Issue Exhaustion Controls: Unchallenged BIA Waiver Bars Asylum/Withholding Review; CAT Relief Requires Proof of Government Acquiescence

1. Introduction

Gonzalez Gonzalez v. Blanche (2d Cir. Apr. 13, 2026) is a nonprecedential summary order in which the Second Circuit denied a petition for review brought by Diana Carolina Gonzalez Gonzalez and her minor daughter, natives and citizens of Ecuador, challenging the denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

The key issues were procedural and merits-based: (i) whether Petitioners preserved and exhausted challenges to dispositive elements of asylum/withholding, (ii) whether the proposed “particular social group” (PSG) of individuals who resist gang recruitment is legally cognizable and whether the required nexus was shown, and (iii) whether the record compelled CAT protection based on government “consent or acquiescence.”

2. Summary of the Opinion

The court denied the petition. It held that the BIA correctly deemed waived (and thus unexhausted) Petitioners’ challenges to three dispositive issues for asylum and withholding—(1) whether the harm rose to the level of persecution, (2) whether fear of future persecution was objectively reasonable, and (3) whether Ecuador was unable or unwilling to control private actors—because the BIA appeal brief challenged only the IJ’s nexus finding and did not contest those other elements.

In the alternative, the court agreed with the agency that the proposed PSG “individuals who resist gang recruitment” was not cognizable, and that substantial evidence supported the finding that any abuse was driven by ordinary criminal motives rather than a protected ground.

As to CAT, the court rejected the argument that “acquiescence” need not be shown, reaffirming that CAT relief requires proof that torture would be inflicted with the “consent or acquiescence” of a public official. The record supported the agency’s finding of no acquiescence, citing a suspect’s arrest in a related murder and country evidence of anti-gang efforts.

The panel also directed that the order be forwarded to the court’s Grievance Panel due to counsel’s defective briefing, including failure to address dispositive issues, thin citation, and misstatements of the record (referencing Fed. R. App. P. 28(a)).

3. Analysis

A. Precedents Cited

Standards of review and scope of review

  • Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): The court reviewed the IJ decision as supplemented by the BIA, framing the operative decision under review.
  • Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018): Reiterated the split between substantial-evidence review for factfinding and de novo review for legal questions and law-to-fact applications.
  • 8 U.S.C. § 1252(b)(4)(B): Provided the “any reasonable adjudicator” compulsion standard governing review of administrative fact findings.

Asylum/withholding elements, severity, state protection, and objective fear

  • Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022): Crucial on two fronts: (i) confirmed that the “one central reason” nexus test applies to withholding of removal, and (ii) illustrated how gang violence may reflect ordinary criminal incentives rather than persecution on a protected ground.
  • Mei Fun Wong v. Holder, 633 F.3d 64 (2d Cir. 2011): Reinforced that persecution is an “extreme concept,” not satisfied by all offensive or harmful conduct.
  • Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) (quoting Pan v. Holder, 777 F.3d 540 (2d Cir. 2015)): Anchored the “unable or unwilling to control” requirement for harms inflicted by private actors.
  • Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004): Supplied the “objectively reasonable” requirement for fear of future persecution absent past persecution.

Issue exhaustion, waiver, and abandonment (dispositive procedural holding)

  • Vera Punin v. Garland, 108 F.4th 114 (2d Cir. 2024): The court relied on its articulation that an argument must be “closely matched” to one presented to the BIA; otherwise it is unexhausted and not reviewable.
  • Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Supported treating inadequately argued issues in the court of appeals brief as abandoned.
  • Prabhudial v. Holder, 780 F.3d 553 (2d Cir. 2015): Controlled the appellate posture where the BIA applies its waiver rule: judicial review is limited to whether the BIA erred in deeming the argument waived.
  • INS v. Bagamasbad, 429 U.S. 24 (1976): Underlined that agencies and courts need not decide issues unnecessary to the outcome—supporting the court’s refusal to reach merits once waiver/exhaustion was dispositive.

Particular social group cognizability (immutability, particularity, social distinction)

  • Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014): Provided the PSG framework—immutability, particularity, and social distinction—and confirmed cognizability is reviewed de novo.
  • In re M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014): Supplied the definitional content for “particularity” (clear benchmark; not amorphous) and “social distinction” (societal perception of the group).
  • Matter of S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008): Directly analogous authority rejecting a youth-refusal-to-join-gangs PSG as insufficiently particular and socially distinct—used here to support rejecting “individuals who resist gang recruitment.”

Nexus and “ordinary criminal incentives”

  • Edimo-Doualla v. Gonzales, 464 F.3d 276 (2d Cir. 2006): Framed nexus as a factfinding reviewed for substantial evidence.
  • Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005): Required proof (direct or circumstantial) that the persecutor’s motive arises from a protected ground.
  • Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir. 1999): Reiterated that generalized crime conditions do not constitute grounds for asylum/withholding.
  • Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007): Emphasized the distinction between harm attributable to “ordinary criminals” and persecution; used here to reinforce that recruitment-related violence often reflects criminal incentives rather than protected-ground animus.

CAT: acquiescence, willful blindness, and record-compulsion review

  • Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004): Explained “acquiescence” as including officials’ knowledge or willful blindness plus a breach of the duty to prevent torture.
  • Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020): Cited by Petitioners, but the court found it unhelpful as presented because the argument did not grapple with the CAT regulatory text on acquiescence.
  • Matter of M-S-I-, 29 I. & N. Dec. 61 (B.I.A. 2025): Supported the court’s view that CAT acquiescence is distinct from asylum/withholding’s “unable or unwilling” standard, and that speculative police ineffectiveness is insufficient.
  • Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021): Reinforced that petitioners cannot obtain CAT relief by pointing to conflicting evidence unless the record compels the opposite conclusion.

B. Legal Reasoning

1) The dispositive holding: waiver/exhaustion and abandonment

The court’s primary basis for denial was procedural. The BIA found waived three elements necessary to win asylum/withholding (severity/persecution, objective fear, and inability/unwillingness of the state to control private actors). On petition for review, Gonzalez Gonzalez did not challenge the BIA’s waiver determination at all. The panel treated that posture as both (i) unexhausted (not fairly presented to the BIA) and (ii) abandoned (not adequately argued in the Second Circuit brief), invoking Vera Punin v. Garland and Debique v. Garland. Under Prabhudial v. Holder, once the BIA properly applied its waiver rule, the court’s review is narrowly constrained—and here Petitioners did not even mount the required challenge to the waiver ruling.

2) Alternative merits reasoning: PSG and nexus

Even if the court reached the merits, it would affirm. The proposed PSG—“individuals who resist gang recruitment”—failed the Paloka v. Holder/In re M-E-V-G- test because the record did not show social distinction in Ecuadorian society and lacked a clear benchmark for what “resistance” means, echoing the reasoning of Matter of S-E-G-.

On nexus, the panel emphasized that the record supported a view that the gang’s motive was recruitment/expansion—an “ordinary criminal incentive”—rather than persecution “on account of” PSG membership, drawing support from Quituizaca v. Garland, Melgar de Torres v. Reno, and Ucelo-Gomez v. Mukasey. Under substantial-evidence review, the record did not compel a different motive finding.

3) CAT: acquiescence is required and was not compelled on this record

The court rejected the contention that CAT relief does not require proof of government acquiescence, pointing directly to the regulatory definition in 8 C.F.R. § 1208.18(a)(1), and to Khouzam v. Ashcroft’s elaboration of knowledge/willful blindness plus breach of duty. It also noted the doctrinal distinction between CAT “acquiescence” and asylum/withholding’s “unable or unwilling” standard, consistent with Matter of M-S-I- and the discussion in Scarlett v. Barr.

Applying Quintanilla-Mejia v. Garland, the court held that evidence of an arrest following a family report and broader anti-gang efforts supported the agency’s finding that Ecuador would not consent to or acquiesce in torture. Petitioners’ contrary assertions were deemed insufficient and, in places, inconsistent with the record as found by the agency.

C. Impact

  • Procedural discipline in immigration appeals: The decision underscores that petitioners must (a) raise key elements before the BIA and (b) expressly challenge BIA waiver determinations in the court of appeals. Failure to do so can be outcome-determinative regardless of the underlying facts.
  • Continuing headwinds for “gang resistance” PSGs: By aligning with Matter of S-E-G- and the In re M-E-V-G- framework, the order reinforces that broadly framed anti-gang or recruitment-resistance groups often fail particularity/social-distinction requirements without strong, society-specific evidence.
  • CAT remains text-bound to acquiescence: The order emphasizes that CAT claims require focused proof of governmental consent/acquiescence—not merely high crime or imperfect policing—and that isolated countervailing evidence will not suffice absent a record-compelling showing.
  • Professional responsibility signal: The referral to the Grievance Panel highlights appellate courts’ willingness to respond when briefing failures impede adjudication, especially where factual misstatements appear.

4. Complex Concepts Simplified

  • “Exhaustion” (immigration context): You generally must present an argument to the BIA before a federal court can review it. If you did not raise it (or did not raise it specifically enough), the court treats it as unexhausted.
  • “Waiver” before the BIA: If a party fails to meaningfully argue an issue in the BIA appeal brief, the BIA may deem it waived—meaning it will not consider it. If the BIA’s waiver ruling stands, the court of appeals typically will not reach the waived issues.
  • “Abandonment” on appeal: Even if an issue could be reviewed, a petitioner can lose it by not adequately briefing it in the court of appeals (e.g., no legal argument, no record citations).
  • “Particular social group” (PSG): A PSG is a protected ground like race or religion, but defined by a group characteristic. Under In re M-E-V-G-, the group must be: (i) based on a shared immutable characteristic, (ii) defined with clear boundaries (“particularity”), and (iii) recognized by society as a distinct group (“social distinction”).
  • “One central reason” (nexus): The protected ground must be an important reason (not incidental) for the harm. If the harm is driven mainly by ordinary criminal motives—like recruitment, extortion, or retaliation unrelated to a protected ground—nexus often fails.
  • CAT “acquiescence”: For CAT, it is not enough that torture might occur by private criminals. The applicant must show officials would know of it (or be willfully blind) and then fail their legal duty to intervene.

5. Conclusion

Gonzalez Gonzalez v. Blanche is primarily a cautionary decision about appellate posture: unchallenged BIA waiver findings can foreclose judicial review of asylum and withholding claims, making issue preservation and briefing quality decisive. Substantively, the order tracks established doctrine rejecting broadly defined gang-resistance PSGs without strong evidence of particularity and social distinction, and it reiterates that CAT protection turns on proof of likely torture with governmental consent or acquiescence—not merely a dangerous criminal environment.