Rodas Villatoro v. Blanche

24-1136 Rodas Villatoro v. Blanche BIA McCarthy, IJ A202 017 832/833/834 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 21st day of October, two thousand 4 twenty-six. 5 6 PRESENT: 7 ROBERT D. SACK, 8 JOSEPH F. BIANCO, 9 SARAH A. L. MERRIAM, 10 Circuit Judges. 11 _____________________________________ 12 13 MARITZA ISAMAR RODAS 14 VILLATORO, A.J.V. R., D.L.V.R., 1 15 Petitioners, 16 1We use only initials to refer to the minor petitioners in this publicly accessible order, consistent with Federal Rule of Civil Procedure 5.2(a)(3) and Federal Rule of Appellate Procedure 25(a)(5).  1 v. 24-1136 2 NAC 3 TODD BLANCHE, UNITED STATES 4 ATTORNEY GENERAL, 5 Respondent. 6 _____________________________________ 7 8 FOR PETITIONERS: Bruno J. Bembi, Hempstead, NY. 9 10 FOR RESPONDENT: Brett Shumate, Acting Assistant Attorney 11 General; Jonathan A. Robbins, Assistant 12 Director; Bernard A. Joseph, Senior Litigation 13 Counsel, Office of Immigration Litigation, 14 United States Department of Justice, 15 Washington, DC. 16 17 UPON DUE CONSIDERATION of this petition for review of a Board of 18 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 19 DECREED that the petition for review is DENIED. 20 Petitioner Maritza Isamar Rodas Villatoro and her minor children, all 21 natives and citizens of Guatemala, seek review of an April 3, 2024, decision of the 22 BIA affirming a November 8, 2019, decision of an Immigration Judge (“IJ”) 23 denying Rodas Villatoro’s application for asylum, withholding of removal, and 24 relief under the Convention Against Torture (“CAT”). In re Martiza Isamar Rodas 25 Villatoro, et al., Nos. A 202 017 832/833/844 (B.I.A. Apr. 3, 2024), aff’g Nos. A202 017 2 1 832/833/834 (Immigr. Ct. N.Y. City Nov. 8, 2019). We assume the parties’ 2 familiarity with the underlying facts and procedural history. 3 The BIA found that Petitioners had waived review of (1) a dispositive basis 4 for the denial of both asylum and withholding of removal, and (2) any challenge 5 to the denial of the CAT claim. See Certified Admin. R. (“CAR”) at 4. Thus, the 6 Government argues here that dispositive issues are unexhausted. In these 7 circumstances, our review is limited to whether the BIA abused its discretion in 8 finding the issues waived, i.e., whether the issues were exhausted before the BIA. 9 See Al Saidi v. Blanche, 185 F.4th 286, 297–298 (2d Cir. 2026) (applying “[a]buse of 10 discretion . . . standard” to a BIA waiver finding); Vera Punin v. Garland, 108 F.4th 11 114, 124 (2d Cir. 2024) (requiring exhaustion of administrative remedies); 12 Prabhudial v. Holder, 780 F.3d 553, 555-56 (2d Cir. 2015) (holding that when the BIA 13 “refuse[s] to consider an issue . . . this Court’s review is limited to whether the BIA 14 erred in deeming the argument waived”). 15 We find no abuse of discretion. “To preserve an issue for judicial review, 16 the petitioner must first raise it with specificity before the BIA.” Vera Punin, 108 17 F.4th at 124 (quotation marks omitted). Before the BIA, Petitioners did not mention 3 1 or challenge the IJ’s finding that they had not demonstrated that “the government 2 of Guatemala is unable or unwilling to control the persecution” that Petitioners 3 feared. CAR at 30. As the BIA concluded, this issue is dispositive of asylum and 4 withholding of removal. See Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (“To 5 qualify as persecution the conduct at issue must be attributable to the government, 6 whether directly because engaged in by government officials, or indirectly because 7 engaged in by private persons whom the government is unable or unwilling to 8 control.” (quotation marks omitted)). 9 Similarly, the BIA did not abuse its discretion in finding the CAT claim 10 waived (and thus unexhausted). A CAT applicant has the burden to show both 11 that torture is “more likely than not” and that “likely future harm will be inflicted 12 by, or at the instigation of, or with the consent or acquiescence of, a public official 13 acting in an official capacity or other person acting in an official capacity.” Garcia- 14 Aranda v. Garland, 53 F.4th 752, 758–59 (2d Cir. 2022) (quotation marks omitted) 15 (describing CAT analysis as “two-step inquiry” requiring showing of likely torture 16 and “sufficient state action”); see also 8 C.F.R. § 1208.18(a)(1). Petitioners’ appeal 17 to the BIA did not cite evidence to support a claim of likely torture or argue, 4 1 beyond conclusory statements, that the CAT standard was satisfied, and the 2 appeal did not address the acquiescence requirement of a CAT claim. Thus, the 3 BIA also did not abuse its discretion in declining to reach the CAT claim. See Al 4 Saidi, 185 F.4th at 297; Vera Punin, 108 F.4th at 124. 5 For the foregoing reasons, the petition for review is DENIED. All pending 6 motions and applications are DENIED and stays VACATED. 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court 5