“Waiver at the Immigration Judge Level Bars Re-Framing of Particular Social Groups on Appeal”
A Comprehensive Commentary on Alvarez Carguachi v. Bondi (2d Cir. 2025)

1. Introduction

In Alvarez Carguachi v. Bondi, the United States Court of Appeals for the Second Circuit considered a petition for review of a Board of Immigration Appeals (BIA) decision that affirmed the denial of asylum, withholding of removal, and Convention Against Torture (CAT) relief to Cecilia Alvarez Carguachi, an Ecuadorian national.

The case revolves around two central issues:

• Whether Ms. Alvarez Carguachi could re-define her proposed particular social group (PSG) for the first time on appeal to the BIA and the Second Circuit; and
• Whether the agency applied the correct legal standard in evaluating her CAT claim.

Although issued as a summary order (and therefore non-precedential under the Second Circuit’s rules), the opinion re-articulates and reinforces a set of doctrines that are highly consequential in U.S. asylum jurisprudence, namely:

• The “one central reason” causation standard applies equally to asylum and withholding of removal.
• An applicant waives newly-formulated social group theories not presented to the Immigration Judge.
• CAT relief demands proof of likely torture and governmental consent or acquiescence — a higher bar than the “unable or unwilling to protect” test used in asylum contexts.

2. Summary of the Judgment

The panel (Judges Wesley, Bianco, and Lee) denied the petition in its entirety, holding:

1. Alvarez Carguachi abandoned her original PSG of “indigenous women unable to leave their relationships” by failing to defend it in her Second Circuit brief.
2. The BIA properly declined to consider her newly-minted PSG of “Ecuadorian women unable to leave their relationships” because it was not raised before the IJ, and the BIA’s application of its own waiver rule is unreviewable except for abuse of discretion — which the panel found absent.
3. The agency employed the correct acquiescence standard for CAT claims; moreover, Alvarez Carguachi forfeited any substantial challenge to the IJ’s factual finding that torture was not “more likely than not.”

The petition was therefore denied and all stays vacated.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022) – Clarifies that the “one central reason” causation test applies to both asylum and withholding. The panel relies on Quituizaca to rebuff the petitioner’s attempt to impose a different (less stringent) causation test for withholding.
• Xue Hong Yang v. U.S. DOJ, 426 F.3d 520 (2d Cir. 2005) – Cited for the proposition that the Court reviews the IJ decision as modified by the BIA.
• Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) – Sets the standard of review: questions of law de novo and factual findings under substantial-evidence.
• Paloka v. Holder, 762 F.3d 191 (2d Cir. 2014) & Matter of M-E-V-G-, 26 I.&N.Dec. 227 (BIA 2014) – Provide the three-part test for PSG cognizability (immutability, particularity, social distinction).
• Garcia-Aranda v. Garland, 53 F.4th 752 (2d Cir. 2022) – Emphasizes that the protected ground cannot be “incidental or tangential.” Used to highlight the petitioner’s failure to connect the harm to a PSG.
• Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005) – Requires evidence of persecutor motive.
• Debique v. Garland, 58 F.4th 676 (2d Cir. 2023) – Sets out the abandonment doctrine for issues not briefed.
• Prabhudial v. Holder, 780 F.3d 553 (2d Cir. 2015) – Holds that courts will not entertain arguments the BIA considered waived under its procedural rules.
• Matter of W-Y-C- & H-O-B-, 27 I.&N.Dec. 189 (BIA 2018) – Applicants must articulate their PSG before the IJ.
• Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) – Distinguishes CAT acquiescence from the asylum “unable or unwilling” standard.

3.2 Legal Reasoning of the Court

1. Abandonment of the Original PSG
   Because the petitioner’s brief omitted any defense of her original PSG, the Court deemed the claim abandoned under Debique. This underscores the “use it or lose it” principle at the appellate stage.
2. Waiver of the Newly-Proposed PSG
   The BIA declined to reach the merits of the new PSG because it had not been presented to the IJ. Relying on Prabhudial and Matter of W-Y-C- & H-O-B-, the Second Circuit limited its review to whether the BIA abused its discretion in enforcing the waiver rule. Finding none, the panel refused to entertain the expanded PSG claim.
3. Application of the “One Central Reason” Standard
   The Court reiterated that asylum and withholding both require proof that a protected ground is “at least one central reason” for persecution (Quituizaca), rejecting any assertion that withholding has a lower causation threshold.
4. CAT Standard: Likelihood + Acquiescence
   The petitioner argued the IJ used an “acquiescence” test instead of “unable or unwilling”. The Court clarified—again—that CAT always turns on government consent or acquiescence, citing Scarlett. Because the petitioner did not challenge the dispositive finding that torture was not more likely than not, the CAT claim necessarily failed.
5. Substantial-Evidence Review
   The panel invoked 8 U.S.C. § 1252(b)(4)(B), emphasizing that factual determinations stand unless any reasonable adjudicator would be compelled to reach the opposite conclusion. The petitioner could not meet this “daunting” standard.

3.3 Impact of the Judgment

While a summary order carries no precedential value in name, the opinion nevertheless signals — especially to immigration advocates — that:

• Litigants must frame and preserve their PSG(s) at the IJ level; failure to do so is effectively fatal.
• The Second Circuit continues to apply strict waiver doctrines, narrowing the scope of issues it will review.
• The Court doubles down on Quituizaca, erasing any lingering doubt about disparate causation standards between asylum and withholding.
• Practitioners pursuing CAT claims must marshall evidence addressing both prongs (likelihood of torture and state acquiescence), recognizing that “unable or unwilling” arguments have no purchase in the CAT context.
• The decision will likely be cited (informally, if not formally) by DHS and IJs to oppose late-stage PSG reformulations and to reinforce rigorous briefing requirements.

4. Complex Concepts Simplified

• Particular Social Group (PSG): A collection of individuals sharing an immutable trait (like gender or kinship) that is clearly defined and socially recognized in their country.
• One Central Reason Standard: The protected ground must be a main motive—not a side-note—for the persecutor. Think of it as needing to be one of the “driving forces,” not a mere afterthought.
• Waiver/Abandonment: If you fail to raise an argument before the IJ or in your appellate brief, you generally lose the right to have a court consider it. Analogous to missing a filing deadline: the door closes.
• CAT Acquiescence vs. Unable/Unwilling:
  • Unable/Unwilling (Asylum/Withholding): Applicant must show the government can’t or won’t protect them.
  • Acquiescence (CAT): Applicant must show that officials would likely turn a blind eye or silently approve torture — a higher evidentiary burden.
• Substantial Evidence Standard: Courts rarely disturb agency fact-finding; think of it as needing evidence so overwhelming that any fair-minded fact-finder would be forced to disagree with the agency.

5. Conclusion

Alvarez Carguachi v. Bondi underscores two bedrock themes in immigration law practice: (1) the necessity of clearly articulating and preserving all claims at the earliest stage, and (2) the demanding evidentiary and doctrinal thresholds governing asylum, withholding, and CAT relief. The Second Circuit’s refusal to reopen an abandoned PSG or to soften the CAT acquiescence standard sends a cautionary message to litigants and counsel: strategic precision and procedural vigilance are indispensable.

Substantively, the opinion fortifies the “one central reason” causation rule and delineates, yet again, the boundary between asylum/withholding protections and CAT relief. Procedurally, it validates the BIA’s waiver framework, thereby constraining future attempts to recast claims on appeal. Although a summary order, the Court’s reasoning will almost certainly echo in future briefing, IJ decisions, and BIA opinions — shaping the contours of gender-based and domestic-violence asylum claims for years to come.