Ardon-Leon v. Bondi: “Unable or Unwilling” Is a Dispositive, Fact-Bound Inquiry; Unbriefed CAT Issues Are Unexhausted and Forfeited

1. Introduction

In Ardon-Leon v. Bondi (10th Cir. Jan. 16, 2026) (nonprecedential order and judgment), the Tenth Circuit denied a pro se petition for review of a Board of Immigration Appeals (BIA) decision affirming an immigration judge’s (IJ) denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection.

The petitioner, Jose Ardon-Leon, a citizen of El Salvador, sought relief based on alleged gang violence: he asserted that a local gang leader killed his father, threatened him, and attacked him with a knife. He claimed persecution on account of (i) political opinion and (ii) membership in a particular social group defined as “family members of Enrique Ardon Ardon” (his father).

The BIA affirmed on a single dispositive basis: petitioner failed to prove the Salvadoran government was “unable or unwilling” to protect him from private harm. The BIA also deemed the CAT challenge waived for failure to meaningfully contest the IJ’s reasons. The Tenth Circuit’s decision focuses on (1) the fact-intensive nature of the “unable or unwilling” determination under substantial-evidence review and (2) issue preservation/exhaustion principles as applied to CAT claims.

2. Summary of the Opinion

  • Asylum/withholding: The court upheld the BIA’s finding that petitioner did not establish the Salvadoran government was “unable or unwilling” to control the gang leader. Because that element is required for claims of private persecution, it was dispositive. The court therefore declined to address petitioner’s remaining asylum/withholding arguments (past persecution, future persecution, nexus, and social-group cognizability).
  • CAT: The court agreed that petitioner did not preserve meaningful CAT arguments before the BIA; thus the CAT claim was unexhausted. The court also held petitioner forfeited appellate review by failing to challenge the BIA’s waiver ruling in his opening brief.

3. Analysis

3.1 Precedents Cited

The panel relied on a set of doctrinally connected Tenth Circuit and Supreme Court authorities to frame review scope, burdens, and waiver/exhaustion:

  • Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005): cited for the rule that courts liberally construe pro se filings but do not serve as the litigant’s attorney in developing arguments. This principle undergirds the court’s later refusal to rescue underdeveloped CAT briefing.
  • Singh v. Bondi, 130 F.4th 848 (10th Cir. 2025): the central template for the “unable or unwilling” inquiry. The court borrowed three key points: (i) when the BIA issues a single-member affirmance, review is limited to the BIA’s grounds; (ii) the “unable or unwilling” determination is factual; and (iii) evidentiary evaluation typically looks to country conditions and the government’s response, including notice/opportunity to respond and steps like investigation/prosecution/protection.
  • Htun v. Lynch, 818 F.3d 1111 (10th Cir. 2016): supports consulting the IJ’s fuller explanation insofar as it explains the same grounds relied upon by the BIA.
  • Dallakoti v. Holder, 619 F.3d 1264 (10th Cir. 2010): supplies the standard of review—legal issues de novo, factual findings for substantial evidence—and the “compelled to conclude to the contrary” formulation.
  • Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir. 2015): used for (i) the statutory definition of “refugee,” (ii) identifying “protected grounds,” (iii) the higher burden for withholding (“clear probability”), and (iv) the principle that failing asylum burden generally forecloses withholding.
  • Ritonga v. Holder, 633 F.3d 971 (10th Cir. 2011): provides the description of persecution (including private persecution where the government is unable or unwilling to control the persecutor) and clarifies that CAT does not require a protected-ground nexus.
  • INS v. Bagamasbad, 429 U.S. 24 (1976) (per curium): invoked to justify not reaching non-dispositive issues once a dispositive element fails.
  • Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010), abrogated in part on other grounds by Santos- Zacaria v. Garland, 598 U.S. 411 (2023): cited for the exhaustion principle that the agency must have an opportunity to rule on arguments before judicial review. The court applied it to petitioner’s waived CAT theory.
  • Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007): cited for forfeiture on appeal when an issue is omitted from the opening brief—here, petitioner’s failure to challenge the BIA’s waiver finding.

3.2 Legal Reasoning

A. Scope of review: BIA-grounded adjudication

Applying Singh v. Bondi, the court reviewed “only the grounds relied upon by the Board,” consulting the IJ’s reasoning only as a fuller explanation of the same dispositive ground. This matters because petitioner attempted to expand the appeal to elements the BIA did not reach (past persecution level, nexus, social-group cognizability). The panel treated those as unnecessary once the dispositive “unable or unwilling” element failed.

B. “Unable or unwilling” as a factual question under substantial-evidence review

The panel characterized the “unable or unwilling” determination as a fact question (again tracking Singh v. Bondi) and applied substantial-evidence review: the finding stands unless “any reasonable adjudicator would be compelled to conclude to the contrary.”

The court then emphasized the kinds of evidence that typically matter (from Singh v. Bondi): country conditions and the government’s response, including whether the government tried to stop the persecutor and whether it offered protection, as well as whether officials had notice and opportunity to act.

On this record, the panel found evidence of governmental response inconsistent with a finding of inability or unwillingness:

  • Post-homicide action: petitioner testified the government arrested and prosecuted the gang leader for his father’s murder. Even though the gang leader was acquitted, the court treated the arrest/prosecution as evidence the state attempted to control the alleged persecutor. The decision specifically noted the record did not support that the acquittal was due to governmental inability or unwillingness.
  • Nonresponse to one call framed as logistical, not abdication: the panel accepted the BIA’s view that failure to respond after the knife attack stemmed from logistical challenges rather than an unwillingness to act.
  • Lack of continued reporting: petitioner “never sought further police assistance after the attack,” weakening a claim that the government refused protection after having a sustained opportunity to provide it.
  • Country conditions not dispositive: generalized evidence that El Salvador struggles to control gangs did not compel reversal, particularly when juxtaposed with case-specific evidence of arrest and prosecution efforts.

C. Dispositiveness and judicial restraint

After affirming the “unable or unwilling” finding, the court relied on INS v. Bagamasbad to explain why it would not address other asylum/withholding elements. The decision thus reinforces a sequencing principle in asylum adjudication: failure on a required element can end the analysis without reaching other contested issues.

D. CAT waiver, exhaustion, and appellate forfeiture

For CAT, the BIA concluded petitioner did not “meaningfully challenge” the IJ’s dispositive CAT findings and deemed the issue waived. The Tenth Circuit treated that as fatal in two independent ways:

  1. Unexhausted before the agency: under Garcia-Carbajal v. Holder, a court generally cannot review arguments not presented in a way that affords the agency a fair opportunity to rule. The panel concluded that waiver at the BIA level meant the CAT claim was not exhausted. The court cited Santos- Zacaria v. Garland only to note partial abrogation “on other grounds,” leaving the core exhaustion rationale operational here.
  2. Forfeited on petition for review: under Bronson v. Swensen, petitioner’s failure to challenge the BIA’s waiver determination in the opening brief independently precluded review.

3.3 Impact

  • Evidence calibration in private-actor persecution claims: The decision signals that individualized proof of governmental efforts (arrest, prosecution, attempted response) may outweigh generalized country reports about gang violence when evaluating “unable or unwilling,” especially under substantial-evidence deference.
  • Acquittals are not, by themselves, proof of inability/unwillingness: The court’s treatment of an acquittal as non-dispositive places pressure on applicants to show why the outcome reflects state incapacity or abdication (e.g., corruption, intimidation, systemic refusal), rather than merely an unsuccessful prosecution.
  • Notice and follow-up matter: The emphasis that petitioner did not seek further police help underscores a practical litigation lesson: applicants often need to document repeated attempts to obtain protection (or credible reasons why reporting was futile or dangerous) to prove state failure.
  • Procedural rigor for CAT claims: Even where country conditions are severe, CAT relief can be lost through briefing defaults. The decision reinforces that litigants must (i) directly engage the IJ’s CAT reasoning before the BIA and (ii) explicitly challenge the BIA’s waiver ruling on petition.
  • Sequencing discipline in appellate review: By invoking INS v. Bagamasbad, the panel models a restrained approach: appellate courts may affirm on a single dispositive element without reaching potentially complex questions such as social-group cognizability or nexus.

4. Complex Concepts Simplified

  • “Unable or unwilling to control” (private persecution): If harm is inflicted by a private actor (like a gang), asylum/withholding generally requires showing the home government could not or would not provide protection. Evidence may include police refusal, non-investigation, corruption, or systemic incapacity. Evidence that authorities arrested or prosecuted the persecutor can weigh against this element.
  • Substantial evidence review: The appellate court does not reweigh facts; it asks only whether the record compels the opposite finding. If the record supports multiple plausible views, the agency’s factual view usually stands.
  • Dispositive ground: A single required element can decide the case. If that element fails, courts typically need not decide other disputed elements.
  • Waiver (before the BIA) vs. forfeiture (on appeal) vs. exhaustion: If a party does not meaningfully argue an issue to the BIA, it may be deemed waived there; that commonly results in lack of exhaustion for judicial review. Separately, if a party does not raise an issue in the opening appellate brief, the court may treat it as forfeited even if it could otherwise be reviewable.
  • CAT protection basics: CAT does not require a protected-ground nexus, but it does require showing it is “more likely than not” the applicant will be tortured by or with the acquiescence of a public official. Procedural defaults can prevent courts from reaching the merits.

5. Conclusion

Ardon-Leon v. Bondi underscores two practical, recurring themes in removal-relief litigation. First, where persecution is attributed to private actors, the “unable or unwilling” requirement is a fact-bound, deferentially reviewed element that can be dispositive; concrete evidence of governmental efforts—such as arrest and prosecution—may defeat the claim even amid dangerous country conditions. Second, CAT relief is highly sensitive to issue preservation: failure to meaningfully challenge the IJ before the BIA can render the claim unexhausted, and failure to contest the BIA’s waiver ruling in the opening brief can independently foreclose appellate review.