Clarifying the “Unable-or-Unwilling” Standard for Private-Actor Persecution

Introduction

In Escobar-Garcia v. Bondi, 23-6581 (2d Cir. Apr. 1, 2025), the Second Circuit reviewed a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge’s denial of asylum, withholding of removal, and Convention Against Torture (CAT) relief to Maria Maribel Escobar-Garcia, a Honduran national who suffered domestic abuse at the hands of her former partner. The core issue was whether abuse by a private actor—here, an ex-partner—could constitute persecution when the government had taken some protective steps but the abuse persisted. The court’s ruling refines the “unable-or-unwilling” standard that governs persecution claims involving private actors under 8 U.S.C. § 1158 and CAT jurisprudence.

Summary of the Judgment

The Second Circuit denied Escobar-Garcia’s petition for review. It held that substantial evidence supported the agency’s factual findings that (1) Honduran authorities had taken effective protective measures in 2011—prohibiting the abuser from her home, imposing community-service penalties, and holding him in contempt when he failed to appear—and (2) the petitioner offered no individualized evidence showing that Honduran officials would be unable or unwilling to protect her in the future. Applying de novo review to legal questions and the substantial-evidence standard to factual findings, the court concluded that Escobar-Garcia failed to meet her burden for asylum, withholding of removal, and CAT relief.

Analysis

Precedents Cited

• Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005) – Framework for reviewing IJ decisions as modified by the BIA.
• Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) – Standard of de novo review for legal questions and application of law to fact.
• Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) – Definition of state-attributable persecution and the “unable-or-unwilling” test.
• Singh v. Garland, 11 F.4th 106 (2d Cir. 2021) – Government condonation or helplessness required to demonstrate private-actor persecution.
• Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021) – Failure to seek police help does not automatically preclude a finding of government acquiescence under CAT.
• Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) – Presumption that an IJ considers all evidence absent a compelling record indication otherwise.
• Y.C. v. Holder, 741 F.3d 324 (2d Cir. 2013) – Deference to the agency’s assessment of documentary evidence weight.
• Matter of A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014) – Domestic violence as persecution when authorities refuse to intervene; distinguished here because Honduran authorities did respond.

Legal Reasoning

To obtain asylum or withholding of removal under 8 U.S.C. § 1158(b)(1)(B)(i) and § 1231(b)(3), an applicant must show persecution on account of a protected ground by the government directly or by private actors the government cannot or will not control. Under Scarlett and Singh, private-actor persecution requires a showing that authorities “condoned” the harm or were “helpless” to prevent it. The IJ and BIA found that Honduran courts had (a) imposed protective measures on Escobar-Garcia’s behalf, and (b) punished her abuser with community service and contempt sanctions. Country-conditions reports confirmed that penalties escalate for repeat offenses and that victims are entitled to ongoing protective orders.

Although Escobar-Garcia argued that her partner resumed abuse after the six-month order expired, she did not seek additional protection or present individualized evidence that the government would fail to act again. The court held that her inaction—while not dispositive—meant she lacked evidence that officials would be “unable or unwilling” to protect her in the future. The agency correctly applied the substantial-evidence standard to factual findings and was entitled to deference in weighing dated expert reports that were not subject to cross-examination.

For CAT relief, the petitioner had to prove it was “more likely than not” she would be tortured with government consent or acquiescence. Relying on Quintanilla-Mejia, the court found no compelled conclusion that Honduran authorities would acquiesce to future torture given their prior intervention and ongoing legal framework to protect domestic-violence victims.

Impact

While issued as a non-precedential summary order, Escobar-Garcia v. Bondi provides practical guidance on private-actor persecution claims. It underscores that asylum applicants must demonstrate ongoing government inability or refusal to protect, not merely initial lapses. Practitioners handling domestic violence asylum cases will note the importance of current, individualized country-conditions evidence and specific proof of future helplessness on the part of state authorities. The decision also reinforces the high bar for CAT claims where governments have shown some willingness to intervene.

Complex Concepts Simplified

• Unable-or-Unwilling Standard: To claim persecution by a private individual, an asylum seeker must show that authorities could not—or chose not to—protect them.
• Substantial Evidence: The court upholds factual findings unless no reasonable adjudicator could reach the same conclusion.
• “More Likely Than Not” Standard (CAT): Demonstrates that torture is more probable than not and that officials would consent or acquiesce.
• Summary Order: A non-precedential appellate decision that governs citation under Fed. R. App. P. 32.1.

Conclusion

Escobar-Garcia v. Bondi sharpens the evidentiary requirements for private-actor persecution and CAT claims. It illustrates that a one-time protective order and enforcement action can defeat an asylum claim absent evidence of sustained government failure. Although not binding precedent, this summary order serves as a valuable reference point for immigration judges and practitioners navigating the “unable-or-unwilling” doctrine in domestic violence contexts.