Clarifying the “Unable-or-Unwilling” Standard for Domestic Violence–Based Asylum and CAT Claims

Introduction

Escobar-Garcia v. Bondi, decided April 1, 2025 by the U.S. Court of Appeals for the Second Circuit, addresses the threshold question of when private‐actor domestic violence can constitute “persecution” under U.S. asylum and Convention Against Torture (CAT) standards. Petitioner Maria Maribel Escobar-Garcia, a Honduran national, challenged a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s denial of her claims for asylum, withholding of removal, and CAT relief. The key issue was whether Honduran authorities were “unable or unwilling” to protect her from her abusive former partner, Marcos Cruz, and thus whether she suffered persecution on account of a protected ground.

Summary of the Judgment

The Second Circuit denied Escobar-Garcia’s petition for review. It held that:

Escobar-Garcia failed to establish persecution because Cruz was a private actor and she did not show Honduran authorities were unable or unwilling to protect her.
Evidence showed that in 2011 a Honduran court opened a domestic violence case, imposed protective measures (no‐visit order), held Cruz in contempt, and sentenced him to community service—consistent with country conditions reporting.
Her failure to seek additional assistance after 2011, coupled with no individualized evidence that authorities would have failed her again, precluded a finding of ongoing state acquiescence or helplessness.
The denial of CAT relief was likewise affirmed because she could not demonstrate it was more likely than not she would be tortured with government acquiescence.

Analysis

1. Precedents Cited

Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005) – Standard of review: factual findings under “substantial evidence,” legal questions de novo.
Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) – Clarified the dual standard of review in immigration appeals.
Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) – Defined “persecution” by private actors and the “unable or unwilling” standard.
Singh v. Garland, 11 F.4th 106 (2d Cir. 2021) – Emphasized that condonation or helplessness must be shown to satisfy the unwilling-or-unable test.
Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021) – Addressed acquiescence for CAT relief and the weight of a failure to seek police help.
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) – Presumption that an IJ considers all record evidence unless record suggests otherwise.
Y.C. v. Holder, 741 F.3d 324 (2d Cir. 2013) – Deference to agency’s evaluation of documentary evidence.
Matter of A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014) – Domestic violence as persecution when police systematically refuse to intervene.

2. Legal Reasoning

Under 8 U.S.C. § 1158(b)(1)(B) and 8 C.F.R. § 1208.13, an asylum applicant must show past persecution or a well-founded fear of persecution on account of a protected ground. Per Scarlett and Singh, persecution by a private actor requires proof that the government was unable or unwilling to control the abuser. The court reviewed factual findings for “substantial evidence” and legal questions de novo. It concluded:

The 2011 domestic violence complaint, protective order and criminal contempt finding demonstrate Honduran authorities did act to protect Escobar-Garcia.
No evidence of subsequent requests for help or denials by the court or police meant she lacked individualized proof of ongoing state inaction or condonation.
Country reports confirmed domestic violence protections and escalating penalties for repeat offenders, undermining a claim of systemic helplessness.

For CAT relief, 8 C.F.R. § 1208.18(a)(1) requires torture “by or with the consent or acquiescence of a public official.” The same absence of evidence of future government acquiescence defeated that claim.

3. Impact

This decision reinforces that:

Applicants alleging private-actor violence must produce evidence of current or continuing inability/unwillingness of their home government to protect them.
Court orders and official responses, even if limited, can be sufficient to rebut a presumption of state inaction.
Failure to seek repeated or ongoing protection, without explanation or corroboration of systemic failure, undermines asylum and CAT claims.

Future applications based on domestic violence will require careful documentation of government refusal or helplessness, and country-wide evidence of institutional failure.

Complex Concepts Simplified

Persecution: Harm by government actors or private actors the government cannot/cannot control.
Well-Founded Fear: A reasonable possibility of persecution if returned.
Unable-or-Unwilling Standard: Government inaction or inability to prevent private-actor abuses.
Substantial Evidence Review: Courts defer to agency fact-finding unless no reasonable factfinder could uphold it.
De Novo Review: Courts independently review legal questions without deferring to agency conclusions.
CAT Acquiescence: Government’s consent or acceptance of torture or severe harm.

Conclusion

Escobar-Garcia v. Bondi clarifies that an applicant’s domestic-violence claim against a private abuser must be coupled with solid evidence that home‐country authorities could not or would not provide effective protection. The decision underscores rigorous proof requirements under both asylum and CAT frameworks, emphasizing the weight of documented official responses and the necessity of demonstrating systemic state failure rather than isolated incidents of abuse.