The Ninth Circuit has determined that in certain instances, the Board of Immigration Appeals (Board) can decline to address a new argument made on appeal, such as the proffer of a new particular social group not raised before the Immigration Judge. “Waiver and forfeiture are an important part of any adjudicative system, whether judicial or administrative. 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. Particularly when the issue requires resolving disputed facts, such presentation is crucial because it allows 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.” However, the court decided to “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.”
The full text of Honcharov v. Barr can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/29/15-71554.pdf