Tinoco v. Bondi (2d Cir. 2025): Reaffirmation that Pending Collateral Attacks Do Not Undermine Conviction Finality; Abandonment and Internal Relocation as Dispositive Bars to Withholding; No Automatic Stay of Removal After BIA Decision

Introduction

In Tinoco v. Bondi, No. 24-3265 (2d Cir. Nov. 17, 2025) (summary order), the United States Court of Appeals for the Second Circuit denied a petition for review by Ramiro Moreno Tinoco, a Mexican national ordered removed following an aggravated felony conviction. Tinoco sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He also claimed that the Department of Homeland Security (DHS) unlawfully removed him while his appeal was pending.

The case reached the court after the Board of Immigration Appeals (BIA) affirmed the Immigration Judge’s (IJ’s) denial of all relief. The key issues included:

Whether a pending New York Criminal Procedure Law § 440.10 post-conviction motion defeats the “finality” of a criminal conviction for immigration purposes and warranted a continuance of removal proceedings.
Whether the IJ and BIA erred in denying withholding of removal and CAT relief, including rulings on the cognizability of a proposed particular social group (PSG), nexus, and internal relocation.
Whether the government unlawfully executed Tinoco’s removal in violation of 8 C.F.R. § 1003.6(a) (the BIA-appeal automatic stay regulation).

Although issued as a nonprecedential summary order (and thus without precedential effect under Federal Rule of Appellate Procedure 32.1 and the Second Circuit’s Local Rule 32.1.1), the decision consolidates and underscores several well-settled principles central to removal practice in the Second Circuit.

Summary of the Opinion

Asylum: Petition denied. Tinoco’s challenge to the IJ’s denial of a continuance pending his § 440.10 motion was moot because the state court had denied the motion. In any event, a pending collateral attack does not negate the finality of a conviction for immigration purposes.
Withholding of Removal: Petition denied. Tinoco abandoned dispositive grounds by failing to challenge the IJ’s findings that (i) his fear of harm was localized and internal relocation within Mexico was available and (ii) the only potentially applicable PSG was not cognizable. Those failures were fatal to his claim.
CAT: Petition denied. Because the CAT claim relied on the same facts and Tinoco failed to show a likelihood of persecution for withholding, he necessarily failed to meet the higher “more likely than not” standard required for CAT relief.
Alleged unlawful removal: Claim rejected. DHS removed Tinoco after the BIA had dismissed his appeal and before any stay was filed or granted. There is no automatic stay of removal after a BIA decision while a petition for review is pending unless a court orders a stay.

Analysis

Standards of Review and Jurisdictional Framing

When the BIA adopts the IJ’s decision and adds its own reasoning, the Second Circuit reviews the IJ’s decision as supplemented by the BIA (Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005)). Tinoco was removable based on an aggravated felony, which ordinarily limits the court’s review to constitutional claims and questions of law (8 U.S.C. § 1252(a)(2)(C), (D)). However, consistent with Nasrallah v. Barr, 590 U.S. 573, 587 (2020), that limitation does not apply to CAT claims. The Second Circuit again noted that it has not resolved whether the limitation applies to withholding of removal (Quintanilla-Mejia v. Garland, 3 F.4th 569, 583 (2d Cir. 2021)), and proceeded—assuming arguendo—to review both withholding and CAT under the substantial-evidence standard. Factual findings are conclusive unless a reasonable adjudicator would be compelled to conclude otherwise (8 U.S.C. § 1252(b)(4)(B)); questions of law and mixed questions are reviewed de novo (Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018)).

I. Asylum

Tinoco did not dispute that he had an aggravated felony conviction barring asylum. He argued instead that his conviction was not “final” because he had filed a collateral attack—a § 440.10 motion—in New York state court, and that the IJ violated due process by denying a continuance pending the outcome of that motion.

The Second Circuit took judicial notice that the state court denied the § 440.10 motion on June 26, 2024, rendering the continuance challenge moot (Gadi v. Mukasey, 293 F. App’x 55, 56 (2d Cir. 2008) (summary order)). The panel further underscored that, even if not moot, longstanding law provides that pending collateral attacks do not undermine conviction finality for immigration purposes (Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991); Matter of Montiel, 26 I. & N. Dec. 555, 557 n.2 (B.I.A. 2015)). Accordingly, the asylum claim failed.

II. Withholding of Removal and CAT

To obtain withholding, an applicant must show a clear probability of persecution on account of a protected ground, including membership in a particular social group (PSG), and that the protected ground is “at least one central reason” for the harm (8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b); Quituizaca v. Garland, 52 F.4th 103, 109–14 (2d Cir. 2022); Paloka v. Holder, 762 F.3d 191, 196–97 (2d Cir. 2014)).

The IJ denied withholding on multiple grounds (CAR 83–87):

Of six proposed PSGs, Tinoco was not a member of five; the sixth—“Mexican men that fear criminal organizations given past targeting of his and his immediate family”—was not cognizable.
He failed to establish nexus between feared harm and any protected ground.
He failed to establish a likelihood of persecution because his fear was limited to a criminal organization in his home state, and he could relocate elsewhere in Mexico.

On petition for review, Tinoco did not challenge two dispositive findings: the IJ’s determination that his fear was localized and that internal relocation was feasible, and the IJ’s determination that the only potentially applicable PSG was not cognizable. Those unchallenged findings were deemed abandoned (Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023)). The court therefore denied withholding without reaching the remaining elements.

Tinoco attempted to reframe his PSG as “Mexicans who had family ties in the U.S.” (arguing such persons are perceived as wealthy and thus kidnapping targets). Even if considered, the Second Circuit noted that neither wealth nor class status establishes a cognizable PSG (Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74 (2d Cir. 2007)). That reinforcement also undermined relief.

For CAT, an applicant must show it is more likely than not that he will be tortured if removed (8 C.F.R. § 1208.16(c)(2)). Because Tinoco’s CAT claim rested on the same facts as withholding and he failed to establish a likelihood of persecution sufficient for withholding, he necessarily failed to meet CAT’s higher burden (Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010)). The court thus denied CAT relief.

III. Alleged Unlawful Removal

Tinoco argued that DHS unlawfully removed him in violation of 8 C.F.R. § 1003.6(a) while his appeal was pending before the BIA. The record showed the BIA issued its decision on November 26, 2024, and DHS executed removal on December 16, 2024 (ACMS Doc. #12). Because removal occurred after the BIA’s dismissal and before the petition for review was docketed or any stay sought or granted, there was no regulatory violation.

The court emphasized that filing a petition for review does not automatically stay removal; a judicial stay is required (8 U.S.C. § 1252(b)(3)(B); Nken v. Holder, 556 U.S. 418, 424–25 (2009)). The claim that he was removed “while his BIA appeal was pending” was therefore rejected.

Precedents Cited and Their Influence

Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): Clarifies the framework for reviewing the IJ decision as supplemented by the BIA, ensuring the court addressed all material agency reasoning.
Nasrallah v. Barr, 590 U.S. 573 (2020): Establishes that § 1252(a)(2)(C)’s jurisdictional bar for aggravated felons does not restrict review of CAT claims, enabling full factual review under the substantial-evidence standard.
Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021): Notes the Second Circuit has not finally resolved whether § 1252(a)(2)(C) constrains review of withholding claims; here again, the court assumed arguendo it could review under the same standard as CAT.
Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018): Restates the bifurcated standard of review (substantial evidence for facts; de novo for law and mixed questions).
Gadi v. Mukasey, 293 F. App’x 55 (2d Cir. 2008) (summary order): Supports mootness of continuance challenges once the underlying collateral action is decided.
Montilla v. INS, 926 F.2d 162 (2d Cir. 1991), and Matter of Montiel, 26 I. & N. Dec. 555 (B.I.A. 2015): Provide the backbone for the “finality” rule: pending collateral attacks do not disturb conviction finality for immigration purposes.
Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022), and Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014): Outline PSG and nexus standards for withholding, framing the court’s assessment of the IJ’s determinations.
Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Anchors the abandonment doctrine; unchallenged dispositive findings on appeal are deemed abandoned and can be decisive.
Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007): Establishes that wealth and class status generally do not define a cognizable PSG—undercutting attempts to recast PSGs around perceived wealth due to U.S. ties.
Lecaj v. Holder, 616 F.3d 111 (2d Cir. 2010): Articulates that CAT imposes a higher burden; failure to show a likelihood of persecution can signal failure to meet CAT’s “more likely than not” torture standard when based on the same facts.
Nken v. Holder, 556 U.S. 418 (2009), and 8 U.S.C. § 1252(b)(3)(B): Confirm no automatic stay of removal while a PFR is pending; a judicial stay must be sought and obtained.

Legal Reasoning

Asylum/Continuance and Finality: The court resolved the continuance argument on mootness grounds because the state court had already denied the § 440.10 motion. It further emphasized, consistent with Montilla and BIA precedent, that pending collateral attacks do not negate the finality of a conviction for immigration purposes, making the asylum bar operative.
Withholding/PSG, Nexus, and Internal Relocation: The IJ’s findings that the lone potential PSG was not cognizable and that internal relocation defeated the claim were dispositive. Tinoco’s failure to challenge those findings on appeal constituted abandonment, foreclosing relief. The court also noted that repackaging the PSG as “Mexicans with U.S. family ties” fails under Ucelo-Gomez’s wealth/class-line guidance.
CAT: With no independent factual predicate suggesting a probability of torture countrywide or with official acquiescence, and with the claim premised on the same facts rejected for withholding, the heightened CAT standard was not met.
Unlawful Removal Claim: The automatic administrative stay of removal under 8 C.F.R. § 1003.6(a) applies while a BIA appeal is pending. Once the BIA ruled, continued removal was lawful absent a judicially ordered stay. Filing (or even serving) a petition for review does not itself stay removal (8 U.S.C. § 1252(b)(3)(B); Nken).

Impact and Practical Significance

Although nonprecedential, Tinoco provides instructive guidance for practitioners in the Second Circuit:

Collateral attacks do not stall immigration consequences: A pending state post-conviction motion (e.g., N.Y. CPL § 440.10) will not prevent DHS or the immigration courts from treating the conviction as final. Continuance requests on this basis are vulnerable, and any due process theory premised on waiting out collateral proceedings will face mootness problems if those proceedings conclude adversely.
Preserve and brief every dispositive ground: Failure to challenge an IJ’s dispositive finding—such as noncognizability of a PSG or availability of internal relocation—constitutes abandonment and will be fatal on appeal. Appellate briefing must squarely attack each independent ground on which the IJ/BIA relied.
PGS theories anchored in fear of crime or perceived wealth remain fraught: Attempts to define PSGs around generalized criminal victimization, wealth, or class perceptions—such as “Mexicans with U.S. family ties” presumed to have money—remain disfavored under Ucelo-Gomez and related PSG jurisprudence.
Internal relocation is a potent defense to withholding: Where the fear is localized (e.g., a specific criminal organization operating in one area), the government’s internal relocation argument can defeat a withholding claim absent evidence of nationwide risk.
CAT requires distinct, robust proof: A CAT claim that “rides along” with withholding and relies on the same deficient factual predicate will often fail, given CAT’s “more likely than not” torture standard. Practitioners should develop CAT-specific evidence, including official acquiescence and inability to avoid harm nationwide.
Removal logistics: act fast on stays: After a BIA decision, there is no automatic stay. DHS may execute removal unless and until a court issues a stay. Rapid filing of a petition for review should be coupled with a prompt, well-supported stay motion.
Withholding-review jurisdiction remains unsettled: The Second Circuit again declined to resolve whether § 1252(a)(2)(C)’s limitations constrain judicial review of withholding for aggravated felons, instead assuming arguendo review on the merits. Litigants should preserve arguments on the scope of review.

Complex Concepts Simplified

Finality of conviction (immigration): A criminal conviction counts for immigration purposes even if the noncitizen is pursuing a separate, collateral attack (like a § 440.10 motion). Only vacaturs that are substantive (e.g., because of a legal defect) may ultimately eliminate immigration consequences; pending challenges do not.
Particular Social Group (PSG): A PSG must be socially distinct, particular, and based on an immutable characteristic. Generalized risk of crime, wealth, or perceived wealth typically does not qualify.
Nexus (“one central reason”): The protected ground must be at least one central reason for persecution. Harm from generalized crime or personal disputes is usually not on account of a protected ground.
Internal relocation: If the feared harm is localized and the applicant can safely and reasonably relocate within the country, withholding and (often) CAT claims fail.
Abandonment on appeal: Issues not raised and developed in appellate briefing are treated as abandoned and will not be considered.
CAT standard: Requires proof that it is more likely than not the applicant will be intentionally subjected to severe pain or suffering, with government involvement or acquiescence. This is a higher threshold than withholding.
No automatic stay after BIA: Once the BIA rules, removal can proceed unless a federal court grants a stay. Filing a petition for review alone does not halt removal.

Conclusion

Tinoco v. Bondi is a nonprecedential but instructive reaffirmation of core removal doctrines in the Second Circuit. The court:

Rejected an asylum continuance challenge as moot and reiterated that pending collateral attacks do not negate conviction finality.
Denied withholding based on the petitioner’s abandonment of dispositive IJ findings, including internal relocation and PSG noncognizability, and underscored the weakness of PSGs premised on wealth or U.S. family ties.
Denied CAT relief for lack of evidence meeting the “more likely than not” torture standard when the claim rested on the same facts as withholding.
Clarified that removal after a BIA decision is lawful absent a court-ordered stay; there is no automatic stay while a petition for review is pending.

For practitioners, the case is a cautionary roadmap: ensure all dispositive issues are preserved and briefed, build PSG and CAT claims on solid, cognizable theories with nationwide reach (or explain why relocation is not reasonable), and move swiftly for judicial stays after BIA decisions. While the decision does not create new precedent, it meaningfully consolidates governing principles that will influence litigation strategy in aggravated-felony removal cases within the Second Circuit.