“Report-First” Requirement Reaffirmed: Castanon Bamaca v. Bondi and the Government-Unwillingness Standard in Private-Actor Persecution Claims

Introduction

Castanon Bamaca v. Bondi (6th Cir. 2025) addresses a recurring question in asylum and withholding-of-removal litigation: when a non-citizen alleges persecution by a private individual, what showing must she make to prove that her home government is “unable or unwilling” to protect her?

The petitioners—Mary Senaida Castanon Bamaca and her minor son—sought refuge in the United States after suffering domestic abuse at the hands of Ms. Bamaca’s partner, Edwin Lopez, in Guatemala. An Immigration Judge (IJ) denied their claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) affirmed. On petition for review, the Sixth Circuit—through Judge Chad A. Readler, joined by Chief Judge Cole and Judge Ritz—denied relief, reinforcing that:

Where persecution is inflicted by a private actor, a non-citizen generally must first seek protection from domestic authorities; failure to do so ordinarily defeats the contention that the government is “unable or unwilling” to control the persecutor.

Summary of the Judgment

The Sixth Circuit held that substantial evidence supported the BIA’s finding that the Guatemalan government was not shown to be unable or unwilling to protect Ms. Bamaca from domestic violence. Two key considerations drove the outcome:

Failure to Report. Ms. Bamaca never alerted Guatemalan law-enforcement or judicial authorities to Lopez’s abuse. Without giving the state an opportunity to respond, she could not persuasively argue governmental incapacity or indifference.
Mixed Country-Conditions Evidence. Although Guatemala faces serious domestic-violence problems, the record also contained evidence of governmental initiatives—specialized courts, 24-hour services, and other reforms—suggesting at least partial responsiveness. The conflicting record did not compel a contrary finding.

Because the same “government-involvement” element applies to both asylum and withholding, the court treated the claims together and denied the petition in full. The CAT claim was deemed waived for lack of briefing.

Analysis

Precedents Cited

Ortiz v. Garland, 6 F.4th 685 (6th Cir. 2021). Reiterates that persecution must be “sufficiently tied” to the state; inability or unwillingness to protect bridges the gap where the persecutor is a private citizen.
Palucho v. Garland, 49 F.4th 532 (6th Cir. 2022). Articulates two ways to satisfy the state-action element: showing either (1) a reasonable expectation of no government assistance or (2) government condonation/helplessness.
Seye v. Barr, 768 F. App’x 381 (6th Cir. 2019). Emphasizes that failure to seek police protection often “dooms” a private-violence asylum claim.
Owusu v. Garland, 91 F.4th 460 (6th Cir. 2024) and Gilaj v. Gonzales, 408 F.3d 275 (6th Cir. 2005). Address parallel elements of asylum and withholding, allowing courts to analyze the claims together.
A-B- (2018) & Vacatur (2021). The IJ referenced the vacated decision only for the uncontroversial premise that unsupported private violence is not persecution on its own; the Sixth Circuit clarified its decision was independent of the vacated precedent.

Legal Reasoning

The court applied the familiar two-tier review structure: questions of law de novo, factual findings for “substantial evidence” (§ 1252(b)(4)(B)). The dispositive factual issue was governmental unwillingness/inability.

Judge Readler’s opinion synthesizes the Sixth Circuit’s approach into a “report-first” framework:

Where the persecutor is a private actor, the applicant must either
- show that she actually sought state protection and was rebuffed, or
- demonstrate that seeking help would be futile because the state “condoned” or was “completely helpless.”
Failure to report generally undercuts both pathways “unless any reasonable adjudicator would be compelled” to find futility.

Ms. Bamaca’s subjective fear—based on anecdotal stories of a raped woman and her partner’s mother—was insufficient to compel a finding of futility, particularly given record evidence of Guatemala’s anti-domestic-violence infrastructure.

Impact

Although designated “Not Recommended for Publication,” the opinion is citable under Sixth Circuit Rule 32.1(b) and contributes to a cohesive line of unpublished but persuasive authority. The decision will likely:

Solidify the “Report-First” Expectation. Practitioners now face an even steeper hurdle when representing victims of domestic or gang violence who did not engage local authorities.
Clarify Post-A-B- Landscape. By expressly distancing its reasoning from the vacated AG precedent, the court underscores that the government-unwillingness requirement is anchored in statute, not administrative fiat; its vitality survives the vacatur of A-B-.
Narrow Futility Arguments. The opinion suggests anecdotal or second-hand evidence seldom suffices; country reports reflecting any governmental effort can tip the scales.
Influence on Gender-Based Claims. Advocates will need to compile richer records—police complaints, municipal responses, expert affidavits—showing systemic barriers in the applicant’s locale, rather than rely solely on national statistics or personal apprehension.

Complex Concepts Simplified

Asylum vs. Withholding of Removal. Both protect non-citizens from being sent to a country where they fear persecution, but asylum also confers lawful status and a pathway to permanent residency. Withholding carries a higher burden (“more likely than not” rather than “well-founded fear”).
Derivative Beneficiary. Ms. Bamaca’s minor son could receive protection based on his mother’s claim without filing separately.
Substantial-Evidence Review. On appeal, factual findings are upheld unless the record compels a contrary conclusion—an intentionally deferential standard.
Private-Actor Persecution. Harm inflicted by individuals not acting on behalf of a government. To qualify, the applicant must tie the harm to state action through unwillingness or inability to protect.
Government “Unwilling or Unable.” A legal test asking whether domestic authorities are ineffectual or apathetic toward stopping the persecutor. Requires proof through reports, police interactions, or systemic evidence.
CAT Relief (Convention Against Torture). A separate protection against torture with heavier evidentiary demands; it was waived here because petitioners did not brief it.

Conclusion

Castanon Bamaca v. Bondi reinforces a stringent evidentiary rule in the Sixth Circuit: before claiming governmental helplessness, an asylum applicant alleging private-actor violence should ordinarily exhaust—or credibly explain the futility of—domestic remedies. The decision harmonizes existing circuit precedent, clarifies that the core principle is statutory rather than a holdover from vacated agency decisions, and signals to future litigants that anecdotal fears, without corroborating action or systemic proof, will rarely suffice. In the broader legal landscape, the case accentuates the tension between domestic-violence realities in many countries and the high threshold U.S. courts impose for state-action equivalence, steering advocates toward more robust factual records to overcome the “report-first” presumption.