Introduction

In Guerrero-Andachz v. Bondi, No. 23-7943 (2d Cir. Sept. 30, 2025) (summary order), a panel of the U.S. Court of Appeals for the Second Circuit (Judges Cabranes, Merriam, and Kahn) denied a petition for review from a Board of Immigration Appeals (BIA) decision that affirmed the Immigration Judge’s (IJ’s) denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection to an Ecuadorian family.

The case centers on claims of threats and violence by gang members who approached the lead petitioner, a street vendor, to coerce him into selling drugs. The petition advanced two primary legal theories: (1) that the harm was on account of membership in a particular social group (PSG)—framed as “witnesses who openly report criminal activity”—and (2) that the likelihood of torture in Ecuador warranted CAT relief. The Court rejected both paths, emphasizing the absence of a protected-ground nexus for asylum and withholding, and finding waiver of a dispositive finding for CAT.

Beyond merits, the Court issued a pointed admonition to petitioners’ counsel for inadequate briefing—abandoning dispositive issues, lacking citations, and misstating law and facts—and directed that a copy of the order be sent to the Court’s Grievance Panel. Although issued as a non-precedential summary order, the opinion strongly reinforces several settled rules: (i) the “one central reason” nexus standard applies to withholding of removal in the Second Circuit; (ii) generalized criminal motives do not establish a protected-ground nexus; (iii) CAT requires both a likelihood of torture and government acquiescence; and (iv) failure to challenge a dispositive ground on appeal is fatal.

Summary of the Opinion

• The petition for review is denied; the BIA’s affirmance of the IJ is sustained.
• Asylum/Withholding:
  • The Court did not reach the cognizability of the PSG “witnesses who openly report criminal activity” because the BIA resolved the case on nexus grounds and that finding is dispositive.
  • Applying the substantial-evidence standard, the Court agreed the record showed gang members acted from ordinary criminal incentives (coercing drug sales and extracting control), not because of a protected characteristic or PSG.
  • Any family-based PSG theory was abandoned on appeal by petitioners’ failure to brief it.
  • The Court reaffirmed that, in this Circuit, withholding of removal uses the same “one central reason” nexus standard as asylum.
• CAT:
  • CAT requires a two-step showing: (1) a likelihood of torture and (2) state action—torture by or with official acquiescence.
  • The BIA found failure on both prongs; petitioners challenged only the state-action prong. The unchallenged “likelihood of torture” finding is dispositive and dooms the CAT claim.
  • Petitioners’ attempt to graft the “unable or unwilling” standard onto CAT was rejected; CAT requires official consent or acquiescence, not mere inability or unwillingness.
• Practice/Procedure:
  • The Court criticized counsel’s briefing (lack of record citations, inaccurate statements, and failure to engage dispositive grounds) under Fed. R. App. P. 28(a) and referred the matter to the Court’s Grievance Panel.

Bottom line: With no protected-ground nexus and an abandoned, dispositive CAT deficiency, the petition failed.

Analysis

Precedents and Authorities Cited

• Standards of Review and Scope
  • Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): The Court reviews the IJ’s decision as modified by the BIA, an important framing when the BIA bypasses certain issues (here, PSG cognizability) and affirms on others (nexus).
  • Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018): Substantial evidence applies to factual findings; legal questions and mixed law‑fact issues are reviewed de novo.
  • 8 U.S.C. § 1252(b)(4)(B): Administrative fact findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.
• Asylum/Withholding Substantive Standards
  • 8 U.S.C. § 1158(b)(1)(B)(i); § 1231(b)(3)(A): Protected grounds and nexus standards.
  • Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022): In the Second Circuit, the asylum “one central reason” nexus standard applies to withholding of removal. The panel noted counsel had been corrected on this point in multiple prior cases.
  • Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir. 1999): Generalized crime/violence is not persecution on a protected ground.
  • Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005): Nexus must be shown through direct or circumstantial evidence of persecutor’s motive.
  • Edimo‑Doualla v. Gonzales, 464 F.3d 276 (2d Cir. 2006): Nexus determination is reviewed for substantial evidence.
  • INS v. Bagamasbad, 429 U.S. 24 (1976): Courts need not reach issues unnecessary to the result—used here to avoid PSG cognizability given a dispositive nexus deficiency.
• CAT Law
  • 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1): CAT requires showing that torture is more likely than not, by or with the consent or acquiescence of a public official acting in an official capacity.
  • Garcia‑Aranda v. Garland, 53 F.4th 752 (2d Cir. 2022): CAT involves a two-step inquiry—likelihood of torture and sufficient state action (acquiescence).
  • Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020): Distinguishes the asylum/withholding “unable or unwilling” standard from CAT’s stricter “consent or acquiescence” requirement, leaving to the BIA how “unable” might translate in CAT but reaffirming that CAT requires acquiescence.
• Appellate Waiver/Abandonment
  • Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Claims not adequately argued are deemed abandoned.
  • Norton v. Sam’s Club, 145 F.3d 114 (2d Cir. 1998): Issues not sufficiently argued are waived and normally not addressed on appeal.

Collectively, these authorities structure the Court’s analysis: they narrow the issues (Bagamasbad), set a demanding deference to agency fact-finding (substantial evidence), define the nexus burdens (Quituizaca, Yueqing Zhang), and enforce CAT’s specific state-action requirement (Garcia‑Aranda; Scarlett).

Legal Reasoning

1. Nexus (Asylum and Withholding)

   The BIA affirmed on the ground that petitioners failed to show their harm was “on account of” a protected ground—whether the PSG “witnesses who openly report criminal activity” or a family-based PSG. The Circuit agreed the record evidenced ordinary criminal motives: gang members threatened and beat the lead petitioner to frighten him and coerce drug distribution, and similarly approached other vendors in the same manner. That pattern suggested opportunistic extortion/coercion, not targeting because of protected-group membership or activity. The Court underscored that:

   • General crime and violence cannot, without more, satisfy protected-ground nexus.
   • Even if a PSG were cognizable, the absence of proof that membership in that PSG was “one central reason” for the harm is dispositive.
   • Arguments about Ecuadorian state action for asylum/withholding were irrelevant to the dispositive nexus deficiency and, in any event, unsupported by record citations; the record contradicted the claim that a police protection request led to further harm or was known to the gang.

   Notably, any family-based PSG theory was abandoned on appeal by not being argued in petitioners’ brief—again, dispositive on that component.

2. Withholding Uses “One Central Reason” in the Second Circuit

   Relying on Quituizaca, the Court reiterated that the same “one central reason” nexus standard governs withholding claims in this Circuit. The opinion also pointedly observed that petitioners’ counsel had advanced the contrary (and incorrect) position in multiple prior cases and had been repeatedly apprised of the binding law.

3. CAT’s Two-Step Requirement and Dispositive Waiver

   For CAT, the BIA found petitioners failed to show both a likelihood of torture and state action through official acquiescence. On petition for review, counsel challenged only the state-action element and did not dispute the BIA’s finding that petitioners had not shown a likelihood of torture. That omission was fatal: failure to challenge an independent, dispositive ground for the agency’s decision requires denial of the petition.

   The Court added that, even on the contested state-action prong, petitioners were wrong on the law: CAT requires “consent or acquiescence” by officials, not merely that the government is “unable or unwilling” to prevent harm (a standard that applies in asylum/withholding but not in CAT). Petitioners offered only a threadbare, uncited assertion on acquiescence.

4. Procedural Admonition and Referral

   The Court identified several briefing defects—abandonment of dispositive issues, inadequate record citations and authority (Fed. R. App. P. 28(a)), and inaccurate legal/factual statements—and directed that a copy of the order be sent to the Court’s Grievance Panel. This is a notable escalation signaling the Court’s intolerance for deficient appellate advocacy in immigration cases.

Impact

While a non-precedential summary order, Guerrero-Andachz carries practical significance for immigration litigation in the Second Circuit:

• Nexus Rigor in Gang-Related Claims: Applicants alleging harm by gangs must marshal concrete, record-based evidence that a protected ground is “one central reason” for the harm. Evidence that the gang targets people indiscriminately for financial or operational gain will typically undermine nexus.
• PSG Framing and Proof: Even where a PSG such as “witnesses who openly report criminal activity” is posited, the cognizability question can be sidelined if the record does not show that the persecutor’s motive is tied to that group. Applicants should develop evidence that the persecutors perceive them as part of the asserted group and are motivated by that perception.
• Withholding Standard Confirmed: The Second Circuit’s position that withholding uses the “one central reason” standard remains firm (contrast with other circuits that use “a reason” for withholding). Counsel must account for this circuit split and brief accordingly.
• CAT Precision: CAT claims require two distinct showings. Waiving either (by not briefing it) is fatal. Moreover, “unable or unwilling” does not suffice; applicants must show official consent, acquiescence, or willful blindness to the anticipated torture.
• Appellate Practice and Ethics: The Court’s referral to its Grievance Panel underscores growing scrutiny of immigration appellate advocacy. Practitioners should expect stricter enforcement of briefing standards, including proper citation, accurate representations of law and record, and engagement with dispositive issues.

In short, the decision reinforces doctrinal clarity and heightens expectations for litigation quality—both on the merits and in procedural fidelity.

Complex Concepts Simplified

• Nexus: The required link between the harm and a protected ground (race, religion, nationality, political opinion, or membership in a particular social group). The persecutor’s motive must be tied to that ground. In the Second Circuit, both asylum and withholding require that the protected ground be “one central reason” for the harm.
• Particular Social Group (PSG): A protected category in asylum law requiring characteristics that are immutable or fundamental, and social distinction and particularity in the society. Even if a PSG is recognized, the applicant must still prove nexus—that the harm occurred because of membership in that group.
• General Crime vs. Persecution: Extortion, threats, or violence by criminals for profit or control, without more, generally does not qualify as persecution on account of a protected ground.
• “One Central Reason” vs. “A Reason”: “One central reason” is a stricter nexus standard than “a reason.” The Second Circuit applies “one central reason” to both asylum and withholding; some other circuits apply “a reason” to withholding. The difference is outcome-determinative in close cases.
• CAT Two-Step: To win CAT protection, an applicant must show (1) it is more likely than not they will face torture if removed and (2) that officials will be involved, either directly or through consent or acquiescence (including willful blindness). The asylum/withholding “unable or unwilling” standard does not apply to CAT.
• Substantial Evidence Review: A highly deferential standard: the Court upholds agency fact findings unless a reasonable adjudicator would be compelled to reach the opposite conclusion.
• Bagamasbad Principle: Courts need not address issues unnecessary to the outcome. If a single ground disposes of the case (e.g., lack of nexus), courts can bypass others (e.g., PSG cognizability, state action).
• Abandonment/Waiver on Appeal: Arguments not raised and developed in the opening brief are typically deemed abandoned. Failing to challenge a dispositive ground for the agency’s decision is fatal.
• Summary Order: A non-precedential disposition. It may be cited under Fed. R. App. P. 32.1 and the Second Circuit’s local rules, but it does not bind future panels.

Conclusion

Guerrero-Andachz v. Bondi reinforces bedrock principles of asylum and CAT jurisprudence in the Second Circuit. On asylum and withholding, the petition failed because the record supported the agency’s finding that gang threats and violence were driven by ordinary criminal objectives, not by a protected ground—making the PSG cognizability debate unnecessary. On CAT, the petition faltered procedurally—failure to challenge an independent, dispositive finding (no likelihood of torture) doomed the claim, and the legal attempt to substitute an “unable or unwilling” standard for CAT’s “acquiescence” requirement was incorrect.

The order also functions as a cautionary note on appellate practice: incomplete or inaccurate briefing that omits dispositive issues and lacks citations can trigger not only denial on the merits but also referral to disciplinary bodies. Although non-precedential, the decision provides a clear roadmap for future litigants in the Second Circuit: prove the persecutor’s motive with record evidence; brief every independent ground for the agency’s decision; apply the correct nexus and CAT standards; and meet professional obligations to the Court and client alike.

Key takeaway: No nexus, no relief; no challenge to a dispositive finding, no review—paired with an unmistakable reminder that rigorous, accurate briefing is not optional.

Practical Pointers for Practitioners

• When asserting a PSG like “witnesses who openly report criminal activity,” develop evidence that the persecutors knew about the reporting and targeted the applicant for that reason (e.g., threats referencing the reporting, differential treatment of reporters vs. non-reporters).
• In gang cases, anticipate and rebut “ordinary criminal motive” inferences by showing selective targeting, retaliatory statements, or patterns inconsistent with indiscriminate extortion.
• For withholding in the Second Circuit, brief the “one central reason” standard; do not rely on “a reason.” Address the circuit split if relevant, but acknowledge binding Circuit law.
• For CAT, always brief both prongs: likelihood of torture and official acquiescence. Support acquiescence with specific country-conditions evidence and facts showing likely official awareness and inaction or willful blindness.
• Preserve every independent basis of the BIA’s decision. Failure to challenge a dispositive ground will result in summary denial.
• Comply meticulously with Fed. R. App. P. 28(a): include record citations and pertinent legal authority; avoid inaccurate statements; and address adverse findings head-on.