Clarifying the Futility Exception: Mukhtorova v. Bondi and the “Unwilling-or-Unable” Test in U.S. Asylum Law

1. Introduction

Mukhtorova v. Bondi, No. 24-279 (2d Cir. July 15, 2025) is a summary order in which the United States Court of Appeals for the Second Circuit denied a petition for review brought by an Uzbek family seeking asylum and withholding of removal. Although summary orders are formally non-precedential, this decision is significant because the panel refined the contours of the “futility exception” to the report-to-authorities requirement that often governs the unwilling-or-unable prong of asylum claims involving harm by private actors.

At its core, the family’s claim—anchored by principal applicant Alisher Kholikov—alleged persecution by a powerful private businessman who used violence to force small merchants from their market stalls. The Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) concluded that Uzbekistan’s government was willing and able to control the businessman, and the Second Circuit affirmed. The key doctrinal contribution lies in the court’s careful distinction between:

• prior property-related complaints that authorities ignored; and
• the later violent abuse that the applicant never reported.

The court held that inaction on the economic dispute did not make it automatically futile—or dangerous—to report the subsequent violence. By doing so, the panel clarified when prior governmental passivity is (and is not) enough to satisfy the futility exception.

2. Summary of the Judgment

The Second Circuit denied the petition for review, thereby upholding both the BIA’s and IJ’s decisions to deny asylum and withholding. The court:

• Applied Yan Chen v. Gonzales to review the IJ’s decision as supplemented by the BIA;
• Reviewed legal questions de novo and factual findings for substantial evidence;
• Found no reversible error in concluding that Uzbekistan’s government was not “unwilling or unable” to control the private persecutor;
• Declined to reach alternative grounds (nexus to a protected ground, internal relocation) because the unwilling-or-unable prong was dispositive.

Consequently, the family remains subject to the final order of removal, and all requested stays were vacated.

3. Analysis

3.a Precedents Cited

The panel’s reasoning weaves together a line of Second Circuit cases that define persecution by non-state actors and the evidentiary burdens applicants must meet.

• Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) – Restated the basic rule that persecution must be committed or condoned by the government, or by private actors the government is unwilling or unable to control.
• Singh v. Garland, 11 F.4th 106 (2d Cir. 2021) – Emphasized that government condonation requires complete helplessness on the part of authorities.
• Castellanos-Ventura v. Garland, 118 F.4th 250 (2d Cir. 2024) – Clarified that an applicant’s failure to report violence is excusable only if reporting would have been futile or dangerous.
• Singh-Kar v. Bondi, 137 F.4th 94 (2d Cir. 2025) – Most directly mirrored the unwilling-or-unable analysis and informed the court’s statement that the record did not compel a contrary finding.
• Various standards cases (Y.C. v. Holder, Quituizaca v. Garland) for review and burden of proof doctrines.

Collectively, these authorities set the doctrinal stage against which the court scrutinized Mukhtorova’s failure to report the kidnapping and beating.

3.b Legal Reasoning

1. Threshold Requirement – Private Actor Violence. Because the assailants were linked to a businessman rather than the state, the family had to show Uzbekistan was unwilling or unable to control him. This shifted the analytical focus from who persecuted to how the state responded.
2. Report-to-Authorities Expectation. Under Scarlett and its progeny, an asylum applicant usually needs to report private harm to establish official unwillingness. Failure to report can be excused, but only with evidence that reporting would have been dangerous or hopeless.
3. Distinguishing Property Complaints from Violent Abuse. • The family had repeatedly petitioned local and national authorities about their property dispute—and the government did little.
   • Yet they never reported the later beating and death threat.
   • The court held that governmental passivity in enforcing civil-property rights does not automatically prove passivity toward violent crime. Therefore, reporting the assault may still have been worthwhile, defeating the futility claim.
4. Corroborating Country-Conditions Evidence. State-Department reports showed:
   • Equal legal rights for ethnic minorities and few recorded attacks on Tajiks;
   • General corruption, but no indication that police ignored violence against Tajiks.
   Moreover, the businessman (Umar) had actually been jailed for unrelated offenses—direct evidence that the state could and sometimes did control him.
5. Application of Substantial Evidence Review. The court did not need to find the agency’s view best; it needed only to find it reasonable. Given the unreported violence, the mixed country data, and Umar’s prior incarceration, a reasonable fact-finder could conclude the Uzbek state was not unwilling or unable. Hence the record did not compel a contrary result under 8 U.S.C. § 1252(b)(4)(B).

3.c Impact of the Judgment

Even as a summary order, the decision carries persuasive weight, particularly in the Second Circuit and for practitioners elsewhere who track that court’s reasoning. Three immediate implications stand out:

1. Narrowing the Futility Exception. The decision tightens the nexus between type of prior report and type of subsequent harm. Inaction on economic complaints does not, by itself, demonstrate futility for violent abuse. Applicants must show a specific, violence-related basis for fearing the authorities will not help.
2. Elevated Burden on Non-Reporting Applicants. Victims of private persecution must gather concrete evidence—such as documented police refusal, systemic violence data, or expert affidavits—that reporting would be pointless or perilous. Absence of such proof may doom the “unwilling-or-unable” claim.
3. Distinction Between Corruption and Impotence. The panel acknowledged pervasive corruption but nevertheless found police capacity and occasional willingness to prosecute violent crime. Thus, corruption alone, without proof of brutality or neglect toward the applicant’s protected group, may not satisfy the test.

4. Complex Concepts Simplified

• Asylum vs. Withholding of Removal – Asylum is discretionary relief that can lead to a path to citizenship; withholding is a mandatory bar on removal but offers fewer benefits. Both share similar persecution standards after Quituizaca.
• “One Central Reason” Test – The protected ground (e.g., nationality or political opinion) must be a primary—not merely incidental—motive for the persecutor.
• Unwilling-or-Unable Standard – When a non-state actor harms someone, the applicant must prove the home government cannot or will not stop that person. Evidence may include police indifference, complicity, or systematic failure.
• Futility Exception – An applicant’s failure to seek police help can be excused if proving help would have been impossible, futile, or severely dangerous. Castellanos-Ventura is the leading authority.
• Pattern-or-Practice Claim – Even without personal past persecution, applicants may succeed by showing a systemic, nationwide pattern of persecuting their group. The applicant here did not press that theory on appeal.
• Substantial Evidence Review – A highly deferential standard under which the court asks only whether any reasonable fact-finder could reach the agency’s conclusion.

5. Conclusion

Mukhtorova v. Bondi offers a nuanced but important refinement to U.S. asylum jurisprudence. By disentangling prior governmental inaction on property disputes from anticipated inaction on violent persecution, the Second Circuit set a clear analytical marker: not all forms of official neglect are interchangeable for futility purposes. For practitioners, the case serves as a cautionary tale—applicants must build an evidentiary bridge connecting the specific harm they fear to concrete proof that the state will not protect them. For scholars, it deepens the discourse on how corruption, selective enforcement, and ethnic bias intersect within the unwilling-or-unable framework.

Ultimately, while the order does not carry formal precedential weight, its reasoning is likely to influence future panels, agency adjudicators, and advocates who grapple with private-actor persecution. It underscores that futility is not presumed; it must be proven, and proven with precision.