Full Opinion

23-7270 Aguagallo-Pilataxi v. Blanche BIA Ling, IJ A220 364 650 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. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of October, two thousand twenty-six. PRESENT: RAYMOND J. LOHIER, JR., Chief Judge, GERARD E. LYNCH, MYRNA PÉREZ, Circuit Judges. _____________________________________ HERIBERTO JAVIER AGUAGALLO- PILATAXI, Petitioner, v. 23-7270 NAC TODD BLANCHE, UNITED STATES ATTORNEY GENERAL, Respondent. * _____________________________________ * The Clerk of Court is respectfully directed to amend the case caption as set forth above. FOR PETITIONER: Amin E. Fernandez, Esq., La Victoria Foundation, Jackson Heights, NY. FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Corey L. Farrell, Senior Litigation Counsel; Remi Da Rocha-Afodu, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Petitioner Heriberto Javier Aguagallo-Pilataxi, a native and citizen of Ecuador, seeks review of an August 31, 2023 decision of the BIA affirming an August 3, 2022 decision of an Immigration Judge (“IJ”) that denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Aguagallo-Pilataxi, No. A 220 364 650 (B.I.A. Aug. 31, 2023), aff’g No. A 220 364 650 (Immig. Ct. N.Y.C. Aug. 3, 2022). We assume the parties’ familiarity with the underlying facts and procedural history. Although the BIA said it adopted the IJ’s decision, it also declined to reach some grounds for that decision after concluding that other dispositive aspects of the decision were either without error or waived. Accordingly, we have reviewed the IJ’s decision as modified and supplemented by the BIA—that is, we 2 have reviewed the IJ’s reasoning only to the extent that the BIA relied on it, and with the BIA’s additional waiver findings. 1 See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review fact-finding “under the substantial evidence standard” and we review questions of law de novo. Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. . . .” 8 U.S.C. § 1252(b)(4)(B). We deny the petition because Aguagallo-Pilataxi has failed to challenge dispositive grounds for the agency’s decisions. To establish eligibility for asylum and withholding of removal, Aguagallo-Pilataxi was required to show that he suffered past persecution or had a fear of future persecution. Id. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b). “To qualify as ‘persecution’ the conduct at issue must be attributable to the government, whether directly because engaged in by government officials, or indirectly because engaged in by private persons whom the government is ‘unable or unwilling to 1 Aguagallo-Pilataxi’s argument that his past harm rose to the level of persecution is misplaced because the BIA did not—and was not required to—reach that issue after addressing other issues dispositive of asylum and withholding of removal. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). 3 control.’” Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (quoting Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015)). Here, the IJ found that Aguagallo-Pilataxi failed to establish that the Ecuadorian government was or would be unable or unwilling to protect him from the private actors he feared. The BIA deemed that dispositive issue waived because it was not meaningfully addressed on appeal. Aguagallo-Pilataxi repeats that error in his petition to us, as he does not acknowledge or challenge the BIA’s waiver finding. He has thus abandoned the issue. See Debique v. Garland, 58 F.4th 676, 684 (2d Cir. 2023) (“‘We consider abandoned any claims not adequately presented in an appellant’s brief,’ and an appellant’s failure to make ‘legal or factual arguments’ constitutes abandonment.” (quoting Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997))). His abandonment of this issue is dispositive of asylum and withholding because only the waiver finding is before this Court. See Prabhudial v. Holder, 780 F.3d 553, 555–56 (2d Cir. 2015) (holding that “[w]here the agency properly applies its own waiver rule,” our “review is limited to whether the BIA erred in deeming the argument waived”). Under CAT, Aguagallo-Pilataxi had the burden to establish that he will “more likely than not” be tortured “by, or at the instigation of, or with the consent 4 or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity.” 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The BIA affirmed the IJ’s determinations that Aguagallo-Pilataxi’s fear of harm amounting to torture was speculative and that he did not establish that such harm would be by or with the acquiescence of the Ecuadorian government. Aguagallo-Pilataxi has not challenged the agency’s assessment of the likelihood of torture here and has thus abandoned a dispositive issue. See Debique, 58 F.4th at 684; Garcia-Aranda v. Garland, 53 F.4th 752, 758–59 (2d Cir. 2022) (describing analysis of a CAT claim as “a two-step inquiry,” requiring a showing of both likely harm rising to the level of torture and “sufficient state action”). For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 5