Aguilar-Morales v. Bondi: Second Circuit Reaffirms Waivability of NTA Time-and-Place Defects and Demands a Non-Incidental Nexus for Family and Imputed-Political-Opinion Claims

Court: U.S. Court of Appeals for the Second Circuit

Date: September 22, 2025

Disposition: Petition for review denied (Summary Order; nonprecedential)

Panel: Chief Judge Debra Ann Livingston; Circuit Judges Jon O. Newman and Eunice C. Lee

Docket: No. 23-7498; from BIA affirming IJ (Drucker, IJ), A-numbers A220 585 464/465; A220 322 353

Introduction

In Aguilar-Morales v. Bondi, the Second Circuit denied a petition for review by three Salvadoran nationals—Melvin A. Aguilar-Morales, Alicia Flores de Aguilar, and their son—challenging the denial of asylum, withholding of removal, and Convention Against Torture (CAT) relief. The case centers on two key legal issues: (1) whether a defective Notice to Appear (NTA) that omitted hearing information deprived the immigration court of jurisdiction or otherwise warranted termination, and (2) whether threats and extortion by gang members, aimed at locating and recruiting a family member, satisfy the statutory nexus requirement for asylum and withholding based on family membership or imputed political opinion.

The Court held that the NTA challenge was unexhausted and in any event untenable in light of Second Circuit and BIA precedent treating time-and-place omissions as waivable claim-processing defects. On the merits of the protection claims, the Court concluded that the petitioners failed to demonstrate the necessary nexus between a protected ground—family membership or imputed political opinion—and the harm feared, where the gang’s actions were undertaken as a means to locate and recruit a nephew.

Notably, the Court also deemed the CAT claim abandoned for failure to brief it, and cautioned counsel regarding Federal Rule of Appellate Procedure 28 deficiencies, signaling the importance of rigorous appellate practice in immigration cases.

Summary of the Opinion

  • NTA challenge rejected as unexhausted and meritless: The petitioners did not raise before the IJ or BIA the argument that an NTA lacking time-and-place did not vest jurisdiction. Under 8 U.S.C. § 1252(d)(1) and Ud Din v. Garland (72 F.4th 411), failure to exhaust is mandatory when properly invoked by the government. Even if reached, the challenge fails: only Flores de Aguilar’s NTA omitted hearing information, which was later supplied by a hearing notice (curing any concern under Chery v. Garland, 16 F.4th 980); and any claim-processing defect was waived by not objecting before the close of pleadings (Penaranda Arevalo v. Bondi, 130 F.4th 325; In re Fernandes, 28 I. & N. Dec. 605).
  • Asylum and withholding denied for lack of nexus: Applying the “one central reason” standard to both forms of relief (Quituizaca v. Garland, 52 F.4th 103), the Court held substantial evidence supported the agency’s determination that gang threats and extortion were aimed at locating Flores de Aguilar’s nephew—i.e., a means to an end—rather than motivated by animus toward the petitioners’ family status (Garcia-Aranda v. Garland, 53 F.4th 752).
  • Imputed political opinion claim fails: The record lacked evidence that the gang imputed to the petitioners an anti-gang political opinion or perceived them as political actors (Zelaya-Moreno v. Wilkinson, 989 F.3d 190).
  • Unwilling-or-unable prong and CAT not reached: Because nexus was dispositive, the Court did not reach whether Salvadoran authorities were unwilling or unable to protect (INS v. Bagamasbad, 429 U.S. 24). The CAT claim was abandoned because it was not argued on appeal (Debique v. Garland, 58 F.4th 676).
  • Appellate practice admonition: The Court noted noncompliance with Federal Rule of Appellate Procedure 28 (missing record citations and pin cites; conclusory briefing), cautioning that future deficiencies may result in dismissal and possible disciplinary consequences.

Analysis

Precedents Cited and Their Influence

  • 8 U.S.C. § 1252(d)(1) and Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023): The statute requires exhaustion of administrative remedies. Ud Din confirms the exhaustion rule is “mandatory” if the government invokes it. Here, the government did, so the NTA-jurisdiction argument was barred.
  • Chery v. Garland, 16 F.4th 980 (2d Cir. 2021): In the Second Circuit, omission of hearing time/place in an NTA does not deprive the immigration court of jurisdiction. Subsequent service of a hearing notice cures the informational gap. The Court applied Chery to hold that Flores de Aguilar’s later hearing notice resolved any jurisdictional concern.
  • Penaranda Arevalo v. Bondi, 130 F.4th 325 (2d Cir. 2025), and In re Fernandes, 28 I. & N. Dec. 605 (BIA 2022): These authorities treat time-and-place omissions as claim-processing defects that must be raised before the close of pleadings. Failure to object timely constitutes forfeiture. The panel relied on these to reject the NTA challenge even if it had been exhausted.
  • Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022): Clarifies that the “one central reason” causation standard applies to both asylum and withholding. This unified standard imposed the same nexus burden on both claims here.
  • Garcia-Aranda v. Garland, 53 F.4th 752 (2d Cir. 2022): Holds that where a persecutor targets someone as a means to an end—e.g., to find another person—family membership is not necessarily a central reason for the harm. The panel used Garcia-Aranda to reject the argument that threats to locate a nephew were persecution on account of family membership.
  • Zelaya-Moreno v. Wilkinson, 989 F.3d 190 (2d Cir. 2021): Opposition to criminal gangs is not inherently political. For imputed political opinion, there must be evidence the persecutor perceived the applicant’s beliefs/actions as politically motivated. The petitioners’ record lacked such evidence.
  • Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Claims not adequately briefed are abandoned. Applied here to the CAT claim.
  • INS v. Bagamasbad, 429 U.S. 24 (1976): Agencies and courts need not reach issues unnecessary to the result. With nexus dispositive, the Court declined to address the “unwilling or unable to protect” element.
  • Reid v. Bondi, 132 F.4th 109 (2d Cir. 2024), and Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): On review structure, the court examines the IJ decision as modified/supplemented by the BIA and considers only the grounds the BIA relied upon.
  • Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009); 8 U.S.C. § 1252(b)(4)(B): Factual findings are reviewed for substantial evidence (conclusive unless any reasonable adjudicator would be compelled to conclude otherwise); legal questions are reviewed de novo. The panel applied this framework to uphold the nexus finding.

Legal Reasoning

1) NTA Defect: Exhaustion and Waiver

The petitioners argued the immigration court lacked jurisdiction because one NTA omitted hearing information. The Court first held the argument was unexhausted since it was not presented to the IJ or BIA, invoking § 1252(d)(1) and Ud Din’s directive to enforce exhaustion when raised by the government.

On the merits, the Court noted that only Flores de Aguilar’s NTA lacked hearing information. Under Chery, a later hearing notice supplies the missing information and cures any jurisdictional concern; in any event, time-and-place omissions are claim-processing, not jurisdictional, and must be objected to before the close of pleadings. Citing Penaranda Arevalo and In re Fernandes, the Court held that failure to timely object waived the claim-processing defect.

2) Asylum and Withholding: Nexus and Protected Grounds

The core issue was whether the gang’s threats, harassment, and extortion were “on account of” a protected ground—here, either the petitioners’ family membership or an imputed anti-gang political opinion—and whether that ground was at least “one central reason” for the harm (Quituizaca; 8 U.S.C. § 1158(b)(1)(B)(i)).

The Court agreed with the agency that the gang targeted the petitioners to locate and recruit Flores de Aguilar’s nephew. Under Garcia-Aranda, when the persecutor’s motive is instrumental—to reach someone else—family ties are a means to an end and do not, without more, establish that family membership is a central reason for the harm. The petitioners did not provide evidence of animus toward their family qua family, nor other indicators showing family status was more than incidental or tangential.

3) Imputed Political Opinion: Perception of Political Stance

The petitioners also asserted imputed political opinion. Zelaya-Moreno requires evidence that the persecutor perceived the applicant as holding a political opinion, not merely refusing to cooperate with criminals. The record here contained no statements or conduct showing the gang attributed anti-gang political beliefs to the petitioners; instead, the gang sought to find and recruit the nephew. The imputed political opinion theory therefore failed.

4) Dispositive Nexus; Other Issues Not Reached

With nexus lacking, the Court declined to address whether the Salvadoran authorities were unwilling or unable to protect the petitioners (Bagamasbad). It also deemed the CAT claim abandoned for lack of briefing (Debique) and warned counsel regarding Rule 28 compliance.

Impact and Practical Implications

  • NTA litigation in the Second Circuit: Aguilar-Morales reinforces that time-and-place omissions in NTAs are non-jurisdictional, waivable claim-processing defects. Practitioners must object before the close of pleadings or forfeit the issue. A subsequent hearing notice cures any jurisdictional concern under Chery.
  • Nexus in gang-related cases: The decision underscores the stringent nexus requirement for family-based claims. Where the persecutor’s motive is instrumental (e.g., to locate or recruit a relative), family membership is unlikely to be “one central reason” absent evidence of hostility toward the family itself. This pushes practitioners to develop direct evidence of motive—persecutor statements, patterns of harm directed at the family independent of the instrumental goal, or country-condition evidence showing families targeted as such.
  • Imputed political opinion: Refusal to cooperate with gangs or general opposition to criminality does not, without more, establish an imputed political opinion. Evidence must show the persecutor perceived (or would perceive) a political stance—e.g., association with anti-gang political movements, public denunciations understood as political, cooperation with state anti-gang initiatives perceived as political, or threats referencing supposed political affiliations.
  • Appellate practice standards: The Court’s admonition on Rule 28 signals heightened scrutiny of briefing quality. Immigration practitioners should ensure full record citations, precise pin cites, and fully developed arguments to avoid forfeiture, abandonment, or sanctions.
  • Scope of review: The panel’s reliance on Reid and Yan Chen reiterates that the Second Circuit reviews the IJ’s decision as modified/supplemented by the BIA and only on grounds embraced by the BIA. Strategically, appellants should tailor arguments to the BIA’s reasoning and preserve issues at every stage.

Complex Concepts Simplified

  • Exhaustion (8 U.S.C. § 1252(d)(1)): You must first raise your arguments with the IJ and the BIA before asking the Court of Appeals to review them. If you don’t, the court generally cannot consider them.
  • Claim-processing rules vs. jurisdiction: A jurisdictional rule limits a court’s power and cannot be waived. A claim-processing rule regulates procedure and can be waived if not timely invoked. In the Second Circuit, time/place defects in NTAs are claim-processing, not jurisdictional.
  • Close of pleadings: The point in immigration proceedings—typically during master calendar hearings—when charges are conceded/contested and applications identified. Objections to claim-processing defects must be raised by then.
  • Nexus and “one central reason”: To win asylum or withholding, the protected ground (e.g., family membership, political opinion) must be one central reason for the harm. If the harm is for a different main reason (like finding someone else), nexus fails.
  • Particular Social Group (PSG) — family: Family is often a cognizable PSG. But recognition of the group is not enough; you must still prove the persecutor targeted you because of that family relationship.
  • Imputed political opinion: Even if you don’t hold a political opinion, if the persecutor thinks you do and harms you because of it, that can satisfy the political-opinion ground. Evidence must show the persecutor’s perception was political, not just criminal or personal.
  • Substantial evidence review: The court defers to the agency’s factual findings unless no reasonable adjudicator could agree with them. It is a highly deferential standard.
  • “Unable or unwilling to protect”: For persecution by non-state actors (like gangs), you must show that your home government cannot or will not protect you. The Court did not reach this here because nexus failed first.
  • Abandonment on appeal: If you don’t make developed legal and factual arguments for a claim in your brief, the court treats the claim as abandoned.

Practice Pointers

  • Preserve NTA objections early: If an NTA lacks time/place, object on the record before the close of pleadings. Don’t rely on jurisdictional theories; frame it under claim-processing and timeliness doctrines.
  • Develop evidence of persecutor motive: Gather statements, threats, or patterns indicating the persecutor targeted the family as a family, not merely to reach someone else. Consider expert testimony and country reports documenting family-based targeting.
  • Bolster imputed political opinion claims: Document how your actions were perceived as political (e.g., public reporting of gang activity, collaboration with anti-gang political actors, threats referencing political labels).
  • Address all elements and all relief: Brief asylum, withholding, and CAT distinctly. Don’t assume success on one moots the others; failure to brief CAT risks abandonment.
  • Comply with FRAP 28 rigorously: Include record citations and pin cites; avoid conclusory arguments. Anticipate and address the BIA’s specific reasoning, as the court reviews the IJ’s decision only as modified/supplemented by the BIA.

Conclusion

Aguilar-Morales v. Bondi, although a nonprecedential summary order, provides a clear reaffirmation of two pivotal principles in Second Circuit immigration jurisprudence. First, NTA time-and-place defects are waivable claim-processing rules requiring timely objection before the close of pleadings; a subsequent hearing notice cures any jurisdictional concern (Chery; Penaranda Arevalo; In re Fernandes). Second, the nexus requirement remains stringent: targeting a family as a means to locate or influence another individual does not ordinarily establish persecution “on account of” family membership, and imputed political opinion requires evidence that the persecutor actually perceived a political stance (Garcia-Aranda; Zelaya-Moreno; Quituizaca).

The case also illustrates the court’s unwillingness to reach non-dispositive issues (Bagamasbad), its strict enforcement of abandonment rules (Debique), and its expectations for precise, well-supported appellate briefing. For practitioners, the message is direct: preserve procedural objections early, build a robust record of persecutor motive, distinctly brief all forms of relief, and comply meticulously with appellate rules. Doing so will be essential to overcome the deferential substantial-evidence standard and the tightened causation requirements governing protection claims in the gang-violence context.