Exhaustion, Heavy-Burden Remands, and Unfulfilled Threats: The Second Circuit’s Summary Order in Reyes‑Chavarria v. Bondi

Exhaustion, Heavy-Burden Remands, and Unfulfilled Threats: The Second Circuit’s Summary Order in Reyes‑Chavarria v. Bondi

Introduction

In Reyes‑Chavarria v. Bondi, No. 24-1315 (2d Cir. Nov. 13, 2025) (summary order), a panel of the Second Circuit (Judges Jacobs, Leval, and Lohier) denied a petition for review brought by a Honduran mother and her two minor children challenging an adverse Board of Immigration Appeals (BIA) decision. The BIA had denied a motion to remand predicated on new evidence and dismissed an appeal from an Immigration Judge’s (IJ) denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection.

Although issued as a summary order without precedential effect, the decision is a concise but potent reminder of several recurring principles in immigration litigation:

  • Issue exhaustion is mandatory when the Government invokes it; arguments must “closely match” those presented to the BIA.
  • Motions to remand based on new evidence are treated like motions to reopen and carry a “heavy burden” to show the new evidence would likely change the outcome.
  • Unfulfilled threats, absent aggravating factors suggesting imminence or extreme menace, do not constitute persecution and typically cannot support an objectively reasonable fear of future persecution.
  • Ineffective assistance of counsel claims must be raised to the BIA first, ordinarily via a motion to reopen.

The petitioners premised remand on post-IJ threats allegedly made to remaining family members by gangs, arguing these developments bore on fear of future persecution and the cognizability of their particular social group (PSG). The Second Circuit affirmed the BIA’s refusal to remand because the new evidence still did not rise above “mere harassment,” and internal relocation by family members undercut the objective reasonableness of the fear.

Summary of the Opinion

The Second Circuit limited its review to the BIA’s decision denying remand because the BIA itself did not reach the IJ’s merits. Applying substantial evidence review to factual findings and de novo review to questions of law, the court:

  • Held that most of the petitioner’s merits arguments were unexhausted and/or abandoned because they were not properly raised before the BIA or in the opening brief; therefore, only the denial of remand was before the court.
  • Rejected petitioner’s attempt to have the court consider an ineffective assistance of counsel (IAC) claim that had not been presented to the agency, reiterating that IAC must be raised to the BIA first, typically via a motion to reopen.
  • Affirmed the BIA’s denial of remand, concluding there was no abuse of discretion because the “new evidence” (post-decision threats to brothers in Honduras) did not amount to persecution and did not make fear of future persecution objectively reasonable, particularly where the brothers had avoided harm by relocating within Honduras.
  • Declined to reach arguments about PSG cognizability and nexus under the principle that agencies and courts need not decide issues unnecessary to the disposition when the fear element fails.

Analysis

1) Precedents and Authorities Cited

  • Scope and Standard of Review:
    • Fen Yong Chen v. Bureau of Citizenship & Immigration Services, 470 F.3d 509, 513 (2d Cir. 2006): When the BIA denies remand and does not reach the IJ’s merits, the court reviews only the BIA’s decision.
    • Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018): Substantial evidence review for factfinding; de novo for legal questions and mixed questions.
    • 8 U.S.C. § 1252(b)(4)(B): Administrative factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise.
  • Exhaustion and Abandonment:
    • Vera Punin v. Garland, 108 F.4th 114, 124 (2d Cir. 2024): Arguments on petition must “closely match” arguments made to the BIA; otherwise unexhausted.
    • Santos‑Zacaria v. Garland, 598 U.S. 411 (2023): Exhaustion is nonjurisdictional but remains a mandatory claims-processing rule when invoked.
    • Ud Din v. Garland, 72 F.4th 411, 419–20 & n.2 (2d Cir. 2023): Mandatory exhaustion when the Government raises it.
    • Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023): Claims not adequately presented in the opening brief are deemed abandoned.
    • Prabhudial v. Holder, 780 F.3d 553, 555–56 (2d Cir. 2015): When the BIA applies its own waiver rule, appellate review is limited to whether the BIA erred in deeming the argument waived—but only if the petitioner actually challenges the waiver ruling.
  • Remand as Reopen; Heavy Burden; Prima Facie Showing:
    • Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156–58 (2d Cir. 2005): A motion to remand based on new evidence is substantively akin to a motion to reopen and carries a “heavy burden” to show the new evidence would likely change the outcome.
    • INS v. Abudu, 485 U.S. 94, 104–05 (1988): The BIA may deny reopening/remand for several reasons, including failure to present material previously unavailable evidence or failure to make a prima facie case for relief.
  • Asylum/Withholding Standards; What Counts as Persecution:
    • 8 U.S.C. § 1158(b)(1)(B)(i); § 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b): Statutory and regulatory eligibility standards for asylum and withholding, including past persecution or well-founded fear/likelihood of future persecution on account of a protected ground.
    • Mei Fun Wong v. Holder, 633 F.3d 64, 72–73 (2d Cir. 2011): Persecution is an “extreme concept” that is more than offensive treatment; severity matters.
    • Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006): Distinguishes persecution from “mere harassment.”
    • KC v. Garland, 108 F.4th 130, 135 (2d Cir. 2024): Unfulfilled threats, without aggravating factors indicating imminence or extreme menace, do not amount to past persecution.
    • Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004): Future persecution requires an objectively reasonable fear.
    • Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005): Fear must have “solid support” in the record; speculation is insufficient.
  • CAT Standards:
    • Garcia‑Aranda v. Garland, 53 F.4th 752, 758 (2d Cir. 2022): CAT requires showing both a likelihood of torture and government acquiescence.
  • Pattern or Practice:
    • 8 C.F.R. §§ 1208.13(b)(2)(iii), 1208.16(b)(2)(i): An applicant may establish a well-founded fear by showing a “pattern or practice” of persecution of persons similarly situated.
    • In re A‑M‑, 23 I. & N. Dec. 737, 741 (B.I.A. 2005): Pattern-or-practice requires systemic or pervasive persecution.
  • Nexus/PSG and Judicial Economy:
    • 8 C.F.R. § 1208.13(b)(2): Requires both an objectively reasonable fear and a nexus to a protected ground.
    • Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014): Requires a cognizable PSG and nexus.
    • INS v. Bagamasbad, 429 U.S. 24, 25 (1976): Courts and agencies need not make findings on issues unnecessary to the result.
  • Ineffective Assistance:
    • Yi Long Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007): IAC claims must be presented to the BIA in the first instance, typically via a motion to reopen.
  • Interdependence of Relief:
    • Lecaj v. Holder, 616 F.3d 111, 120 (2d Cir. 2010): Failure to meet the asylum burden typically defeats withholding and CAT given their higher standards.

2) The Court’s Legal Reasoning

a) Exhaustion and abandonment controlled the scope. The Government invoked exhaustion; the court enforced it. Petitioner failed to challenge key IJ findings at the BIA—no past persecution, no objectively reasonable fear of future persecution, and no government acquiescence for CAT. Those omissions were dispositive, and the petitioner did not even argue in her opening brief that the BIA misapplied its waiver rule. As a result, the court treated the merits arguments as unexhausted/abandoned and confined review to the denial of remand.

b) Ineffective assistance had to go to the BIA first. Although new counsel on BIA appeal differed from IJ counsel, the petitioner did not present an IAC claim to the BIA. The panel declined to consider it, noting the proper vehicle is a Lozada-compliant motion to reopen filed directly with the BIA (or raising it on direct appeal to the BIA in the first instance).

c) The remand motion fell under the reopen framework with a heavy burden. A motion to remand based on new evidence is judged by the substantive standards for reopening. The BIA could deny remand because the new evidence was not material, previously unavailable evidence that would likely change the result, or because the movant failed to establish a prima facie case for relief.

d) Applying persecution standards, the new threats were not enough. The IJ had denied relief because the petitioner did not claim past persecution and failed to establish a well-founded fear, especially given that only one brother (a former gang member) had been murdered, while other siblings remained unharmed. The “new” evidence proffered on remand showed that those remaining brothers received threats after the IJ’s decision but suffered no physical harm and mitigated risk by relocating. Under KC v. Garland and related precedent:

  • Unfulfilled threats, without aggravating factors signaling imminent or extreme menace, are “mere harassment,” not persecution.
  • The post-decision threats did not convert the case into one involving past persecution nor did they make fear of future persecution objectively reasonable.
  • The fact that similarly situated family members relocated within Honduras and remained unharmed further undermined the objective reasonableness of the fear.

e) Pattern-or-practice and PSG arguments could not salvage the motion. The court found the pattern-or-practice assertion inadequately preserved and, in any event, unavailing because the evidentiary threshold for systemic or pervasive persecution was not met. Likewise, arguments about PSG cognizability were immaterial once the fear element failed; Bagamasbad permitted the BIA and the court to stop there.

3) Impact and Practical Implications

While nonprecedential, Reyes‑Chavarria reinforces several durable lessons for immigration litigants in the Second Circuit:

  • Exhaustion discipline is exacting.
    • Brief the BIA as though you are briefing the court. Each theory (past persecution, future fear, nexus, CAT acquiescence, pattern-or-practice, PSG cognizability) should be distinctly presented to the BIA.
    • On petition for review, arguments must “closely match” those made to the BIA. New gloss or reframing risks forfeiture.
  • Choose the right vehicle for IAC.
    • IAC claims belong first at the BIA via a motion to reopen that complies with Matter of Lozada’s requirements (affidavit, notice to counsel, ethics complaint or explanation).
    • Attempting to wedge IAC into a petition for review, particularly in a reply brief, will nearly always fail.
  • Remand on “new evidence” demands more than updated narratives of threats.
    • Absent aggravating factors, unfulfilled threats do not cross the persecution threshold.
    • Evidence that close relatives remain unharmed after relocating will often defeat the objective reasonableness of fear unless you can show relocation is unreasonable or unsafe for the applicant.
    • To meet the “heavy burden,” think in terms of materiality plus outcome determinativeness: show how the new evidence fills a dispositive gap the agency identified.
  • Pattern-or-practice claims require systemic proof.
    • One-off tragedies—even severe ones—do not alone prove systemic or pervasive persecution of a group.
    • Use country reports, NGO documentation, expert affidavits, and statistical patterns to show that similarly situated people face widespread harm rising to persecution.
  • Litigation sequencing matters.
    • If you cannot establish the objective fear element, the agency may decline to reach PSG cognizability or nexus, foreclosing those doctrinal developments in your case.

Complex Concepts Simplified

  • Issue exhaustion: You must present your legal and factual arguments to the BIA before raising them in the court of appeals. If the Government invokes exhaustion and your court arguments don’t closely match your BIA arguments, the court will not consider them.
  • Abandonment on appeal: Arguments not made in the opening brief to the court are treated as abandoned and will not be considered.
  • Motion to remand vs. motion to reopen: A motion to remand (while an appeal is pending before the BIA) and a motion to reopen (filed after a final BIA decision) are different procedurally, but when based on new evidence they share the same high substantive requirements: previously unavailable, material evidence that likely changes the outcome.
  • “Heavy burden” for remand/reopen: It is not enough that new evidence is relevant; it must be so probative that it would probably alter the agency’s decision.
  • Persecution vs. harassment: Persecution is an “extreme concept,” covering severe harms (including some non-life-threatening violence), while lesser harms and unfulfilled threats typically count as harassment unless there are aggravating factors indicating imminence or extreme menace.
  • Objectively reasonable fear: A future-persecution claim must be supported by concrete, non-speculative evidence that a reasonable person in the applicant’s situation would fear persecution. Internal relocation by similarly situated family members can undermine this showing unless relocation is unsafe or unreasonable.
  • Pattern or practice: A substitute path to proving future fear by showing the government or forces the government cannot or will not control are persecuting a group in a systemic or pervasive way that places the applicant at risk as a member of that group.
  • CAT “acquiescence”: For CAT, applicants must show not only a likelihood of torture but also that public officials would consent or acquiesce (including through willful blindness) to the torture. Failure to argue this to the BIA typically forecloses it on petition for review.
  • Bagamasbad principle: Agencies and courts need not decide issues that are unnecessary to resolve the case; if an applicant cannot establish a fear of persecution, the tribunal may decline to reach PSG or nexus.

Conclusion

Reyes‑Chavarria v. Bondi underscores enduring Second Circuit doctrines in removal defense: scrupulous issue exhaustion, the necessity of presenting IAC claims to the BIA first, and the stringent standard for remands based on post-hearing evidence. On the merits proxy addressed here—whether new threats to family members warranted remand—the panel concluded that unfulfilled threats, without aggravating factors, remain insufficient to establish persecution or render fear objectively reasonable, particularly where internal relocation has effectively mitigated risk.

For practitioners, the case is a practical guidepost: preserve every dispositive theory at the BIA; when seeking remand, marshal truly outcome-determinative evidence that crosses the persecution threshold or establishes objective fear notwithstanding internal relocation; and route IAC through a Lozada-compliant motion to reopen. Though nonprecedential, this summary order aligns with and reinforces the Second Circuit’s settled approach to exhaustion, remand standards, and the evidentiary showing required when persecution is predicated on threats.

Key Takeaways

  • Only the denial of remand was properly before the court because petitioner did not exhaust challenges to past persecution, future fear, or CAT acquiescence findings.
  • IAC must be raised to the BIA first; the proper mechanism is a motion to reopen.
  • Remand based on new evidence requires a heavy showing that the new material would likely alter the result; mere threats without aggravating factors rarely suffice.
  • Internal relocation that demonstrably mitigates risk undercuts the objective reasonableness of fear.
  • Absent an objectively reasonable fear, courts need not reach PSG or nexus issues.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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