Clarifying the “Unable or Unwilling to Protect” Standard in Asylum and Torture Claims

Introduction

Gleicielle Da Silva Souza, a Brazilian national, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT) after entering the United States in 2021 on behalf of herself, her husband, and her minor son. Her claim rested on threats she and her family allegedly received from a private individual—Maxwell—who accused her husband of murder in Brazil. The central issues were:

Whether Souza suffered “past persecution” or has a “well-founded fear of future persecution” under 8 U.S.C. § 1158(a).
Whether Souza could show Brazil was “unable or unwilling to protect” her from private violence.
Whether she faced “torture by or with the acquiescence of” Brazilian officials under CAT standards (8 C.F.R. § 1208.18(a)(1)).

The Board of Immigration Appeals (BIA) denied relief, and the Eleventh Circuit Court of Appeals (“the Court”) affirmed on March 12, 2025, holding that Souza failed to meet her burdens under the Immigration and Nationality Act and CAT.

Summary of the Judgment

The Eleventh Circuit, reviewing the BIA’s decision, applied the substantial-evidence standard to factual findings and de novo review to legal questions. It concluded:

Souza did not demonstrate past persecution: isolated threats—unaccompanied by violence or immediate ability to act—fell short of the “extreme concept” of persecution.
She failed to prove Brazil was unable or unwilling to protect her: no formal police complaints were lodged, and the evidence showed authorities had imprisoned her persecutor for unrelated crimes.
Her withholding-of-removal claim necessarily failed because it relies on the same factual predicate as asylum, but under a stricter “more likely than not” standard.
She could not satisfy the CAT standard: there was no evidence government officials would acquiesce to torture by a private actor.

Accordingly, the court denied her petition for review.

Analysis

4.1 Precedents Cited

Ruiz v. U.S. Attorney General, 440 F.3d 1247 (11th Cir. 2006): defined the burden for past persecution or well-founded fear of future persecution.
Sepulveda v. U.S. Attorney General, 401 F.3d 1226 (11th Cir. 2005): held that verbal threats, absent physical harm or immediate capacity, do not compel a finding of persecution.
Diallo v. U.S. Attorney General, 596 F.3d 1329 (11th Cir. 2010): clarified that a credible death threat with immediate ability to carry it out constitutes persecution.
Ayala v. U.S. Attorney General, 605 F.3d 941 (11th Cir. 2010): articulated the requirement that private-actor persecution must be accompanied by state inability or unwillingness to protect.
Sama v. U.S. Attorney General, 887 F.3d 1225 (11th Cir. 2018): held evidence of police willingness to investigate showed state protection.
Jathursan v. U.S. Attorney General, 17 F.4th 1365 (11th Cir. 2021): established that reversal is warranted only if the record compels it under the substantial-evidence standard.

4.2 Legal Reasoning

The Court’s reasoning unfolded in three steps:

Past Persecution Standard: Applying Sepulveda and Diallo, the court found that isolated threats—without corroborating violence or a perpetrator’s immediate capacity—do not rise to persecution.
State Protection Requirement: Under Ayala and Sama, a private-actor claimant must show formal state refusal or inability to protect. Souza’s failure to file a complaint and the evidence of her persecutor’s incarceration undercut her claim.
Withholding and CAT Claims: Because the asylum claim failed, the withholding claim—requiring a higher “more likely than not” threshold—also failed (D-Muhumed and Meja). The CAT claim did not succeed absent any showing of official acquiescence.

4.3 Impact

This decision reinforces and clarifies Eleventh Circuit standards in three respects:

Asylum applicants facing private threats must present evidence of actual violence or a credible threat with immediate capacity to harm.
Claimants must file formal complaints or otherwise establish that authorities refused or failed to protect them.
Failure on the asylum claim will generally doom subsequent withholding and CAT claims unless new evidence emerges.

Future litigants in the circuit will need to marshal stronger proof—documented police reports, expert testimony on state practice, or patterns of impunity—to satisfy the “unable or unwilling to protect” test.

Complex Concepts Simplified

Persecution: More than threats or insults—requires violence or credible threats by someone who can act immediately.
Well-Founded Fear: A real, objectively reasonable chance of persecution, measured by past harm or credible future threats.
Unable or Unwilling to Protect: The government must refuse or fail to investigate or punish, not merely be inefficient or occasionally corrupt.
Withholding vs. Asylum: Both depend on the same facts, but withholding demands a “more likely than not” risk, a stricter test than the “well-founded fear” threshold.
CAT Standard: Torture must be by—or with the consent of—public officials. Private threats alone do not trigger relief unless officials connive.

Conclusion

In Souza v. U.S. Attorney General, the Eleventh Circuit reaffirmed the high evidentiary bar for asylum and CAT relief when persecution stems from private actors. It stressed that informal threats, without violence or immediate ability to carry them out—and absent formal state refusal to intervene—cannot establish eligibility. This ruling underscores the necessity of documented police involvement and credible evidence of official acquiescence for future claims in the Eleventh Circuit.