Tumailli-Granizo v. Bondi
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Opinion
23-7794 Tumailli-Granizo v. Bondi BIA Drucker, IJ A220 226 808/809/810/811/812
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 10th day of March, two thousand 4 twenty-six. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RICHARD J. SULLIVAN, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 JUAN OSWALDO TUMAILLI- 14 GRANIZO, CARMITA ROCIO 15 MATUTE-ATIENCIA, R.A.T-M, D.J.T-M, 16 E.A.T-M, 17 Petitioners, 18 19 v. 23-7794 20 NAC 21 PAMELA BONDI, UNITED STATES 22 ATTORNEY GENERAL, 1 Respondent.* 2 _____________________________________ 3 4 FOR PETITIONERS: Michael Borja, Borja Law Firm, P.C., Jackson 5 Heights, NY. 6 7 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 8 Attorney General; Anthony P. Nicastro, 9 Assistant Director; Zachary S. Hughbanks, 10 Trial Attorney, Office of Immigration 11 Litigation, United States Department of 12 Justice, Washington, DC.
13 UPON DUE CONSIDERATION of this petition for review of a Board of
14 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
15 DECREED that the petition for review is DENIED.
16 Petitioners Juan Oswaldo Tumailli-Granizo, Carmita Rocio Matute-
17 Atiencia, and their children, natives and citizens of Ecuador, seek review of an
18 October 20, 2023, decision of the BIA summarily affirming an August 31, 2022,
19 decision of an Immigration Judge (“IJ”) denying their applications for asylum,
20 withholding of removal, and relief under the Convention Against Torture
21 (“CAT”). In re Juan Oswaldo Tumailli-Granizo, et al., Nos. A220 226
22 808/809/810/811/812 (B.I.A. Oct. 20, 2023), aff’g Nos. A220 226 808/809/810/811/812
* The Clerk of Court is respectfully directed to amend the caption as set forth above. 2 1 (Immig. Ct. N.Y.C. Aug. 31, 2022). We assume the parties’ familiarity with the
2 underlying facts and procedural history.
3 We have reviewed the IJ’s decision as the final administrative decision. See
4 Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). We review the agency’s
5 factual findings for substantial evidence and questions of law de novo. See Yanqin
6 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). “[T]he administrative findings of
7 fact are conclusive unless any reasonable adjudicator would be compelled to
8 conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
9 “We consider abandoned any claims not adequately presented in an
10 appellant’s brief, and an appellant’s failure to make legal or factual arguments
11 constitutes abandonment.” Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023)
12 (internal quotation marks omitted); see also Fed. R. App. P. 28(a)(8)(A) (providing
13 that “the argument” in an appellant’s brief “must contain . . . appellant’s
14 contentions and the reasons for them, with citations to the authorities and parts of
15 the record on which the appellant relies”). Petitioners’ brief restates their claims
16 for asylum and withholding of removal without identifying legal or factual errors
17 in the agency’s decisions or citing the record. As to CAT, they argue, without
18 support and contrary to the agency’s regulations, that the agency applied an
3 1 incorrect standard, but they do not challenge the agency’s dispositive basis for
2 denying CAT relief—their failure to establish a likelihood of torture. For these
3 reasons, they have abandoned review of all forms of relief. See Debique, 58 F.4th
4 at 684–85 (finding petitioner abandoned any arguments by failing to “state the
5 issue and advance an argument” (internal quotation marks omitted)); Aucacama-
6 Azogue v. Bondi, No. 23-7165, 2025 WL 2078445, at *3 (2d Cir. July 24, 2025)
7 (summary order) (noting that Petitioners’ attorney, Mr. Borja, has repeatedly
8 argued, “contrary to the language of the regulations, that the agency erred in
9 requiring government involvement or acquiescence to state a CAT claim”).
10 Even assuming that Petitioners preserved their claims, the agency did not
11 err. An applicant for asylum and withholding of removal has the burden to
12 demonstrate past persecution or a fear of future persecution and that “race,
13 religion, nationality, membership in a particular social group, or political opinion
14 was or will be at least one central reason for persecuting the applicant.” 8 U.S.C.
15 § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Quituizaca v. Garland, 52 F.4th 103,
16 109–14 (2d Cir. 2022). “A protected ground cannot be incidental or tangential to
17 another reason for harm.” Quituizaca, 52 F.4th at 114–15. Here, the agency was
18 not compelled to conclude that Petitioners’ membership in their proposed
4 1 particular social group of families who have resisted gang activities was one
2 central reason that they were targeted because the circumstances (extortion)
3 suggested that gang members were motivated by ordinary criminal incentives.
4 Id. And the IJ did not err in determining that Petitioners failed to demonstrate a
5 likelihood of torture with government acquiescence: the record showed that they
6 had not been tortured in the past, law enforcement was investigating their claim
7 of extortion, and the Ecuadorian government was making significant efforts to
8 curb gang crime and government corruption. See 8 C.F.R. § 1208.16(c); see also
9 Garcia-Aranda v. Garland, 53 F.4th 752, 758–59 (2d Cir. 2022) (discussing CAT
10 standard requirements of a likelihood of torture and that the “likely future harm
11 will be inflicted by, or at the instigation of, or with the consent or acquiescence of,
12 a public official acting in an official capacity”).
13 As explained above, Petitioners’ counsel, Michael Borja fails to sufficiently
14 address dispositive issues in the brief. Further, the brief makes factual allegations
15 that are not supported by the record, such as asserting that the entire family was
16 attacked continuously. Counsel also argues that withholding of removal has a
17 less-stringent nexus requirement than asylum and that CAT relief does not require
18 government acquiescence where the feared torture is from private actors. These
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