Dispositive-Finding Waiver and Mandatory Issue Exhaustion in Second Circuit Immigration Petitions; Ineffective-Assistance Remedy via Lozada Motion to Reopen

1. Introduction

In Chicaiza-Lluay v. Bondi (2d Cir. Feb. 9, 2026) (summary order), petitioners Wuilme Patricio Chicaiza-Lluay and his minor child—natives and citizens of Ecuador—sought review of a Board of Immigration Appeals (“BIA”) decision affirming an Immigration Judge (“IJ”) denial of asylum, withholding of removal, and Convention Against Torture (“CAT”) protection.

The case arose from Chicaiza-Lluay’s account that he was victimized by a scam involving a car sold to two buyers, and that he was physically assaulted by the scam’s perpetrator. The agency concluded that—given the police response and the petitioner’s failure to report the assault—he did not establish the government was unable or unwilling to protect him, and separately that he did not establish a likelihood of torture for CAT purposes.

The Second Circuit denied the petition primarily on procedural grounds: the petitioner’s failure to challenge dispositive agency findings before the BIA (waiver/unexhaustion) and again in the court of appeals (abandonment). In a notable footnote, the panel directed that a copy of the order be sent to the Court’s Grievance Panel due to counsel’s briefing failures and reiterated the framework for pursuing ineffective assistance of counsel via a motion to reopen.

2. Summary of the Opinion

• Asylum/Withholding: The BIA denied relief because the petitioner did not challenge a dispositive IJ finding: that he failed to show persecution attributable to the government (i.e., no showing the government was unable or unwilling to control the private actor). The Second Circuit held that the petitioner did not challenge the BIA’s waiver ruling in the court of appeals and therefore abandoned the claim. The court also held the issue was unexhausted because it was not raised to the BIA.
• CAT: The IJ found the petitioner failed to show it was “more likely than not” he would be tortured if returned to Ecuador. On petition for review, the petitioner did not address that dispositive likelihood finding; the Second Circuit deemed any challenge abandoned and denied relief without reaching government acquiescence.
• Practice note (footnote): The panel flagged counsel’s briefing as abandoning dispositive issues and argued an incorrect standard for withholding nexus already rejected in-circuit. The court noted petitioners may pursue a motion to reopen based on ineffective assistance, referenced equitable tolling principles, and reiterated compliance requirements under Matter of Lozada.

3. Analysis

3.1 Precedents Cited

Scope and Standard of Review

• Xue Hong Yang v. U.S. Dep't of Just., 426 F.3d 520, 522 (2d Cir. 2005) and Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005): The court reiterated its methodology for reviewing the IJ’s decision “as modified and supplemented by the BIA,” i.e., excluding grounds the BIA did not reach while incorporating the BIA’s dispositive determinations (here, waiver).
• KC v. Garland, 108 F.4th 130, 134 (2d Cir. 2024): Reaffirmed the split standard—de novo for legal questions and applications of law to fact, and “substantial evidence” for factual findings—framed by 8 U.S.C. § 1252(b)(4)(B)’s deference to administrative factfinding.

Nexus and Withholding Standard

• Quituizaca v. Garland, 52 F.4th 103, 105-06, 109-14 (2d Cir. 2022): Central to the footnote admonition, Quituizaca holds the “one central reason” nexus requirement applies to both asylum and withholding of removal. The panel cited it to underscore that counsel’s contrary argument is foreclosed.
• Acero-Guaman v. Garland, No. 21-6606, 2024 WL 1734054, at *1 (2d Cir. Apr. 23, 2024) (summary order): Cited as an example where the court had already rejected the same argument by the same attorney, reinforcing that the error was not novel.

Persecution by Private Actors: “Unable or Unwilling”

• Singh v. Garland, 11 F.4th 106, 114 (2d Cir. 2021) (quoting Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020)): The order relies on this line to restate the rule that persecution must be attributable to the government—directly or indirectly— including where private harm occurs and the government is “unable or unwilling to control” the perpetrators.
• Scarlett v. Barr, 957 F.3d 316, 331 (2d Cir. 2020): The panel used Scarlett to emphasize that the standard requires more than the government’s failure to solve a single crime or generalized difficulty controlling private conduct. Here, evidence that police investigated and prosecuted the scammer (albeit for another incident), plus petitioner’s failure to report the assault, supported the IJ’s conclusion that the state was not unable or unwilling to protect.

Waiver, Abandonment, and Issue Exhaustion

• Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023): Provided the operative appellate principle: arguments not adequately presented in the petitioner’s brief are treated as abandoned. The panel applied this to asylum/withholding (failure to challenge the BIA’s waiver holding) and to CAT (failure to challenge likelihood-of-torture).
• Prabhudial v. Holder, 780 F.3d 553, 555-56 (2d Cir. 2015): Clarified that when the BIA applies its own waiver rule, the court’s review is limited to whether the BIA erred in finding waiver. Because the petitioner did not contest the waiver determination, the court effectively had no merits issue to reach.
• Ud Din v. Garland, 72 F.4th 411, 419-20 & n.2 (2d Cir. 2023): Reiterated that issue exhaustion is mandatory when the Government invokes it. The panel used this to independently bar review of the “unable-or-unwilling” issue not raised to the BIA.
• Vera Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024): Explained the “close match” requirement: an argument to the court must be closely matched to a specific argument made to the BIA, or it is unexhausted. The panel invoked this to confirm it “cannot hear” the unexhausted contention.
• INS v. Bagamasbad, 429 U.S. 24, 25 (1976): Supported the court’s repeated point that agencies and courts need not make findings on issues unnecessary to the result. Once the inability/unwillingness finding (asylum/withholding) and likelihood-of-torture finding (CAT) were dispositive, other issues could be skipped.

CAT: Acquiescence and Willful Blindness

• Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004): The court cited Khouzam for the standard that torture under CAT can be established where officials “know of or remain willfully blind” and then breach their duty to prevent it—mirroring 8 C.F.R. § 1208.18(a)(7)’s awareness-plus-breach definition of acquiescence. Although the court did not reach acquiescence (because likelihood of torture was not challenged), the citation frames the applicable test.

Ineffective Assistance, Equitable Tolling, and Lozada

• Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d Cir. 2008): Cited for the proposition that ineffective assistance can justify equitable tolling of the 90-day motion-to-reopen deadline, and for the two-part tolling showing: (1) ineffective performance impinging fundamental fairness; and (2) petitioner’s due diligence.
• Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988): Identified as the procedural framework requiring substantial compliance when asserting ineffective assistance in immigration proceedings.
• Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005): Quoted for the specific Lozada components: affidavit of agreement and counsel’s actions/inactions; notice to prior counsel and chance to respond; and a disciplinary complaint (or explanation for not filing one).

3.2 Legal Reasoning

1. Dispositive factual/legal prerequisite for asylum and withholding: The order underscores that when harm is inflicted by a private actor, an applicant must connect it to the state by showing either government involvement or that officials are “unable or unwilling” to control the private actor. The IJ’s findings (police investigated; perpetrator prosecuted for a similar scam; investigation ongoing; assault not reported) supported the conclusion that the state response did not amount to inability or unwillingness.
2. BIA waiver as a gatekeeper: The BIA denied asylum/withholding because the petitioner did not challenge the dispositive “unable-or-unwilling” finding on appeal. The Second Circuit treated that as controlling absent a developed argument that the BIA misapplied its waiver rule.
3. Exhaustion as an independent bar: Even aside from waiver/abandonment, the court treated the “unable-or-unwilling” issue as unexhausted because it was not raised to the BIA, and held that it could not be reached once the Government invoked mandatory exhaustion.
4. CAT denial based on unchallenged likelihood-of-torture finding: The court treated the IJ’s “more likely than not” likelihood determination as dispositive and deemed it abandoned on appeal because the petitioner’s brief did not address it—eliminating any need to decide acquiescence/willful blindness.
5. Professional responsibility signal: The footnote is integral to the decision’s practical message: failing to contest dispositive findings and litigating irrelevant issues can forfeit judicial review and may trigger disciplinary scrutiny; the remedy may shift from petition-for-review litigation to a motion to reopen based on ineffective assistance under Lozada, potentially with equitable tolling under Rashid.

3.3 Impact

• On future petitions for review: Although expressly nonprecedential, the order reinforces a predictable Second Circuit pattern: dispositive administrative findings must be challenged at the BIA and then meaningfully briefed in the court of appeals, or review will be barred by waiver, abandonment, and/or exhaustion.
• On private-actor persecution claims: The order illustrates how evidence of some police activity (investigation/prosecution) and a failure to report key events can defeat the “unable or unwilling” showing, especially under Scarlett’s admonition that the standard requires more than disappointment with outcomes.
• On CAT litigation strategy: The order emphasizes that petitioners must directly engage the “more likely than not” probability finding; otherwise, CAT claims fail without any need to address acquiescence.
• On immigration appellate advocacy and discipline: The referral to the Grievance Panel signals heightened sensitivity to repetitive, foreclosed arguments (e.g., withholding nexus after Quituizaca) and to briefing that ignores dispositive grounds. Practically, it encourages counsel and petitioners to consider whether the proper path is a carefully supported motion to reopen alleging ineffective assistance, rather than an underdeveloped petition for review.

4. Complex Concepts Simplified

“Unable or unwilling to control” (private-actor persecution)

If a private person harms you, asylum/withholding usually requires showing the government either participated in the harm or cannot/will not protect you. Evidence that police investigated, prosecuted, or were otherwise responsive can undermine this element. Not reporting an assault can also make it harder to prove the government would not protect you.

Waiver (before the BIA)

If you do not contest a key IJ finding in your BIA appeal, the BIA may treat it as conceded/waived and deny relief on that basis. A later court appeal typically cannot revive the issue.

Issue exhaustion

You generally must raise specific arguments to the BIA before presenting them to the court of appeals. If the Government invokes exhaustion, the court will not decide unexhausted issues.

Abandonment (in the court of appeals)

Even if an issue was preserved below, you must actually brief it in the court of appeals. If your brief does not meaningfully address it, the court treats the issue as abandoned.

CAT “more likely than not” and “acquiescence”

CAT requires showing a greater-than-50% chance of torture if returned, and that officials would inflict it or knowingly allow it (including willful blindness) and then fail to intervene. If you cannot show the probability of torture, the court need not consider acquiescence.

Motion to reopen for ineffective assistance (Lozada)

If counsel’s errors likely affected fairness, a petitioner may ask the BIA to reopen proceedings. The claim typically must include: a detailed affidavit about the agreement and what counsel did; proof prior counsel was notified and could respond; and a bar complaint (or an explanation). If the motion is late, equitable tolling may apply if the petitioner acted diligently and counsel’s failures were sufficiently serious.

5. Conclusion

Chicaiza-Lluay v. Bondi is a procedural warning in immigration appellate practice: when the agency denies relief on dispositive grounds, the petitioner must challenge those specific grounds—first to the BIA (to satisfy exhaustion and avoid BIA waiver) and then in the court of appeals (to avoid abandonment). Substantively, the order reflects the Second Circuit’s continued insistence that private-actor harm qualifies as persecution only with a supported showing of government involvement or inability/unwillingness to protect, and that CAT relief requires focused briefing on the likelihood of torture. Finally, the decision highlights that when briefing failures foreclose review, the more appropriate remedy may be a Lozada-compliant motion to reopen grounded in ineffective assistance, potentially with equitable tolling under Rashid.