Waiver of Unraised Particular Social Group Claims Bars Asylum Relief

Introduction

This commentary examines the Second Circuit’s April 1, 2025 summary order in Guaman-Parades v. Bondi, 23-7828 (2d Cir. 2025), which denied review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ) denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT) to three Ecuadorian nationals—Victor Gustavo Guaman-Parades, Gloria Soraya Alvarado-Malla, and their minor son Jeanpierre Nicolas Guaman-Alvarado. The key issues before the Court were (1) whether petitioners had established membership in a cognizable particular social group and (2) whether they exhausted and preserved before the IJ the social groups they later pressed on appeal to the BIA. The respondent in the appeal was Pamela Bondi, in her capacity as Acting U.S. Attorney General.

Summary of the Judgment

The Second Circuit, in a summary order, held that:

  • The petitioners waived any social-group theories they did not present to the IJ.
  • The IJ and BIA correctly applied the “one central reason” standard for nexus between persecution and protected grounds under 8 U.S.C. § 1158(b)(1)(B)(i).
  • The petitioners failed to show membership in a cognizable particular social group or that any persecutor targeted them on account of such membership.
  • The CAT claim was both unexhausted before the BIA and, in any event, lacked evidence of government acquiescence or involvement as required by 8 C.F.R. § 1208.18(a)(1).
  • Consequently, the petition for review was denied in full.

Analysis

1. Precedents Cited

The Court relied on—

  • Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005): for the standard of review of IJ decisions as modified by the BIA under the substantial-evidence test;
  • Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018): for de novo review of legal questions and application of law to fact;
  • Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014): defining cognizable particular social groups and emphasizing the two-pronged test of group cognizability and nexus;
  • Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022): reaffirming that the “one central reason” standard applies equally to asylum and withholding of removal;
  • Prabhudial v. Holder, 780 F.3d 553 (2d Cir. 2015): limiting appellate review to whether the BIA erred in deeming an argument waived;
  • Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020): discussing the requirement of government involvement or acquiescence for CAT relief.

2. Legal Reasoning

The Court’s reasoning proceeded in several key steps:

  1. Standard of Review: The Court reviews factual findings for substantial evidence and reviews legal questions de novo.
  2. Particular Social Group Test: To obtain asylum or withholding of removal, an applicant must show (a) membership in a cognizable particular social group and (b) that persecution was “on account of” that membership (the “one central reason” test).
  3. Waiver Doctrine: Petitioners initially relied on three groups before the IJ—Ecuadorian men resisting gang recruitment, men targeted by gangs, and family members of Victor Guaman-Parades. On appeal to the BIA, they added a group of “witnesses who opposed criminal activity.” The BIA deemed that group waived because it was not presented at the IJ level, and the Second Circuit declined to review the BIA’s waiver finding absent any challenge.
  4. Nexus and Cognizability: The IJ found petitioners failed both prongs—group cognizability (they did not show shared immutable characteristics, particularity, or social distinction) and nexus (they did not show gangs persecuted them because of group membership). The BIA affirmed.
  5. CAT Claim: The IJ denied CAT relief for lack of evidence of government acquiescence. Because petitioners did not exhaust this claim before the BIA and it lacked merit under 8 C.F.R. § 1208.18(a)(1), the Court declined relief.

3. Impact

This decision underscores two lessons for immigration practitioners:

  • Strict Adherence to the Administrative Record: Asylum applicants must present all of their particular social group arguments and evidence to the IJ. Failure to do so means any new theory is waived on appeal to the BIA and the federal courts.
  • Rigorous Application of Nexus and Cognizability Tests: Courts will continue to apply the two-pronged Paloka framework and the “one central reason” standard of Quituizaca with exacting scrutiny, particularly in gang- related asylum claims.

Complex Concepts Simplified

Substantial Evidence Standard
Reviewing courts defer to the agency’s factual findings unless no reasonable factfinder could reach the same conclusion.
Particular Social Group
A group of persons who share a common, immutable characteristic (e.g., birth, gender), are defined with particularity, and are socially distinct in their country of origin.
Nexus (“One Central Reason”)
The applicant must show that membership in a protected group was one of the main reasons persecutors targeted them.
Waiver Doctrine
Issues not raised before the IJ generally cannot be raised later before the BIA or on appeal to a federal circuit court.
CAT Government Acquiescence
To obtain protection under the Convention Against Torture, the applicant must prove the government condones or fails to prevent the torture by nongovernmental actors.

Conclusion

The Guaman-Parades decision reaffirms that asylum seekers must (1) present—and exhaust—any and all particular social group theories before the Immigration Judge; (2) satisfy both the cognizability and nexus elements under controlling precedents; and (3) for CAT relief, demonstrate government acquiescence to torture. Practitioners should heed the waiver doctrine and ensure thorough, timely presentation of all protected-ground arguments at every stage of administrative proceedings.