23-7966 Chacon-Brito v. Bondi BIA
Ling, IJ
A220 583 126/127/128
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.
1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 19th day of November, two thousand 4 twenty-five. 5 6 PRESENT: 7 SUSAN L. CARNEY, 8 RICHARD J. SULLIVAN, 9 BETH ROBINSON, 10 Circuit Judges. 11 _____________________________________ 12 13 RUTH LORENA CHACON-BRITO, 14 C.A. M.-C., 15 A. V. M.-C., 16 Petitioners, 17 18 v. 23-7966 19 NAC 20 PAMELA BONDI, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent.* 23 _____________________________________
* The Clerk of Court is respectfully directed to amend the caption as reflected above.
2 FOR PETITIONERS: Michael Borja, Esq., Borja Law Firm, P.C., 3 Jackson Heights, NY. 4 5 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 6 Attorney General; Jeffrey R. Leist, Senior 7 Litigation Counsel; Raya Jarawan, Trial 8 Attorney, Office of Immigration Litigation, 9 United States Department of Justice, 10 Washington, DC.
11 UPON DUE CONSIDERATION of this petition for review of a Board of 12 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 13 DECREED that the petition for review is DENIED. 14 Petitioners Ruth Lorena Chacon-Brito and her minor children, natives and 15 citizens of Ecuador, seek review of a November 9, 2023, decision of the BIA 16 affirming a July 27, 2022, decision of an Immigration Judge (“IJ”) denying asylum, 17 withholding of removal, and relief under the Convention Against Torture 18 (“CAT”). In re Chacon-Brito, Nos. A 220 583 126/127/128 (B.I.A. Nov. 9, 2023), aff’g 19 Nos. A 220 583 126/127/128 (Immig. Ct. N.Y.C. July 27, 2022). We assume the 20 parties’ familiarity with the underlying facts and procedural history. 21 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan 22 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual 23 findings for substantial evidence, and we review questions of law and the 24 application of law to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
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1 2018). “[T]he administrative findings of fact are conclusive unless any reasonable 2 adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 3 1252(b)(4)(B). We deny the petition because Chacon-Brito has failed to 4 sufficiently challenge dispositive grounds for the agency’s decision. 5 I. Asylum and Withholding of Removal 6 An applicant for asylum and withholding of removal has the burden to 7 establish past persecution, or a well-founded fear or likelihood of future 8 persecution, and that “race, religion, nationality, membership in a particular social 9 group, or political opinion was or will be at least one central reason for persecuting 10 the applicant.” Id. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); 8 C.F.R. 11 §§ 1208.13(b), 1208.16(b); Garcia-Aranda v. Garland, 53 F.4th 752, 757 (2d Cir. 2022) 12 (the “one central reason” standard applies to both asylum and withholding of 13 removal). “[P]ersecution is an extreme concept that does not include every sort 14 of treatment our society regards as offensive.” Mei Fun Wong v. Holder, 633 F.3d 15 64, 72 (2d Cir. 2011) (internal quotation marks omitted). “‘[U]nfulfilled threats 16 alone’ rarely qualify as persecution. Instead, an applicant must show that the 17 threat was ‘imminent or concrete’ or ‘so menacing as itself to cause actual suffering 18 or harm.’” KC v. Garland, 108 F.4th 130, 135 (2d Cir. 2024) (citations omitted). 19 When an applicant asserts a particular social group as the protected ground, she
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1 must establish both that the proposed particular social group is cognizable and 2 that the persecutor was or will be motivated by her membership in the group. See 3 Paloka v. Holder, 762 F.3d 191, 196–97 (2d Cir. 2014). Finally, “[t]o qualify as 4 persecution the conduct at issue must be attributable to the government, whether 5 directly because engaged in by government officials, or indirectly because 6 engaged in by private persons whom the government is unable or unwilling to 7 control.” Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (internal quotation marks 8 omitted). 9 Chacon-Brito has abandoned review of the agency’s findings that her past 10 harm did not rise to the level of persecution, that she did not establish a nexus to 11 a protected ground, and that she failed to show that the government was unable 12 or unwilling to protect her from the people who threatened her and demanded 13 money. “We consider abandoned any claims not adequately presented in an 14 appellant’s brief, and an appellant’s failure to make legal or factual arguments 15 constitutes abandonment.” Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) 16 (internal quotation marks omitted). Chacon-Brito’s brief does not address the 17 past persecution finding, and her passing references regarding the motive for the 18 threats and demands for money and the government’s ability to protect her are 19 insufficient to preserve those issues for review. See Yueqing Zhang v. Gonzales, 426
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1 F.3d 540, 545 n.7 (2d Cir. 2005) (deeming claim abandoned where brief “devote[d] 2 only a single conclusory sentence to” it). Finally, her argument that the agency 3 applied the wrong legal standard for withholding of removal is misplaced. As 4 noted above, the “one central reason” standard applies to both asylum and 5 withholding of removal. See Garcia-Aranda, 53 F.4th at 757. 6 II. CAT Relief 7 A CAT applicant has the burden to show she will “more likely than not” be 8 tortured, and that such torture would be “inflicted by, or at the instigation of, or 9 with the consent or acquiescence of, a public official acting in an official capacity.” 10 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); see also id. § 1208.18(a)(7) (defining 11 acquiescence). Chacon-Brito’s argument that the agency erred in requiring proof 12 of acquiescence, because she only had to show the Ecuadorian government would 13 be unwilling or unable to protect her, is contrary to the regulations. Id. 14 § 1208.18(a)(1), (7); see also Scarlett, 957 F.3d at 336 (leaving it to BIA on remand to 15 determine “how the ‘unable’ prong of the unwilling-or-unable standard, as 16 applicable to withholding claims, might translate to identifying government 17 acquiescence in torture under the CAT”); Matter of M-S-I-, 29 I. & N. Dec. 61, 64 18 (B.I.A. 2025) (“[T]he acquiescence standard for CAT protection differs from the 19 unable-or-unwilling standard for asylum and withholding of removal; the
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1 potential for private actor violence coupled with a speculation that police cannot 2 or will not help is insufficient to prove acquiescence.”). She has otherwise 3 abandoned her CAT claim: aside from a conclusory statement without citation, she 4 does not argue that any Ecuadorian official would acquiesce in her torture, or that 5 such torture is more likely than not to occur. See Debique, 58 F.4th at 684; Garcia- 6 Aranda, 53 F.4th at 758–59 (analysis of a CAT claim involves a two-step inquiry 7 requiring a showing of both likely torture and government acquiescence). 8 For the above reasons, the petition for review is DENIED. 9 A copy of this order will be forwarded to this Court’s Grievance Panel. As 10 explained above, the brief, filed by Chacon-Brito’s counsel Michael Borja, fails to 11 address multiple dispositive issues, thereby dooming Chacon-Brito’s appeal. 12 Instead, it primarily argues that the proposed social group is cognizable, which is 13 not at issue because the agency deemed it cognizable.
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court