24-500 Rojas-Toledo v. Bondi BIA Hom, IJ A209 980 447
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 13th day of November, two thousand 4 twenty-five. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PIERRE N. LEVAL, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 ANGELICA MARIBEL ROJAS-TOLEDO, 14 15 Petitioner, 16 17 v. 24-500 18 NAC 19 PAMELA BONDI, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Reuben S. Kerben, Esq., Kerben Law Firm, 1 P.C., Kew Gardens, NY. 2 3 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 4 Attorney General; Song Park, Assistant 5 Director; Alanna T. Duong, Trial Attorney, 6 Office of Immigration Litigation, United 7 States Department of Justice, Washington, 8 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 Angelica Maribel Rojas-Toledo, a native and citizen of Ecuador,
13 seeks review of a January 30, 2024, decision of the BIA affirming a February 12,
14 2019, decision of an Immigration Judge (“IJ”) denying her application for asylum
15 and withholding of removal. 1 In re Angelica Maribel Rojas-Toledo, No. A 209 980 447
16 (B.I.A. Jan. 30, 2024), aff’g No. A 209 980 447 (Immig. Ct. N.Y. City Feb. 12, 2019).
17 We assume the parties’ familiarity with the underlying facts and procedural
18 history.
19 We have reviewed the IJ’s decision as modified and supplemented by the
1We do not address petitioner’s claim under the Convention Against Torture because she does not address it in her brief. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not adequately presented in the appellant’s brief, and an appellant’s failure to make legal or factual arguments constitutes abandonment” (quotation marks omitted)). 2 1 BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan
2 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review fact-finding “under
3 the substantial evidence standard” and questions of law and the application of law
4 to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he
5 administrative findings of fact are conclusive unless any reasonable adjudicator
6 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
7 An applicant for asylum and withholding of removal has the burden to
8 establish past persecution or a fear of future persecution and that “race, religion,
9 nationality, membership in a particular social group, or political opinion was or
10 will be at least one central reason for persecuting [her].” Id. § 1158(b)(1)(B)(i); see
11 also id. § 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b); Quituizaca v. Garland, 52
12 F.4th 103, 109–14 (2d Cir. 2022) (“one central reason” standard applies to both
13 asylum and withholding of removal). An applicant must prove “a sufficiently
14 strong nexus” between the persecution and a protected ground. Castro v. Holder,
15 597 F.3d 93, 100 (2d Cir. 2010). And where, as here, an applicant seeks relief based
16 on membership in a particular social group, she must show both that the group is
17 cognizable and that she was harmed on account of her membership in that group.
18 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
3 1 A group is cognizable if it is “(1) composed of members who share a
2 common immutable characteristic, (2) defined with particularity, and (3) socially
3 distinct within the society in question.” Id. at 196 (quoting Matter of M-E-V-G-, 26
4 I. & N. Dec. 227, 237 (B.I.A. 2014)); see also Matter of W-G-R-, 26 I. & N. Dec. 208,
5 212–18 (B.I.A. 2014); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir. 2007). We
6 agree with the agency’s determination that Rojas-Toledo’s particular social
7 group—“victims of domestic violence who were unsuccessful in seeking police
8 assistance”—is not cognizable because it is impermissibly circular and defined
9 only by the claimed persecution. “Persecutory conduct aimed at a social group
10 cannot alone define the group, which must exist independently of the
11 persecution.” Paloka, 762 F.3d at 196 (quotation marks omitted); Matter of M-E-V-
12 G-, 26 I. & N. Dec. at 232 (reiterating that “a ‘particular social group’ cannot be
13 defined exclusively by the claimed persecution, . . . it must be ‘recognizable’ as a
14 discrete group by others in the society, and . . . it must have . . . well-defined
15 boundaries,” i.e., the group “must not be amorphous, overbroad, diffuse, or
16 subjective”).
17 Rojas-Toledo challenges the authority the agency relied on to find her
18 particular social group not cognizable, but we discern no error. The IJ’s 2019
4 1 decision cited Matter of A-B-, 27 I. & N. Dec. 316, 335 (A.G. 2018) (“Matter of A-B-
2 I”), which held that victims of domestic violence generally are not a cognizable
3 social group because the group is defined by its harm. As Rojas-Toledo points out,
4 that decision was vacated by the Attorney General in 2021 in Matter of A-B-III, 28
5 I. & N. Dec. 307, 309 (A.G. 2021). However, A-B-I was good law at the time of the
6 IJ’s 2019 decision, and the BIA’s 2024 decision acknowledged the vacatur, but
7 agreed with the IJ’s cognizability determination because the proposition for which
8 the IJ cited A-B-I—that a particular social group must exist independently of the
9 harm asserted—was an accurate statement of the law. See Paloka, 762 F.3d at 196;
10 Matter of M-E-V-G-, 26 I. & N. Dec. at 232, 239.
11 We also reject Rojas-Toledo’s argument that her group is cognizable under
12 Matter of A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014), which the BIA instructed IJs
13 to follow in A-B-III. See Matter of A-B-III, 28 I. & N. Dec. at 307–08. 2 In A-R-C-G-,
14 the BIA determined that “married women in Guatemala who are unable to leave
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24-500 Rojas-Toledo v. Bondi BIA Hom, IJ A209 980 447
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 13th day of November, two thousand 4 twenty-five. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PIERRE N. LEVAL, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 ANGELICA MARIBEL ROJAS-TOLEDO, 14 15 Petitioner, 16 17 v. 24-500 18 NAC 19 PAMELA BONDI, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Reuben S. Kerben, Esq., Kerben Law Firm, 1 P.C., Kew Gardens, NY. 2 3 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 4 Attorney General; Song Park, Assistant 5 Director; Alanna T. Duong, Trial Attorney, 6 Office of Immigration Litigation, United 7 States Department of Justice, Washington, 8 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 Angelica Maribel Rojas-Toledo, a native and citizen of Ecuador,
13 seeks review of a January 30, 2024, decision of the BIA affirming a February 12,
14 2019, decision of an Immigration Judge (“IJ”) denying her application for asylum
15 and withholding of removal. 1 In re Angelica Maribel Rojas-Toledo, No. A 209 980 447
16 (B.I.A. Jan. 30, 2024), aff’g No. A 209 980 447 (Immig. Ct. N.Y. City Feb. 12, 2019).
17 We assume the parties’ familiarity with the underlying facts and procedural
18 history.
19 We have reviewed the IJ’s decision as modified and supplemented by the
1We do not address petitioner’s claim under the Convention Against Torture because she does not address it in her brief. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“We consider abandoned any claims not adequately presented in the appellant’s brief, and an appellant’s failure to make legal or factual arguments constitutes abandonment” (quotation marks omitted)). 2 1 BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan
2 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review fact-finding “under
3 the substantial evidence standard” and questions of law and the application of law
4 to fact de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he
5 administrative findings of fact are conclusive unless any reasonable adjudicator
6 would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
7 An applicant for asylum and withholding of removal has the burden to
8 establish past persecution or a fear of future persecution and that “race, religion,
9 nationality, membership in a particular social group, or political opinion was or
10 will be at least one central reason for persecuting [her].” Id. § 1158(b)(1)(B)(i); see
11 also id. § 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b); Quituizaca v. Garland, 52
12 F.4th 103, 109–14 (2d Cir. 2022) (“one central reason” standard applies to both
13 asylum and withholding of removal). An applicant must prove “a sufficiently
14 strong nexus” between the persecution and a protected ground. Castro v. Holder,
15 597 F.3d 93, 100 (2d Cir. 2010). And where, as here, an applicant seeks relief based
16 on membership in a particular social group, she must show both that the group is
17 cognizable and that she was harmed on account of her membership in that group.
18 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).
3 1 A group is cognizable if it is “(1) composed of members who share a
2 common immutable characteristic, (2) defined with particularity, and (3) socially
3 distinct within the society in question.” Id. at 196 (quoting Matter of M-E-V-G-, 26
4 I. & N. Dec. 227, 237 (B.I.A. 2014)); see also Matter of W-G-R-, 26 I. & N. Dec. 208,
5 212–18 (B.I.A. 2014); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72–74 (2d Cir. 2007). We
6 agree with the agency’s determination that Rojas-Toledo’s particular social
7 group—“victims of domestic violence who were unsuccessful in seeking police
8 assistance”—is not cognizable because it is impermissibly circular and defined
9 only by the claimed persecution. “Persecutory conduct aimed at a social group
10 cannot alone define the group, which must exist independently of the
11 persecution.” Paloka, 762 F.3d at 196 (quotation marks omitted); Matter of M-E-V-
12 G-, 26 I. & N. Dec. at 232 (reiterating that “a ‘particular social group’ cannot be
13 defined exclusively by the claimed persecution, . . . it must be ‘recognizable’ as a
14 discrete group by others in the society, and . . . it must have . . . well-defined
15 boundaries,” i.e., the group “must not be amorphous, overbroad, diffuse, or
16 subjective”).
17 Rojas-Toledo challenges the authority the agency relied on to find her
18 particular social group not cognizable, but we discern no error. The IJ’s 2019
4 1 decision cited Matter of A-B-, 27 I. & N. Dec. 316, 335 (A.G. 2018) (“Matter of A-B-
2 I”), which held that victims of domestic violence generally are not a cognizable
3 social group because the group is defined by its harm. As Rojas-Toledo points out,
4 that decision was vacated by the Attorney General in 2021 in Matter of A-B-III, 28
5 I. & N. Dec. 307, 309 (A.G. 2021). However, A-B-I was good law at the time of the
6 IJ’s 2019 decision, and the BIA’s 2024 decision acknowledged the vacatur, but
7 agreed with the IJ’s cognizability determination because the proposition for which
8 the IJ cited A-B-I—that a particular social group must exist independently of the
9 harm asserted—was an accurate statement of the law. See Paloka, 762 F.3d at 196;
10 Matter of M-E-V-G-, 26 I. & N. Dec. at 232, 239.
11 We also reject Rojas-Toledo’s argument that her group is cognizable under
12 Matter of A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014), which the BIA instructed IJs
13 to follow in A-B-III. See Matter of A-B-III, 28 I. & N. Dec. at 307–08. 2 In A-R-C-G-,
14 the BIA determined that “married women in Guatemala who are unable to leave
15 their relationship” were a cognizable particular social group given the immutable
16 characteristics of both gender and marital status in Guatemala, as established by
2 We also note that A-B-III was in turn recently overturned, and the Attorney General explicitly instructed the agency to adhere to Matter of A-B- I and to disregard Matter of A- R-C-G-. See Matter of S-S-F-M-, 29 I. & N. Dec. 207, 207 (A.G. 2025). 5 1 the petitioner’s experiences and confirmed by her country conditions evidence.
2 But the BIA emphasized that such a determination for similar groups will depend
3 on the specific circumstances of the case and country conditions. A-R-C-G-, 26 I.
4 & N. Dec. at 392–93. Rojas-Toledo’s case is distinguishable because she was not
5 married (and her relationship ended); moreover, A-R-C-G- reaffirmed that a group
6 cannot be “defined by the fact that the applicant is subject to domestic violence.”
7 26 I. & N. at 393, n.14. Unlike the petitioner in A-R-C-G-, Rojas-Toledo offers no
8 evidence that her proposed group exists independently of the harm that defines it;
9 she simply asserts, without explanation, that she satisfied immutability,
10 particularity, and social distinction.
11 Although Rojas-Toledo recognizes that a group must exist independently of
12 the persecutory conduct to be cognizable, she also contends that we have affirmed
13 that “persecution can be the ‘catalyst’ for societal recognition,” Paloka, 762 F.3d at
14 198. However, she does not explain how her experience of persecution acted as a
15 catalyst for societal recognition and thus social distinction, instead just asserting
16 that it is so because it is a “minority population.” Finally, she fails to cite any
17 country conditions evidence supporting her cognizability arguments, which is
18 particularly damaging because part of her cognizability argument is that she
6 1 unsuccessfully sought police assistance; but there is no evidence to determine how
2 people in Ecuador view those who unsuccessfully seek assistance and whether the
3 group has definable boundaries in Ecuadorian society. Cf. Matter of A-R-C-G-, 26
4 I. & N. at 392–94.
5 As an independent ground for denying this petition, Rojas-Toledo has failed
6 to exhaust her challenge to the agency’s separately dispositive nexus finding.
7 Issue exhaustion is “not jurisdictional,” Santos-Zacaria v. Garland, 598 U.S. 411, 413
8 (2023), but it is mandatory when, as here, the Government raises it, see Ud Din v.
9 Garland, 72 F.4th 411, 419–20 & n.2 (2d Cir. 2023); accord Vera Punin v. Garland, 108
10 F.4th 114, 124 (2d Cir. 2024) (“[W]hen an argument made to this Court cannot be
11 closely matched up with a specific argument made to the BIA, it has not been
12 properly exhausted and we cannot hear it.”).
13 Rojas-Toledo’s assertion that the IJ did not make an express nexus finding
14 is belied by the language of the IJ’s decision. The IJ expressly found that Rojas-
15 Toledo’s “fear of violence from this man and his criminal acts lacks a nexus to a
16 protected ground.” Certified Administrative Record at 29–30 (IJ Dec.). Her failure
17 to challenge the nexus determination on appeal to the BIA means any challenge to
18 that finding is unexhausted, and we cannot hear it. Ud Din, 72 F.4th at 419–20 &
7 1 n.2; Prabhudial v. Holder, 780 F.3d 563, 555–56 (2d Cir. 2015) (“Where the agency
2 properly applies its own waiver rule . . . this Court’s review is limited to whether
3 the BIA erred in deeming the argument waived.”). In any event, Rojas-Toledo
4 does not challenge the substance of the nexus determination. See Debique, 58 F.4th
5 at 684; Quituizaca, 52 F.4th at 109–14.
6 For the foregoing reasons, the petition for review is DENIED. All pending
7 motions and applications are DENIED and stays VACATED.
8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court 11