Mandatory Issue Exhaustion and the Serious-Nonpolitical-Crime Bar Extending to CAT Relief – Commentary on Anaya v. Bondi (2d Cir. 2025)

Introduction

Anaya v. Bondi is a July 24, 2025 summary order of the U.S. Court of Appeals for the Second Circuit denying a Salvadoran petitioner’s challenge to an adverse immigration decision. Although issued as a non-precedential summary order, the opinion tightens the contours of issue exhaustion and clarifies the reach of the serious nonpolitical crime bar to both statutory withholding of removal and protection under the Convention Against Torture (CAT).

The petitioner, Juan Pablo Anaya, sought asylum, statutory withholding of removal, and CAT protection, alleging persecution and torture at the hands of gangs and Salvadoran police. An Immigration Judge (IJ) rejected the claims; the Board of Immigration Appeals (BIA) affirmed. On petition for review, the Second Circuit refused to revisit earlier dismissals, found multiple arguments unexhausted, and sustained the IJ’s adverse credibility determination, ultimately denying all relief.

Summary of the Judgment

• Asylum & Withholding: The court declined to revisit its prior dismissal for failure to exhaust challenges to the agency’s finding that the petitioner had committed a “serious nonpolitical crime,” a statutory bar to both forms of relief.
• Due Process: Allegations of IJ bias, faulty interpretation, and improper filing were deemed unexhausted because they were not specifically presented to the BIA.
• CAT Relief: The court upheld (i) the IJ’s adverse credibility determination, (ii) the IJ’s reliance on lack of corroborative evidence, and (iii) the finding that objective evidence did not show a personal likelihood of torture.
• Outcome: Petition for review denied; all stays and motions vacated.

Analysis

Precedents Cited and Their Influence

• Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) – delineates the “IJ-as-supplemented-by-BIA” review framework. Guided the panel’s scope of review.
• Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018) – restates de novo review for legal questions and substantial-evidence review for facts; cited for standard of review.
• Ollman v. SBA No. 1063, 527 F.3d 239 (2d Cir. 2008) – “law of the case” doctrine; furnished rationale for refusing to reconsider the prior exhaustion ruling.
• Punin v. Garland, 108 F.4th 114 (2d Cir. 2024) & Steevenez v. Gonzales, 476 F.3d 114 (2d Cir. 2007) – articulate issue-exhaustion requirements; key to dismissal of new due-process arguments.
• Santos-Zacaria v. Garland, 598 U.S. 411 (2023) – confirms exhaustion is non-jurisdictional but mandatory absent waiver; underpins court’s refusal to entertain waived claims.
• Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) & Likai Gao v. Barr, 968 F.3d 137 (2d Cir. 2020) – govern credibility review; cited to affirm the IJ’s adverse finding.
• Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005) – sets high bar for explaining away inconsistencies; used to reject petitioner’s proffered explanations.
• Biao Yang v. Gonzales, 496 F.3d 268 (2d Cir. 2007) – lack of corroboration can doom a claim once credibility is in doubt.
• Mu Xiang Lin v. DOJ, 432 F.3d 156 (2d Cir. 2005) & Paul v. Gonzales, 444 F.3d 148 (2d Cir. 2006) – clarify CAT burden and independence from asylum claims.

Core Legal Reasoning

1. Law-of-the-Case & Exhaustion
   The petitioner had previously failed to challenge the IJ’s “serious nonpolitical crime” finding before the BIA. Under Ollman, the court would revisit its earlier dismissal only for “cogent or compelling reasons,” none of which were presented. The panel reiterated that unexhausted issues cannot be transformed into appellate arguments, emphasizing Punin and Santos-Zacaria.
2. Extension of the Serious-Nonpolitical-Crime Bar to CAT Withholding
   The opinion makes explicit that the statutory bar in 8 U.S.C. §1231(b)(3)(B)(iii) is mirrored in CAT regulations (8 C.F.R. §1208.16(d)(2)). Failure to rebut the bar consequently dooms both statutory and CAT withholding.
3. Due Process Claims Deemed Waived
   Because allegations of IJ bias, faulty interpretation, and filing irregularities were never articulated to the BIA, they were unreviewable. The court underscored that even pro se filings must provide “specific, subsidiary legal argument” to preserve a point.
4. Adverse Credibility
   Applying the “totality of the circumstances” test, the IJ found multiple inconsistencies (e.g., identity of alleged attackers, number of arrests, timeline of injuries). The panel held that substantial evidence supported disbelief, relying heavily on Xiu Xia Lin’s deferential standard and Majidi’s demand for explanations that a reasonable factfinder would be “compelled” to credit.
5. Corroboration
   Once credibility faltered, the lack of independent letters, affidavits, or medical records became fatal under the rule in Biao Yang.
6. CAT Probability Standard
   Even accepting uncontested evidence of gang affiliation and criminal history, the court found no individualized proof that Anaya himself faced a >50 % risk of torture – echoing Mu Xiang Lin’s requirement that risk be “particular to the applicant.”

Impact of the Judgment

• Reinforced Exhaustion Doctrine – Advocates must raise every colorable issue (even constitutional due-process claims) before the BIA or risk forfeiture.
• Serious-Nonpolitical-Crime Bar’s Reach – The opinion harmonizes statutory and CAT withholding, alerting practitioners that overcoming the bar under the INA automatically benefits CAT claims and vice versa.
• Heightened Evidentiary Vigilance – Credibility attacks now routinely trigger corroboration requirements; failure to assemble corroborative proof can be outcome-determinative.
• Limited Scope of Summary Orders – While non-precedential, the order forecasts how the Second Circuit is likely to police exhaustion and credibility in future immigration appeals.

Complex Concepts Simplified

Conclusion

Anaya v. Bondi is a cautionary tale for immigration practitioners. The Second Circuit meticulously enforced the exhaustion requirement, refused to dilute the serious-nonpolitical-crime bar, and offered a textbook application of adverse-credibility jurisprudence. While not binding precedent, the order signals the court’s continued insistence on procedural rigor and evidentiary robustness in removal-defense litigation. Going forward, attorneys must:

• Ensure all legal and constitutional arguments are squarely raised before the BIA.
• Vigorously contest any “serious crime” findings at the earliest stage to preserve asylum, withholding, and CAT eligibility.
• Pre-empt credibility challenges with detailed, consistent narratives and supporting documentation.

In the broader legal landscape, the decision consolidates the view that procedural defaults are fatal and that relief bars apply uniformly across statutory and treaty-based protections. Practitioners who heed these lessons can better navigate the labyrinthine world of U.S. immigration appeals.