19-3470-ag Quituizaca v. Garland In the United States Court of Appeals For the Second Circuit ________ AUGUST TERM 2021 ARGUED: JANUARY 18, 2022 DECIDED: NOVEMBER 1, 2022 No. 19-3470-ag XAVIER PUCHA QUITUIZACA, AKA MANUEL SANCHEZ RODRIGUEZ, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. ________ On Petition for Review of a Final Decision of the Board of Immigration Appeals. ________ Before: KEARSE, WALKER, and SULLIVAN, Circuit Judges. ________ Xavier Pucha Quituizaca petitions for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s denial of his application for asylum and withholding of 2 No. 19-3470 removal under the Immigration and Nationality Act and protection under the Convention Against Torture (CAT). Quituizaca argues that the agency erred in denying his withholding of removal claim when it required that he demonstrate that his ethnicity was “at least one central reason” motivating his claimed persecution. He also challenges the BIA’s denial of his asylum claim and its finding that he waived his CAT claim. We hold that the withholding of removal statute is ambiguous as to the showing required to establish that a protected ground, such as ethnicity, motivated a persecutor. We also hold that the BIA’s interpretation that the “one central reason” standard applies to withholding of removal claims is reasonable and thus entitled to deference. Because we find that the BIA’s denial of Quituizaca’s asylum and withholding claims are supported by substantial evidence and that Quituizaca waived his CAT claim, we DENY the petition. Judge Sullivan concurs in Parts II and III and in the judgment, and files a separate concurring opinion as to Part I. ________ REBECCA RUTH PRESS, UnLocal, Inc. Community Immigration Legal Services, New York, NY (Xavier Pucha Quituizaca, pro se, Batavia, NY, on the briefs), for Petitioner. MICHELE Y. F. SARKO, Office of Immigration Litigation (Timothy G. Hayes, Senior Litigation Counsel, on the brief), for Jeffrey Bossert Clark, 3 No. 19-3470 Acting Assistant Attorney General—Civil Division, U.S. Department of Justice, Washington, DC, for Respondent. ________ JOHN M. WALKER, JR., Circuit Judge: Xavier Pucha Quituizaca petitions for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ’s) denial of his application for asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection under the Convention Against Torture (CAT). Quituizaca argues that the agency erred in denying his withholding of removal claim when it required that he demonstrate that his ethnicity was “at least one central reason” motivating his claimed persecution. He also challenges the BIA’s denial of his asylum claim and its finding that he waived his CAT claim. We hold that the withholding of removal statute is ambiguous as to the showing required to establish that a protected ground, such as ethnicity, motivated a persecutor. We also hold that the BIA’s interpretation that the “one central reason” standard applies to withholding of removal claims is reasonable and thus entitled to deference. Because we find that the BIA’s denial of Quituizaca’s asylum and withholding claims are supported by substantial evidence and that Quituizaca waived his CAT claim, we DENY the petition. Judge Sullivan concurs in Parts II and III and in the judgment, and files a separate concurring opinion as to Part I. 4 No. 19-3470 BACKGROUND Quituizaca, a native and citizen of Ecuador, entered the United States in 2006 unlawfully without inspection. In 2018, the government opened removal proceedings against him. Quituizaca appeared before an IJ and conceded removability but applied for asylum, withholding of removal, and protection under CAT, any of which would have provided him with relief from the removal proceedings. The facts in this appeal are undisputed. Quituizaca’s requests for relief arise out of allegations that he was twice attacked by the “Morocha Kigwas,” a gang in Ecuador that he claims targeted him because of his indigenous Quechua ethnicity. At the hearing before the IJ, Quituizaca testified that in 2003, gang members boarded a bus “full of indigenous people” who were mostly of high school age. ^[1] The gang removed Quituizaca—then 18 years old and returning from work—from the bus, robbed him at knifepoint, and beat him when he tried to run away. When asked why he thought he was “singled out,” Quituizaca explained that the gang routinely patrolled the buses. ^[2] He did not report the robbery to the police because he claimed that they did not “listen to indigenous people.” 3 Two years later, the same gang again confronted Quituizaca. This time, Quituizaca was with his brother and friends at a bus stop around midnight. The gang demanded their money, jackets, and shoes. Quituizaca complied, but one of his friends who resisted and tried to fight back was fatally stabbed by the gang’s leader. The leader As the Majority observes, “‘because of’ is sometimes synonymous with ‘but- for’ causation.” Maj. Op. at 11 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)). That strikes me as an understatement. In the very case cited by the Majority, the Supreme Court unequivocally stated that “the ordinary meaning of [a statute’s] requirement that an [actor] took adverse action ‘because of’ [a specified factor] is that [the specified factor] was the ‘reason’ that the [actor] decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (emphasis added). Therefore, the Court held that to prevail “under the plain language of” such a statute, a litigant “must prove that [the specified factor] was the ‘but-for’ cause of the [relevant action]” – i.e., that the relevant action “would not have occurred without” the specified factor. Id. at 176–77 (emphasis added). Nothing in Gross suggests that the Supreme Court’s reasoning was limited to the specific context of the age-based employment discrimination claims at issue there. On the contrary, the Court relied on common dictionaries, a well-known treatise on tort law, and the reasoning of cases interpreting similar language in the Racketeer Influenced and Corrupt Organizations Act and Fair Credit Reporting Act. See id. at 176–77. And in the years since Gross, the Supreme Court has only doubled down on its “insistence on but-for causality” as the proper construction of “statutes using the term ‘because of.’” Burrage v. United States, 571 U.S. 204, 213 (2014).

Although the Majority is quick to discount the ordinary meaning of the phrase, “because of,” see Maj. Op. at 11, I do not think we are free to do so. See, e.g., Spadaro v. United States Customs & Border Prot., 978 F.3d 34, 46 (2d Cir. 2020) (“[W]hen the language of a statute is unambiguous, judicial inquiry is complete.”); United States v. Balde, 943 F.3d 73, 81 (2d Cir. 2019) (“Statutory analysis necessarily begins with the plain meaning of a law’s text and, absent ambiguity, will generally end there.” (citation omitted)). Indeed, the Supreme Court has repeatedly taken pains to caution – “[w]ith regard to this very statutory scheme” – that the “ordinary and obvious meaning of the [text] is not to be lightly discounted,” and to instruct that we must “consider[] ourselves bound to assume that the legislative purpose is expressed by the ordinary meaning of the words used.” INS v. Cardoza- Fonseca, 480 U.S. 421, 431 (1987).

And even if we were free to do so, I would see no good reason to doubt that the phrase “because of,” as used in the withholding-of-removal statute, requires the same but-for causation that it refers to in other federal statutes and at common law. The Majority expresses “doubt” that that meaning would “appl[y] in the immigration context,” since “‘[b]ut-for’ causation would require that the withholding applicant show that the protected ground was the reason he was persecuted.” Maj. Op. at 11 (emphasis in original). Any suggestion of such a requirement, the Majority reasons, is foreclosed by our holding that “mixed[-]motives asylum claims continue to be viable” even in the wake of the REAL ID Act’s 2005 amendments to the asylum provision in the Immigration and Nationality Act (the “INA”). Acharya v. Holder, 761 F.3d 289, 298 (2d Cir. 2014) (emphasis added; citation omitted).

But it does not follow, from the proposition that mixed-motives asylum claims are viable, that mixed-motives withholding claims must also be viable. We have long recognized that “the burden of proof necessary to establish a successful request for withholding of [removal] is higher than that necessary to establish a successful request for asylum,” such that “an applicant who is not eligible for asylum is a fortiori ineligible for withholding of [removal].” 1 Osorio v. INS, 18 F.3d

1 While the Majority acknowledges that the withholding statute’s “clear probability of persecution” standard is stricter than the asylum statute’s “well-founded fear of persecution” standard, they argue that they see “no reason . . . to believe that Congress would have wanted to heighten the burden in withholding of removal claims even further by requiring ‘but-for’ causation.” Maj. Op. at 18. Yet as the Supreme Court explained in Cardoza-Fonseca, that argument “sorely fails because it does not take into account the fact that an alien who satisfies the applicable standard under [the asylum statute] does not have a right to remain in the United States; he or she is simply eligible for asylum, if the Attorney General, in his discretion, chooses to grant it. An alien satisfying [the withholding-of-removal statute]’s stricter standard, in contrast, is 1017, 1032 (2d Cir. 1994) (citing Cardoza-Fonseca, 480 U.S. at 446). Indeed, even the Ninth Circuit – whose precedents the Majority otherwise affords significant weight in finding the withholding-of-removal statute ambiguous, see Maj. Op. at

14 (citing Barajas-Romero v. Lynch, 846 F.3d 351, 358–59 (9th Cir. 2017)) – has repeatedly acknowledged as much, see, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (holding that since the “standard for withholding of removal is more stringent than the . . . standard governing asylum,” it necessarily follows that when an alien “could not establish her eligibility for asylum, . . . she [is also] not eligible for withholding of removal”); Villegas Sanchez v. Garland, 990 F.3d 1173, 1183 (9th Cir. 2021) (holding same).

For all these reasons, I would hold that “the withholding-of-removal statute’s use of ‘because of’ unambiguously requires a statutorily covered motive to be a but-for motive.” 2 Guzman-Vazquez v. Barr, 959 F.3d 253, 288 (6th Cir. 2020)

automatically entitled to withholding of deportation.” 480 U.S. at 443 (first and second emphases in original; third emphasis added). 2The Majority faults this Concurrence for “introduc[ing] a new test that was not presented to us on appeal and that is more stringent than the ‘one central reason’ standard pressed by the government.” Maj. Op. at 16. But while I am mindful of the principle of party presentation, see generally United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579–81 (2020), so too am I mindful of the even more fundamental principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added). As the Supreme Court has repeatedly instructed, Marbury’s axiomatic principle does not apply with any less force in cases where – as here – both parties happen to be wrong on the meaning of the law. Since “our judgments are precedents, . . . the proper (Murphy, J., dissenting); see generally id. at 286–90 (Murphy, J., dissenting) (laying out fuller analysis for this point, with which I agree entirely). Consequently, I cannot agree with the Majority’s “view” that “the plain text does not clearly provide an answer to the proper motive standard beyond the obvious proposition that there must be some degree of causation.” Maj. Op. at 12.

But even if I did share the view that section 1231(b)(3)(A)’s plain text was effectively silent on the applicable motive or causation standard for withholding claims, I would find that the statutory structure and context eliminated any ambiguity about whether the text could bear the reading that Pucha Quituizaca suggests. Indeed, I would so conclude for the reasons that are stated – and stated well – in the Majority’s own opinion. For starters, I agree with the Majority that we should interpret the INA “as a symmetrical and coherent regulatory scheme.” Id. at 12 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). And while I would maintain that the most “harmonious reading of the

administration of [public] law cannot be left merely to the stipulation of parties.” Young v. United States, 315 U.S. 257, 259 (1942); see also Utah Pub. Serv. Comm'n v. El Paso Nat. Gas Co., 395 U.S. 464, 467 (1969) (“The Department of Justice, . . . by stipulation or otherwise[,] has no authority to circumscribe the power of the courts . . . .”); Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 343 (2015) (Thomas, J., dissenting) (“[B]ecause . . . the ultimate meaning of a statute[] binds the public at large, it should not depend on the specific [position] presented [by a party] in a particular . . . case.”).

INA,” id., would – in line with the INA’s general scheme of imposing higher burdens on withholding applicants than on asylum applicants, see Cardoza-Fonseca, 480 U.S. at 446; Osorio, 18 F.3d at 1032 – apply a “more stringent” motive standard to withholding claims than to asylum claims, Zehatye, 453 F.3d at 1190 (emphasis added), the Majority makes clear that applying a less stringent motive standard to withholding claims than to asylum claims would be in active disharmony with the INA’s statutory scheme. Likewise, I agree entirely with the Majority’s rejection of – and its persuasive rationale for rejecting – Pucha Quituizaca’s attempt to read significance into the appearance of the phrase “a reason” in section 1231(b)(3)(C). See Maj. Op. at 14–15.

What, then, is left to point in the other direction? First, apparently, is the bare fact that the Sixth and Ninth Circuits have “endorsed” Pucha Quituizaca’s proposed reading. Id. at 14 & n.43 (citing Guzman-Vazquez v. Barr, 959 F.3d 253, 273 (6th Cir. 2020); Barajas-Romero, 846 F.3d at 358–59). But “our [C]ourt is not bound by the holdings of other federal courts of appeal.” Rates Tech. Inc. v. Speakeasy, Inc., 685 F.3d 163, 173–74 (2d Cir. 2012). Rather, our sister circuits’ decisions are merely “persuasive” authority. Charles W. v. Maul, 214 F.3d 350, 357 (2d Cir. 2000). In other contexts, we have characterized persuasive authorities as being “‘entitled to respect’ to the extent they have the ‘power to persuade.’” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 105–06 (2d Cir. 2011) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (other citation omitted)); see also Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale L.J. 969, 1007–08 (1992) (likening the deference we afford to decisions of our sister circuits to the “power to persuade” standard under the Skidmore deference regime). In other words, the “[d]ecisions of . . . other courts of appeals” are “looked to only for their persuasive effect,” but “[i]f they fail to persuade by the use of sound and logical reasoning, they will not be followed.” City Stores Co. v. Lerner Shops of D.C., Inc., 410 F.2d 1010, 1014 (D.C. Cir. 1969). And here, the Majority offers no explanation as to why the logic of Guzman-Vazquez or Barajas-Romero should persuade us to find ambiguity in an otherwise-unambiguous statute.

The only remaining reason why the withholding-of-removal statute might be susceptible to ambiguity, on the Majority’s read, is that the government lacks a persuasive explanation for the omission of the phrase “one central reason” in section 1231(b)(3)(A). See Maj. Op. at 13–14. True, that might be good evidence that the withholding-of-removal statute embraces a motive standard other than the “one central reason” standard specified in the REAL ID Act’s amendments to the INA’s corresponding asylum provision. ^[8] U.S.C. § 1158(b)(1)(B)(i). But “[w]here does that leave us?” Guzman-Vazquez, 959 F.3d at 289 (Murphy, J., dissenting). In my view, it simply leads us back to the question of whether the applicable motive standard for withholding claims requires a causal nexus that is tighter (i.e., “but-for”) or looser (i.e., “a reason”) than “one central reason.” Again, the Majority has already explained persuasively why Pucha Quituizaca’s argument in favor of the looser nexus is far from “the most natural reading of” the statute. Maj Op. at 15. And so, we “are left only with the plain meaning of ‘because of,’ which requires a [protected ground] to be a but-for reason for persecution,” and with the inferences to be drawn from the INA’s “longstanding” statutory structure under which “mandatory withholding-of-removal relief requires immigrants to meet a standard higher than the standard for discretionary asylum relief.” Guzman- Vazquez, 959 F.3d at 289 (Murphy, J., dissenting) (emphasis in original).

For the reasons stated above, I cannot join the Majority’s holding in Part I that section 1231(b)(3)(A) is sufficiently ambiguous as to permit the reading proposed by Pucha Quituizaca. See Maj. Op at 7–20. I would instead hold that, under the plain text and structure of the INA as amended by the REAL ID Act, it is unambiguous that an applicant for withholding of removal must show that his claimed protected ground was (or will be) the but-for cause of his claimed persecution. ^[3]

Nevertheless, I agree with the starting point of the Majority’s analysis in Part II: that to prevail on his underlying withholding claim, Pucha Quituizaca needed to show at least that his ethnicity was “one central reason” for the alleged gang attacks, and that to prevail on his petition for review, in turn, he would need to establish that when the BIA found that he had failed to make such a showing, its decision was unsupported by substantial evidence. I concur fully in the

3 The Majority argues that applying a but-for motive or causation standard to withholding-of- removal claims would produce the absurd result of functionally “requir[ing] that a withholding applicant have the benefit of a crystal ball to divine the future persecutor’s motives with such clarity as the ‘but-for’ standard demands.” Maj. Op. at 19; see generally id. at 17–18. That argument misses the mark, as a matter of both statutory interpretation and immigration law. For starters, the canon against absurdity, “as is true of any guide to statutory construction, only serves as an aid for resolving an ambiguity; it is not to be used” – as the Majority would use it here – “to beget one.” Callanan v. United States, 364 U.S. 587, 596 (1961) (emphasis added). And in any event, applying a but-for causation standard to the withholding statute’s “clear probability” requirement would not, as the Majority speculates, “require the applicant have insight into the motivations of the hypothetical future persecutor that sufficiently removes any doubt that the persecutor would be motivated by anything else.” Maj. Op. at 18. That is because “[t]he withholding standard . . . has no subjective component,” and instead “is concerned only with objective evidence of future persecution” – such as the applicant’s “demonstrat[ing] that he suffered past persecution based on one of the enumerated grounds,” or that other individuals in the country of removal are currently suffering persecution “because of” their membership in the same “race, religion, nationality, . . . particular social group, or political [group]” as the applicant. Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) (emphasis added; internal quotation marks omitted). I see nothing unnatural, either linguistically or logically, about saying that “race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C. § 1231(b)(3)(A), must be the but for-cause of the past or current persecution cited by the applicant as “objective evidence” that he, too, would “more likely than not . . . suffer such future persecution if returned to the country of removal,” Scarlett, 957 F.3d at 327–28 (citations omitted).

Majority’s reasoning from that point forward, to the effect that the BIA’s decision was supported by substantial evidence. See id. at 20–23. And because I also concur fully in the majority’s holding in Part III, that Pucha Quituizaca waived his challenge to the Immigration Judge’s denial of his claim for relief under the Convention Against Torture, see id. at 24, I ultimately concur in the Court’s judgment denying his petition for review, see id.