20-212

Lopez-Perez v. Garland

BIA

Straus, IJ

A206 640 465/466

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 25th day of July, two thousand twenty-two.

PRESENT:

DEBRA ANN LIVINGSTON,

Chief Judge,

JOHN M. WALKER, JR.,

BETH ROBINSON,

Circuit Judges.

_____________________________________

ROXANA AUDELIA LOPEZ-PEREZ, 

DILAN SANTOS-LOPEZ,

Petitioners,

v. 20-212

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONERS: Glenn L. Formica, Formica, P.C., 

New Haven, CT.
2

FOR RESPONDENT: Jeffrey Bossert Clark, Acting 

Assistant Attorney General;

Shelley R. Goad, Assistant 

Director; Julia J. Tyler, Trial 

Attorney, Office of Immigration 

Litigation, United States 

Department of Justice, Washington, 

D.C.

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 GRANTED.

Petitioners Roxana Audelia Lopez-Perez and her minor son, 

Dilan Santos-Lopez, natives and citizens of Guatemala, seek 

review of a December 20, 2019 decision of the BIA affirming 

a March 1, 2018 decision of an Immigration Judge (“IJ”)

denying their claims for asylum and withholding of removal.1 

In re Roxana Audelia Lopez-Perez, Dilan Santos-Lopez, Nos. A

206 640 465/466 (B.I.A. Dec. 20, 2019), aff’g Nos. A 206 640 

465/466 (Immigr. Ct. Hartford Mar. 1, 2018). We assume the 

parties’ familiarity with the underlying facts and procedural 

history.

1 We do not address Petitioners’ claims for relief under the 

Convention Against Torture because they do not challenge the denial 

of those claims here.
3

We have reviewed only the BIA’s decision because the BIA 

provided its own analysis, did not explicitly affirm or adopt 

the IJ’s findings, and declined to reach some bases for the 

IJ’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 

(2d Cir. 2005). The applicable standards of review are well 

established. See 8 U.S.C. § 1252(b)(4)(B); Lecaj v. Holder, 

616 F.3d 111, 114 (2d Cir. 2010) (reviewing factual findings 

for substantial evidence and questions of law and application 

of law to fact de novo). 

I. Lopez-Perez’s Asylum and Withholding Claims

To establish eligibility for asylum or withholding of 

removal, Lopez-Perez was required to show that she had 

suffered past persecution, or had a well-founded fear of 

future persecution, on account of a protected ground. See

8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i), 1231(b)(3). The 

BIA made two dispositive findings regarding Lopez-Perez’s 

claims, concluding that she did not establish past 

persecution, and that her proposed social groups were not 

cognizable. It did not reach the issues of nexus or 

likelihood of future persecution, so those issues are not 

before us. See Lin Zhong v. U.S. Dep’t of Just., 480 F.3d 

104, 122 (2d Cir. 2007), as amended (Jan. 17, 2007)
4

(explaining that “when the BIA issues an opinion . . . and 

that opinion constitutes the final agency determination, we

may consider only those issues that formed the basis for that 

decision”).

Lopez-Perez has waived any challenge to the BIA’s 

conclusion that she did not establish past persecution by 

failing to contest that finding in her opening brief. See

Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d 

Cir. 2005). However, her future persecution claims are 

properly before us because she challenges the BIA’s 

conclusion that her proposed social groups were not 

cognizable, which was the BIA’s only basis for denying her 

future persecution claims. 

Lopez-Perez asserted that she would face future 

persecution on account of her membership in the following 

particular social groups: Guatemalan female heads of 

household, indigenous Guatemalan women, and indigenous 

Guatemalan female heads of household. The BIA’s analysis of 

these proposed particular social groups relied heavily on the 

former Attorney General’s 2018 decision in Matter of A-B-, 

which has since been vacated. See Matter of A-B-, 28 I. & 

N. Dec. 307 (A.G. 2021), vacating Matter of A-B-, 27 I. & N. 
5

Dec. 316 (A.G. 2018). For example, the BIA cited Matter of 

A-B- in concluding that Lopez-Perez failed to prove that her

groups were socially distinct, and added that Lopez-Perez’s

“case ha[d] similarities to Matter of A-B-, . . . and she 

ha[d] not addressed or rebutted this case.” In re Roxana 

Audelia Lopez-Perez, Dilan Santos-Lopez, Nos. A 206 640 

465/466 (B.I.A. Dec. 20, 2019). We remand for further 

consideration because it is not clear that the BIA would reach 

the same conclusions under current precedent, especially 

taking into consideration how Lopez-Perez’s proposed groups 

were narrowed by her indigenous ethnicity. Because our 

review is limited to the BIA’s decision, we take no position 

on whether the claim fails on the other grounds identified by 

the IJ. 

II. Santos-Lopez’s Independent Claims

We “require a certain minimum level of analysis from the 

IJ and BIA opinions denying asylum, and indeed must require 

such if judicial review is to be meaningful.” Poradisova v. 

Gonzales, 420 F.3d 70, 77 (2d Cir. 2005). “Inadequate 

analysis or failure to consider important evidence . . . are 

not excused by the fact that a hypothetical adjudicator, 

applying the law correctly, might also have denied the 
6

petition for asylum.” Id. (internal quotation marks 

omitted). The “law entrusts the agency to make the basic 

asylum eligibility decision,” so, where the agency has not 

conducted its own inquiry into the matter being reviewed, we

must “remand to the agency for additional investigation or 

explanation.” Gonzales v. Thomas, 547 U.S. 183, 186 (2006)

(per curiam) (internal quotation marks omitted).

Santos-Lopez asserted asylum and withholding claims 

separate from his mother’s, arguing that he was at risk of 

persecution on account of his developmental disability. His 

brief to the BIA addressed this issue, arguing that the IJ 

erred in concluding that he did not establish a well-founded 

fear of persecution on account of his disability. However, 

the BIA did not address this claim. It summarized the IJ’s 

reason for denying the claim in a footnote without adopting 

or affirming that conclusion or providing any analysis. 

Accordingly, we remand for the BIA to consider Santos-Lopez’s 

claim in the first instance. See id.
7

For the foregoing reasons, the petition for review is 

GRANTED, the BIA’s decision is VACATED, and the case is 

REMANDED. All pending motions and applications are DENIED 

and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court