“Speak Now or Forever Hold Your Peace” — The Second Circuit Re-Affirms Strict Rules on Exhaustion and Issue Preservation in Asylum Litigation (Martinez Arias De Cruz v. Bondi, 2025)

1. Introduction

Martinez Arias De Cruz v. Bondi is a May 9, 2025 summary order of the United States Court of Appeals for the Second Circuit denying a Guatemalan petitioner’s challenge to an adverse decision of the Board of Immigration Appeals (BIA). Although issued as a non-precedential “summary order,” the decision is a rich primer on two recurring hurdles in immigration (and broader administrative) litigation: (1) exhaustion of administrative remedies and (2) abandonment of issues on appeal.

The petitioner, Guillermina Martinez Arias De Cruz (“Martinez”), sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT) based chiefly on alleged persecution in Guatemala as a “woman without male protection.” The immigration judge (IJ) rejected her claims, and the BIA affirmed. Martinez petitioned for judicial review but failed to attack the very grounds on which the BIA relied. The Second Circuit therefore denied her petition.

2. Summary of the Judgment

The Court denied the petition for review.
Key dispositive findings:
- Particular Social Group (PSG): The proposed PSG of “Guatemalan women without male protection” was not shown to be socially distinct in Guatemalan society; hence it was not cognizable.
- Waiver/Abandonment: Martinez did not challenge this PSG ruling in her Second Circuit brief, and she failed to preserve alternate PSG theories. Under Debique v. Garland, issues not “adequately presented” are deemed abandoned.
- Exhaustion: Arguments raised in the court of appeals but not raised before the BIA were unexhausted and barred by 8 U.S.C. § 1252(d)(1).
- CAT Claim: A single conclusory sentence about risk of torture was insufficient to challenge the agency’s CAT denial.
- Due Process/Bias: The court found no properly exhausted due-process claim; mere disagreement with the IJ’s rulings does not establish bias.

3. Analysis

3.1 Precedents Cited and Their Influence

The panel buttressed its ruling with a constellation of recent Second Circuit authorities:

Xue Hong Yang v. DOJ, 426 F.3d 520 (2005) & Yan Chen v. Gonzales, 417 F.3d 268 (2005) — confirm that the court reviews the IJ’s opinion as modified by the BIA and only on grounds relied upon by the BIA.
Debique v. Garland, 58 F.4th 676 (2023) — sets the abandonment bar: failure to articulate legal or factual argument = forfeiture.
Ud Din v. Garland, 72 F.4th 411 (2023) & Punin v. Garland, 108 F.4th 114 (2024) — emphasize that exhaustion is “mandatory” and require a clear match between arguments made to the BIA and those advanced in court.
Lin Zhong v. DOJ, 480 F.3d 104 (2d Cir. 2007), as partially abrogated by Santos-Zacaria v. Garland, 598 U.S. 411 (2023) — limits judicial review to the reasons actually given by the agency.
Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021) & Hernandez-Chacon v. Barr, 948 F.3d 94 (2d Cir. 2020) — detail the social distinction and particularity requirements for PSG claims; cited to illustrate why “women without male protection” fails.
Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) — demonstrates that cursory references do not preserve an issue.
Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022) & Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) — reiterate that a protected ground must be a central reason for persecution; severity alone is insufficient.
Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007) — sets the standard for due-process violations in immigration: denial of a full and fair opportunity to present claims.

These authorities work in tandem: the PSG precedents supply the doctrinal yardsticks; the exhaustion/abandonment cases supply the procedural filter. Together, they foreclose Martinez’s petition without the court addressing the substantive horrors she fears in Guatemala.

3.2 The Court’s Legal Reasoning

Identify the Dispositive Ground. The BIA ruled that Martinez failed to prove her persecution was because of membership in a cognizable PSG, and that she abandoned alternate PSG theories. Those are the only grounds open for judicial review (Lin Zhong).
Check for Proper Challenge. Martinez’s Second Circuit brief largely re-argued persecution severity and generalized risk. It never argued that the BIA misapplied the social distinction test or wrongly found waiver. Therefore, by Debique, the dispositive ground went unchallenged—automatic abandonment.
Enforce Exhaustion. To the extent Martinez advanced new due-process or bias theories, they were not raised before the BIA; § 1252(d)(1) and Punin barred review.
Apply Precedent to CAT and Due-Process Claims. A single conclusory sentence does not engage the CAT analysis (Yueqing Zhang). Allegations of IJ bias that mirror merits arguments do not meet the Burger standard for a due-process violation.
Result. Petition denied, accompanying motions denied, stays vacated.

3.3 Likely Impact on Future Cases

Procedural Vigilance. The decision underscores—yet again—that failure to target the BIA’s actual reasoning is fatal. Immigration counsel must identify and directly contest every BIA ground or risk automatic defeat.
Gender-Based PSGs. While earlier cases left some room for gender-oriented PSGs (e.g., Hernandez-Chacon), this order shows the continuing skepticism toward broad formulations like “women without male protection” unless the record evidences societal recognition of the group.
Summary Orders as Guidance. Though non-precedential, Second Circuit summary orders are citable and carry persuasive weight. District courts and IJs may quote this opinion when assessing abandonment/exhaustion arguments or evaluating similarly framed PSGs.
Strategic Litigation. Practitioners may pivot to gathering society-level evidence (expert testimony, governmental reports) to satisfy social distinction for gender-based PSGs, or may recast claims through nexus to political opinion or family membership.

4. Complex Concepts Simplified

Particular Social Group (PSG) — One of the five protected grounds for asylum. Must be (a) defined with particularity and (b) socially distinct in the eyes of the society in question.
Social Distinction — Whether ordinary members of the society (not just criminals) perceive the group as a distinct class.
Exhaustion of Administrative Remedies — A litigant must present an issue to the agency (here, the BIA) before a court can review it.
Abandonment/Waiver — Even an exhausted issue is lost if the petitioner’s appellate brief does not meaningfully discuss it.
Summary Order — A short, usually unpublished decision lacking precedential effect but still citable under Fed. R. App. P. 32.1.
CAT Relief — Protection for individuals who can show it is “more likely than not” they will be tortured by, or with the acquiescence of, a public official if removed.

5. Conclusion

Martinez Arias De Cruz v. Bondi does not blaze doctrinal trails but functions as an unambiguous procedural roadmap: litigants must (1) exhaust their claims before the BIA and (2) explicitly attack every dispositive ground in the BIA’s decision when they reach the court of appeals. Failure on either front ends the case, regardless of humanitarian equities. For asylum practitioners, the opinion is a cautionary tale—the merits cannot be reached if the record and briefs do not first clear the procedural gate.