No Cognizable PSG for Generic Police Informants and No Political-Opinion Nexus; CAT Requires Particularized Risk: Second Circuit’s Summary Order in Velecela Rojas v. Bondi

Court: United States Court of Appeals for the Second Circuit

Date: September 30, 2025

Docket No.: 23-7187 (NAC)

Panel: Circuit Judges Newman, Chin, and Park

Disposition: Petition for Review Denied (Summary Order)

Note on Precedential Effect: The Court issued a Summary Order, which under Local Rule 32.1.1 does not have precedential effect. It remains citable, however, under Fed. R. App. P. 32.1 with the “Summary Order” notation.

Introduction

In Velecela Rojas v. Bondi, the Second Circuit denied a petition for review challenging the Board of Immigration Appeals’ affirmance of an Immigration Judge’s denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection to an Ecuadorian mother and her minor child. Petitioner Veronica Patricia Velecela Rojas reported drug smuggling by a cartel to the police in Ecuador and was subsequently assaulted and threatened by individuals who identified themselves as gang members. She sought protection in the United States on three grounds:

Asylum and withholding, premised on persecution for membership in a particular social group (PSG) defined as “individuals who report drug activities to the police,” and for an alleged anti-cartel political opinion (actual or imputed).
CAT relief, based on a risk of torture by cartel actors with public official acquiescence.

The central issues on review were (1) whether the proposed PSG is cognizable under controlling law; (2) whether the record established the required nexus between the harm and a political opinion; and (3) whether the evidence showed a probability of torture as defined by CAT, with government acquiescence. The Court, applying substantial evidence review to the agency’s factual findings and de novo review to questions of law, agreed with the BIA and IJ on all three.

Summary of the Opinion

The Court denied the petition for review, holding:

PSG Not Cognizable: The proposed group—“individuals who report drug activities to the police”—fails the particularity and social distinction requirements. The record did not show that Ecuadorian society perceives such persons as a distinct social group, as required by Paloka v. Holder.
No Political-Opinion Nexus: Opposition to criminal activity by cartels, standing alone, does not constitute a political opinion, nor did the record show that the persecutors targeted petitioner on account of her actual or imputed political views. The Court relied on Zelaya-Moreno v. Wilkinson and Zhang v. Gonzales.
CAT Denial Upheld: The evidence did not establish that torture was “more likely than not.” A single assault with threats, the passage of two years in Ecuador without further harm, and general country conditions evidence were insufficient. Because lack of likelihood was dispositive, the Court did not reach the “acquiescence” element under Garcia-Aranda v. Garland.

In reaching these conclusions, the Court reiterated that asylum/withholding nexus uses the “one central reason” standard, citing Quituizaca v. Garland, and applied familiar standards of review (Chen v. Gonzales; Hong Fei Gao v. Sessions; 8 U.S.C. § 1252(b)(4)(B)).

Detailed Analysis

Precedents Cited and Their Role

Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): Establishes that the Court reviews the IJ’s decision as supplemented by the BIA. Framed the scope of review.
Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018): Reaffirms bifurcated review: substantial evidence for facts, de novo for law and the application of law to fact.
8 U.S.C. § 1252(b)(4)(B): Administrative findings are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise. The petitioner bore the heavy burden of showing the record compelled reversal.
Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022): Clarifies that the “one central reason” causation standard applies to both asylum and withholding. The Court used it to evaluate nexus arguments.
Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014): Articulates PSG requirements: immutability, particularity, and social distinction. Emphasizes that social distinction must reflect societal perception, not merely a persecutor’s view, and that groups must be discrete and definable.
Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007): Harm attributable to incentives faced by ordinary criminals typically does not define a cognizable PSG, steering the Court away from crime-targeted group formulations.
Matter of H-L-S-A-, 28 I. & N. Dec. 228 (B.I.A. 2021): The BIA’s framework for “cooperators with law enforcement” emphasizes the nature and publicity of the cooperation and its perception in society. The Court endorsed consideration of whether cooperation was public and how that affects both particularity and social distinction.
Gashi v. Holder, 702 F.3d 130 (2d Cir. 2012): Recognized a narrow PSG of witnesses to specific war crimes whose names were publicly published. The Court distinguished Gashi as materially narrower and more publicly salient than petitioner’s broad “informants” formulation.
Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005): Requires proof that the persecutor’s motive arises from the applicant’s political opinion (actual or imputed).
Zelaya-Moreno v. Wilkinson, 989 F.3d 190 (2d Cir. 2021): Opposition to gangs/criminals does not, without more, constitute a political opinion. Political opinion usually involves positions about governmental or quasi-governmental policies or actors.
Kyaw Zwar Tun v. INS, 445 F.3d 554 (2d Cir. 2006): Torture is more severe than persecution; this underscores the high CAT threshold.
Jian Qui Liu v. Holder, 632 F.3d 820 (2d Cir. 2011): A single assault not requiring medical treatment or causing lasting injury generally does not rise to persecution; by analogy, torture requires more.
Lin v. U.S. Dep’t of Justice, 432 F.3d 156 (2d Cir. 2005): CAT claims require particularized evidence that the applicant would likely be tortured; generalized country conditions are insufficient.
Quintanilla-Mejia v. Garland, 3 F.4th 569, 592–93 (2d Cir. 2021): Under substantial evidence review, the petitioner must show the record compels a contrary conclusion; used to reinforce the deference afforded to the agency’s CAT and fear assessments.
Huang v. INS, 421 F.3d 125 (2d Cir. 2005): Absent solid support, fears are speculative; applied in assessing future harm.
Garcia-Aranda v. Garland, 53 F.4th 752 (2d Cir. 2022): CAT requires a two-step inquiry: (1) likelihood of torture, and (2) state action/acquiescence. The panel stopped at step one because it was dispositive.
INS v. Bagamasbad, 429 U.S. 24 (1976): Agencies need not decide unnecessary issues; invoked to forgo analysis of CAT acquiescence after finding no likelihood of torture.

Legal Reasoning

The Court’s reasoning tracked the established asylum/withholding and CAT frameworks.

1) Particular Social Group: “Individuals who report drug activities to the police”

The Court affirmed the BIA’s conclusion that petitioner’s proposed PSG is not cognizable. Under Paloka, a PSG must be:

Defined by an immutable characteristic;
Particular (discrete, with definable boundaries); and
Socially distinct within the relevant society (perceived by society as a distinct group).

Two concerns drove the outcome:

Particularity: The phrase “individuals who report drug activities to the police” is broad and amorphous. It lacks clear, manageable boundaries and risks sweeping in many people who, in varied and non-uniform ways, may have reported, informally or privately, with no clear benchmark for group membership.
Social Distinction: The record did not show that Ecuadorian society views such reporters as a distinct class. As Paloka explains, social distinction requires societal recognition beyond a persecutor’s perception. The BIA appropriately considered the public or non-public nature of cooperation, consistent with Matter of H‑L‑S‑A‑, because publicity often affects both how discrete the group is and whether society perceives it as distinct.

The Court distinguished Gashi, where the PSG was narrowly limited to publicly identified witnesses to specific war crimes—circumstances that both cabined the group and made its members conspicuous in society. By contrast, petitioner’s group is generic and lacks evidence of societal salience in Ecuador. Finally, the Court underscored, via Ucelo-Gomez, that harm motivated by criminal incentives, without more, generally does not delineate a PSG.

2) Political Opinion and Nexus

To prevail on a political opinion claim, an applicant must show, by direct or circumstantial evidence, that the persecutor’s motive arose from the applicant’s political belief (Zhang). In this circuit, a qualifying political opinion usually concerns positions about governmental policies, entities seeking to influence laws or policy, or similar public roles (Zelaya‑Moreno). Mere opposition to gangs or cartels—even when it triggers violent retaliation—does not transmute personal or civic opposition to crime into a political opinion.

Applying these principles, the Court held that petitioner’s reporting of cartel activity did not, on the record presented, reflect a political opinion, nor did the evidence establish that the cartel harmed her for such an opinion. The assailants’ statements blaming her for “interfering with their business” suggested retaliation for obstructing criminal operations, not retribution for a political stance. Because nexus failed, the asylum and withholding claims could not succeed, and the Court did not need to resolve other asylum elements.

3) CAT: Likelihood of Torture and Acquiescence

CAT requires proof that torture is “more likely than not,” inflicted by or with the acquiescence of a public official (8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1)). Torture is an “extreme form of cruel and inhuman treatment” and is more severe than persecution (Kyaw Zwar Tun).

The Court concluded the record did not compel a finding that petitioner would more likely than not be tortured if returned to Ecuador. Key points:

Severity and Past Harm: Petitioner described a single assault involving threats and kicks to the stomach. The Court cited its prior guidance in Jian Qui Liu that a one-time beating without medical treatment or lasting injury typically does not rise to persecution, underscoring that torture demands even more. While the Court did not expressly make findings about medical treatment here, it used the principle to frame the high CAT threshold.
Temporal Gap: Petitioner remained in Ecuador for about two years after the incident without further harm, which weighed against a likelihood of future torture.
General Country Conditions: Evidence of crime and corruption in Ecuador, without particularized proof that petitioner herself faces a probability of torture, was insufficient (Lin; Huang).

Because the lack of a likely risk of torture was dispositive, the Court did not reach the second prong of CAT (state action/acquiescence), consistent with Garcia‑Aranda and Bagamasbad.

Impact and Forward-Looking Implications

Although issued as a non-precedential summary order, the decision reinforces several important currents in Second Circuit and BIA jurisprudence concerning crime-related asylum claims and CAT:

Boundaries on “informant/witness” PSGs: Broad categories like “people who report crimes to police” remain disfavored absent robust evidence that the relevant society recognizes such reporters as a distinct class. Practitioners should, where warranted, pursue narrower formulations tethered to public, identifiable conduct (e.g., court testimony in a specific case), coupled with country-specific proof that such witnesses are socially recognized and targeted.
Political opinion claims in gang/cartel contexts: The Second Circuit continues to require more than anti-crime sentiment to prove a political-opinion nexus. Applicants must show that persecutors targeted them because of views about governmental authority, policy, or state-aligned entities—or that the persecutors imputed such views to them. Evidence of activism, public denunciations, or association with government-facing organizations may be decisive.
CAT’s evidentiary demands: Generalized violence and corruption do not suffice. Applicants should marshal particularized, current evidence of threats, patterns of targeting, and any indicators that torture—not merely assault—will occur, and that public officials will participate or acquiesce (including willful blindness). Temporal gaps without harm can undermine risk assessments.
Strategic pleading: Where appropriate, applicants might consider alternative PSG theories with better-established social distinction (e.g., “witnesses who publicly testified against [specified cartel] in [jurisdiction]” or “family members of such witnesses”), supported by credible evidence of societal recognition and targeting, news coverage, or documented state protection gaps.
Alignment with BIA doctrine: The Court’s reliance on Matter of H‑L‑S‑A‑ signals continued deference to the BIA’s approach to cooperator/witness claims, particularly the salience of public exposure and societal perception.

Complex Concepts Simplified

Particular Social Group (PSG): A category for asylum claims requiring (a) an immutable characteristic (something you cannot change or shouldn’t be required to change), (b) particularity (clear, discrete boundaries), and (c) social distinction (recognized as a distinct group in the relevant society). It is not enough that persecutors target the group; society must perceive it as distinct.
Particularity vs. Social Distinction: Particularity is about definitional clarity; social distinction is about societal perception. A group can be clearly defined but still fail if society does not recognize it as distinct.
“One Central Reason” Nexus: For asylum and withholding, a protected ground (race, religion, nationality, PSG, political opinion) must be at least one central reason for the harm. Central does not mean “exclusive,” but it must be more than incidental or tangential.
Political Opinion (including imputed): Typically involves support for or opposition to government policy, political parties, or entities seeking to influence state policy. Opposition to criminal organizations alone usually does not qualify, unless the evidence shows the persecutors framed the conflict as political.
CAT “More Likely Than Not” Standard: The applicant must show a probability greater than 50% of being subjected to torture—extreme, intentional infliction of severe pain/suffering—by or with the acquiescence (including willful blindness) of public officials. General dangers in a country are not enough; evidence must be individualized.
Substantial Evidence Review: The appellate court defers to agency fact-finding unless the record compels a contrary conclusion—an intentionally high bar.
Summary Order (Non-Precedential): In the Second Circuit, summary orders are citable but not precedential. They often reflect application of settled law to specific facts without announcing new rules.
Bagamasbad Principle: Courts and agencies need not address issues unnecessary to the outcome, allowing them to decide on narrow grounds (e.g., resolving CAT on likelihood alone without reaching acquiescence).

Practice-Oriented Takeaways

PSG Evidence: If asserting a “witness/cooperator” PSG, develop substantial country-specific proof that such individuals are publicly recognized as a distinct group (e.g., media reports, expert affidavits, governmental classifications, witness-protection regimes or their failures, documented patterns of targeted attacks).
Nexus Proof: Document persecutors’ statements or conduct connecting harm to protected grounds. For political opinion, show public political expression, affiliation, or evidence that persecutors imputed a political stance to the applicant.
CAT Particularization: Provide recent, individualized threats; evidence of monitoring or targeting; instances of similar torture of comparators; proof of police complicity, corruption, or willful blindness in the applicant’s locality; and expert analysis explaining why torture—not lesser harm—is probable.
Temporal Dynamics: Address time gaps without harm. Explain relocations, safe havens, changes in circumstances, or why the risk remains despite periods of quiescence.
Alternative Theories: Consider narrower PSGs (e.g., “publicly identified witnesses to [specific] case”), family-based PSGs tied to public cooperation, or other protected grounds supported by record evidence.

Conclusion

The Second Circuit’s summary order in Velecela Rojas v. Bondi provides a clear, though non-precedential, reaffirmation of core principles governing crime-related protection claims:

Generic groups such as “people who report drug activities to police” lack the particularity and social distinction necessary for a cognizable PSG absent robust, country-specific evidence.
Opposition to cartels or gangs is not, without more, a political opinion, and the record must show the persecutor targeted the applicant for her political views (actual or imputed).
CAT requires particularized, individualized proof that torture is more likely than not; generalized country conditions and isolated incidents, especially with long harm-free intervals, are insufficient.

While it does not announce new doctrine, the order synthesizes and applies existing Second Circuit and BIA authority—Paloka, Zelaya‑Moreno, H‑L‑S‑A‑, Gashi, Lin, and others—in a way that will guide practitioners. Successful protection claims in the gang/cartel context will turn on narrowing group definitions, strengthening societal-recognition proof, and meticulously documenting both persecutory motive and the individualized likelihood of torture with state participation or acquiescence.