Agency Must Consider Race Nexus and Conflicting Country-Conditions Evidence When Assessing PSG Social Distinction and “Unable or Unwilling to Protect”

I. Introduction

Quituisaca-Quito v. Blanche (2d Cir. Apr. 8, 2026) concerns asylum and withholding claims by David Mauricio Quituisaca-Quito, his spouse Lourdes Susana Arevalo-Cabrera, and their minor child—natives and citizens of Ecuador. The petitioners sought review of (1) a December 4, 2023 Board of Immigration Appeals (“BIA”) decision summarily affirming an Immigration Judge (“IJ”) decision denying asylum, withholding of removal, and Convention Against Torture (“CAT”) relief, and (2) a November 29, 2024 BIA decision denying a motion to reopen premised on ineffective assistance of counsel.

The core factual theory was that Quituisaca-Quito suffered past harm based on perceived race/skin color—he proposed a particular social group (“PSG”) of “dark skinned Ecuadorians” and described racialized slurs and discrimination. The IJ accepted that his past harm rose to the level of “persecution,” but denied relief on two key grounds:

• Nexus/PSG cognizability: the proposed PSG was not cognizable because it was not “socially distinct”; and
• State protection: the Ecuadorian government was not shown to be “unable or unwilling” to protect him from private actors.

The Second Circuit granted the lead petition, vacated the 2023 BIA affirmance, and remanded for further consideration, emphasizing failures of analysis and record engagement—particularly with country-conditions evidence and intervening legal authority. Because of that remand, the consolidated petition challenging the denial of reopening was dismissed as moot.

II. Summary of the Opinion

Because the BIA summarily affirmed the IJ, the court reviewed the IJ’s decision as the final agency determination under Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). Applying substantial-evidence review to factual findings and de novo review to legal questions (as framed by Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and Urias-Orellana v. Bondi, 146 S. Ct. 845, 851 (2026)), the court identified remand-worthy deficiencies:

• Nexus and protected-ground framing: Although the applicant framed his claim as a PSG tied to race, the IJ recognized race as the “immutable characteristic” yet did not adequately consider nexus to race itself—a statutorily protected ground—without the additional PSG “social distinction” overlay.
• Country-conditions engagement and social distinction: The IJ rejected “social distinction” with essentially no analysis and failed to address record evidence describing discrimination and violence against racial minorities in Ecuador, including “Afro-Ecuadorian[s]” and “Montubio.”
• Unable-or-unwilling analysis and intervening law: The court directed the agency to reconsider the “unable or unwilling” finding in light of intervening authority—Castellanos-Ventura v. Garland, 118 F.4th 250 (2d Cir. 2024) and Matter of C-G-T-, 28 I. & N. Dec. 740 (B.I.A. 2023)—and because the IJ relied on selective country-report excerpts without acknowledging conflicting passages indicating lack of investigation/accountability and persistent racism.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Review framework and standards

• Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008): When the BIA summarily affirms, the IJ’s decision is treated as the final agency action for judicial review. This determined the target of the court’s analysis: the IJ’s reasoning and record handling.
• Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018): Reinforces substantial-evidence review for fact-finding and de novo review for legal questions—framing the court’s authority to identify analytical and legal errors.
• Urias-Orellana v. Bondi, 146 S. Ct. 845, 851 (2026): Cited to clarify that some “law-to-fact” applications—e.g., whether undisputed facts rise to “persecution”—are reviewed under substantial evidence. Here, that mattered because the IJ found past harm rose to persecution; the remand turned not on that conclusion but on nexus, PSG cognizability analysis, and state-protection analysis.

2. PSG cognizability and nexus principles

• Paloka v. Holder, 762 F.3d 191, 195–97 (2d Cir. 2014): Provides the PSG test (immutability, particularity, social distinction) and emphasizes that nexus depends on the persecutor’s motive (“views and motives of the persecutor”), not how the applicant self-identifies. The court used Paloka both to restate the PSG framework and to reject the Government’s argument about the applicant’s identification as a racial minority.
• In re M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014): The canonical BIA articulation of the PSG requirements, quoted through Paloka. The Second Circuit invoked it to show that “socially distinct within the society in question” must be meaningfully analyzed—not asserted.
• Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (B.I.A. 2018): Requires IJs to seek clarification if a proposed PSG is unclear. The court analogized this obligation to the IJ’s failure to grapple with the applicant’s race-based allegations and the possibility that the proper protected ground was race itself, not (only) a PSG formulation.
• Cruz v. Whitaker, 758 F. App’x 169, 170–71 (2d Cir. 2019) (summary order): Cited for the proposition that even if an applicant does not use precise doctrinal labels, the agency must address overlapping theories supported by the record (there, “pattern or practice”). Here, the court used the logic to support remand where the record supported race nexus even though the claim was pleaded as a race-defined PSG.

3. The duty to engage with material evidence (country conditions)

• Doe v. Sessions, 886 F.3d 203, 211 (2d Cir. 2018): Remand is warranted where the agency overlooks key evidence or mischaracterizes the record, particularly in protection claims.
• Poradisova v. Gonzales, 420 F.3d 70, 77, 82 (2d Cir. 2005): Two linked propositions drove the remand: (i) the agency must provide a “minimum level of analysis” for meaningful judicial review, and (ii) asylum adjudication must reflect a “good-faith inquiry,” not “a search for a justification to deport.” The court relied on these themes to fault the IJ’s near-conclusory “social distinction” finding and the selective reliance on favorable snippets of the State Department report.
• Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004): The agency may rely on State Department reports, but it must also consider “contrary or countervailing evidence” and the applicant’s particular circumstances. The court used this to criticize the IJ’s one-sided reading of the report while ignoring passages describing racism and lack of accountability for violence against women and children.

4. “Unable or unwilling to control” and failure-to-report principles

• Singh v. Garland, 11 F.4th 106, 114 (2d Cir. 2021) (quoting Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020)): Restates the baseline rule: harm by private actors qualifies as “persecution” only if attributable to the state because the government is “unable or unwilling to control” them. This anchored the court’s review of the IJ’s alternative dispositive rationale.
• Matter of C-G-T-, 28 I. & N. Dec. 740, 743 (B.I.A. 2023) (quoting Rosales Justo v. Sessions, 895 F.3d 154, 165 (1st Cir. 2018)): Establishes that failure to report abuse is “not necessarily fatal” if the applicant shows reporting would be futile or dangerous; the BIA also emphasized the special context of abused children.
• Castellanos-Ventura v. Garland, 118 F.4th 250, 254–55 (2d Cir. 2024): The Second Circuit’s own application of Matter of C-G-T-. It requires the agency to consider whether reporting would be futile or dangerous—particularly for children—and to evaluate conflicting country-conditions evidence rather than relying on a single favorable page. The court treated Castellanos-Ventura and Matter of C-G-T- as intervening authority requiring fresh analysis on remand.
• Biao Yang v. Gonzales, 496 F.3d 268, 271 (2d Cir. 2007): Supports remand when intervening precedential agency standards emerge that may change the analysis.

5. Mootness after remand

• Koudriachova v. Gonzales, 490 F.3d 255, 264 (2d Cir. 2007): Cited to justify dismissing the consolidated petition as moot once the merits petition was granted and the case was remanded—because the remand could alter the posture and remove the need to adjudicate the reopening challenge.

B. Legal Reasoning (Why the Court Remanded)

1. Nexus and protected-ground framing: race vs. a race-defined PSG

The court’s most practically important move was to insist on analytic clarity between: (a) proving persecution “on account of” race (a protected ground expressly listed in 8 U.S.C. §§ 1158(b)(1)(B)(i) and 1231(b)(3)(A), (C)), and (b) proving persecution on account of “membership in a particular social group,” which additionally requires PSG cognizability.

The IJ acknowledged that the proposed PSG was based on “immutable characteristic[] of race” and described record evidence of racialized slurs (“negro,” “negro burro”) and school discrimination centered on skin color and features. Yet the IJ effectively treated the case solely as a PSG cognizability problem and rejected the PSG for lack of “social distinction,” without addressing whether the persecutors targeted the applicant “on account of” race.

The Second Circuit flagged two compounding errors:

• Inadequate “social distinction” analysis: A conclusion that “dark skinned Ecuadorians” are not socially distinct required engagement with country evidence of race-based discrimination and violence; the IJ supplied none.
• Failure to consider the more direct protected ground: Where the record supports that the persecutors’ motive was race, the agency should consider race nexus directly—rather than forcing the claim through a PSG lens that can obscure the statutory protected ground and introduce avoidable doctrinal hurdles.

Importantly, the court also corrected a common misunderstanding: the applicant’s own self-identification is not dispositive. Under Paloka v. Holder, the nexus inquiry turns on the persecutor’s motive and perception.

2. Social distinction and the duty to address country conditions

The court treated “social distinction” as a society-facing question that must be tested against record evidence. Here, the record referenced discrimination and violence against indigenous people, “Afro-Ecuadorian[s],” and “Montubio.” The IJ’s failure to acknowledge and weigh this evidence rendered the “not socially distinct” conclusion unsupported by the “minimum level of analysis” required by Poradisova v. Gonzales and suggestive of “overlook[ing] key evidence” under Doe v. Sessions.

The remand thus reinforces a procedural rule with substantive consequences: where country conditions bear directly on a PSG element, the agency must do more than announce an outcome—it must explain how the evidence does (or does not) show societal recognition of the group as distinct.

3. “Unable or unwilling to protect”: selective reliance on country reports and intervening law

The IJ’s alternative ground—that Ecuador was not “unable or unwilling” to protect—rested largely on the presence of laws criminalizing child abuse and sexual harassment, cited from a State Department report. The Second Circuit held that this analysis was inadequate in two ways:

• Failure to confront conflicting evidence: The same report also indicated “lack of investigation of and accountability for violence against women and children” and continuing racism and discrimination against indigenous peoples and Afro-descendants. Under Castellanos-Ventura v. Garland and Tian-Yong Chen v. INS, the agency cannot cherry-pick favorable passages while ignoring contrary ones.
• Failure-to-report is not dispositive where reporting would be futile or dangerous: In light of Matter of C-G-T- and Castellanos-Ventura, the agency must consider whether reporting abuse (especially by or involving family dynamics and childhood vulnerability) would have been futile or dangerous. The court directed reconsideration under those intervening standards.

Although the IJ’s “unable or unwilling” finding could have been independently dispositive, the Second Circuit declined to deem remand futile because the IJ’s analysis was too thin and too one-sided to survive review under the governing framework.

C. Impact (Practical Effects on Future Cases)

• Encourages correct protected-ground framing: Applicants may plead a PSG defined by racial traits, but adjudicators should not lose sight of the possibility that race itself is the appropriate protected ground. This can avoid unnecessary PSG litigation where the record is fundamentally about racial targeting.
• Raises the bar for “social distinction” explanations: Bare assertions that a group is not socially distinct are vulnerable, especially where country evidence documents discrimination against relevant racial/ethnic populations.
• Constricts cherry-picking of country reports: The order reinforces that adjudicators must address conflicting portions of the same country report, not merely cite legal prohibitions as proof of effective protection.
• Integrates intervening “futile or dangerous to report” doctrine into protection analysis: Post-Matter of C-G-T- and Castellanos-Ventura, failure to report cannot be treated as a near-automatic defeat. The analysis must be contextual, including age, family dynamics, and real-world enforcement failures.
• Mootness management in consolidated immigration petitions: The disposition illustrates the court’s practice of dismissing ancillary petitions (e.g., reopening challenges) as moot when a merits remand may alter the need for separate relief.

IV. Complex Concepts Simplified

• Nexus (“on account of”): The applicant must show that a protected reason (like race) was at least one central reason for the harm. The persecutor’s motive is key.
• Particular Social Group (PSG): A protected category not specifically listed in the statute. To qualify, the group must share an immutable trait, be clearly defined, and be recognized as distinct in that society.
• Social distinction: Not “visibility” in the literal sense, but whether society generally recognizes the group as a distinct class.
• Unable or unwilling to protect: When harm is by private actors (family, classmates, coworkers), the applicant must show the government can’t or won’t provide effective protection in practice—not merely that protective laws exist on paper.
• Substantial evidence review: A deferential standard: the court upholds agency fact findings unless any reasonable adjudicator would be compelled to conclude otherwise. But even under deference, the agency must provide a reasoned explanation and address key evidence.
• Remand: The court sends the case back to the agency for further analysis consistent with the court’s instructions; it is not a grant of asylum.

V. Conclusion

Quituisaca-Quito v. Blanche underscores that immigration adjudication must match legal labels to record realities. When an applicant’s evidence describes racialized targeting, the agency must consider whether the persecution was “on account of” race—even if the claim is pleaded as a race-based PSG. The order also reiterates that meaningful review requires meaningful reasoning: IJs and the BIA must engage with material country-conditions evidence, including conflicting passages, and must apply intervening authority recognizing that failure to report harm is not dispositive where reporting would be futile or dangerous. The case’s broader significance lies less in announcing new doctrine than in enforcing disciplined analysis at two frequent failure points—PSG “social distinction” and the “unable or unwilling to protect” inquiry—through careful attention to record evidence and current law.