Perez v. Blanche

Opinion

24-659 Tabora-Perez v. Blanche BIA

Prieto, IJ

A220 586 570/571/572

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 18th day of August, two thousand twenty-six.

PRESENT:

RICHARD C. WESLEY,

MICHAEL H. PARK,

EUNICE C. LEE,

Circuit Judges.

_____________________________________

JOSEFA TABORA-PEREZ, EDWIN SABILLON-TABORA, V. S-T., Petitioners,

v. 24-659 NAC

TODD BLANCHE, UNITED STATES ATTORNEY GENERAL, Respondent.*

* The Clerk of Court is respectfully directed to amend the case caption as set forth above.

_____________________________________

FOR PETITIONERS: Michael Borja, Esq., Borja Law Firm, P.C., Jackson Heights, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Leslie McKay, Assistant Director; William C. Minick, Senior Trial Attorney, Office of Immigration Litigation, 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 Josefa Tabora-Perez and her two children, natives and citizens of Honduras, seek review of a February 12, 2024, decision of the BIA affirming a February 6, 2023, decision of an Immigration Judge (“IJ”) denying Tabora-Perez’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). 1 In re Tabora-Perez, Nos. A 220 586 570/571/572 (B.I.A. Feb. 12, 2024), aff’g Nos. A 220 586 570/571/572 (Immigr. Ct. N.Y.C. Feb. 6, 2023). We assume familiarity with the underlying facts and procedural history.

1 We principally refer to Tabora-Perez because her children were derivative asylum beneficiaries and did not file independent applications.

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We have reviewed the IJ’s decision as modified and supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We “review the entirety of the agency’s conclusions—both the underlying factual findings and the application of the [Immigration and Nationality Act] to those findings—for substantial evidence.” Urias-Orellana v. Bondi, 607 U.S. 537, 545 (2026). We review questions of law de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018); see also Urias- Orellana, 607 U.S. at 543 n.1. “[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).

A. Asylum & Withholding of Removal To be entitled to asylum and withholding of removal, Tabora-Perez had to show (1) that she had experienced past persecution or feared future persecution and (2) that the persecution was or would be on account of a protected ground. 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b). The IJ found that the past harm alleged by Tabora-Perez was not sufficiently severe to amount to persecution, and that she had failed to show that her fear of future persecution was objectively reasonable. See Mei Fun Wong v. Holder, 633 F.3d 64,

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72 (2d Cir. 2011) (“[P]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive.” (internal quotation marks and citation omitted)); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (requiring applicant to establish that her fear was “objectively reasonable”), superseded in part by statute on other grounds, 8 U.S.C. § 1158(b)(1)(B)(iii).

The BIA determined that Tabora-Perez waived those dispositive issues by failing to meaningfully address them. Tabora-Perez does not acknowledge or challenge the waiver finding here, and she makes only unsupported, conclusory statements challenging the IJ’s underlying analysis of these claims.

For those reasons, Tabora-Perez’s arguments regarding asylum and withholding of removal are both unexhausted and abandoned. See Vera Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024) (“[W]hen an argument made to this Court cannot be closely matched up with a specific argument made to the BIA, it has not been properly exhausted and we cannot hear it.”); 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 and citation omitted)); see also Prabhudial v. Holder, 780 F.3d 553, 555–56 (2d Cir. 2015) (stating

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that when the BIA deems an issue waived and declines to consider it, review is limited to whether the waiver finding was in error).

B. CAT Relief Tabora-Perez has likewise abandoned a dispositive basis for the denial of her CAT claim. A CAT applicant must show both (1) likely harm rising to the level of torture and (2) “sufficient state action.” Garcia-Aranda v. Garland, 53 F.4th 752, 758–59 (2d Cir. 2022) (characterizing CAT claim as a “two-step inquiry”); see 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1) (requiring applicant to establish that she will “more likely than not” be tortured “by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity”).

Tabora-Perez’s arguments here address the state-action requirement. But she does not argue that the agency erred in assessing the likelihood that she would be tortured and thus has abandoned that dispositive issue. See Debique, 58 F.4th at 684. Indeed, while she asserts in the context of her challenge to the denial of asylum that the gang is likely to kill her, she identifies no record evidence in support of that conclusion.

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C. Referral to Grievance Panel Given the issues with briefing by the Petitioners’ counsel, Michael Borja, a copy of this order will be forwarded to the Court’s Grievance Panel. As outlined above, the brief fails to address dispositive issues and fails to provide record citations in support of arguments. 2 See Fed. R. App. P. 28(a). The brief also addresses issues that were not the basis for the BIA’s decision and thus are beyond the scope of our review, and in the course of those arguments, counsel misstates legal standards. 3 Borja is instructed to inform the Petitioners of the process for filing a motion to reopen the removal proceedings with the BIA, including the legal standards and procedural requirements for reopening based on ineffective assistance of counsel. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c); Paucar v. Garland, 84 F.4th 71, 80–81

2 The brief also abandons a due process argument raised before the BIA.

3 Specifically, Borja states that asylum and withholding of removal have different nexus standards, without acknowledging binding precedent to the contrary. See Quituizaca v. Garland, 52 F.4th 103, 113–14 (2d Cir. 2022). And he argues that the agency erred in requiring Tabora-Perez to demonstrate that the government would acquiesce to torture by private actors, even though the regulations define torture as harm “inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).

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(2d Cir. 2023). In requiring Borja to so inform the Petitioners, we take no position on whether moving to reopen would be successful or whether this appeal would have succeeded in the hands of a more diligent attorney.

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