Deras-Velasquez — denied review of withholding-of-removal claims after petitioners waived a necessary issue

Unreported / Non-Citable

Background

Nidia Damaris Deras-Velasquez and Kenneth Yesser Munoz-Deras, natives and citizens of Honduras, sought review of a Board of Immigration Appeals decision affirming an immigration judge’s denial of withholding of removal.

The BIA determined that the petitioners had waived the issue of whether their proposed particular social groups were legally cognizable. The petitioners did not challenge that waiver determination in the Fifth Circuit. They also argued that the immigration judge was biased against them during their merits hearing, allegedly violating due process.

The Court’s Holding

The Fifth Circuit denied the petition for review. Because the petitioners did not contest the BIA’s determination that they had waived the cognizability of their proposed particular social groups, that determination provided a sufficient basis to deny review of their withholding-of-removal claims.

The court declined to consider the judicial-bias due-process claim because the petitioners had not exhausted it before the agency. The claim therefore was not properly before the court under the statutory exhaustion requirement.

Key Takeaways

• A petitioner’s failure to challenge the BIA’s finding that an issue was waived can independently defeat a withholding-of-removal claim.
• Applicants relying on membership in a particular social group must preserve the group’s legal cognizability for appellate review.
• A due-process claim alleging immigration-judge bias must be exhausted before the agency before the Fifth Circuit will consider it.

Why It Matters

The decision underscores that immigration appeals may turn on issue preservation rather than the underlying merits. Counsel must present necessary arguments to the BIA and directly challenge adverse waiver findings when seeking judicial review.

It also confirms that allegations of immigration-judge bias generally must first be raised through the administrative process; labeling an argument as a constitutional due-process claim does not avoid the exhaustion requirement.