Failure to Report Private Violence Is Not Dispositive of “Unable or Unwilling” Persecution; Agency Must Consider Futility/Danger and, If Past Persecution Is Shown, Apply the “Fundamental Change” Rebuttal Framework

1. Introduction

In Caisaguano-Quizhpi v. Bondi (2d Cir. Jan. 5, 2026) (summary order), the Second Circuit reviewed a decision of the Board of Immigration Appeals (“BIA”) that affirmed an Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and Convention Against Torture (“CAT”) relief to a family of natives and citizens of Ecuador: Jose Hermel Caisaguano-Quizhpi, Rosa Elena Tene-Ortega, and their children.

The central factual predicate for the ethnicity-based claim was a 2009 stabbing of Jose by a group of teenagers who pursued him and shouted anti-indigenous epithets. The agency (IJ and BIA) credited that the attack was serious enough to constitute persecution and that Jose’s indigenous ethnicity was “one central reason” for the harm, but denied the claim on the ground that Jose did not report the attack to Ecuadorian authorities, which the agency treated as categorically defeating the “unable or unwilling” element when persecution is inflicted by private actors.

The Second Circuit granted the petition in part, vacated in part, and remanded, holding that the agency committed legal error by treating non-reporting as dispositive and by failing to apply the correct framework concerning past persecution and rebuttal by changed circumstances. The Court also held that petitioners abandoned their religious-persecution claim and CAT challenge.

2. Summary of the Opinion

Granted in part / vacated in part / remanded: The Court vacated the BIA’s order as to the anti-indigenous-persecution asylum claim and the related claim for statutory withholding of removal, and remanded.
Key holding (error identified): The agency erred by treating Jose’s failure to report the 2009 stabbing as categorically barring a finding of past persecution by private actors. Failure to report may be relevant, but it is not necessarily fatal where reporting would have been futile or dangerous.
Framework the agency must apply on remand: The agency must determine whether the 2009 stabbing constituted past persecution, and if it did, then analyze whether the government met its burden (by a preponderance of the evidence) to rebut the presumption of future persecution by showing a fundamental change in circumstances (or reasonable internal relocation).
Claims not reached / rejected as abandoned: Petitioners abandoned the religious-persecution asylum claim and CAT claim on appeal, and the Court did not review unexhausted theories not presented to the BIA.

3. Analysis

3.1 Precedents Cited

The Court’s reasoning is built from a chain of Second Circuit administrative-law and asylum precedents governing (i) the scope of review, (ii) issue exhaustion and abandonment, (iii) the “unable or unwilling” standard for private-actor persecution, and (iv) the regulatory presumption/rebuttal framework once past persecution is shown.

A. Scope of review and issue exhaustion

Xue Hong Yang v. U.S. Dep't of Just., 426 F.3d 520, 522 (2d Cir. 2005): The Court applied the familiar rule that it reviews the IJ’s decision “as modified by the BIA,” i.e., excluding grounds the BIA did not adopt or that are not properly before the court.
Vera Punin v. Garland, 108 F.4th 114, 123-24 (2d Cir. 2024): The Court invoked the exhaustion requirement—issues must be raised to the BIA to be preserved for judicial review. Here, the Court reviewed the IJ decision “minus” claims petitioners did not raise to the BIA (including a pattern-or-practice religious theory and CAT).

B. Standards of review

Hongsheng Leng v. Mukasey, 528 F.3d 135, 141 (2d Cir. 2008): Reiterates that the Court reviews factual findings for substantial evidence and legal conclusions de novo.
8 U.S.C. § 1252(b)(4)(B): The statutory substantial-evidence formulation: factual findings are conclusive unless a reasonable adjudicator would be compelled to conclude otherwise.

C. Elements of asylum/withholding and nexus

Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015): Cited for the baseline requirement: persecution must be “on account of” a protected ground (race, religion, nationality, membership in a particular social group, or political opinion), and the applicant carries the burden.
The panel noted the agency credited that the stabbing was severe enough to rise to persecution and that indigenous ethnicity was “one central reason,” narrowing the dispute to state attribution (unable/unwilling) and proper application of the past-persecution framework.

D. Private-actor persecution and the “unable or unwilling” standard

Singh v. Garland, 11 F.4th 106, 114 (2d Cir. 2021): The Court quoted Singh’s articulation that persecution must be attributable to the government directly or indirectly (private persons whom the government is unable or unwilling to control). Singh also frames the inquiry: whether authorities condoned the harm or showed complete helplessness to protect victims.
Scarlett v. Barr, 957 F.3d 316, 331 (2d Cir. 2020): Reinforces the “condoned” or “complete helplessness” gloss and, critically for this case, supports the panel’s rejection of the argument that the standard was illegitimately “heightened” by Matter of A-B-.
Quintanilla-Mejia v. Garland, 3 F.4th 569, 593-94 (2d Cir. 2021): Used for the limited proposition that non-reporting can weigh against an unwilling-or-unable finding (i.e., it is relevant evidence), but the panel contrasts that with the rule that non-reporting is not automatically fatal.
Castellanos-Ventura v. Garland, 118 F.4th 250, 254 (2d Cir. 2024): This is the opinion’s key doctrinal anchor: “failure to report harm is not necessarily fatal” if the applicant can show reporting would have been futile or dangerous. The panel treated the agency’s categorical approach as inconsistent with this controlling standard.

E. Past persecution presumption and rebuttal; remand for legal error

8 C.F.R. § 1208.13(b)(1)(i): Once past persecution is established, a presumption of future persecution arises; the government may rebut by showing by a preponderance of the evidence a fundamental change in circumstances or reasonable internal relocation.
Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir. 2006) and Manzur v. U.S. Dep't Homeland Sec., 494 F.3d 281, 295-96 & n.6 (2d Cir. 2007): Cited for the proposition that failure to apply the correct legal standards (and failure to conduct required analysis) constitutes legal error requiring remand.

F. Abandonment on appeal

Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005): Failure to challenge a dispositive finding is treated as abandonment. The panel applied this to the religious-persecution asylum claim.
Cuoco v. Moritsugu, 222 F.3d 99, 112 n.4 (2d Cir. 2000): A single conclusory sentence does not preserve an issue for appellate review. The panel applied this to CAT.

G. The Matter of A-B- footnote and doctrinal continuity

Petitioners argued the IJ improperly relied on a standard associated with Matter of A-B-, 27 I. & N. Dec. 316, 337-38 (A.G. 2018), later vacated by Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021). The panel rejected the implication that the “condoned/complete helplessness” formulation was invalid, emphasizing (through Scarlett v. Barr and Singh v. Garland) that this articulation is grounded in circuit precedent and remained applicable after vacatur.

3.2 Legal Reasoning

The agency’s own findings narrowed the dispute. The IJ/BIA accepted (i) severity rising to persecution and (ii) nexus (“one central reason”) to indigenous ethnicity. Thus, the pivotal issue became whether the harm could be attributed to the state under the “unable or unwilling” framework.
Non-reporting is probative, not dispositive. The panel acknowledged that a failure to report can undermine an “unable or unwilling” claim (Quintanilla-Mejia v. Garland), but held it cannot be used as a categorical bar where the applicant can show reporting would have been futile or dangerous (Castellanos-Ventura v. Garland). The agency’s reasoning—“because he failed to report, the incident categorically could not constitute past persecution”—was therefore legal error.
The agency skipped mandatory steps in the past-persecution framework. Even if the agency believed country conditions had improved, the court held it still had to determine:
- whether the 2009 stabbing was past persecution; and
- if so, whether the government rebutted the presumption of future persecution through the regulatory mechanisms and burdens set forth in 8 C.F.R. § 1208.13(b)(1)(i).
The panel’s critique is procedural and burden-focused: improvements in conditions are relevant at the rebuttal stage if (and only if) past persecution is established, and rebuttal must satisfy the “preponderance” standard.
Withholding required reconsideration because the asylum analysis was flawed. The agency denied withholding only because it has a higher burden than asylum. Because the asylum denial was legally defective, the withholding analysis must be revisited on remand.
Other claims fell out due to exhaustion and abandonment. The panel declined to review unexhausted theories and found abandonment of religious persecution (failure to challenge a dispositive finding) and CAT (insufficient briefing).

3.3 Impact

Although this is a nonprecedential summary order, it illustrates and operationalizes binding Second Circuit principles—especially Castellanos-Ventura v. Garland—in a common fact pattern: a serious private-actor attack where the victim did not report to police.

Agency adjudication: IJs and the BIA may treat non-reporting as relevant evidence, but not as an automatic bar. They must assess whether reporting would likely have been futile or dangerous in the applicant’s circumstances, and explain that assessment.
Burden discipline on remand: If past persecution is found, the government bears the rebuttal burden and must meet it by a preponderance under 8 C.F.R. § 1208.13(b)(1)(i). This opinion underscores that adjudicators cannot “jump” directly to country-condition improvements without first deciding whether the presumption attaches.
Litigation practice: The decision also warns petitioners that failure to brief issues meaningfully (CAT) or to challenge dispositive findings (religious persecution) will result in abandonment; and that failure to exhaust issues before the BIA forecloses judicial review.

4. Complex Concepts Simplified

“Unable or unwilling to control” (private-actor persecution): When the harm is inflicted by private individuals (not the police or military), the applicant must show the government effectively allowed it—e.g., by condoning it or being completely unable to provide protection. Reporting to police can help prove the point, but the law recognizes that reporting may be dangerous or pointless in some settings.
Past persecution presumption: If an applicant proves they were persecuted in the past on account of a protected ground, the law presumes they will be persecuted again if returned. This shifts the burden to the government to rebut the presumption.
“Fundamental change in circumstances” rebuttal: The government can defeat the presumption by showing (by a preponderance of the evidence) that conditions have fundamentally changed such that the applicant no longer has a well-founded fear of persecution, or that they can reasonably relocate within the country.
Exhaustion and abandonment: Exhaustion means you must first present an issue to the BIA before asking the Court of Appeals to review it. Abandonment means that if you do not adequately argue an issue in your appellate brief (or do not challenge a dispositive finding), the court will treat it as waived.
Asylum vs. withholding of removal: Withholding generally requires a higher likelihood showing than asylum. If the asylum analysis is legally flawed, the withholding denial that simply piggybacks on asylum may also need reconsideration.

5. Conclusion

Caisaguano-Quizhpi v. Bondi reinforces a practical but legally important rule in private-actor persecution cases: failure to report an attack to the police does not automatically defeat a claim. The agency must consider whether reporting would have been futile or dangerous, and if past persecution is established, it must apply the regulatory presumption and require the government to carry its rebuttal burden through the proper “fundamental change” (or relocation) analysis. The decision also highlights the procedural rigor of immigration appeals: unexhausted claims will not be reviewed, and under-briefed or unchallenged issues are deemed abandoned.