Rodriguez-Novoa v. Bondi

• Court: Court of Appeals for the Second Circuit
• Decided: March 5, 2026
• Docket: 24-1153
• Status: Unpublished

Opinion

24-1153 Rodriguez-Novoa v. Bondi BIA McFarland, IJ A208 543 369

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 5th day of March, two thousand 4 twenty-six. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RICHARD J. SULLIVAN, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 _____________________________________ 12 13 DIGNA DEL CARMEN RODRIGUEZ- 14 NOVOA, 15 Petitioner, 16 17 v. 24-1153 18 NAC 19 PAMELA BONDI, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 1 FOR PETITIONER: Bruno J. Bembi, Hempstead, NY. 2 3 FOR RESPONDENT: Brett A. Shumate, Acting Assistant Attorney 4 General; Nancy E. Friedman, Senior 5 Litigation Counsel; Paul Fiorino, Senior 6 Litigation Counsel, Office of Immigration 7 Litigation, United States Department of 8 Justice, Washington, DC.

9 UPON DUE CONSIDERATION of this petition for review of a Board of

10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

11 DECREED that the petition for review is DENIED.

12 Petitioner Digna Del Carmen Rodriguez-Novoa, a native and citizen of

13 El Salvador, seeks review of a March 20, 2024, decision of the BIA affirming a

14 December 17, 2019, decision of an Immigration Judge (“IJ”) denying asylum,

15 withholding of removal, and relief under the Convention Against Torture

16 (“CAT”). In re Digna Del Carmen Rodriguez-Novoa, No. A208 543 369 (B.I.A.

17 Mar. 20, 2024), aff’g No. A208 543 369 (Immig. Ct. N.Y. City Dec. 17, 2019). We

18 assume the parties’ familiarity with the underlying facts and procedural history.

19 As an initial matter, Rodriguez-Novoa’s petition for review is untimely

20 because it was filed “later than 30 days after the date of the final order of removal.”

21 8 U.S.C. § 1252(b)(1); see also Castejon-Paz v. Bondi, 143 F.4th 116, 118 (2d Cir. 2025)

22 (recognizing that the “deadline is a ‘claim-processing rule[]’ . . . that can be subject

23 to waiver or forfeiture” (quoting Riley v. Bondi, 606 U.S. 259, 273–74 (2025)). We 1 need not reach the issue of whether equitable tolling applies because, even if the

2 deadline were excused, the petition is without merit.

3 Our review is limited to the BIA’s determination that Rodriguez-Novoa

4 waived review of the IJ’s dispositive findings that she failed to establish a nexus

5 between the harm she suffered and fears and a protected ground (either an

6 imputed political opinion or membership in a particular social group) and that she

7 did not show that the Salvadoran government would acquiesce in her torture. See

8 Prabhudial v. Holder, 780 F.3d 553, 555–56 (2d Cir. 2015). Rodriguez-Novoa has

9 abandoned any challenges to the waiver determination by failing to challenge the

10 grounds for the BIA’s finding. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir.

11 2023) (“We consider abandoned any claims not adequately presented in an

12 appellant’s brief, and an appellant’s failure to make legal or factual arguments

13 constitutes abandonment.” (quotation marks omitted)).

14 First, Rodriguez-Novoa argues that the BIA’s waiver finding as to asylum

15 and withholding of removal was erroneous because she established past

16 persecution, a political opinion, cognizable social groups, and her membership in

17 those groups. This argument fails. Rodriguez-Novoa does not challenge the

18 BIA’s actual finding—that she waived any challenge to the IJ’s dispositive

19 determination that she failed to establish a nexus between (a) the harm she suffered 1 and fears and (b) her political opinion or membership in a particular social group.*

2 See Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (“To succeed on a particular

3 social group claim, the applicant must establish both that the group itself was

4 cognizable, and that the alleged persecutors targeted the applicant on account of

5 her membership in that group.” (quotation marks and citation omitted; emphasis

6 added)); Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (An asylum

7 “applicant must . . . show, through direct or circumstantial evidence, that the

8 persecutor’s motive to persecute arises from the applicant’s political belief.”

9 (quotation marks omitted)).

10 Second, Rodriguez-Novoa argues that the agency failed to consider whether

11 she established her eligibility for asylum by demonstrating a pattern or practice of

12 persecution of similarly situated individuals. But she did not raise a pattern or

13 practice claim before the agency, and thus it did not err in failing to consider such

14 claim. We may not consider a pattern or practice claim in the first instance. See

15 Ud Din v. Garland, 72 F.4th 411, 419–20 & n.2 (2d Cir. 2023) (providing that issue

16 exhaustion is mandatory).

17 Finally, Rodriguez-Novoa argues that the BIA erred in finding that she

* Counsel is cautioned that future briefing deficiencies, such as abandonment of issues, may result in dismissal without consideration of the merits and in disciplinary proceedings. 1 waived CAT relief because she applied for that relief with asylum and withholding

2 of removal on the same application form. That argument fails. Unlike asylum

3 and withholding, CAT relief does not require a nexus to a protected ground; thus,

4 her arguments on appeal to the BIA that she established a protected ground did

5 not challenge the denial of CAT. See 8 C.F.R. § 1208.18(a)(1). And she did not

6 challenge, before the BIA, the IJ’s dispositive finding that, even if she faced likely

7 torture, she failed to show that the Salvadoran government would direct or

8 acquiesce in her torture. Id.; see also Garcia-Aranda v. Garland, 53 F.4th 752, 758–59

9 (2d Cir. 2022) (explaining that a CAT claim consists of a “two-step inquiry” of

10 whether torture is more likely than not and whether there is “sufficient state

11 action”).

12 For the foregoing reasons, the petition for review is DENIED. Petitioner’s

13 motions to excuse her late petition and for a stay of removal are DENIED as moot.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court