intrinsic and objectively bounded characteristics that satisfy Perez‑Zenteno’s factors.

B. Exhaustion and NTA Defects

The court’s disposition signals that procedural preservation remains paramount:

Even meritorious NTA arguments must be exhausted before the BIA. Raising an issue to the IJ is not enough if the case proceeds to the BIA.
There is no recognized “unsettled‑caselaw” exception to exhaustion in the Eleventh Circuit; petitioners should raise all plausible issues to the BIA to preserve judicial review.

The opinion thus aligns with a broader post–Niz‑Chavez trend: NTA defects are meaningful but must be timely and properly presented in the administrative process.

Complex Concepts Simplified

Particular Social Group (PSG): One of the five protected grounds for asylum/withholding. In the Eleventh Circuit, courts evaluate proposed groups using factors such as immutability (unchangeable traits), identity and visibility (recognized as a distinct group), and homogeneity/cohesiveness (internal unity and clear boundaries). Groups defined by the persecutor’s actions or by the risk of harm are generally disfavored.
Asylum vs. Withholding of Removal: Asylum requires a “well‑founded fear” of persecution on a protected ground and allows discretionary relief. Withholding is mandatory if the applicant shows it is “more likely than not” that her life or freedom would be threatened on a protected ground. Failure to establish a protected ground (like a cognizable PSG) defeats both.
Substantial Evidence vs. De Novo Review: Factual findings are upheld unless the record compels a contrary result (substantial evidence). Legal questions (e.g., whether a PSG is cognizable) are reviewed anew (de novo).
Chevron Deference and Loper Bright: Chevron required courts to defer to reasonable agency interpretations of ambiguous statutes. Loper Bright ended that deference, instructing courts to exercise independent judgment. In this case, the Eleventh Circuit’s own prior precedents already provided a legal framework for PSG analysis without deferring to the agency.
NTA “Single Document” Rule: The NTA must include all required information, including the date and time of the hearing, in one document. Defects are claim‑processing, not jurisdictional, so proceedings are not automatically void. Arguments about NTA defects must be raised to the BIA to be preserved.
Exhaustion: Parties must present their arguments to the BIA before seeking review in the court of appeals. If the government invokes this requirement, courts will enforce it and dismiss unexhausted claims.
Derivative Beneficiary: A minor child can be included as a derivative on a parent’s asylum application. If the parent’s claim fails, the derivative claim typically fails unless the child filed a separate application.

Key Takeaways

After Loper Bright, the Eleventh Circuit continues to apply Perez‑Zenteno’s PSG factors; the court’s task is independent judicial interpretation, but the governing test in this circuit remains unchanged.
PSGs defined by persecutors’ conduct (e.g., “targeted by,” “recruited by”) or by the mere risk of harm are unlikely to be cognizable. Objective, intrinsic, and measurable criteria are essential.
Broad formulations such as “young [nationality] men who refused gang recruitment” and “families targeted because of relatives in the U.S.” fail for lack of objective boundaries and for being persecutor‑defined.
NTA defects must be exhausted before the BIA; there is no “unsettled‑caselaw” exception to the exhaustion requirement.
Because the proposed PSGs failed, both asylum and withholding claims were denied; the NTA claim was dismissed for lack of exhaustion.

Conclusion

Baltazar‑Miranda de Velasquez clarifies two important post‑Loper Bright realities in the Eleventh Circuit. First, the court’s PSG analysis remains anchored in Perez‑Zenteno, requiring discrete and measurable criteria tied to intrinsic characteristics rather than persecutor‑driven definitions or risk‑of‑harm descriptors. Second, procedural rigor is indispensable: challenges to NTA sufficiency must be properly preserved before the BIA, and there is no recognized exception for evolving caselaw. Though unpublished, the opinion offers a clear signal for future PSG formulations and for administrative‑exhaustion expectations in removal proceedings within the Eleventh Circuit.