23-7970 Caguana-Ilbay v. Bondi BIA Lazare-Raphael, IJ A220 969 469/470
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of February, two thousand twenty-six.
PRESENT: ROBERT D. SACK, WILLIAM J. NARDINI, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________
ERIKA MARLENE CAGUANA-ILBAY, I.S.C.-C., Petitioners,
v. 23-7970 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. ∗
∗ The Clerk of Court is respectfully directed to amend the official caption as set forth above to omit _____________________________________
FOR PETITIONERS: Michael Borja, Borja Law Firm, P.C., Jackson Heights, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Tracie N. Jones, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioners Erika Marlene Caguana-Ilbay and her minor child, natives and
citizens of Ecuador, seek review of a decision of the BIA affirming a decision of an
Immigration Judge (“IJ”) denying asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Erika Marlene Caguana-Ilbay,
et al., Nos. A220 969 469/470 (B.I.A. Nov. 9, 2023), aff’g Nos. A220 969 469/470
(Immigr. Ct. N.Y. City Dec. 2, 2022). We assume the parties’ familiarity with the
underlying facts and procedural history.
the name of Petitioner Caguana-Ilbay’s minor child. 2 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review fact-finding “under
the substantial evidence standard,” and questions of law and the application of
law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he
administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
An applicant for asylum and withholding of removal has the burden to
establish past persecution or a well-founded fear (asylum) or likelihood
(withholding) of future persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8
C.F.R. §§ 1208.13(b), 1208.16(b). “[P]ersecution is an extreme concept that does not
include every sort of treatment our society regards as offensive.” Mei Fun Wong v.
Holder, 633 F.3d 64, 72 (2d Cir. 2011) (internal quotation marks omitted). Although
it “includes more than threats to life or freedom and extends to non-life-
threatening violence and physical abuse,” KC v. Garland, 108 F.4th 130, 135 (2d Cir.
2024) (internal quotation marks omitted), it must rise above “mere harassment,”
Ivanishvili v. U.S. Dep’t of Just., 433 F.3d 332, 341 (2d Cir. 2006). And where, as here,
an applicant includes a claim of economic harm, the harm constitutes persecution
only if there was “a deliberate imposition of substantial economic disadvantage.”
3 Guan Shan Liao v. U.S. Dep’t of Just., 293 F.3d 61, 70 (2d Cir. 2002) (internal quotation
marks omitted); see also Matter of T-Z-, 24 I. & N. Dec. 163, 173 (B.I.A. 2007)
(“Persecution requires a showing of more than mere economic discrimination.
The economic difficulties must be above and beyond those generally shared by
others in the country of origin and involve noticeably more than mere loss of social
advantages or physical comforts. Rather, the harm must be of a deliberate and
severe nature and such that is condemned by civilized governments.”) (internal
quotation marks and citations omitted).
The BIA determined that “the discrimination and harassment [Caguana-
Ilbay] experienced and fears upon her return do[] not rise to the level of
persecution.” Certified Admin. Record at 4. Caguana-Ilbay’s brief does not
address this dispositive finding and instead makes unrelated arguments that
misstate the record. Accordingly, she has abandoned review of the grounds for
the agency’s denial of asylum and withholding of removal. See Debique v. Garland,
58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not
adequately presented in an appellant’s brief, and an appellant’s failure to make
legal or factual arguments constitutes abandonment.”) (internal quotation marks
omitted). Even if we were to reach the issue, the record reflects harassment and
4 employment discrimination, but no physical harm or economic deprivation rising
to the level of persecution. She had a job in Ecuador, her family members are
employed, and the country conditions evidence reflects discrimination against
indigenous communities, but not persecution. See Ivanishvili, 433 F.3d at 341; Guan
Shan Liao, 293 F.3d at 70.
Petitioner has also failed to meaningfully address the agency’s denial of her
CAT claim. See Debique, 58 F.4th at 684. She states that the agency erred in
requiring her to show government acquiescence to torture to state a CAT claim,
but that is the standard required by regulation. See 8 C.F.R. § 1208.18(a)(1). The
unable-or-unwilling-to-protect standard that she asserts applies to her CAT claim
is the standard for asylum and withholding of removal, not CAT relief. See Scarlett
v. Barr, 957 F.3d 316, 336 (2d Cir. 2020) (remanding to BIA to determine “how the
‘unable’ prong of the unwilling-or-unable standard, as applicable to withholding
claims, might translate to identifying government acquiescence in torture”); Matter
of M-S-I-, 29 I. & N. Dec. 61, 64 (B.I.A. 2025) (“[T]he acquiescence standard for CAT
protection differs from the unable-or-unwilling standard for asylum and
withholding of removal; the potential for private actor violence coupled with a
speculation that police cannot or will not help is insufficient to prove
5 acquiescence.”).
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23-7970 Caguana-Ilbay v. Bondi BIA Lazare-Raphael, IJ A220 969 469/470
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of February, two thousand twenty-six.
PRESENT: ROBERT D. SACK, WILLIAM J. NARDINI, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________
ERIKA MARLENE CAGUANA-ILBAY, I.S.C.-C., Petitioners,
v. 23-7970 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. ∗
∗ The Clerk of Court is respectfully directed to amend the official caption as set forth above to omit _____________________________________
FOR PETITIONERS: Michael Borja, Borja Law Firm, P.C., Jackson Heights, NY.
FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Tracie N. Jones, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioners Erika Marlene Caguana-Ilbay and her minor child, natives and
citizens of Ecuador, seek review of a decision of the BIA affirming a decision of an
Immigration Judge (“IJ”) denying asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Erika Marlene Caguana-Ilbay,
et al., Nos. A220 969 469/470 (B.I.A. Nov. 9, 2023), aff’g Nos. A220 969 469/470
(Immigr. Ct. N.Y. City Dec. 2, 2022). We assume the parties’ familiarity with the
underlying facts and procedural history.
the name of Petitioner Caguana-Ilbay’s minor child. 2 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review fact-finding “under
the substantial evidence standard,” and questions of law and the application of
law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he
administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
An applicant for asylum and withholding of removal has the burden to
establish past persecution or a well-founded fear (asylum) or likelihood
(withholding) of future persecution. 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8
C.F.R. §§ 1208.13(b), 1208.16(b). “[P]ersecution is an extreme concept that does not
include every sort of treatment our society regards as offensive.” Mei Fun Wong v.
Holder, 633 F.3d 64, 72 (2d Cir. 2011) (internal quotation marks omitted). Although
it “includes more than threats to life or freedom and extends to non-life-
threatening violence and physical abuse,” KC v. Garland, 108 F.4th 130, 135 (2d Cir.
2024) (internal quotation marks omitted), it must rise above “mere harassment,”
Ivanishvili v. U.S. Dep’t of Just., 433 F.3d 332, 341 (2d Cir. 2006). And where, as here,
an applicant includes a claim of economic harm, the harm constitutes persecution
only if there was “a deliberate imposition of substantial economic disadvantage.”
3 Guan Shan Liao v. U.S. Dep’t of Just., 293 F.3d 61, 70 (2d Cir. 2002) (internal quotation
marks omitted); see also Matter of T-Z-, 24 I. & N. Dec. 163, 173 (B.I.A. 2007)
(“Persecution requires a showing of more than mere economic discrimination.
The economic difficulties must be above and beyond those generally shared by
others in the country of origin and involve noticeably more than mere loss of social
advantages or physical comforts. Rather, the harm must be of a deliberate and
severe nature and such that is condemned by civilized governments.”) (internal
quotation marks and citations omitted).
The BIA determined that “the discrimination and harassment [Caguana-
Ilbay] experienced and fears upon her return do[] not rise to the level of
persecution.” Certified Admin. Record at 4. Caguana-Ilbay’s brief does not
address this dispositive finding and instead makes unrelated arguments that
misstate the record. Accordingly, she has abandoned review of the grounds for
the agency’s denial of asylum and withholding of removal. See Debique v. Garland,
58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not
adequately presented in an appellant’s brief, and an appellant’s failure to make
legal or factual arguments constitutes abandonment.”) (internal quotation marks
omitted). Even if we were to reach the issue, the record reflects harassment and
4 employment discrimination, but no physical harm or economic deprivation rising
to the level of persecution. She had a job in Ecuador, her family members are
employed, and the country conditions evidence reflects discrimination against
indigenous communities, but not persecution. See Ivanishvili, 433 F.3d at 341; Guan
Shan Liao, 293 F.3d at 70.
Petitioner has also failed to meaningfully address the agency’s denial of her
CAT claim. See Debique, 58 F.4th at 684. She states that the agency erred in
requiring her to show government acquiescence to torture to state a CAT claim,
but that is the standard required by regulation. See 8 C.F.R. § 1208.18(a)(1). The
unable-or-unwilling-to-protect standard that she asserts applies to her CAT claim
is the standard for asylum and withholding of removal, not CAT relief. See Scarlett
v. Barr, 957 F.3d 316, 336 (2d Cir. 2020) (remanding to BIA to determine “how the
‘unable’ prong of the unwilling-or-unable standard, as applicable to withholding
claims, might translate to identifying government acquiescence in torture”); Matter
of M-S-I-, 29 I. & N. Dec. 61, 64 (B.I.A. 2025) (“[T]he acquiescence standard for CAT
protection differs from the unable-or-unwilling standard for asylum and
withholding of removal; the potential for private actor violence coupled with a
speculation that police cannot or will not help is insufficient to prove
5 acquiescence.”). Caguana-Ilbay’s unsupported statement that the “government
did nothing but exacerbate the issue,” Br. at 11, does not establish that the record
compels a conclusion contrary to the agency’s, as there was no past torture or
indication of future harm rising to the level of torture. See Quintanilla-Mejia v.
Garland, 3 F.4th 569, 593–94 (2d Cir. 2021) (“[S]ubstantial evidence review does not
contemplate any judicial reweighing of evidence. Rather, it requires us to ask only
whether record evidence compelled . . . [a] finding different from that reached by
the agency.”).
In addition to abandoning any challenges to the grounds the agency relied
on to deny relief, the brief misstates facts, such as stating that the petitioners were
attacked, and addresses findings the agency did not make, such as challenging the
denial of the asylum claim as untimely. Given the defects in briefing by
petitioners’ counsel, Michael Borja, a copy of this order will be forwarded to the
Grievance Panel.
For the foregoing reasons, the petition for review is DENIED. All pending
motions and applications are DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court