Nonreporting and Speculative Collusion Allegations Do Not Satisfy the “Unable or Unwilling” Government-Protection Element in Gang-Threat Asylum Claims

Case: Karla Cruz De Saenz v. Pamela Bondi
Court: United States Court of Appeals for the Fourth Circuit
Date: January 16, 2026 (unpublished)
Disposition: Petition for review denied

I. Introduction

This petition for review arose from the Board of Immigration Appeals’ (“BIA”) affirmance of an Immigration Judge’s (“IJ”) denial of Karla Rubenia Cruz de Saenz’s applications for asylum and withholding of removal. Cruz, a native and citizen of El Salvador, alleged she fled after receiving repeated phone threats from “Alexander,” an MS-13 member calling from prison, who demanded conjugal visits and contraband smuggling and threatened to harm her husband and son if she refused.

The central appellate issue was not whether Cruz’s fear was sincere, but whether the agency permissibly found she failed to establish the third asylum prong: that El Salvador was unable or unwilling to control the private persecutor. Because Cruz never reported the threats to police, she sought to excuse nonreporting by asserting that seeking protection would be futile and dangerous due to gang–police collusion. The Fourth Circuit, applying substantial-evidence review, held the record supported the agency’s contrary findings.

Although the IJ and BIA also rejected Cruz’s proposed particular social group (“Salvadoran women”) as overbroad, the Fourth Circuit’s opinion largely turns on the government-protection element and the deferential review owed to the agency’s factfinding.

II. Summary of the Opinion

Judge Wilkinson (joined by Judges Niemeyer and King) denied the petition for review, holding that substantial evidence supported the agency’s determination that Cruz did not prove the Salvadoran government was unable or unwilling to protect her from Alexander or MS-13. The court emphasized:

  • Cruz did not report the threats to police and did not provide “good reason” excusing that failure.
  • Her allegations of widespread police collusion were largely conclusory and minimally supported.
  • Record evidence indicated El Salvador undertook anti-gang actions (including Alexander’s incarceration and State Department reporting of enforcement efforts).
  • The BIA was not required to discuss every piece of evidence and did not arbitrarily ignore unrebutted, legally significant facts.
  • Any minor confusion in the BIA’s reference to the IJ’s citation to Matter of A-B- was harmless.

Because Cruz failed to satisfy the asylum standard, she necessarily failed to meet the higher standard for withholding of removal.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

  • Molina-Diaz v. Bondi, 128 F.4th 568 (4th Cir. 2025)
    The court used Molina-Diaz to frame the three-prong asylum structure and to reaffirm that a claim fails if any one element is not proven. It also supported the principle that the agency need not “discuss every piece of evidence in the record.”
  • Portillo Flores v. Garland, 3 F.4th 615 (4th Cir. 2021) (en banc)
    Two roles: (1) as the source of the “unable or unwilling to control” formulation (quoted via Molina-Diaz); and (2) as authority for the rule that nonreporting can be excused only if the applicant proves reporting would have been futile or would have subjected the applicant to further abuse. The court applied this standard directly to Cruz’s failure to contact police.
  • Orellana v. Barr, 925 F.3d 145 (4th Cir. 2019)
    Orellana supplied two key propositions: (1) whether a government is unable or unwilling to control a private actor is a fact question resolved case-by-case on the record; and (2) an applicant who did not seek protection must show “good reason” for not doing so. The court treated Cruz’s case as a straightforward application of Orellana’s “good reason” requirement.
  • Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011)
    Cited within Orellana’s quoted standard, reinforcing that the “unable or unwilling” inquiry is record-dependent and factual.
  • Tassi v. Holder, 660 F.3d 710 (4th Cir. 2011)
    Used for the articulation of substantial-evidence review and, importantly, for harmless-error principles—allowing affirmance where an error “clearly had no bearing” on the substance of the decision. This underpinned the court’s treatment of the BIA’s footnote ambiguity as inconsequential.
  • Ngarurih v. Ashcroft, 371 F.3d 182 (4th Cir. 2004)
    Quoted via Tassi to support harmless-error review in immigration adjudication.
  • Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007)
    Cited to stress how demanding substantial-evidence review is: it is not enough that reasonable minds could differ; reversal requires that any reasonable adjudicator would be compelled to conclude the contrary.
  • Hernandez-Cartagena v. Barr, 977 F.3d 316 (4th Cir. 2020) and Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015)
    These cases were used to define the court’s oversight role: while deferential, review must ensure that “unrebutted, legally significant evidence” is not arbitrarily ignored. The court distinguished Cruz’s evidence as rebutted, insignificant, or addressed.
  • Nolasco v. Garland, 7 F.4th 180 (4th Cir. 2021) and Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014)
    Together, these provided a presumption that the IJ and BIA reviewed the record and relied on relevant evidence, and again reaffirmed that not every item must be discussed.
  • Salgado-Sosa v. Sessions, 882 F.3d 451 (4th Cir. 2018) and Mulyani v. Holder, 771 F.3d 190 (4th Cir. 2014)
    These cases established the relationship between asylum and withholding standards: withholding requires a higher showing (“clear probability”), so failure on asylum generally defeats withholding. The court invoked this logic to dispose of withholding once asylum failed.
  • Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018) [hereinafter A-B- I], Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021), Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020), and Galina v. INS, 213 F.3d 955 (7th Cir. 2000)
    The IJ had cited A-B- I (which tightened the government-protection element by requiring “condoned” conduct or “complete helplessness,” quoting Galina). The Attorney General later vacated A-B- I in Matter of A-B-, 28 I. & N. Dec. 307, and Grace v. Barr was cited to explain the prior rule’s heightened demands. The Fourth Circuit accepted the BIA’s view that the outcome did not turn on the vacated, heightened standard; it treated any confusion in the BIA’s reference to where A-B- I appeared as harmless and agreed the IJ effectively applied the correct “unable or unwilling” test.

B. Legal Reasoning

The opinion’s reasoning is structured around two interconnected doctrines: (1) the applicant’s burden to prove the home government is unable or unwilling to control a private persecutor, and (2) the court’s deferential substantial-evidence review of the agency’s factfinding.

1. The burden created by nonreporting: “good reason” must be proven

Cruz never sought police intervention. Under Orellana v. Barr and Portillo Flores v. Garland, that omission is not automatically fatal, but it shifts the inquiry to whether she proved “good reason” for not reporting—specifically, that reporting would have been futile or would have exposed her to further abuse.

The court upheld the agency’s conclusion that Cruz did not meet that showing because her futility/danger theory rested largely on generalized, conclusory assertions of police–gang collusion and “only a passing reference to an outdated country conditions report.” Credible testimony about fear, the court reasoned, is not the same as concrete proof that the government would not protect her.

2. Record evidence supported the inference that protection was realistically available

The Fourth Circuit highlighted multiple record points that permitted the agency’s inference that Salvadoran authorities were not wholly ineffective:

  • Family members filed a police report regarding MS-13’s murder of Cruz’s brother “without any known repercussions.”
  • Cruz conceded “some” police are “faithful,” undercutting a categorical collusion claim.
  • Alexander’s incarceration itself suggested law enforcement action against gangs.
  • Evidence of prison reforms, including shutting down the Cojutepeque prison, supported a finding of state efforts to combat corruption.
  • State Department reporting indicated the government “continue[s] to take action against criminal gangs,” including combining police and military forces.

Equally important was what did not happen: Alexander never followed through on threats during months of noncompliance or after contact ended. The court treated that inactivity as a permissible factor that could “reasonably erode” the belief that reporting would trigger retaliation.

3. Deference on competing inferences

The court framed Cruz’s challenge as principally a disagreement with how the agency drew inferences from mixed record evidence. Under the substantial-evidence standard (citing Niang v. Gonzales and the statutory command that reversal requires a conclusion that any reasonable adjudicator would be compelled to find otherwise), such inference disputes generally do not justify reversal.

4. No reversible “ignored evidence” problem

Cruz argued the BIA overlooked evidence. The court accepted the governing principle from Hernandez-Cartagena v. Barr and Hernandez-Avalos v. Lynch—the agency may not arbitrarily ignore unrebutted, legally significant evidence—but found it inapplicable because:

  • Some cited material was outdated or contradicted by more recent evidence (notably a 2022 State Department report).
  • Some evidence was conclusory and therefore carried limited weight.
  • Some evidence actually cut against Cruz’s position (e.g., a cited report describing creation of a unit to oversee crimes related to violence against vulnerable groups and suggesting authorities were “slowly managing to turn the tide”).
  • The BIA was not required to discuss every record item (per Molina-Diaz v. Bondi and Nolasco v. Garland), and the court presumed the agency reviewed the record.

5. Harmless-error handling of the A-B- footnote

Cruz attacked a BIA footnote that arguably misstated where the IJ relied on A-B- I. The court treated this as, at most, a “scrivener’s error,” and applied Tassi v. Holder (quoting Ngarurih v. Ashcroft) to hold the mistake harmless because it had no bearing on the decision’s substance—particularly where the IJ and BIA effectively applied the correct “unable or unwilling” standard.

C. Impact

Although unpublished and therefore “not binding precedent,” the decision is a clear signal of how the Fourth Circuit is likely to treat similar records under substantial-evidence review:

  • Nonreporting is strategically dangerous without concrete corroboration. Applicants who did not seek police protection must marshal specific, particularized proof that reporting would be futile or dangerous; generalized corruption narratives and subjective fear may not carry the burden.
  • State Department reporting remains highly influential. Where reports reflect ongoing enforcement actions, applicants should expect the agency to treat that evidence as rebutting claims of total state helplessness—unless the applicant can tie country conditions concretely to their locality, circumstances, and the type of harm feared.
  • Appellate review will not reweigh inferences. The opinion underscores that even a plausible alternative reading of the record is insufficient; the question is whether the agency’s reading is supported by substantial evidence.
  • Procedural imperfections may be forgiven when immaterial. Minor confusion about citations (including the post-vacatur shadow of A-B- I) will be treated as harmless if the agency’s operative legal standard and factual basis are sound.

IV. Complex Concepts Simplified

  • “Unable or unwilling to control” (government-protection element): When persecution is by a private actor (like a gang), asylum requires proof that the home government cannot or will not provide protection. It is not enough to show the gang is dangerous; the applicant must show the state cannot/will not control the gang in the applicant’s situation.
  • Nonreporting and “good reason”: If the applicant never asked police for help, they must explain why. The explanation must be supported: reporting must be shown to be futile (police would not act) or dangerous (reporting would likely cause further harm).
  • Substantial-evidence review: The appellate court does not decide the case from scratch. It asks only whether the agency’s factual findings are reasonably supported by the record. Reversal is reserved for cases where the record compels the opposite conclusion.
  • “Arbitrarily ignored” evidence: The agency must not ignore evidence that (a) is unrebutted, (b) matters legally, and (c) could change the outcome. But the agency does not have to discuss every exhibit, especially where evidence is outdated, contradicted, or conclusory.
  • Harmless error: Even if the agency makes a minor mistake (like a citation confusion), the decision can stand if the mistake did not affect the outcome.
  • Unpublished opinion: The decision resolves the parties’ dispute but does not create binding circuit precedent. Still, it can be persuasive and indicative of how similar facts may be evaluated.

V. Conclusion

Karla Cruz De Saenz v. Pamela Bondi reinforces a practical and doctrinal point in asylum litigation involving private persecutors: where an applicant did not seek police protection, the “unable or unwilling” element will often rise or fall on whether the applicant can provide concrete, particularized evidence that reporting would have been futile or dangerous. The Fourth Circuit’s analysis also highlights the force of substantial-evidence review: if the agency’s inference-drawing is plausible and supported—especially by country reports and record facts indicating some state enforcement—appellate courts will not substitute their own judgment, even where the applicant’s fear is genuine.