Carmona-Sanchez: New Social Groups and Evidence Outside the Administrative Record

Carmona-Sanchez v. Bondi, No. 24-6132 (9th Cir. Jan. 2, 2026), is a nonprecedential memorandum disposition under Ninth Circuit Rule 36-3. The panel denied the petition for review of a Mexican family's asylum, withholding of removal, and Convention Against Torture claims. The decision is short by design and addresses five distinct issues: nexus to a protected ground, scope of BIA review, an unexhausted particular social group, extra-record materials, and CAT. The official opinion PDF is three pages.

Facts and Procedural Posture

Maria Carmona-Sanchez and her family, all natives and citizens of Mexico — applied for asylum, withholding of removal, and CAT protection. An Immigration Judge denied the applications. The BIA dismissed the petitioners' administrative appeal. Petitioners sought review in the Ninth Circuit. The case was submitted on the briefs on December 17, 2025, before Circuit Judges Paez, Christen, and Koh. The panel issued its memorandum on January 2, 2026.

Questions Presented

• Whether substantial evidence supported the agency's determination that petitioners failed to show persecution on account of a protected statutory ground.
• Whether the court was obligated to address IJ grounds that the BIA did not rely upon.
• Whether a particular social group raised for the first time in the federal opening brief was properly before the court under 8 U.S.C. § 1252(d)(1).
• Whether the court could consider materials referenced in the opening brief that were not part of the administrative record, under 8 U.S.C. § 1252(b)(4)(A).
• Whether substantial evidence supported the denial of CAT protection.

Reasoning

1. Nexus to a protected ground — asylum and withholding both fail

The panel applied substantial evidence review and held that the agency's finding was supported: petitioners had not shown they were or would be persecuted on account of a protected ground. The court cited Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010), for the proposition that a desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground. Because the nexus element failed, both the asylum claim and the withholding of removal claim were foreclosed. See Barajas-Romero v. Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017).

2. Court confined to BIA grounds

Petitioners raised additional arguments about asylum and withholding. The panel declined to address them because the BIA did not rely on those grounds. Citing Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011), the court reaffirmed that in reviewing a BIA decision, the court considers only the grounds relied upon by that agency. The panel resolved this petition on the grounds the BIA actually relied upon; it did not decide the remaining asylum and withholding contentions.

3. Unexhausted particular social group

Petitioners raised a new particular social group in their federal opening brief — a group they had not presented to the BIA. The court held this was not properly before it. Under 8 U.S.C. § 1252(d)(1), a court may review a final order of removal only if the alien has exhausted all administrative remedies available as of right. The court noted, citing Santos-Zacaria v. Garland, 598 U.S. 411, 417–19 (2023), that § 1252(d)(1) is not jurisdictional — it is a claim-processing rule. That distinction does not make exhaustion optional. Here, the court applied it to the proposed new group. The statutory requirement concerns administrative remedies available as of right; it does not, by its terms, require every discretionary motion.

4. Materials outside the administrative record

Petitioners referenced materials in their opening brief that had not been part of the administrative record before the agency. The court declined to consider them. Under 8 U.S.C. § 1252(b)(4)(A), the court of appeals decides the petition only on the administrative record on which the removal order is based. Fisher v. INS, 79 F.3d 955, 963–64 (9th Cir. 1996) (en banc), confirms this boundary. The federal court does not conduct a new evidentiary hearing or supplement the record with post-agency materials.

5. CAT denial

The panel sustained the agency's denial of CAT protection under the substantial evidence standard. Petitioners had not shown it is more likely than not that they would be tortured by or with the consent or acquiescence of the Mexican government if returned. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

Disposition and Stay

The Ninth Circuit denied the petition for review. The court also denied the pending motion (Docket Entry No. 26) to lift the temporary stay of removal, ordering that the temporary stay remain in place until the mandate issues. That ruling preserved the procedural status quo through the end of the appellate proceeding; it was not a ruling on the merits of any claim.

Practical Significance and Limits

Because this is a nonprecedential memorandum under Ninth Circuit Rule 36-3, it does not establish binding circuit authority. Its practical value is illustrative: it shows five enforcement points operating together in a single short opinion.

The Zetino-based nexus holding is unremarkable on its own facts — general criminal motivation without a protected-ground connection has consistently failed nexus. More instructive are the procedural enforcement points. The § 1252(b)(4)(A) record limitation means that any factual development after the BIA decision must be directed to the agency, not appended to an appellate brief. The § 1252(d)(1) exhaustion ruling means that a reformulated particular social group presented to the Ninth Circuit for the first time — even under a claim-processing rather than jurisdictional framing — was declined in this case. And the court's refusal to address IJ grounds the BIA did not rely upon is a reminder that the briefing strategy before the BIA shapes what the federal court can reach.

The proper vehicles for new material evidence are a motion to remand while a BIA appeal remains pending — not limited in time or number under EOIR Policy Manual § 4.8(c) — or a motion to reopen with the agency after a final order, subject to time, number, and evidentiary restrictions that are not automatically waived.

For a practical guide on what to do when new evidence arises after an agency decision, see the related insight: Can You Add New Asylum Evidence in a Federal Appeal? See our immigration practice for the firm’s services and contact options.