Establishing Government “Unwilling-or-Unable” Standard in Private-Actor Persecution Claims: Escobar-Garcia v. Bondi

Introduction

Escobar-Garcia v. Bondi, decided April 1, 2025 by the United States Court of Appeals for the Second Circuit (23-6581), clarifies the evidentiary demands for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief where the persecution arises from a private actor. Petitioner Maria Maribel Escobar-Garcia, a Honduran national, challenged the denial of her protection claims after suffering domestic abuse by her former partner. The key legal issue is whether she demonstrated that Honduran authorities were “unable or unwilling” to protect her from continuing violence. The Second Circuit, reviewing factual findings for substantial evidence and legal questions de novo, denied the petition for review.

Summary of the Judgment

The Court of Appeals affirmed the Board of Immigration Appeals (BIA) and Immigration Judge (IJ) decisions. It held:

Escobar-Garcia did not meet her burden to show past persecution or well-founded fear by a state actor or a private actor that the government could not control.
The record established Honduran courts imposed protective measures and community service on her abuser in 2011, demonstrating a willingness and ability to intervene.
She offered no evidence that she sought or was denied further assistance after the six‐month order expired, nor that authorities would have refused or been powerless to act in subsequent incidents.
Similarly, she failed to show it was “more likely than not” she would be tortured with government acquiescence, a prerequisite for CAT relief.

Analysis

Precedents Cited

The court’s decision drew on several controlling precedents:

Xue Hong Yang v. U.S. Dep’t of Justice (426 F.3d 520, 522, 2d Cir. 2005) – The scope of appellate review of IJ decisions modified by the BIA.
Yanqin Weng v. Holder (562 F.3d 510, 513, 2d Cir. 2009) – De novo review for legal questions and application of law to fact.
Scarlett v. Barr (957 F.3d 316, 328, 2d Cir. 2020) – Definition of persecution and the “unable or unwilling” test for private-actor harm.
Singh v. Garland (11 F.4th 106, 114–15, 2d Cir. 2021) – Requirement that government condones, incites, or is helpless to prevent private persecution.
Quintanilla-Mejia v. Garland (3 F.4th 569, 593–94, 2d Cir. 2021) – Failure to seek police help does not automatically preclude a finding of government acquiescence, but country‐conditions may rebut such a finding.
Xiao Ji Chen v. U.S. Dep’t of Justice (471 F.3d 315, 336 n.17, 2d Cir. 2006) – Presumption that an IJ considered all evidence unless the record suggests otherwise.
Y.C. v. Holder (741 F.3d 324, 332, 2d Cir. 2013) – Deference to the agency’s evaluation of documentary evidence and weight assessment.
Matter of A-R-C-G- (26 I. & N. Dec. 388, BIA 2014) – Domestic violence as persecution, but distinguished here because of the actual protective measures taken.

Legal Reasoning

The court applied the well-settled “unwilling-or-unable” test for private‐actor persecution. To qualify for asylum or withholding:

Persecution must be by the government or by private actors that the government is incapable or unwilling to control. Scarlett v. Barr.
Applicants must show more than a single enforcement failure; they need specific evidence of a systemic inability or unwillingness to protect. Singh v. Garland; Scarlett.
Failure to seek help does not preclude relief, but in the absence of renewed requests for protection, there is no individualized showing government would decline to act. Quintanilla-Mejia.

Here, the IJ and BIA credited evidence that:

Escobar-Garcia filed a complaint in 2011.
The Honduran court issued protective measures (no-contact order) and sanctioned her abuser with community service.
Country reports confirmed such measures are standard and escalating penalties apply for repeat offenses.

The absence of subsequent complaints or denials of relief prevented a finding government would be unwilling or unable to act. For CAT relief, she failed to prove it was more likely than not she would face torture with state acquiescence, given the proven responsiveness of the legal system.

Impact

Escobar-Garcia v. Bondi reinforces and refines the “unwilling-or-unable” standard in several ways:

Individualized Evidence Requirement: Applicants must present specific, contemporaneous evidence that authorities would be perennially incapable or unwilling to protect them after initial enforcement.
Weight of Country Conditions: General reports of domestic violence are insufficient if they coexist with evidence of functioning protective mechanisms and enforcement actions.
Asylum and Withholding Parity: The same unwilling-or-unable analysis applies equally to asylum and withholding relief.
CAT Claims: Reinforces that torture relief demands a “more likely than not” standard plus proof of state acquiescence, which may be rebutted by prior successful interventions.

Future litigants will need to supplement country reports with contemporaneous affidavits, documented denials of protection requests, or evidence of official refusal to intervene.

Complex Concepts Simplified

“Unwilling-or-Unable” Standard: To qualify for relief based on private violence, you must show the government either will not act to stop the violence or lacks the capacity to do so.
Substantial Evidence Review: Appellate courts defer to factual findings of the IJ/BIA unless no reasonable fact‐finder could reach the same conclusion.
De Novo Review: Legal questions and the application of law to facts are reviewed without deference to the agency’s conclusions.
Convention Against Torture (CAT) Standard: Requires showing a more than 50% likelihood of torture plus that the state would consent or acquiesce in that torture.

Conclusion

Escobar-Garcia v. Bondi reaffirms the rigorous showing required when asylum or CAT relief is sought on the basis of private-actor persecution. It underscores that a single instance of official protection, coupled with standard enforcement measures, can rebut a claim of government unwillingness or inability to protect. Practitioners should ensure clients produce individualized, up-to-date evidence of repeated enforcement failures or explicit refusals of aid. This decision will guide future applications involving domestic violence or other private‐actor harm, sharpening the line between persecutory failures and functional state protection.