Waiver of the “Unable or Unwilling” Element Before the BIA as a Dispositive Bar to Asylum Review (and a Basis for Summary Affirmance)

1. Introduction

In Marie Supreme v. U.S. Attorney General (11th Cir. Mar. 30, 2026) (unpublished), the Eleventh Circuit denied a petition for review after granting the government’s motion for summary affirmance. The lead petitioner, Jean Elie Louisil, sought review of the Board of Immigration Appeals’ (BIA) final order affirming the immigration judge’s (IJ) denial of asylum, withholding of removal, and Convention Against Torture (CAT) relief. His wife (Marie Darline Supreme) and their two minor children were listed as derivative beneficiaries.

The petition presented issues typical of asylum litigation—whether feared harm in Haiti was connected to a protected ground (nexus), whether Louisil was firmly resettled in Chile before coming to the United States, and whether alleged errors cumulatively required reversal. In addition, Louisil claimed a due process violation based on the IJ’s handling of questioning during the hearing.

The court, however, resolved the case on procedural grounds: waiver/abandonment and the absence of prejudice on the due process claim.

2. Summary of the Opinion

  • The Eleventh Circuit applied summary disposition standards and held the government was “clearly right as a matter of law.”
  • The court held Louisil abandoned his withholding of removal and CAT claims in the court of appeals because his brief did not meaningfully challenge the BIA’s rulings on those forms of relief.
  • As to asylum, the court held the BIA’s determination that Louisil waived any challenge to the IJ’s finding—namely, that he failed to establish the Haitian government was unable or unwilling to protect him—was dispositive.
  • Because that waiver was dispositive, the court declined to reach Louisil’s arguments on nexus, firm resettlement, or cumulative error.
  • The due process claim failed because the IJ’s conduct fell within statutory/regulatory authority to manage the hearing, and in any event Louisil could not show substantial prejudice.

3. Analysis

3.1 Precedents Cited

The opinion is best understood as an application of established administrative-law and immigration-appeal doctrines:

Summary affirmance/disposition

  • Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969): Supplies the governing standard for summary disposition—appropriate where one party’s position is “clearly right as a matter of law” or the appeal is frivolous. The panel used this as the procedural vehicle to dispose of the petition without full merits briefing/argument.

Scope of review between BIA and IJ decisions

  • Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016): Establishes that the court generally reviews the BIA’s decision, and reviews the IJ’s decision to the extent the BIA adopts/expressly agrees with it.
  • Santos-Zacaria v. Garland, 598 U.S. 411, 419-23 & n.2 (2023): Cited to note that Jeune was overruled in part on other grounds, signaling careful attention to the current jurisdiction/exhaustion landscape, even though the panel’s holding here turned on waiver/abandonment.

Waiver/abandonment rules in immigration appeals

  • Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1144-45 (11th Cir. 2010): Supports review of whether the BIA abused its discretion in finding an issue waived for failure to raise it on appeal to the BIA.
  • Clement v. U.S. Att’y Gen., 75 F.4th 1193, 1198, 1200 (11th Cir. 2023): Reinforces that the court has jurisdiction to decide whether the BIA correctly applied procedural doctrines (there, withdrawal; here, waiver).
  • Ruga v. U.S. Att’y Gen., 757 F.3d 1193, 1196 (11th Cir. 2014) and Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir. 2009): Establish that issues not meaningfully argued are abandoned.
  • Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1316 n.3 (11th Cir. 2013): Specifies the level of briefing clarity required to preserve an argument (e.g., a discrete, clearly identified section).
  • INS v. Bagamasbad, 429 U.S. 24, 25 (1976): Provides the principle that courts and agencies need not make findings on issues unnecessary to the outcome—used to justify not reaching nexus, firm resettlement, and cumulative-error arguments once waiver was dispositive.

Substantive asylum/withholding/CAT standards (background rules)

  • Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007): Emphasizes the applicant’s obligation to show inability to obtain home-country protection; failure to report to authorities is “generally ... fatal” unless convincingly excused.
  • Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1352 (11th Cir. 2009): Also supports the asylum/withholding relationship: failing the asylum fear standard typically defeats withholding.
  • Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004): States the CAT “more likely than not” torture standard.

Due process in removal proceedings and prejudice

  • Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010): Due process requires notice and opportunity to be heard; petitioner must show deprivation and prejudice.
  • Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003): Reinforces the need to show “substantial prejudice.”
  • Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009) (quoting Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008)): Notes that denial of purely discretionary relief does not itself establish a protected liberty interest—helpful context in evaluating due process claims in the immigration setting.

3.2 Legal Reasoning

(a) The dispositive procedural move: BIA waiver on the “unable or unwilling” element

The court’s central move was to treat the BIA’s waiver finding as case-ending. The IJ had denied relief, and the BIA concluded Louisil waived any challenge to a critical asylum element: whether Haitian authorities were unable or unwilling to protect him.

On petition for review, Louisil asserted that he had discussed Haitian police incapacity in his BIA brief; the panel called that claim inaccurate, stating he “did not address Haitian police” in his BIA brief. Under Lapaix v. U.S. Att’y Gen., the Eleventh Circuit framed its role as reviewing for abuse of discretion whether the BIA correctly deemed the issue waived—and concluded Louisil failed to show any abuse.

Once waiver was upheld, the panel invoked INS v. Bagamasbad to avoid unnecessary merits determinations, declining to consider nexus, firm resettlement, or cumulative error.

(b) Abandonment in the court of appeals: withholding and CAT

The panel separately held Louisil abandoned challenges to withholding and CAT by failing to argue them in his appellate brief (and by failing to challenge the BIA’s conclusion that CAT was waived on appeal to the BIA). That conclusion rests on the Eleventh Circuit’s strict preservation rules articulated in Ruga v. U.S. Att’y Gen., Kazemzadeh v. U.S. Att’y Gen., and Zhu v. U.S. Att’y Gen..

(c) Due process claim: authority to control proceedings + no substantial prejudice

The court rejected the due process claim on two related grounds:

  • Authority: Citing INA § 240(b)(1) and 8 C.F.R. § 1003.10(b), the panel emphasized the IJ’s broad authority to receive evidence and control examination of witnesses. The IJ’s objection to an “irrelevant” question about Louisil’s current U.S. job was therefore within the IJ’s role.
  • No substantial prejudice: Even assuming error, Louisil did not show that the outcome would have differed. Under Lapaix v. U.S. Att’y Gen. and Lonyem v. U.S. Att’y Gen., the absence of prejudice defeats a due process claim. The panel underscored that the objected-to questions were irrelevant to the dispositive asylum issue (government inability/unwillingness to protect).

(d) Why summary affirmance fit this case

Because procedural defaults (waiver/abandonment) made the outcome straightforward, the panel applied Groendyke Transp., Inc. v. Davis to grant summary affirmance: once the dispositive issue was waived, there was “no substantial question as to the outcome.”

3.3 Impact

Practical impact on immigration appeals

  • Issue preservation is outcome-determinative: The decision illustrates that failing to challenge a single essential element (here, “unable or unwilling” protection) before the BIA can foreclose judicial review of other substantive theories (nexus, firm resettlement, and cumulative error).
  • Briefing discipline in the court of appeals: Even where a petitioner has multiple forms of relief denied, failing to brief withholding/CAT with specificity can result in abandonment—ending those claims without merits review.
  • Due process claims face a high prejudice bar: Allegations about an IJ’s tone, objections, or case-management decisions will rarely succeed absent a clear showing that excluded or constrained evidence was material and would likely have changed the result.

Doctrinal impact (even if unpublished)

Although “NOT FOR PUBLICATION” opinions do not generally create binding precedent, the opinion consolidates several recurring Eleventh Circuit themes into a single, easily applied template: (1) strict enforcement of waiver/abandonment; (2) judicial restraint from reaching nonessential issues; and (3) robust deference to IJs’ authority to manage hearings, paired with a stringent prejudice requirement for due process claims.

4. Complex Concepts Simplified

  • “Unable or unwilling” to protect: Asylum requires more than fear of harm; the applicant typically must show the home government can’t or won’t offer protection. Often this is shown by reporting harm to authorities and demonstrating inaction, corruption, or inability. Failure to address this element can be fatal.
  • Waiver vs. abandonment:
    • Waiver (at the BIA): Not raising an issue in the administrative appeal can lead the BIA to treat it as forfeited.
    • Abandonment (in the court of appeals): Not properly arguing an issue in the appellate brief means the court will not consider it.
  • Nexus: The feared persecution must be “on account of” a protected ground (e.g., political opinion or particular social group), and that ground must be “at least one central reason” for the harm.
  • Firm resettlement: If an applicant was firmly resettled in another country before arriving in the U.S., asylum may be barred. (Here, the court did not reach the issue because waiver was dispositive.)
  • Summary affirmance: A fast-track decision when the law clearly dictates the outcome, making full appellate processing unnecessary.
  • Substantial prejudice (due process): A procedural mistake is not enough; the petitioner must show the mistake likely changed the result.

5. Conclusion

The key takeaway from Marie Supreme v. U.S. Attorney General is procedural: when the BIA finds an applicant waived a challenge to a dispositive asylum element—here, whether the home government was unable or unwilling to provide protection—the court of appeals can uphold that waiver and decline to reach other merits questions. The decision also reaffirms that (1) withholding and CAT claims can be lost through inadequate briefing, and (2) due process challenges require a concrete showing of substantial prejudice, especially where the IJ’s actions fall within ordinary case-management authority.