Clarifying the “Unwilling-or-Unable” Standard for Domestic Violence Asylum Claims

Introduction

In Escobar-Garcia v. Bondi, the United States Court of Appeals for the Second Circuit addressed the question whether a survivor of domestic violence at the hands of a private actor in Honduras established eligibility for asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”). Maria Maribel Escobar-Garcia, a Honduran national, claimed that her former partner’s persistent abuse—after Honduran authorities granted her limited relief in 2011—demonstrated that the government was “unable or unwilling” to protect her. The Board of Immigration Appeals (“BIA”) affirmed an Immigration Judge’s denial of relief, and the Second Circuit denied review, elaborating principles governing how and when survivors must demonstrate government failure to control private violence.

Summary of the Judgment

The Second Circuit’s summary order, filed April 1, 2025, upheld the BIA’s conclusion that Escobar-Garcia failed to carry her burden for relief. Relying on substantial evidence, the court found:

Escobar-Garcia did not show that Honduran authorities were unable or unwilling to protect her beyond the 2011 protective order and community-service sanction imposed on her abuser.
Her failure to seek further help after continued abuse deprived her of individualized evidence that authorities would cease to assist.
The country conditions record indicated that domestic violence is punishable and that legal protections have strengthened.
Accordingly, she could not meet the “unwilling-or-unable” threshold for persecution or CAT relief, both of which require state acquiescence to private violence.

The petition for review was therefore denied, and all stays and pending motions were vacated.

Analysis

Precedents Cited

The court’s reasoning drew on several key authorities:

8 U.S.C. § 1158(b)(1)(B)(i) and 8 C.F.R. § 1208.13: statutory asylum standard requiring past persecution or well-founded fear of persecution.
Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020): defined persecution by private actors controlled or condoned by the state.
Singh v. Garland, 11 F.4th 106 (2d Cir. 2021): detailed the “unwilling-or-unable” test, requiring condonation or helplessness by authorities.
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005): establishes review standards when the BIA modifies IJ decisions.
Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009): clarifies standard of review—de novo for legal questions, substantial evidence for factual findings.
Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021): explained failure to seek police help is not dispositive for CAT acquiescence.
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006): presumption that IJs consider all evidence absent a clear record gap.
Y.C. v. Holder, 741 F.3d 324 (2d Cir. 2013): agency discretion in weighing documentary and expert evidence.
Matter of A-R-C-G-, 26 I. & N. Dec. 388 (B.I.A. 2014): BIA’s domestic violence precedent (distinguished here because Escobar-Garcia did not allege police refusal to intervene).

Legal Reasoning

The court applied the following analytical framework:

Standards of Review: Legal questions (e.g., application of the unwilling-or-unable test) were reviewed de novo; factual findings (e.g., credibility, country conditions) under the substantial-evidence standard.
Asylum and Withholding of Removal: Both require persecution by the government or by private actors the government cannot control. The record showed Honduran courts imposed protective measures and community service in 2011, and country-wide evidence revealed escalating penalties for repeat domestic violence. Without evidence that the state had ceased to assist, Escobar-Garcia could not satisfy her burden.
Convention Against Torture: Requires torture “more likely than not” by or with acquiescence of public officials. Given past protective actions and strengthened domestic-violence laws, the BIA reasonably concluded she failed to prove likely state acquiescence.
Evidence Considered: The IJ and BIA acknowledged expert reports but gave them limited weight because they were older and the experts were unavailable for cross-examination. Country-conditions data from the U.S. State Department supported a finding that Honduran authorities would continue to help.

Impact

Although summary orders lack precedential effect in the Second Circuit, Escobar-Garcia reinforces several important principles for asylum applicants alleging private-actor persecution:

Applicants must present individualized evidence that protective measures will lapse or fail in future incidents—not merely point to general country-wide deficiencies.
Prior successful interventions by domestic authorities weigh heavily against a finding of state unwillingness or inability.
Failure to seek further help does not automatically negate a claim, but absent a direct indication that help would be refused, such failure undermines the applicant’s evidentiary showing.
Expert reports and country-conditions materials must be timely and subject to cross-examination to carry substantial weight.

Complex Concepts Simplified

“Unwilling or Unable” Standard: To show persecution by private actors, an asylum seeker must prove the government either condoned the abuse or was completely helpless to stop it.
Substantial Evidence Review: A court will uphold factual findings if any reasonable adjudicator could—not must—reach the same conclusion on the record.
CAT Acquiescence: Means that public officials either consent to torture or remain silent in a way that tacitly approves it; occasional assistance cuts against such a finding.
Precedent vs. Summary Orders: Summary orders decide individual cases but do not establish binding precedent; they still guide practitioners on how the court applies settled law.

Conclusion

Escobar-Garcia v. Bondi clarifies that once a government has demonstrated its capacity and willingness to protect a victim of domestic violence, an applicant must produce firm, individualized evidence that future assistance will be denied or ineffective. The decision underscores the importance of continuing to seek help, timely update country-conditions and expert evidence, and clearly document why state protections will collapse in future incidents. Asylum practitioners should carefully evaluate whether a client’s record shows not just past relief but a demonstrable breakdown of state protection going forward.