Introduction

This commentary examines the Second Circuit’s summary order in Masaquiza‑Masaquiza v. Bondi, No. 23‑7743 (2d Cir. Sept. 30, 2025), denying a petition for review from a Board of Immigration Appeals (BIA) decision that affirmed an Immigration Judge’s (IJ’s) denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection. The petitioners are a family of four—two parents and two minor children—natives and citizens of Ecuador. The lead applicant, Ignacio Jose Masaquiza‑Masaquiza, alleged abuse by former co‑workers, purportedly on account of his indigenous identity. His spouse and children’s claims were derivative of his.

The core issues before the court were:

• Whether persecution by private actors satisfied the “unable or unwilling to protect” requirement for asylum and withholding where the abuse was never reported to police and no concrete evidence showed reporting would have been futile or dangerous.
• Whether CAT protection could be granted without proof of government involvement, consent, or acquiescence, and whether an “unable or unwilling to protect” standard applies in the CAT context.
• Whether the petitioners’ appellate briefing complied with Federal Rule of Appellate Procedure 28, given sparse record citations and inaccuracies.

Ultimately, the court denied the petition, reaffirming distinct evidentiary burdens for private‑actor persecution and CAT claims, and admonished counsel for briefing deficiencies, forwarding the matter to the court’s Grievance Panel.

Summary of the Opinion

The Second Circuit (Judges Cabranes, Merriam, and Kahn) reviewed the IJ’s decision as modified and supplemented by the BIA, applying substantial evidence review to factfinding and de novo review to legal questions. The court assumed—favorably to the petitioners—that the abuse was severe enough to constitute persecution and that the requisite nexus to a protected ground (race/indigenous identity) was established. However, it held that the record did not satisfy the separate requirement that the harm was inflicted by the government or by private actors whom the government was “unable or unwilling to control.”

Because the applicant never reported the private harm to the police, he needed to show with evidence that reporting would have been futile or dangerous. The court found no such evidence. To the contrary, country conditions materials described equal civil and political rights for indigenous Ecuadorians and did not show that police refused to respond to racially motivated violence. Accordingly, the asylum and withholding claims failed.

For CAT, the court emphasized that torture must be by, at the instigation of, or with the consent or acquiescence of a public official. The petitioner offered no evidence that officials were aware of, or willfully blind to, the harm and then breached a legal duty to intervene. The court rejected the argument that CAT should employ the asylum/withholding “unable or unwilling to protect” standard, pointing instead to the CAT regulations and Second Circuit precedent requiring official acquiescence.

Finally, the panel noted significant briefing defects: inadequate record citation, incorrect statements (including that the family sought police help and was “savagely beaten multiple times”), and mischaracterizations (e.g., suggesting timeliness denials where none existed). The court denied all pending motions, vacated stays, and referred counsel to the Grievance Panel.

Analysis

Precedents and Authorities Cited

• Standards of Review and Scope
  • Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005) and Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005): The court reviews the IJ’s decision as modified or supplemented by the BIA.
  • Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018): Substantial evidence review for factfinding; de novo review for legal questions and mixed questions.
  • 8 U.S.C. § 1252(b)(4)(B): Administrative factual findings are conclusive unless a reasonable adjudicator would be compelled to conclude to the contrary.
• Asylum/Withholding Standards
  • 8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b): Burdens for asylum and withholding, including the “one central reason” nexus requirement.
  • Quituizaca v. Garland, 52 F.4th 103, 109–14 (2d Cir. 2022): Confirms the “one central reason” standard applies to withholding of removal.
  • Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (quoting Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015)): Private‑actor persecution requires proof the government is “unable or unwilling to control” the persecutors.
  • Jagdeep Singh v. Garland, 11 F.4th 106, 114–15 (2d Cir. 2021): Elaborates the “unwilling-or-unable” standard—authorities must have condoned the harm or be completely helpless.
  • Matter of C‑G‑T‑, 28 I. & N. Dec. 740, 743 (B.I.A. 2023): Failure to report is not necessarily fatal if the applicant demonstrates that reporting would have been futile or dangerous.
  • Pan v. Holder, 777 F.3d 540, 544–45 (2d Cir. 2015): Reminds adjudicators to engage evidence showing police unwillingness, rather than rely on failure to report alone.
• CAT Framework
  • 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1), (a)(7): CAT requires a showing that torture is more likely than not and must involve official action or acquiescence; acquiescence requires prior awareness and breach of duty to intervene.
  • Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004): Acquiescence entails knowledge or willful blindness by officials and failure to prevent torture.
  • Quintanilla‑Mejia v. Garland, 3 F.4th 569, 593 (2d Cir. 2021): Failure to seek police help is not dispositive against acquiescence, but other evidence must show official awareness and breach.
  • Scarlett, 957 F.3d at 336: Leaves to the BIA how, if at all, the “unable” prong might translate to CAT—but the governing CAT regulations still require official acquiescence.
• Additional Citations Noting the “One Central Reason” Standard for Withholding
  • Chamba‑Alvarez v. Garland, No. 21‑6072, 2023 WL 6439401, at *1 n.1 (2d Cir. Oct. 3, 2023) (summary order).
  • Acero‑Guaman v. Garland, No. 21‑6606, 2024 WL 1734054, at *1 (2d Cir. Apr. 23, 2024) (summary order).

Legal Reasoning

1) Asylum and Withholding of Removal (Private‑Actor Harm)

The court accepted or assumed two critical elements: that the harm rose to the level of persecution and that it was on account of a protected characteristic (race/indigenous identity). The petition nevertheless failed because the record did not show the Ecuadorian government was unable or unwilling to control the private perpetrators (former co‑workers). The applicant never reported the abuse to the police, which is not dispositive in itself, but he also failed to supply evidence making reporting futile or dangerous. The panel stressed that conclusory assertions (e.g., “police are corrupt or scared”) do not suffice; applicants must tether claims to evidence (such as specific incidents, patterns of police non‑response, or corroborating country reports). Here, the country materials suggested equal civil and political rights for indigenous people and did not show police refusal to address racially motivated violence. Substantial evidence thus supported the agency’s conclusion that the “unable or unwilling” element was not met.

2) CAT Protection (Official Acquiescence Required)

CAT imposes a distinct requirement: the feared torture must be by, at the instigation of, or with the consent or acquiescence of a public official acting in an official capacity. Acquiescence requires official awareness (or willful blindness) before the harm and a subsequent breach of duty to intervene. The applicant offered no evidence that Ecuadorian officials knew of, or would be willfully blind to, the alleged harm and fail to act. Although failure to report is not automatically fatal to a CAT claim, the absence of reporting combined with the absence of any other evidence of official awareness doomed the claim.

The court expressly rejected the suggestion that the asylum/withholding “unable or unwilling to protect” standard should govern CAT. The regulations control: CAT requires official acquiescence, not merely a generalized inadequacy of protection. While Scarlett acknowledged that the BIA could speak to how the “unable” prong might relate in the CAT context, nothing in the record or the briefing established the regulatory elements of acquiescence here.

3) Appellate Practice and Ethical Admonition

The panel highlighted serious briefing problems: insufficient record citations and inaccuracies about record content (e.g., claiming police were contacted and that the family was “savagely beaten multiple times,” neither supported by the record), and a misstatement suggesting denials on timeliness grounds. Such errors violate Fed. R. App. P. 28(a) and undermine appellate review. The court denied all pending motions, vacated stays, and referred counsel to the Second Circuit’s Grievance Panel—a notable development underscoring the court’s commitment to accurate, well‑supported advocacy.

Impact

On Asylum and Withholding Practice

• Applicants alleging private‑actor persecution must marshal concrete, record‑based proof that the state is unable or unwilling to protect them. Simply not reporting the abuse is insufficient unless coupled with credible evidence that reporting would have been futile or unsafe.
• Country conditions can cut both ways: here, State Department reporting undercut the claim that police would not respond to racially motivated violence. Counsel should select and present country evidence thoughtfully and reconcile adverse portions.
• The court’s reiteration that “one central reason” applies to withholding aligns with Quituizaca and subsequent summary orders, guiding practitioners to frame mixed‑motive cases accordingly.

On CAT Litigation

• The decision reinforces the categorical distinction between asylum/withholding and CAT. CAT requires proof of official complicity or acquiescence as defined by regulation; “unable or unwilling” is not the CAT standard.
• Evidence strategies for CAT should focus on showing official awareness and breach of duty (e.g., prior police reports; documented patterns of official non‑intervention; credible expert testimony; reports of willful blindness).

On Appellate Advocacy and Ethics

• The court’s referral to the Grievance Panel is a pointed reminder: meticulous record citation and accuracy are mandatory. Misstatements—especially regarding pivotal facts like whether police were contacted—can jeopardize clients and invite disciplinary review.
• Practitioners should adhere strictly to Fed. R. App. P. 28(a), ensure that every factual assertion is tied to the administrative record, and avoid overstatements that the record cannot bear.

Systemic and Doctrinal Effects

• Though non‑precedential, the order is likely to be cited (per Fed. R. App. P. 32.1) for its concise articulation of the evidentiary burdens concerning private‑actor persecution and CAT acquiescence in the Second Circuit.
• The opinion harmonizes with recent BIA guidance (Matter of C‑G‑T‑) and Second Circuit jurisprudence (Khouzam, Scarlett, Quituizaca), providing a coherent roadmap for future cases.

Complex Concepts Simplified

• Persecution vs. Discrimination: Persecution requires severe harm or threats beyond mere harassment or discrimination. The court here assumed severity was met, focusing instead on state involvement.
• “Unable or Unwilling to Protect” (Asylum/Withholding): When persecutors are private actors, the applicant must show the government cannot or will not protect them (e.g., by reporting the abuse or proving that reporting would be futile or dangerous).
• Futility/Danger Exception to Reporting: Not reporting to police does not automatically sink a claim, but the applicant must present specific, credible evidence that reporting would have been useless or unsafe (e.g., documented police corruption in similar cases, threats upon reporting, or a pattern of non‑response).
• “One Central Reason” Nexus: The protected ground (e.g., race, religion, nationality, political opinion, or social group) must be at least one central reason for the persecution—more than incidental or tangential.
• CAT “Acquiescence” vs. “Unable or Unwilling”: For CAT, it is not enough that the government is generally ineffective; officials must be aware of or willfully blind to the harm and then fail to act. This is a higher and different bar than asylum/withholding.
• Substantial Evidence Review: The court defers to agency factfinding unless the record compels the opposite conclusion—an intentionally demanding standard for petitioners.
• Summary Order (Non‑Precedential): The decision is not binding precedent but may be cited for its persuasive value; parties must note it is a “summary order” and serve unrepresented parties.

Conclusion

Masaquiza‑Masaquiza v. Bondi underscores two enduring lessons in protection‑based immigration law. First, when harm is inflicted by private actors, applicants must substantiate the “unable or unwilling to protect” element with evidence—either by showing attempted recourse to authorities or by convincingly demonstrating that such recourse would have been futile or dangerous. Bare assertions will not suffice, particularly when contradicted by country reports. Second, CAT protection is doctrinally distinct: it hinges on official involvement or acquiescence, not the more general “unable or unwilling” framework.

As a practical matter, the order sends a strong message about appellate rigor. Accurate, well‑cited briefs are essential. Misstatements and unsupported assertions can not only fail to persuade but invite disciplinary scrutiny.

Although non‑precedential, this decision harmonizes existing Second Circuit and BIA authority and provides a clear roadmap for practitioners: build the record for the specific element at issue, match the evidence to the applicable standard (asylum/withholding versus CAT), and uphold the exacting demands of appellate practice. The petition was denied, and the bar has been reminded—again—that evidentiary precision and ethical advocacy are not optional in the pursuit of protection claims.