Pending FTCA Damages Claims Rarely Justify Administrative Closure or Continuance Absent Likely Immigration-Case Impact

1. Introduction

Barzallo-Andrade v. Blanche (2d Cir. Apr. 3, 2026) is a nonprecedential summary order denying a petition for review from Ecuadorian nationals Daniel Bolivar Barzallo-Andrade, Olga Marisela Peralta-Malla, and their minor child. The petitioners sought review of a BIA decision affirming an IJ’s denial of (i) asylum, (ii) withholding of removal, and (iii) CAT relief, and also the denial of motions to administratively close or continue removal proceedings while a pending Federal Tort Claims Act (FTCA) administrative claim—based on alleged conditions during 9 days of immigration detention—was being adjudicated.

The case presented two main clusters of issues:

  • Docket-management discretion: whether the IJ/BIA abused discretion by refusing administrative closure or a continuance pending collateral FTCA proceedings.
  • Protection claims: whether petitioners met the asylum/withholding requirements—particularly the requirement that harm by private actors be attributable to the government because the government is unable or unwilling to protect.

2. Summary of the Opinion

The Second Circuit denied the petition for review in full.

  • Administrative closure / continuance: No abuse of discretion. The agency reasonably concluded the pending FTCA claim sought money damages and was not shown likely to produce relief that would materially affect the outcome of removal proceedings.
  • Asylum / withholding: Substantial evidence supported the agency’s dispositive finding that petitioners did not establish the Ecuadorian government was unable or unwilling to protect Barzallo-Andrade from kidnapping/harm by private actors.
  • CAT: The CAT claim was deemed unexhausted and abandoned because it was not raised before the BIA and not argued in the petition for review.

3. Analysis

A. Precedents Cited (and How They Shaped the Outcome)

1) Discretionary denials of administrative closure and continuances

Garcia v. Garland, 64 F.4th 62 (2d Cir. 2023), supplied two key framing points: (i) the standard of review for administrative closure denials is abuse of discretion, and (ii) administrative closure is a procedural device that removes a case from an IJ’s active calendar or the BIA’s docket. The court used Garcia to emphasize deferential review and to anchor the modern administrative-closure framework.

Morgan v. Gonzales, 445 F.3d 549 (2d Cir. 2006), was cited for the same abuse-of-discretion standard governing continuance denials, reinforcing that docket-management decisions are reviewed “under [a] highly deferential standard.”

The BIA standards for administrative closure were taken from Matter of Avetisyan, 25 I. & N. Dec. 688 (B.I.A. 2012), as further recognized in Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (B.I.A. 2021). The court recited the Avetisyan multi-factor test (reason sought, opposition basis, likelihood of success on collateral action, expected duration, responsibility for delay, and ultimate outcome upon recalendaring), and noted Cruz-Valdez’s articulation of how administrative closure has been used (e.g., while USCIS adjudicates visa petitions or criminal-court post-conviction litigation proceeds). These authorities framed the inquiry as not merely “is something pending elsewhere,” but whether closure is justified given likelihood, duration, and relevance to removal.

For continuances tied to collateral relief, the court relied on Matter of L-A-B-R-, 27 I. & N. Dec. 405 (A.G. 2018), which directs IJs to focus principally on: (1) the likelihood the noncitizen will receive the collateral relief, and (2) whether that relief will materially affect the outcome of removal proceedings, with additional considerations including diligence, DHS’s position, requested length, and procedural history. L-A-B-R- was pivotal because the Second Circuit treated the FTCA claim as a form of collateral relief that must be shown likely to change the removal-case posture.

Li Zu Guan v. INS, 453 F.3d 129 (2d Cir. 2006), was invoked to support a futility rationale: even if the BIA did not separately analyze continuance availability in an entirely distinct discussion, remand is unnecessary where there is “no realistic possibility of a different result on remand.” That citation insulated the decision from a procedural attack based on the BIA’s combined treatment of administrative closure and continuance.

2) Asylum/withholding: private-actor harm and state protection

Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020), supplied the governing articulation that persecution must be attributable to the government either directly (state actors) or indirectly (private actors the government is unable or unwilling to control). The panel relied on Scarlett to underscore that mere difficulty controlling private crime or failure to act on a particular report does not automatically satisfy the standard.

Singh v. Garland, 11 F.4th 106 (2d Cir. 2021), refined the unwilling-or-unable inquiry: persecution by private actors ordinarily requires that authorities “condoned” the harm or demonstrated “complete helplessness” to protect victims. The panel used Singh to reject the inference that police closure of an investigation “for lack of proof” establishes governmental unwillingness or inability.

INS v. Bagamasbad, 429 U.S. 24 (1976), was used for the principle of judicial/agency economy: when one ground is dispositive, courts and agencies need not decide other issues. Here, because the “unable or unwilling” finding defeated asylum and withholding, the court declined to reach whether the proposed social groups were cognizable.

3) Issue preservation: exhaustion and abandonment

Vera Punin v. Garland, 108 F.4th 114 (2d Cir. 2024), was cited for administrative exhaustion: to preserve an issue for judicial review, it must be raised “with specificity before the BIA.”

Debique v. Garland, 58 F.4th 676 (2d Cir. 2023), supplied the abandonment doctrine on petition for review: claims not adequately briefed are deemed abandoned. Together, these cases supported the court’s conclusion that petitioners’ CAT theory could not be reviewed.

B. Legal Reasoning

1) Why the FTCA claim did not warrant administrative closure or a continuance

The court accepted the agency’s reasoning that the pending FTCA administrative claim sought money damages for conditions of detention and did not, on the record presented, show a realistic prospect of relief that would alter removability, eligibility for relief, or the case’s posture. Under Matter of L-A-B-R-, the moving party bears the burden to show both likely success and material effect on removal proceedings.

The petitioners argued that some FTCA matters have resulted in settlements that include collateral immigration-related benefits such as deferred action or employment authorization. The panel did not treat that as categorically impossible; instead, it treated it as speculative on this record because petitioners did not show why such an outcome was likely here or how their claim was comparable to cases with immigration-benefit settlement terms.

The opinion also resolves a common procedural contention: the BIA’s discussion focused on administrative closure without a fully separate continuance analysis. The court found no reversible error because the governing standards overlap and the BIA’s reasoning reflected consideration of the relevant factors for both, making remand futile under Li Zu Guan v. INS.

2) Why asylum/withholding failed on the “unable or unwilling” requirement

Even assuming the credibility of the kidnapping account, the dispositive failure was attribution to the state. The record showed police opened an investigation but later closed it for “lack of proof,” and the petitioner could not identify the attackers (he was blindfolded). His belief that police closed the case due to fear of “the mafia” was not supported by evidence beyond speculation.

Applying Singh v. Garland and Scarlett v. Barr, the court treated an investigation that ends without prosecution—without evidence of condonation or systemic helplessness— as insufficient to establish the government was unwilling or unable to protect. The panel emphasized that the standard requires more than the government failing to solve a particular crime.

3) Why CAT was not considered

The panel’s CAT disposition is procedural rather than merits-based: because CAT was not raised with specificity to the BIA (exhaustion) and not argued to the court (abandonment), review was foreclosed under Vera Punin v. Garland and Debique v. Garland.

C. Impact

Although designated as a nonprecedential summary order, the decision reflects a clear practical signal in Second Circuit immigration litigation:

  • Collateral civil claims (like FTCA) are not, by themselves, “good cause” to pause removal proceedings; a movant must concretely link the collateral process to likely, case-dispositive immigration consequences.
  • Speculation about settlement terms is inadequate. If the asserted reason to pause is a hoped-for negotiated immigration benefit, the movant should be prepared to explain why such a benefit is realistically likely.
  • “Unable or unwilling” remains demanding. Evidence that police investigated but did not solve a crime tends to undermine, not support, the claim that the state condoned the harm or was completely helpless.
  • Preservation discipline matters. CAT theories must be explicitly raised to the BIA and briefed on petition for review, or they will be lost.

4. Complex Concepts Simplified

  • Administrative closure: A pause button that removes a case from an immigration judge’s active calendar. It is not a final decision; the case can be recalendared.
  • Continuance: A postponement of a hearing or proceedings for “good cause.” It keeps the case active but delays the next step.
  • Collateral relief: A separate, non-immigration proceeding (or parallel process) that might affect immigration proceedings (e.g., visa petitions, criminal appeals, or here, an FTCA claim).
  • FTCA claim: A mechanism to seek money damages from the United States for certain torts committed by federal employees. It usually provides compensation, not immigration status.
  • “Unable or unwilling” to protect: When harm is inflicted by private actors, the applicant must show the government effectively condoned it or was so powerless that it could not provide protection—not merely that police did not solve the crime.
  • Exhaustion / abandonment: “Exhaustion” means you must raise an argument to the BIA before asking a federal court to review it. “Abandonment” means if you do not argue an issue in your brief to the court, the court treats it as waived.

5. Conclusion

Barzallo-Andrade v. Blanche affirms two core operational lessons. First, motions to administratively close or continue removal proceedings pending an FTCA claim will likely fail unless the claimant can show a concrete, non-speculative likelihood that the collateral process will yield relief that materially changes the immigration case. Second, asylum and withholding claims based on private criminal activity face a high evidentiary bar on state attribution: an opened-but-unsuccessful police investigation, without evidence of condonation or “complete helplessness,” generally will not satisfy the “unable or unwilling” requirement. Finally, the decision underscores the procedural rigor of issue preservation for CAT claims.