Maldonado Esteban v. Bondi: Exhaustion as a Gate-Keeping Rule and the Enduring Reach of the N-A-M Framework in “Particularly Serious Crime” Analysis

1. Introduction

The Second Circuit’s summary order in Maldonado Esteban v. Bondi, No. 24-150 (2d Cir. 2025) revisits two recurring themes in immigration jurisprudence: (i) how adjudicators determine whether a non-citizen’s criminal conviction constitutes a “particularly serious crime” (PSC) that bars statutory and Convention Against Torture (CAT) withholding of removal, and (ii) the strictness with which federal courts enforce the exhaustion requirement when petitioners advance new theories on review.

Parties. Francisco Maldonado Esteban (“Maldonado”), a Mexican national, petitioned for review after both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) denied withholding of removal and CAT protection. The respondent was Pamela Bondi, the Attorney General of the United States, sued in her official capacity.

Key Issues.

1. Whether Maldonado’s New York conviction for third-degree rape (N.Y. Penal Law § 130.25(2)) is a “particularly serious crime.”
2. Whether the agency must use the categorical approach (examining statutory elements only) or may, consistent with In re N-A-M-, consider underlying facts and circumstances.
3. Whether Maldonado established eligibility for CAT deferral by proving a likelihood of torture if removed to Mexico.
4. The extent to which new arguments, first raised in the Court of Appeals, are foreclosed by failure to exhaust administrative remedies.

2. Summary of the Judgment

The Second Circuit denied the petition in its entirety, holding that:

• The BIA correctly deemed Maldonado’s 2022 conviction under § 130.25(2) a “particularly serious crime” under the two-step N-A-M- framework.
• Maldonado’s appellate argument that the agency must use a purely categorical analysis was unexhausted because he had not presented it to the Board.
• Substantial evidence supported the finding that Maldonado failed to show it was “more likely than not” that Mexican officials would intentionally torture him, as CAT jurisprudence requires.
• All outstanding motions and applications were denied, and any stays previously issued were vacated.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. In re N-A-M-, 24 I. & N. Dec. 336 (BIA 2007) – Establishes the two-step PSC inquiry permitting consideration of reliable evidence beyond the statute’s elements after an initial “potential” seriousness finding. The Second Circuit reaffirmed N-A-M-’s vitality here.
2. Ojo v. Garland, 25 F.4th 152 (2d Cir. 2022) – Re-articulates the N-A-M- test and clarifies the sequence of analysis. The Court relied on Ojo for its framing of the agency’s permissible fact-based inquiry.
3. Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008) – Previously approved a PSC finding where the sentence indicated seriousness. Cited to validate the IJ’s reliance on Maldonado’s prison term.
4. Xue Hong Yang v. DOJ, 426 F.3d 520 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) – Allow the Court to consider the IJ’s decision as modified by the Board.
5. Punin v. Garland, 108 F.4th 114 (2d Cir. 2024) – Restates rigorous exhaustion rules; used to bar Maldonado’s new categorical-approach argument.
6. Garland v. Ming Dai, 593 U.S. 357 (2021) – Cited for the proposition that factfinders may credit some but not all testimony.
7. Pierre v. Gonzales, 502 F.3d 109 (2d Cir. 2007) and In re J-R-G-P-, 27 I. & N. Dec. 482 (BIA 2018) – Address the “intentionality” component of torture, forming the backbone of the Court’s CAT analysis.

3.2 Court’s Legal Reasoning

• Step 1 – “Potentially Serious” Elements Test
  New York Penal Law § 130.25(2) criminalizes intercourse by an adult (21+) with a person under 17. The IJ concluded, and the Circuit agreed, that these elements—adult-minor sexual conduct—“potentially” put the crime within PSC territory.
• Step 2 – Circumstantial Inquiry under N-A-M-
  The IJ examined reliable record evidence: Maldonado’s own guilty plea, sentencing record (18-month imprisonment), and the fact—unrebutted by corroborating evidence—that the victim was his minor daughter. These factors jointly demonstrated “seriousness.”
• Rejection of Categorical-Only Argument
  Maldonado argued on appeal that the agency should have used only the categorical approach—ignoring facts. The Court refused to entertain the theory because it was not specifically pressed before the BIA, invoking the stringent exhaustion doctrine reaffirmed in Punin.

• Maldonado remained statutorily eligible for CAT deferral despite the PSC bar to withholding.
• The IJ identified evidence of poor—sometimes abusive—conditions in Mexican facilities for persons with disabilities but concluded intentional torture was not more likely than not. Evidence suggested neglect and lack of resources, not purpose to inflict severe pain.
• The Second Circuit, applying the substantial-evidence standard, found the record did not compel a contrary conclusion.
• The Court reiterated that it presumes the IJ reviews all evidence absent compelling indication otherwise (Xiao Ji Chen).

3.3 Impact on Future Litigation and Immigration Law

1. Re-entrenchment of N-A-M- Flexibility. Although the order is non-precedential, it signals that the Second Circuit remains unreceptive to challenges seeking categorical limitation of PSC determinations. Practitioners should expect N-A-M- to continue governing unless and until either the BIA or Supreme Court intervenes.
2. Heightened Importance of Exhaustion. The Court’s strict reading of issue exhaustion underscores that petitioners must present every legal theory to the BIA with “specificity.” Failure to do so effectively waives judicial review.
3. Sex-Offense Convictions Involving Minors. The decision affirms that sexual crimes by adults against minors, even at the lower felony tiers, almost invariably meet the “potentially particularly serious” threshold and often the ultimate PSC finding.
4. CAT Claims Rooted in Institutional Neglect. The Court’s reliance on Pierre and J-R-G-P- emphasizes the high hurdle for proving governmental intent to torture when abuse stems mainly from poverty, negligence, or inadequate training.

4. Complex Concepts Simplified

• Particularly Serious Crime (PSC): A criminal conviction so egregious that, by statute or agency assessment, an individual is ineligible for withholding of removal. Certain aggravated felonies with ≥5-year sentences are per se PSCs; others require case-by-case analysis.
• Categorical Approach vs. Circumstance-Specific Inquiry: Categorical analysis looks solely at statutory elements, comparing them to a federal definition. Under N-A-M-, once the crime is “potentially” serious, adjudicators may use a circumstance-specific approach—reviewing conviction records, plea colloquies, sentencing, and reliable external evidence.
• Withholding of Removal vs. CAT Deferral: Withholding (INA or CAT) offers robust protection but is foreclosed by a PSC. CAT deferral is a narrower, last-resort remedy that even PSC offenders can receive if they meet the torture standard.
• Exhaustion Doctrine: Under 8 U.S.C. § 1252(d)(1), federal courts may only review issues the petitioner “raised” before the BIA. The rule promotes agency autonomy and preserves judicial resources.
• Intentional Torture Standard: To succeed under CAT, an applicant must show not just severe harm, but governmental intent or acquiescence to inflict that harm—not mere neglect or incompetence.

5. Conclusion

Maldonado Esteban v. Bondi reinforces two doctrinal pillars:

1. The two-stage N-A-M- framework remains the operative test for deciding whether a conviction is a “particularly serious crime,” allowing consideration of underlying facts once the statutory elements leave open the possibility of seriousness.
2. Strict issue exhaustion continues to function as a jurisdictional threshold in the Second Circuit, foreclosing appellate arguments not “specifically” presented to the BIA.

On CAT relief, the ruling underscores the demanding evidentiary burden to prove intentional torture, especially in contexts where mistreatment may flow from systemic neglect rather than purposeful cruelty.

Although issued as a summary order without precedential effect, the decision offers practitioners a clear blueprint: preserve every theory before the Board, marshal factual evidence early to rebut PSC allegations, and, for CAT claims, distinctly establish governmental intent. The case thus serves as both a procedural cautionary tale and a substantive affirmation of existing PSC and CAT doctrines.