Past Persecution as the Gateway to Presumed Future Fear, and the “Unable-or-Unwilling” Threshold for Private-Actor Harm (Second Circuit Summary Order)

Case: Lucero-Lucero v. Bondi, No. 23-8092 (2d Cir. Mar. 18, 2026) (summary order)
Agency: Board of Immigration Appeals affirming Immigration Judge Lazare-Raphael
Relief Sought: Asylum, withholding of removal, and CAT (CAT deemed abandoned on appeal)

1. Introduction

Petitioners Luis Alfredo Lucero-Lucero, his wife, and their minor children—natives and citizens of Ecuador—sought review of the BIA’s affirmance of an IJ decision denying asylum and withholding of removal (and CAT relief, which the Second Circuit did not reach because it was not briefed). The core factual premise was that Lucero-Lucero was attacked twice by members of an opposition political party, and he asserted persecution on account of protected grounds (including race/indigenous status and political opinion).

The key issues before the Second Circuit were procedural and substantive:

• Procedural: Whether Lucero-Lucero adequately challenged the agency’s dispositive finding that his harm did not rise to the level of “persecution,” and whether CAT was preserved.
• Substantive: Even assuming severe harm, whether the Ecuadorian government was “unable or unwilling” to control the private perpetrators, as required to attribute persecution to the state for asylum/withholding purposes.
• Due process: Whether alleged IJ bias or “manifestly contrary to law” reasoning amounted to a due process violation.

2. Summary of the Opinion

The Second Circuit denied the petition for review. It held:

• CAT relief was abandoned because petitioners did not brief it, citing Debique v. Garland.
• The “past persecution” finding was effectively unchallenged because Lucero-Lucero did not meaningfully contest the agency’s conclusion that the harm did not rise to the level of persecution; accordingly, review was treated as abandoned.
• Even if past persecution were assumed, substantial evidence supported the agency’s “unable-or-unwilling” finding because the attackers were not state actors and the police took investigative and protective steps (hospital assistance, reports, notification regarding protective measures, and recommendation to pursue the matter with prosecutors).
• Bias/due process claims failed because unfavorable rulings do not establish bias and petitioner did not show denial of a full and fair opportunity to present claims.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

• Debique v. Garland, 58 F.4th 676 (2d Cir. 2023)
  Used for the abandonment rule: claims “not adequately presented” in the brief are deemed abandoned. The court relied on this principle twice—first to refuse to address CAT, and second to treat the failure to meaningfully challenge the “no persecution” finding as abandonment.
• Singh v. Bondi, 139 F.4th 189 (2d Cir. 2025) (quoting Bhagtana v. Garland, 93 F.4th 592 (2d Cir. 2023))
  Establishes the review framework when the BIA issues an opinion: the BIA opinion is the basis for judicial review. This anchors the court’s focus on the BIA’s reasoning while still allowing consultation of the IJ’s decision for completeness.
• Wangchuck v. DHS, 448 F.3d 524 (2d Cir. 2006)
  Supports the court’s practice of considering both IJ and BIA decisions “for the sake of completeness,” especially when the BIA affirms and echoes the IJ’s grounds.
• Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018)
  Cited for the substantial evidence standard on factual findings under 8 U.S.C. § 1252(b)(4)(B). This deference is crucial to the court’s acceptance of the agency’s “unable-or-unwilling” determination based on police responsiveness.
• Singh v. Garland, 11 F.4th 106 (2d Cir. 2021)
  This is the central substantive precedent for (1) de novo review of legal conclusions, (2) the definition of persecution requiring state attribution, and (3) the “unwilling-or-unable” test clarified by the “condoned” or “complete helplessness” formulation. It also supplies the key proposition applied here: harm by political-party members—even aligned with power—does not automatically equate to government persecution.
• Mei Fun Wong v. Holder, 633 F.3d 64 (2d Cir. 2011)
  Cited for the principle that “persecution is an extreme concept,” limiting asylum to serious harm rather than all offensive mistreatment. This frames why failure to contest the “persecution” threshold is dispositive.
• Galina v. INS, 213 F.3d 955 (7th Cir. 2000)
  Quoted through Singh v. Garland for the “condoned or complete helplessness” articulation, reinforcing that private violence becomes “persecution” only when the state effectively tolerates it or is utterly incapable of protection.
• Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020)
  Used to tighten the “unable-or-unwilling” standard: more is required than a government’s failure to act on a single report or general difficulty controlling private conduct. It also cautions that “complete helplessness” prevents converting imperfect policing into state persecution.
• Mu Xiang Lin v. DOJ, 432 F.3d 156 (2d Cir. 2005)
  Quoted via Singh v. Garland for the high bar to overturn factual findings: the record must be “so compelling that no reasonable factfinder could fail” to find eligibility. This underwrites the denial given evidence of police action.
• Liteky v. United States, 510 U.S. 540 (1994)
  Cited for the proposition that adverse rulings alone do not prove bias. The court uses this to dispose of “impermissible bias and speculation” allegations.
• Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007)
  Supplies the due process test: petitioner must show denial of a “full and fair opportunity” or deprivation of “fundamental fairness.” The court found Lucero-Lucero did not explain or demonstrate such deprivation.

3.2 Legal Reasoning

A. Issue preservation and the “past persecution” gateway

The court treated the “no past persecution” finding as dispositive because it triggers multiple downstream consequences. Most importantly, the regulatory rebuttable presumption of a well-founded fear of future persecution arises only after past persecution is established. The court invoked this directly by citing 8 C.F.R. § 1208.13(b)(1).

Lucero-Lucero attempted to pivot to an argument that the government failed to rebut a presumption of future persecution, pointing to IJ credibility and motive findings. The court rejected that move as legally mis-sequenced: without past persecution, there is no presumption to rebut. Because his briefing did not meaningfully contest the threshold “persecution” determination (and offered only conclusory critiques), the court applied Debique v. Garland to deem the issue abandoned.

B. Private actors, political-party violence, and state attribution

The order reinforces a strict approach to the “unable-or-unwilling” requirement. Even if the attacks were severe, the perpetrators were members of an opposition political party—not government officials. Relying on Singh v. Garland, the court emphasized that political-party membership (even a party aligned with power) does not automatically make an attacker a state actor.

C. The evidentiary sufficiency of police response

The “unable-or-unwilling” analysis turned on concrete evidence of police action:

• Police transported Lucero-Lucero to the hospital after the first attack.
• Police waited to speak with him.
• Police issued reports for both incidents.
• Police notified a local chapter about a “ticket for protective measures.”
• Police recommended pursuing the case with the local prosecutor’s office.

Against this record, the court concluded the Ecuadorian government did not “condone” the abuse and did not exhibit “complete helplessness” to protect him (borrowing the formulation tied to Galina v. INS through Singh v. Garland). Scarlett v. Barr supplied the limiting principle: asylum law does not treat imperfect or incomplete law enforcement as equivalent to state-sponsored persecution.

The petitioner’s corruption argument failed because he did not identify supporting record evidence—much less evidence compelling enough to overcome substantial evidence deference (as framed by Mu Xiang Lin v. DOJ and the general substantial-evidence approach described in Hong Fei Gao v. Sessions).

D. Due process and bias claims

The court rejected allegations of “impermissible bias and speculation” as conclusory. Under Liteky v. United States, adverse rulings do not show bias. Under Burger v. Gonzales, due process requires a showing that the applicant lacked a full and fair opportunity to present claims or suffered fundamental unfairness—something the petitioner did not explain or demonstrate.

3.3 Impact

• Briefing discipline in immigration petitions: The order underscores that failure to challenge a dispositive ground (here, lack of “persecution”) can end the case regardless of other potentially favorable findings (e.g., credibility, motive). The abandonment principle from Debique v. Garland operates as a powerful gatekeeper.
• Clarified sequencing for the future-fear presumption: Applicants cannot demand rebuttal of the 8 C.F.R. § 1208.13(b)(1) presumption without first establishing past persecution; credibility alone does not create the presumption.
• High bar for “unable-or-unwilling” when police respond: Evidence of affirmative police steps—even if they do not culminate in prosecution—may substantially undercut claims that the state condoned harm or was completely helpless, consistent with Scarlett v. Barr and Singh v. Garland.
• Due process/bias arguments require specifics: Conclusory assertions that an IJ “speculated” or was “biased” are unlikely to succeed without record-based examples tied to denial of a fair hearing, per Liteky v. United States and Burger v. Gonzales.

4. Complex Concepts Simplified

• “Persecution”: Not every harm qualifies. It is an “extreme concept” (Mei Fun Wong v. Holder) generally requiring serious mistreatment.
• State attribution / “unable or unwilling”: When private individuals inflict harm, it counts as “persecution” for asylum/withholding only if the government condones it or is completely helpless to prevent it (Singh v. Garland, quoting the formulation tied to Galina v. INS).
• Rebuttable presumption of future persecution: A legal advantage that shifts the burden to the government to show the applicant need not fear future persecution—but it arises only if the applicant first proves past persecution (8 C.F.R. § 1208.13(b)(1)).
• Substantial evidence review: The court will not reweigh facts; it upholds agency factfinding unless the record compels the opposite conclusion (8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions).
• Abandonment (issue waiver on appeal): If a claim is not adequately argued in the brief, the court treats it as abandoned and will not decide it (Debique v. Garland).

5. Conclusion

Lucero-Lucero v. Bondi (summary order) illustrates three decisive lessons in Second Circuit immigration review: (1) applicants must directly and substantively challenge every dispositive agency finding or risk abandonment; (2) the regulatory presumption of future persecution is unavailable without proving past persecution; and (3) when harm is inflicted by private political actors, the “unable-or-unwilling” standard demands strong, record-based proof that authorities condoned the harm or were completely helpless—especially where the record shows police responsiveness. The order also reiterates that generalized bias and due process claims require specific, fairness-based showings beyond disagreement with the outcome.