Choco v. Blanche

Opinion

23-8053 Poaquiza-Choco v. Blanche BIA

Ling, IJ

A220 371 063/064/065/066

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 27th day of August, two thousand 4 twenty-six. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 PIERRE N. LEVAL, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 JOHN EDWARD POAQUIZA-CHOCO, 14 LIZETH ESTEFANIA NUNEZ-MOYANO, 15 DANAE JAMILETH POAQUIZA- 16 NUNEZ, AYMI MAYTE POAQUIZA- 17 NUNEZ, 18 Petitioners, 19 20 v. 23-8053 21 NAC 22 TODD BLANCHE, UNITED STATES 23 ATTORNEY GENERAL, 24 Respondent.

1 _____________________________________ 2 3 FOR PETITIONERS: Michael Borja, Borja Law Firm, P.C., Jackson 4 Heights, NY. 5 6 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 7 Attorney General; Sarah A. Byrd, Senior 8 Litigation Counsel; Joannabelle M. Aquino, 9 Trial Attorney, Office of Immigration 10 Litigation, United States Department of 11 Justice, Washington, DC.

12 UPON DUE CONSIDERATION of this petition for review of a Board of 13 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 14 DECREED that the petition for review is DENIED. 15 Petitioners John Edward Poaquiza-Choco, Lizeth Estefania Nunez-Moyano, 16 and their minor children, natives and citizens of Ecuador, seek review of a 17 November 17, 2023, decision of the BIA affirming a January 5, 2023, decision of an 18 Immigration Judge (“IJ”) denying asylum, withholding of removal, and relief 19 under the Convention Against Torture (“CAT”). In re John Edward Poaquiza- 20 Choco, et al., Nos. A 220 371 063/064/065/066 (B.I.A. Nov. 17, 2023), aff’g Nos. A 220 21 371 063/064/065/066 (Immig. Ct. N.Y. City Jan. 5, 2023). We assume the parties’ 22 familiarity with the underlying facts and procedural history. 23 When, as here, the BIA “refuse[s] to consider an issue . . . this Court’s review

3

1 is limited to whether the BIA erred in deeming the argument waived.” Prabhudial 2 v. Holder, 780 F.3d 553, 555–56 (2d Cir. 2015). Relatedly, our review is limited to 3 issues exhausted before the agency, so that issues not raised on appeal to the BIA 4 or addressed by the BIA are not properly before us. See Vera Punin v. Garland, 108 5 F.4th 114, 124 (2d Cir. 2024) (“[W]hen an argument made to this Court cannot be 6 closely matched up with a specific argument made to the BIA, it has not been 7 properly exhausted and we cannot hear it.”). And “[w]e consider abandoned any 8 claims not adequately presented in an appellant’s brief, and an appellant’s failure 9 to make legal or factual arguments constitutes abandonment.” Debique v. Garland, 10 58 F.4th 676, 684 (2d Cir. 2023) (quotation marks omitted). 11 Our review here is limited to the BIA’s finding that the petitioners waived 12 review of the IJ’s denial of all forms of relief by not sufficiently challenging the 13 grounds for the IJ’s decision on appeal, see Prabhudial, 780 F.3d at 555–56, and the 14 brief does not acknowledge or address that finding. Accordingly, the petitioners 15 have abandoned any challenge to this dispositive waiver finding, see Debique, 58 16 F.4th at 684, and we need not reach the arguments petitioners raise as they are 17 unexhausted and not material to the basis for the BIA’s dismissal of the appeal, see 18 INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies

4

1 are not required to make findings on issues the decision of which is unnecessary 2 to the results they reach.”); Vera Punin, 108 F.4th at 124. 3 We address the arguments raised only to the extent necessary to highlight 4 deficiencies in the brief prepared by the petitioners’ counsel, Michael Borja, Esq. 5 The brief misstates that the IJ deemed the asylum claim abandoned. The brief’s 6 assertions that there is a nexus to protected ground are conclusory and 7 undeveloped, as well as unexhausted, and Mr. Borja has made identical statements 8 in other briefs. Mr. Borja asserts without record support that the “family was 9 savagely beaten multiple times,” which is inconsistent with the petitioners’ 10 allegation that only Poaquiza-Choco was beaten and he did not require medical 11 treatment. Mr. Borja has made this same unsupported factual assertion in other 12 cases. See, e.g., Masaquiza-Masaquiza v. Bondi, No. 23-7743, 2025 WL 2793074, *2 13 (2d Cir. Sept. 30, 2025) (summary order). 14 The brief also raises previously rejected legal arguments. Mr. Borja 15 contends that withholding of removal has a less-stringent nexus standard than 16 asylum. This is incorrect. We have ruled that the “one central reason” standard 17 applies both to asylum and withholding of removal, see Quituizaca v. Garland, 52 18 F.4th 103, 109–14 (2d Cir. 2022), and we have previously rejected this argument

5

1 when raised by the same lawyer , see, e.g., Chamba-Alvarez v. Garland, No. 21-6072, 2 2023 WL 6439401, at *1 & n.1 (2d Cir. Oct. 3, 2023) (summary order); Acero-Guaman 3 v. Garland, No. 21-6606, 2024 WL 1734054, at *1 (2d Cir. Apr. 23, 2024) (summary 4 order). Similarly, we have previously rejected Mr. Borja’s unsupported challenge 5 to the acquiescence requirement for a CAT claim based on a fear of torture by 6 private actors. The regulations explicitly require acquiescence, and counsel has 7 not explained why we should apply the unable-or-unwilling-to-protect standard 8 applicable to asylum and withholding of removal. See 8 C.F.R. § 1208.18(a)(1); 9 Scarlett v. Barr, 957 F.3d 316, 336 (2d Cir. 2020) (leaving it to BIA on remand to 10 determine “how the ‘unable’ prong of the unwilling-or-unable standard, as 11 applicable to withholding claims, might translate to identifying government 12 acquiescence in torture”); Matter of M-S-I-, 29 I. & N. Dec. 61, 64 (B.I.A. 2025) 13 (“[T]he acquiescence standard for CAT protection differs from the unable-or- 14 unwilling standard for asylum and withholding of removal; the potential for 15 private actor violence coupled with a speculation that police cannot or will not 16 help is insufficient to prove acquiescence.”). 17 Finally, the brief to the BIA and the brief here are nearly identical, which is 18 inappropriate given the BIA’s determination that the petitioners had waived the

6

1 IJ’s dispositive grounds for denial by not meaningfully challenging them on 2 appeal. As noted above, our review is limited to the propriety of the BIA’s waiver 3 findings, so Mr. Borja needed to also challenge those findings. See Prabhudial, 780 4 F.3d at 555–56. Yet his brief to this Court “simply repeats, word for word, [the] 5 brief to the BIA” and as such, is “an inadequate submission” that is “grounds not 6 only for rejection of the brief but for formal reprimand or other sanction.” Shunfu 7 Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). 8 For the foregoing reasons, the petition for review is DENIED. Given the 9 serious inadequacies in briefing by Michael Borja, Esq. a copy of this order will be 10 forwarded to the Grievance Panel. All pending motions and applications are 11 DENIED and stays VACATED.

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court