Passing Critique Is Not Argument:
Gonzalez-Perez v. Bondi and the Second Circuit’s Rigorous Approach to Issue Abandonment, CAT Analysis, and Lozada Compliance

1. Introduction

Gonzalez-Perez v. Bondi, Nos. 24-265(L), 24-1566(Con) (2d Cir. July 11, 2025) is a summary order of the United States Court of Appeals for the Second Circuit affirming the Board of Immigration Appeals (BIA) on multiple fronts. Petitioner Nelson Gonzalez-Perez, a Dominican national, challenged (i) the denial of asylum, withholding of removal, and Convention Against Torture (CAT) relief, and (ii) the BIA’s refusal to reopen removal proceedings premised on alleged ineffective assistance of counsel.

Although summary orders lack precedential effect under Local Rule 32.1.1, this decision is significant for three doctrinal clarifications:

• Waiver / Abandonment Standard: “Passing critique” of an agency ruling does not satisfy Federal Rule of Appellate Procedure 28(a)(8)(A); issues not meaningfully briefed are abandoned.
• Crisp Restatement of the Two-Step CAT Inquiry: Where the applicant fails the likelihood-of-torture prong, the tribunal need not address government acquiescence.
• Strict (but not slavish) Compliance with Matter of Lozada: A motion to reopen anchored in ineffective assistance fails when there is no proof that prior counsel was notified and afforded an opportunity to respond.

2. Summary of the Judgment

The Second Circuit denied both petitions for review:

1. Asylum & Withholding: Abandoned on appeal; petitioner did not articulate substantive arguments challenging the IJ/BIA findings.
2. CAT: Denied because petitioner did not show it was “more likely than not” he would be tortured if returned, rendering the acquiescence inquiry unnecessary.
3. Motion to Reopen (Ineffective Assistance): Denied for (a) failure to satisfy Lozada procedural conditions (no notice to prior counsel) and (b) failure to show prejudice.
4. IFP Status: Granted; all other motions denied and stays vacated.

3. Analysis

3.1 Precedents Cited

• Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) – Defines scope of review when BIA adopts and supplements IJ decision.
• Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018) – Distinguishes standards of review: substantial evidence vs. de novo.
• Debique v. Garland, 58 F.4th 676 (2d Cir. 2023) – Articulates abandonment where issues lack legal/factual arguments.
• Garcia-Aranda v. Garland, 53 F.4th 752 (2d Cir. 2022) – Lays out the two-step CAT framework.
• Lecaj v. Holder, 616 F.3d 111 (2d Cir. 2010) – Links failure on lesser persecution standards to inevitable CAT failure.
• Azmond Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) – Sets abuse-of-discretion standard for motions to reopen.
• Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) – Two-part test for ineffective assistance (competence & prejudice).
• Matter of Lozada, 19 I.&N. Dec. 637 (BIA 1988) – Procedural prerequisites for ineffective assistance motions.
• Yi Long Yang v. Gonzales, 478 F.3d 133 (2d Cir. 2007) – Excusing Lozada when ineffectiveness is patent on the record.
• Paucar v. Garland, 84 F.4th 71 (2d Cir. 2023) – Defines prejudice standard in reopening context.

3.2 Legal Reasoning

Issue 1 – Abandonment of Asylum & Withholding Claims.

• The court invoked Debique and Rule 28(a)(8)(A) to conclude that petitioner’s “passing references” did not constitute argument. Therefore, challenges were abandoned.
• This underscores that an appellate brief must contain developed reasoning, record cites, and authority; rhetorical dissatisfaction is insufficient.

Issue 2 – CAT Analysis.

• Applying Garcia-Aranda, the panel stressed a sequential analysis: first likelihood of torture, then acquiescence. Failure on prong one ends the inquiry.
• Because petitioner fell short of even asylum/withholding thresholds, the “more likely than not” CAT standard was necessarily unmet (Lecaj). The BIA therefore properly stopped before the acquiescence question.

Issue 3 – Motion to Reopen / Ineffective Assistance.

• Lozada requires (i) affidavit of facts, (ii) notice to counsel and chance to respond, and (iii) indication of disciplinary complaint.
• The court found no evidence of notice to counsel; a grievance postmarked one day before filing could not suffice.
• Yi Long Yang exception (clear ineffectiveness on record) was not triggered—counsel’s alleged deficiencies were not self-evident in the record.
• Independently, prejudice was lacking (Paucar): petitioner did not show a reasonable probability of success had counsel acted differently.

3.3 Potential Impact

• Appellate Practice: The opinion re-affirms that litigants must provide fully-developed arguments; mere footnote citations or blanket criticism will forfeit issues. Expect stricter policing of briefing quality.
• Ineffective Assistance Claims: Practitioners should treat Lozada compliance as indispensable evidence packaging. Failure to prove notice will likely doom a reopening motion unless record-based ineffectiveness is incontrovertible.
• CAT Litigation: The decision clarifies procedural economy: once an IJ/BIA finds no likely torture, no discussion of governmental acquiescence is required, streamlining CAT adjudications.
• Agency-Court Interaction: By withholding review where issues are waived, the court incentivizes precise administrative fact-finding and discourages scattershot appeals.

4. Complex Concepts Simplified

• Abandonment/Waiver: If you do not make a real argument, courts treat the issue as surrendered.
• CAT Two-Step Test:
  1. Will the person probably be tortured?
  2. If yes, will government officials be involved or look the other way?
  Fail step 1 and the inquiry stops.
• Substantial Evidence Review: Court upholds agency fact-finding unless no reasonable fact-finder could agree with it.
• Lozada Requirements: Think of it as a three-item checklist (affidavit, notice, disciplinary complaint) before the BIA will even look at an ineffective-counsel claim.
• Prejudice Standard: Not just “my lawyer was bad,” but “if my lawyer had done X, there’s a decent chance I would have won.”

5. Conclusion

Although issued as a non-precedential summary order, Gonzalez-Perez v. Bondi carries a robust message: appellants must argue, not merely allude; CAT claims live or die on the likelihood-of-torture element; and Lozada remains the gatekeeper for ineffective assistance motions. The judgment thus fortifies procedural discipline in immigration appeals and offers clear signposts for counsel handling CAT petitions or crafting motions to reopen. Future litigants who ignore these exacting standards risk the same fate—dismissal not on the merits of persecution claims, but on the rigor (or lack thereof) of their legal advocacy.