Clarifying the Threshold for Government Inability to Protect in Asylum Claims: Singh-Kar v. Bondi

Introduction

In Singh-Kar v. Bondi, 22-6309 (2d Cir. May 21, 2025), the United States Court of Appeals for the Second Circuit addressed whether a single episode of police misconduct, coupled with general country‐conditions evidence, suffices to show that a foreign government is unwilling or unable to protect an asylum applicant from private persecution. Petitioner Rajanbir Singh-Kar, an Indian citizen unlawfully present in the United States, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT), alleging that members of a rival political party attacked him twice and that a local police officer slapped and ejected him from a police station when he tried to report the assault. An Immigration Judge (IJ) denied relief, the Board of Immigration Appeals (BIA) affirmed, and Singh-Kar petitioned this Court for review.

Key issues:

• Does a single instance of police misconduct establish a government’s inability or unwillingness to protect a persecuted individual?
• Can general country-conditions reports, without more, compel a finding of future or past persecution?
• Has the petitioner preserved his CAT claim and an ineffective‐assistance‐of‐counsel argument?

Summary of the Judgment

The Second Circuit denied Singh-Kar’s petition for review, holding that:

1. Substantial evidence supports the agency’s conclusion that one incident of police refusal to assist, plus general country reports, is insufficient to show that the Government of India is unable or unwilling to protect him from private‐party persecution. Accordingly, Singh-Kar fails to meet the requirements for asylum under 8 U.S.C. § 1158 or withholding of removal under 8 U.S.C. § 1231(b)(3).
2. Singh-Kar waived judicial review of his CAT claim by failing to present any meaningful challenge to the IJ’s denial before the BIA.
3. He cannot establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984), because the additional country‐conditions materials he faults his counsel for not submitting would not have changed the outcome.

Analysis

1. Precedents Cited

• Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020): Established that private‐party violence rises to persecution only if the government is unable or unwilling to protect the victim.
• Singh v. Garland, 11 F.4th 106 (2d Cir. 2021): Reaffirmed that allegations against party members, even those aligned with the ruling party, do not amount to government persecution unless state actors condone or fail to control them.
• Castellanos-Ventura v. Garland, 118 F.4th 250 (2d Cir. 2024): Clarified application of the “unable or unwilling to protect” standard under the substantial‐evidence test.
• Pan v. Holder, 777 F.3d 540 (2d Cir. 2015): Summarized the nexus requirement—persecution must be “on account of” a protected ground.
• Jian Qiu Liu v. Holder, 632 F.3d 820 (2d Cir. 2011), and Kambolli v. Gonzales, 449 F.3d 454 (2d Cir. 2006): Held that isolated threats or minor police harassment do not, by themselves, constitute past persecution.
• Strickland v. Washington, 466 U.S. 668 (1984): Governs the two‐part test for ineffective assistance of counsel (performance and prejudice).
• 8 U.S.C. § 1252(b)(4)(B): Commands deference to administrative fact‐finding when supported by “substantial evidence.”

2. Legal Reasoning

The court applied the narrow substantial evidence standard, which requires deference to the IJ’s and BIA’s factual findings unless no reasonable adjudicator could have made them. 8 U.S.C. § 1252(b)(4)(B). Under established asylum and withholding principles:

• An applicant must show past persecution or a well‐founded fear of future persecution “on account of” a protected ground (race, religion, nationality, political opinion, or particular social group). 8 U.S.C. § 1101(a)(42).
• Persecution by private actors is attributed to the government only if it condones the conduct or is unwilling or unable to control the perpetrators. Scarlett, 957 F.3d at 328; Singh, 11 F.4th at 114–15.

Singh-Kar produced evidence of two violent encounters with private party members and one “police misconduct” episode. The court held that:

1. A single police officer’s slap and refusal to accept a complaint does not prove an entire government’s inability or unwillingness to protect. Isolated misconduct is not sufficient; petitioners need a pattern of refusal or systemic failure. See Singh, 11 F.4th at 115–16.
2. General country‐conditions reports, standing alone, cannot compel a finding of persecution. While they may illustrate systemic issues, they must be tied to the petitioner’s individual circumstances. See Singh, 11 F.4th at 116–17.

On CAT relief, the court noted that Singh-Kar never challenged the IJ’s analysis before the BIA and thus waived the issue. And under Strickland, he failed to show prejudice from counsel’s alleged omissions, because the additional documents would not have altered the outcome.

3. Impact

The Singh-Kar decision reinforces and clarifies several critical points for immigration practitioners and asylum seekers:

• Isolated episodes of police misconduct—even when coupled with credible evidence of private violence—will not ordinarily satisfy the “unable or unwilling to protect” standard without broader proof of systemic failure.
• General country‐conditions evidence, such as State Department or NGO reports, must be tailored to reflect the petitioner’s individual risk profile rather than submitted as standalone proof.
• Claimants must exhaust administrative remedies by raising all issues—especially CAT claims—before the BIA or risk forfeiture in federal court.
• Under Strickland, ineffective‐assistance claims in removal proceedings will fail absent a clear showing that omitted evidence would have created a reasonable probability of relief.

Complex Concepts Simplified

• Substantial Evidence Standard: Courts defer to an agency’s factual findings unless no reasonable fact-finder could reach the same conclusion based on the record.
• Asylum vs. Withholding of Removal: Both require a protected‐ground nexus, but withholding has a higher “clear probability” standard for future persecution.
• Convention Against Torture (CAT) Relief: Requires proof that it is “more likely than not” the applicant will be tortured with government acquiescence; and CAT claims must be preserved on appeal.
• Well-Founded Fear: A reasonable possibility of future persecution, even if the applicant cannot show past persecution.
• Ineffective Assistance of Counsel: Under Strickland, the petitioner must prove deficient performance and a reasonable probability of a different outcome absent the deficiency.

Conclusion

Singh-Kar v. Bondi underscores the high bar asylum applicants face when attempting to attribute private violence to government inaction. A solitary instance of police refusal to assist, without evidence of a broader pattern of state‐sponsored or systematic failure, will not establish the government’s inability or unwillingness to protect. The decision also reinforces procedural requirements—exhaustion of CAT claims and the stringent Strickland test for ineffective assistance—providing critical guidance to practitioners and future petitioners navigating removal relief.