“Party-Affiliation ≠ State Action” – The Second Circuit’s Re-confirmation of the State-Actor Requirement in Sherpa v. Bondi

1. Introduction

Sherpa v. Bondi, No. 23-6172 (2d Cir. Aug. 14 2025) is a summary order in which the United States Court of Appeals for the Second Circuit denied a Nepali petitioner’s request for review of the Board of Immigration Appeals’ (BIA) decision affirming the denial of asylum, withholding of removal, and relief under the Convention Against Torture (CAT).

Although issued as a non-precedential summary order, the panel—Chief Judge Debra Ann Livingston, and Circuit Judges Beth Robinson and Myrna Pérez—re-emphasises a recurring but oft-contested principle in asylum jurisprudence: persecution by politically motivated private actors, even if those actors belong to or are aligned with a power-holding political party, is not automatically attributable to the government for purposes of asylum, withholding, or CAT relief.

The petitioner, Ms. Phusongmu Sherpa, claimed that she was assaulted and threatened in Nepal by members of the “Biplav Maoists,” a splinter faction of a Maoist political movement. She alleged that the Nepalese authorities were either complicit or incapable of preventing such harm. The IJ and subsequently the BIA found the evidence insufficient to show government involvement or acquiescence. The Second Circuit agreed.

2. Summary of the Judgment

Asylum / Withholding. The court held substantial evidence supported the agency’s determination that Ms. Sherpa did not establish persecution by, or with the acquiescence of, the Nepali government. Her attackers were private political actors, and she had not proved that Nepal was “unable or unwilling” to control them.
Exhaustion. Arguments that the attackers were themselves “government actors” were deemed unexhausted because they were not clearly raised before the BIA.
CAT. Review of the CAT claim was deemed waived for lack of meaningful argument. Even if entertained, the record did not compel a finding that torture was more likely than not, nor that officials would acquiesce.
Outcome. Petition for review denied; all interim motions denied and stays vacated.

3. Analysis

3.1 Precedents Cited

The panel relied on and reaffirmed several key Second Circuit and Supreme Court precedents:

Singh v. Garland, 11 F.4th 106 (2d Cir. 2021) – Core citation for the proposition that membership in or alignment with a governing political party does not, by itself, transform private actors into state actors.
Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) – Sets out the “unable or unwilling to control” standard for persecution by non-state actors.
Wangchuck v. DHS, 448 F.3d 524 (2d Cir. 2006) – Authorises courts to review both IJ and BIA decisions for completeness.
Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) – Governs the standard of review (substantial evidence for facts; de novo for law).
Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023) – Reaffirms mandatory exhaustion of issues before the BIA.
Prabhudial v. Holder, 780 F.3d 553 (2d Cir. 2015) – Limits circuit review when the BIA finds an issue waived.
Additional cases on evidentiary weighting (Likai Gao; Y.C. v. Holder), judicial economy (INS v. Bagamasbad), CAT standards (Mu-Xing Wang; Kyaw Zwar Tun; Mu Xiang Lin), and briefing waivers (Yueqing Zhang).

3.2 Legal Reasoning

State-Actor Requirement. Persecution must be either inflicted or sanctioned by government officials, or by private actors whom the state cannot or will not control. The court emphasised that a political party’s national prominence or de facto local power does not satisfy this requirement absent evidence tying the specific perpetrators to official authority.
Burden of Proof Rests on the Applicant. Sections 1158(b)(1)(B)(i) (asylum) and 1231(b)(3)(A) (withholding) squarely place the burden on the applicant to prove government attribution. Ms. Sherpa’s evidence—largely articles describing general Maoist violence and corruption—was deemed insufficient.
Exhaustion Doctrine. Because Ms. Sherpa argued only “government unwillingness” below, her new theory that the assailants themselves were agents of the state was barred on review. Exhaustion is non-jurisdictional but mandatory when raised.
Assessment of Country Conditions. State Department reports showed Nepal investigating Maoist attacks and disciplining police abuses, undercutting the claim of governmental impotence.
No “Cherry Picking.” The court rejected the argument that the IJ cherry-picked evidence, noting deference to the agency’s weighing of documentary letters and articles.
CAT Threshold Not Met. Threats and a single minor assault did not rise to “torture” under 8 C.F.R. § 1208.18(a). Even if future harm were possible, the evidence did not tip the 50-percent-likelihood scale, nor establish official acquiescence.

3.3 Impact of the Judgment

Reiteration of Limits on “Political Turbulence” Claims. Practitioners representing asylum seekers assaulted by political extremists must concretely link those extremists to state authority or to state inaction demonstrably beyond isolated corruption.
Exhaustion Vigilance. The panel’s strict application of Ud Din and related cases signals that creative legal theories raised first in the Court of Appeals are unlikely to gain traction. All attribution theories must be preserved at the BIA stage.
Weight of Country Reports. Where State Department reports reflect both abuses and corrective efforts, the “unable or unwilling” prong becomes harder to satisfy. Advocates may need alternative, more granular evidence (e.g., affidavits from local officials, statistical impunity data).
CAT Strategy. A conclusory, one-sentence CAT argument risks waiver. Going forward, counsel should treat CAT claims as separate briefs-within-briefs, citing record evidence on torture likelihood and government acquiescence.
Second Circuit Consistency. The decision harmonizes with post-Singh jurisprudence, reinforcing a stable doctrinal environment in the Circuit even though the order itself lacks formal precedential effect.

4. Complex Concepts Simplified

Persecution vs. Torture. Persecution is serious harm for a protected ground (race, religion, nationality, political opinion, or social group). Torture under CAT is an even higher threshold: intentional, severe pain or suffering, with official involvement or acquiescence.
State Actor. Someone acting under color of law—e.g., police, soldiers, civil servants—or private individuals a government effectively endorses by inaction.
“Unable or Unwilling to Control.” If a victim’s government is powerless or refuses, despite capacity, to stop persecutors, the persecution becomes imputable to the state.
Exhaustion of Remedies. Before a federal court will hear an argument, it must have been “fairly presented” to the administrative body (here, the BIA). Think of it as giving the agency the first chance to correct itself.
Substantial Evidence Standard. Factual findings are upheld unless any reasonable fact-finder would have to decide differently—an intentionally high bar for reversal.
Summary Order. A non-precedential disposition. It may be cited (under Fed. R. App. P. 32.1 and Local Rule 32.1.1), but does not bind later panels.

5. Conclusion

Sherpa v. Bondi does not create new law, yet it crystallises an essential rule: a private political faction’s violence is not “state persecution” without concrete evidence of government participation or deliberate inaction. The decision also underscores two procedural imperatives—issue exhaustion and well-developed CAT briefing—both of which, if overlooked, can doom a petition irrespective of substantive merits. For immigration practitioners, asylum officers, and scholars, the case functions as an instructive checklist on evidentiary needs and doctrinal pitfalls in claims involving non-state political violence.