Clarifying the "Unable or Unwilling to Protect" Standard in Domestic Violence Asylum Claims

Introduction

The Third Circuit’s decision in Mayra Lopez-Barrera v. Attorney General, United States of America addresses an increasingly significant issue in immigration law: the standards that survivors of private-actor domestic violence must meet to obtain asylum, withholding of removal, or Convention Against Torture (CAT) protection. Petitioners Mayra Lopez-Barrera and her child, Guatemalan nationals, fled severe domestic violence and sought relief in the United States. Although the Immigration Judge (IJ) credited their testimony and found that they suffered past persecution, he—and subsequently the Board of Immigration Appeals (BIA)—denied relief on the ground that Guatemala’s authorities were neither “unable nor unwilling” to protect them. This commentary examines the court’s findings, the legal framework it applied, and the decision’s implications for future asylum and CAT claims based on private-actor abuse.

Summary of the Judgment

The Third Circuit denied the petition for review. The BIA had affirmed the IJ’s decision, focusing on two dispositive points:

Although the IJ found Lopez-Barrera credible and recognized that she and her child endured persecution, he concluded—and the BIA agreed—that they failed to prove Guatemalan authorities were unable or unwilling to control the private abuser.
The government’s prompt issuance of a six-month protective order, combined with evidence of specialized courts and victim service centers in Guatemala, constituted substantial evidence that the state was capable of—and took steps toward—protecting victims of domestic violence.

Because Lopez-Barrera did not pursue enforcement or report subsequent violations of the protective order, the courts lacked a basis to find that state authorities would have ignored or failed to enforce the law. As a result, her claims for asylum, withholding of removal, and CAT protection all fell—for asylum and withholding—due to inability to establish the “unable or unwilling” element, and for CAT because the threats did not rise to the level of torture and no official acquiescence was shown.

Analysis

Precedents Cited

Doe v. Attorney General, 956 F.3d 135 (3d Cir. 2020): Held that private-actor persecution requires proof that the government cannot or will not control the persecutor.
Herrera-Reyes v. Attorney General, 952 F.3d 101 (3d Cir. 2020): Clarified substantial-evidence review and deference to BIA factual findings.
Hernandez Garmendia v. Attorney General, 28 F.4th 476 (3d Cir. 2022): Defined asylum’s two paths: past persecution or well-founded fear of future persecution on account of a protected ground.
Saban-Cach v. Attorney General, 58 F.4th 716 (3d Cir. 2023): Articulated the “clear probability” standard for withholding of removal and its reliance on past persecution findings.
Thayalan v. Attorney General, 997 F.3d 132 (3d Cir. 2021): Confirmed that an asylum applicant who fails to show past persecution cannot satisfy the higher standard for withholding of removal or humanitarian asylum.
Galeas Figueroa v. Attorney General, 998 F.3d 77 (3d Cir. 2021): Laid out the two-part analysis for CAT protection—factual inquiry into likely government response and legal inquiry into acquiescence to torture.

These authorities collectively shaped the Court’s conclusion that Lopez-Barrera’s failure to enforce or report violations of her protective order foreclosed any finding that Guatemala’s law-enforcement apparatus was ineffective or indifferent.

Legal Reasoning

The Third Circuit applied established standards under the Immigration and Nationality Act and relevant regulations:

Asylum Eligibility: Must show past persecution on account of a protected ground or a well-founded fear of future persecution. Private-actor claims require proof the state is unable or unwilling to control the persecutor.
Withholding of Removal: Requires a “clear probability” of persecution—essentially a “more likely than not” standard tied to past persecution findings.
CAT Protection: Requires showing torture more likely than not, with government consent or acquiescence.

Factually, the Court highlighted that:

Guatemalan authorities responded to Lopez-Barrera’s initial complaint by issuing a protective order through specialized courts established to address violence against women.
The U.S. State Department report acknowledged Guatemala’s systemic challenges but also noted victim service centers, specialized courts, and a protective-order regime.
Lopez-Barrera never returned to authorities to enforce the protective order or report further threats, leaving no record of whether the state would have acted to protect her further.

Without evidence of non-enforcement, the Court held there was no basis to conclude the state was unwilling or unable to protect the petitioners from private-actor violence. And because the post-departure harassment did not escalate to torture, CAT protection was unavailable.

Impact

This decision carries significant implications for survivors of domestic violence who seek asylum or related relief:

It underscores the critical importance of pursuing all available state remedies—such as enforcing protective orders and reporting violations—to demonstrate that domestic authorities are ineffective or unwilling to act.
Immigration courts may look closely at evidence of ongoing interactions with local law enforcement, specialized courts, and support services in the home country.
Advocates should prepare clients to document attempts to enforce orders, record official responses, and preserve evidence of non-enforcement if they intend to show state complicity or incapacity.
While domestic violence remains a recognized basis for asylum in certain circuits, this decision highlights rigorous fact-intensive inquiry into state protection efforts.

Complex Concepts Simplified

“Unable or Unwilling to Protect”: In private-actor persecution cases, the asylum seeker must show the government either cannot control the abuser (unable) or chooses not to enforce laws against the abuser (unwilling).

Substantial Evidence Standard: Appeals courts defer to the BIA’s factual findings unless no reasonable factfinder could reach the same conclusion.

Asylum vs. Withholding of Removal: Asylum requires a “well-founded fear” standard and discretion; withholding demands a higher “more likely than not” showing of future persecution.

CAT Protection: Separate relief requiring torture-level harm and official acquiescence, distinct from persecution on account of a protected ground.

Conclusion

Mayra Lopez-Barrera v. Attorney General reaffirms the rigorous factual showing required for asylum and related relief when persecution stems from private-actor violence. By emphasizing the necessity of enforcing protective orders and documenting state responsiveness—or lack thereof—the Third Circuit has charted a clear course for future domestic violence claims. Survivors and practitioners must now ensure robust evidence of state failure to protect, or risk denial under the “unable or unwilling” framework. This decision thus sharpens the contours of asylum law in the domestic violence context, balancing respect for sovereign legal systems with protection for the most vulnerable.