Clarifying the “Unable-or-Unwilling” Government Standard and the Futility Exception in Asylum & CAT Claims – Commentary on Yunga Uyaguari v. Bondi (2d Cir. 2025)

1. Introduction

Yunga Uyaguari v. Bondi is a 2025 summary order of the United States Court of Appeals for the Second Circuit that addresses an Ecuadorian broadcaster’s petition for review after the Board of Immigration Appeals (BIA) denied him asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

The petitioner, Wilson Alfredo Yunga Uyaguari, alleged that members of indigenous opposition groups in Ecuador threatened and assaulted him because he hosted a pro-government radio program. He argued that the Ecuadorian authorities were unable or unwilling to protect him and that reporting would have been futile or dangerous. The central legal issues were therefore:

Whether the record compelled a finding that the Ecuadorian government was “unable or unwilling” to protect the petitioner (a prerequisite for persecution-based relief).
Whether the petitioner established the government’s potential “acquiescence” in future torture for CAT purposes.
How post-hearing evidence and requests for administrative notice should be handled on appeal and in motions to remand or reopen.

2. Summary of the Judgment

The Second Circuit denied the petition for review, upholding the BIA’s decision:

Asylum & Withholding: The court found substantial evidence supporting the conclusion that Ecuadorian authorities were not unable or unwilling to control the petitioner’s persecutors. Credibility was assumed, but persuasiveness of evidence was lacking.
CAT: The court agreed that the petitioner failed to show a likelihood of torture with government acquiescence.
Post-Hearing Evidence / Remand: The BIA did not abuse its discretion in declining administrative notice of 2022 protests or in refusing remand because the new evidence would not likely change the outcome.

3. Analysis

3.1 Precedents Cited and Their Influence

Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) and Singh v. Garland, 11 F.4th 106 (2d Cir. 2021) – Reaffirm the “unable or unwilling to control” requirement, emphasizing that mere private harm is insufficient unless the State condones or is helpless to prevent it.
Castellanos-Ventura v. Garland, 118 F.4th 250 (2d Cir. 2024) – Clarifies that failure to report persecution is not fatal if reporting would be futile or dangerous, but the applicant bears the burden of proving futility.
Garland v. Ming Dai, 593 U.S. 357 (2021) – Recognizes that even crediting an applicant’s testimony, the agency may still find the evidence unpersuasive or insufficient.
Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021) & Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) – Define “acquiescence” for CAT relief as awareness plus breach of duty to intervene.
Singh-Kar v. Bondi, 137 F.4th 94 (2d Cir. 2025) – Very recent case affirming high evidentiary threshold for proving government inability/unwillingness.
Xiao Ji Chen v. DOJ, 471 F.3d 315 (2d Cir. 2006) – Presumption that the agency considered all evidence unless the record strongly suggests otherwise.

The panel interwove these authorities to hold that the petitioner did not meet his burden where the record showed: (a) a friendly relationship with local police; (b) no report of harm; (c) no corroboration that authorities would be unwilling or helpless; and (d) country‐conditions reports that did not compel a contrary finding.

3.2 Court’s Legal Reasoning

Credibility vs. Persuasiveness – Even assuming credibility, Ming Dai permits the agency to find the evidence insufficient. The panel emphasized that credibility ≠ meeting burden.
Substantial Evidence Standard – Under 8 U.S.C. §1252(b)(4)(B), findings are conclusive unless a reasonable adjudicator would be compelled to decide otherwise. The court found the record supported the opposite inference.
Reporting Requirement & Futility – Castellanos-Ventura says failure to report is excused only if reporting would be futile or dangerous. Here the petitioner’s positive police relations and lack of explanation undermined futility.
CAT “Acquiescence” Test – Requires proof that officials would be aware of and fail to prevent torture. The petitioner offered no evidence that authorities would learn of or ignore future harm.
Handling New Evidence –
- Administrative notice is discretionary (8 C.F.R. §1003.1(d)(3)(iv)).
- A motion to remand requires a showing that new evidence would likely change the outcome (Coelho).
The panel found no abuse because the alleged new evidence (2022 protests) was similar to pre-existing conditions already weighed by the IJ/BIA.

3.3 Impact of the Judgment

Although issued as a non-precedential summary order, Yunga Uyaguari offers persuasive guidance across several fronts:

Heightened Emphasis on the “Unable/Unwilling” Showing – Applicants must present affirmative evidence that the State cannot or will not intervene, not just anecdotal harm by private actors.
Clarification of the Futility Exception – The decision underscores that applicants cannot rely on a mere assertion of danger; they need concrete facts showing that reporting would be futile or perilous.
Strategic Value of Police Letters – Letters demonstrating positive relationships with police, while intended to support credibility, can actually undermine “state inability” arguments. Practitioners should craft affidavits with care.
Post-Hearing Evidence and Judicial Notice – The order reminds litigants that the BIA is not required to administratively notice every geopolitical development, and that remand will be denied if new facts are cumulative or immaterial.
Merger Doctrine for Reopened Proceedings – The panel’s footnote clarifies that when the BIA reopens but still denies relief, all issues merge into the final order, streamlining appellate jurisdiction.

4. Complex Concepts Simplified

Substantial Evidence – A deferential standard of review: the agency’s factual findings stand unless no reasonable fact-finder could agree with them.
Unable or Unwilling Standard – To succeed on persecution claims, a non-citizen must show the State cannot or will not protect them from private harm.
Futility Exception – An applicant that fails to report harm must prove that reporting would have been pointless or dangerous.
CAT Protection – Relief granted where an individual shows a likelihood of torture by or with the acquiescence of public officials.
Acquiescence – Government awareness of torture and subsequent failure to intervene.
Administrative Notice – The BIA’s discretionary ability to acknowledge commonly-known facts without formal evidence.
Remand vs. Reopen –
- Remand (on appeal): sending the case back to the IJ for further fact-finding.
- Reopen: restarting proceedings based on new evidence or changed circumstances.

5. Conclusion

Yunga Uyaguari v. Bondi reaffirms the demanding evidentiary burden placed on asylum and CAT applicants when persecution is inflicted by non-state actors. Even credited testimony will not suffice without persuasive proof that authorities are powerless or complicit. The decision also delineates the limits of the futility exception, the discretionary nature of administrative notice, and the rigorous standard for remand based on new evidence.

Practitioners should treat the case as a cautionary tale: corroborate claims of state inaction, carefully weigh supportive affidavits that may cut both ways, and ensure that any post-hearing evidence materially alters the legal calculus. Although the order is non-precedential, its structured application of Second Circuit and Supreme Court doctrines provides a roadmap for future litigation in asylum and CAT jurisprudence.