Denys Honcharov v. William Barr

               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DENYS HONCHAROV, AKA Denys               No. 15-71554
Vitalyevich Honcharov,
                       Petitioner,       Agency No.
                                        A099-235-092
                v.
                                           OPINION
WILLIAM P. BARR, Attorney General,
                       Respondent.



       On Petition for Review of an Order of the
           Board of Immigration Appeals

         Argued and Submitted May 16, 2019
              San Francisco, California

                 Filed May 29, 2019

     Before: J. Clifford Wallace, Sandra S. Ikuta,
        and Morgan Christen, Circuit Judges.

                 Per Curiam Opinion
2                     HONCHAROV V. BARR

                          SUMMARY *


                           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.




    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                   HONCHAROV V. BARR                        3

                        COUNSEL

James Todd Bennett (argued), El Cerrito, California, for
Petitioner.

John Williams (argued) and Leslie McKay, Senior Litigation
Counsel; Terri J. Scadron, Assistant Director; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.


                         OPINION

PER CURIAM:

    In this opinion we approve the Board of Immigration
Appeals (Board)’s practice of refusing to address arguments
raised for the first time on appeal. We address the
petitioner’s other arguments in a concurrently filed
memorandum disposition.

     Denys Honcharov is a Ukrainian national who was
admitted to the United States in 2004 on a five-month visa.
After the Department of Homeland Security initiated
removal proceedings in 2009, Honcharov conceded
removability but requested asylum, withholding of removal,
and Convention Against Torture protection. An immigration
judge (IJ) held a hearing on Honcharov’s claims and asked
Honcharov what social group he was a member of that led to
his persecution. Honcharov responded “Ukrainian
businessmen” and “witness victim to crime.” The IJ denied
all relief after determining that these groups did not qualify
as “particular social groups” within the meaning of the
asylum statute. See 

8 U.S.C. § 1158

(b)(1)(B)(i).
4                      HONCHAROV V. BARR

    Honcharov appealed to the Board, now claiming that he
was a member of three new particular social groups:
“Ukrainian businesses targeted for and subject to extortion
who thereafter refuse to cooperate,” “Ukrainian
businessmen subject to extortion by gangs the government is
unwilling or unable to control,” and “victim witnesses to
criminal enterprises which the government is unwilling or
unable to control.” The Board declined to consider these
particular social groups because they were raised for the first
time on appeal. Honcharov then timely petitioned this court
for review, arguing that the Board erred by failing to
consider his proposed particular social groups. We have
jurisdiction under 

8 U.S.C. § 1252

, and we deny the petition.

    Waiver and forfeiture are an important part of any
adjudicative system, whether judicial or administrative. 1
These doctrines “preserve the integrity of the appellate
structure” by ensuring that “an issue must be presented to,
considered and decided by the trial court before it can be
raised on appeal.” Torres de la Cruz v. Maurer, 

483 F.3d 1013, 1023

 (10th Cir. 2007) (quoting Tele–Communications,
Inc. v. Comm’r of Internal Rev., 

104 F.3d 1229, 1233

 (10th
Cir. 1997)). Particularly when the issue requires resolving
disputed facts, such presentation is crucial because it allows

    1
       As the Supreme Court has recently reaffirmed: “The terms waiver
and forfeiture — though often used interchangeably by jurists and
litigants — are not synonymous. Forfeiture is the failure to make the
timely assertion of a right; waiver is the intentional relinquishment or
abandonment of a known right.” Hamer v. Neighborhood Hous. Servs.
of Chicago, 

138 S. Ct. 13

, 17 n.1 (2017) (alterations, quotation marks,
and citations omitted); see also United States v. Depue, 

912 F.3d 1227, 1232

 (9th Cir. 2019) (en banc) (“Whereas forfeiture is the failure to make
the timely assertion of a right, waiver is the intentional relinquishment
or abandonment of a known right” (quotation marks, citation, and
emphasis omitted)).
                       HONCHAROV V. BARR                                 5

the adjudicator with the best understanding of the case to
make an initial determination, make the necessary findings,
and conduct any additional proceedings necessary to reach a
fair and just result. Waiver and forfeiture also encourage the
orderly litigation and settlement of claims by preventing
parties from withholding “secondary, back-up theories” at
the trial court level, thus allowing party-opponents to
appraise frankly the claims and issues at hand and respond
appropriately. See 

id.

    Waiver and forfeiture are thus important tools for
preserving the structure of hierarchical court systems by
allowing appellate courts to act as courts of “review, not first
view.” Maronyan v. Toyota Motor Sales, USA., Inc.,

658 F.3d 1038

, 1043 n.4 (9th Cir. 2011) (quoting Cutter v.
Wilkinson, 

544 U.S. 709

, 718 n.7 (2005)). However, because
“waiver is a discretionary, not jurisdictional, determination,”
In re Mercury Interactive Corp. Sec. Litig., 

618 F.3d 988, 992

 (9th Cir. 2010), it would not be appropriate to apply the
doctrine to the present case without first considering whether
the rationales behind waiver and forfeiture hold in the
context of removal proceedings in the Executive Office of
Immigration Review. 2


    2
       Waiver and forfeiture in this context are related to, but distinct
from, the doctrines of exhaustion and remand to consider an overlooked
argument. Exhaustion, as set forth in 

8 U.S.C. § 1252

(d)(1), is
jurisdictional and therefore “generally bars us, for lack of subject-matter
jurisdiction, from reaching the merits of a legal claim not presented in
administrative proceedings below.” Barron v. Ashcroft, 

358 F.3d 674, 678

 (9th Cir. 2004). An issue may be presented to the Board for the first
time on appeal and thus grant us jurisdiction to entertain it, even if we
ultimately exercise that jurisdiction by declining to reach the merits.
Similarly, while the Board may address an argument by applying its
default rules and explaining that it will not reach the merits, “it goes
6                     HONCHAROV V. BARR

     We conclude that the rationales do so hold. “Like circuit
courts, the B[oard]’s ability to engage in fact-finding is
limited.” Torres, 

483 F.3d at 1023

. By regulation, the Board
is structured to “function as an appellate body charged with
the review of those administrative adjudications under the
Act that the Attorney General may by regulation assign to
it.” 

8 C.F.R. § 1003.1

(d)(1). Consistent with its role as an
appellate body, the Board “will not engage in de novo review
of findings of fact determined by an immigration judge.” 

Id.

§ 1003.1(d)(3)(i). The Board is thus “an appellate body
whose function is to review, not to create, a record,” In re
Fedorenko, 

19 I & N Dec. 57, 74

 (BIA 1984), and it would
be inappropriate to force it to consider new issues on appeal
by judicial fiat. The Board also has the authority to prescribe
procedural rules that govern the proceedings before it, and
procedural default rules are consistent with this authority.
See 

8 C.F.R. § 1003.1

(d)(4); Pinos-Gonzalez v. Mukasey,

519 F.3d 436, 440

 (8th Cir. 2008).

    It is thus perhaps unsurprising that every other circuit to
have addressed the issue has likewise concluded that the
Board may apply a procedural default rule to arguments
raised for the first time on appeal. See Ocasio v. Ashcroft,

375 F.3d 105

, 108–09 (1st Cir. 2004); Prabhudial v. Holder,

780 F.3d 553, 555

 (2d Cir. 2015); Canas-Flores v. Att’y Gen.
U.S., 

742 F. App’x 640

, 645 n.2 (3d Cir. 2018); Pantoja v.
Whitaker, 

743 F. App’x 534

, 534 (4th Cir. 2018); Eduard v.
Ashcroft, 

379 F.3d 182

, 195 n.14 (5th Cir. 2004); Xhuti v.
Mukasey, 

281 F. App’x 536, 540

 (6th Cir. 2008); Pinos-
Gonzalez, 519 F.3d at 440–41 (8th Cir.); Torres, 

483 F.3d at 1023

 (10th Cir.). We now join our sister circuits and hold

without saying that IJs and the B[oard] are not free to ignore arguments
raised by a petitioner” entirely. Sagaydak v. Gonzales, 

405 F.3d 1035, 1040

 (9th Cir. 2005).
                    HONCHAROV V. BARR                         7

that the Board does not per se err when it concludes that
arguments raised for the first time on appeal do not have to
be entertained. See, e.g., In re W-Y-C- & H-O-B-, 

27 I & N Dec. 189

, 190–91 (BIA 2018); In re J-Y-C-, 

24 I & N Dec. 260

, 261 n.1 (BIA 2007).

    In light of our holding on this issue, the Board did not err
when it declined to consider Honcharov’s proposed
particular social groups that were raised for the first time on
appeal. Because it does not affect our resolution of the
present petition, we leave it to another case to decide what
standard of review we should apply 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.

   PETITION DENIED.