Clarification of the “Unable-or-Unwilling-to-Control” Test in Private-Actor Persecution Asylum Claims

1. Introduction

Ingrid Cisneros Martinez, a Peruvian national, petitioned the United States Court of Appeals for the Third Circuit for review of a Board of Immigration Appeals (BIA) decision denying her applications for asylum, withholding of removal, and Convention Against Torture (CAT) protection. Cisneros alleged that, after the death of her former partner (a known criminal) at the hands of Peruvian police, unidentified men on motorcycles threatened her and her family. She reported these threats to local authorities in Peru but did not provide identifying information beyond the assailants’ Venezuelan accents. The Immigration Judge (IJ) and the BIA found that Cisneros failed to establish that the Peruvian government was “unable or unwilling” to control the private actors who threatened her. On May 15, 2025, the Third Circuit denied her petition for review, affirming that substantial evidence supported the BIA’s conclusion.

2. Summary of the Judgment

The Third Circuit’s opinion, delivered by Judge Rendell, upheld the BIA’s decision on two key grounds:

Lack of Evidence of Government Inability or Unwillingness: Cisneros reported threats to the Peruvian police, who accepted her complaint and wrote a report. Her inability to give names or physical descriptions beyond accents hindered any meaningful investigation. The court held that the mere absence of further police action, in the absence of specific leads, does not establish that the government is unable or unwilling to provide protection.
No Necessity to Reach Other Issues: Because the denial of relief hinged on the protective-capacity requirement for private-actor persecution, the court did not address whether Cisneros had suffered past persecution or whether her proposed particular social group was cognizable.

The petition for review was denied.

3. Analysis

3.1 Precedents Cited

Doe v. Attorney General, 956 F.3d 135 (3d Cir. 2020): Established the “unable-or-unwilling-to-control” test for private-actor persecution, requiring an applicant to demonstrate the home government’s deficiency in addressing specific threats against the applicant.
Galeas-Figueroa v. Attorney General, 998 F.3d 77 (3d Cir. 2021): Emphasized that the analysis focuses on whether the government could or would have intervened when provided actionable information.
Kayembe v. Ashcroft, 334 F.3d 231 (3d Cir. 2008): Firmly established substantial-evidence review of BIA factual findings.
Doe v. Holder, 736 F.3d 871 (9th Cir. 2013): Held that police inability to solve a crime, when the asylum applicant provided no specifics to pursue, does not equate to governmental acquiescence.
Additional Third Circuit decisions (Samu v. Attorney General, 245 F. App’x 123; Skendaj v. Attorney General, 275 F. App’x 126; Pierre v. Attorney General, 388 F. App’x 212) reinforced that failure to report identifying details undermines a claim that the government is unwilling or unable to act.

3.2 Legal Reasoning

The Third Circuit first confirmed its jurisdiction under 8 U.S.C. § 1252(a)(1). It then outlined the asylum and withholding-of-removal standards:

Asylum applicants must show past persecution or a well-founded fear of future persecution “on account of” a protected ground (8 C.F.R. § 1208.13(b)).
For withholding of removal, an applicant must demonstrate a “clear probability” of persecution if removed (Saban-Cach v. Attorney General, 58 F.4th 716 (3d Cir. 2023)).
Where persecution arises from private actors, the applicant bears the added burden of showing the government is unable or unwilling to protect (Doe, 956 F.3d at 142).

Applying those principles, the court found:

Cisneros reported the threats to Peruvian police, who recorded her statement. This activity demonstrated at least a willingness to consider her complaint.
She lacked any actionable information—names, dates, vehicle license plates—beyond “Venezuelan accents.” Given the prevalence of Venezuelans in Peru, the accents alone were too generic to support a viable investigation.
Under existing precedents, an inability to investigate further, when the asylum seeker provides no leads, does not prove governmental inability or unwillingness.

The court rejected Cisneros’s untimely argument that the IJ unduly focused on her former partner’s criminal ties rather than the motorcycle assailants, because it was not presented to the BIA. Even if preserved, the court observed that the BIA and IJ did consider both the state’s prosecution of the partner’s family and its limited response to her personal complaint.

3.3 Impact

This decision reaffirms and clarifies the Third Circuit’s approach to private‐actor persecution claims:

Asylum seekers must furnish specific, actionable information to law enforcement to shift the burden onto the government. Generalized descriptions or unverified allegations will not suffice.
Immigration judges and the BIA may consider the adequacy of a government’s response in context—both its official willingness to take a report and the practical limits of investigation when no leads exist.

Future petitioners lacking detailed evidence will face difficulty establishing a government’s unwillingness or inability, reducing speculative claims based solely on unreturned complaints.

4. Complex Concepts Simplified

Unable-or-Unwilling-to-Control Test: A test applied when persecution comes from private individuals. The asylum applicant must show that the home government either cannot or will not stop those individuals from harming the applicant. It’s not enough to say “the police didn’t catch them”—you must first give the police names, places, or anything helpful.
Substantial-Evidence Standard: When a court reviews the BIA’s factual findings, it will uphold them if a reasonable factfinder could accept the evidence as adequate. The court does not re-weigh every detail but ensures there is “reasonable, substantial, and probative” support.
Derivative Applicant: A family member (such as a child) who applies for relief based solely on another person’s (the principal applicant’s) claim. J.D.C.M., Cisneros’s daughter, was a derivative applicant with no separate claims.

5. Conclusion

Ingrid Cisneros Martinez v. Attorney General reiterates that asylum seekers claiming private-actor persecution must present specific, usable evidence to their home government before deeming it unwilling or unable to act. The Third Circuit’s denial of her petition underscores the judiciary’s commitment to substantial-evidence review and the tailored application of the “unable-or-unwilling-to-control” test. Practitioners should advise clients to document threats thoroughly—names, locations, witness statements—if they wish to overcome this rigorous burden in future removal proceedings.