Responsiveness Over Results: Sixth Circuit Reaffirms that Consistent Police Intervention Defeats “Unable or Unwilling” and that Plausible Explanations Do Not Salvage Adverse Credibility

Introduction

In Jhoan Sebastian Ruano-Flautero v. Pamela Bondi, No. 24-4015 (6th Cir. July 15, 2025) (not recommended for publication), a Sixth Circuit panel (Judges Thapar, Nalbandian, and Readler; opinion by Judge Nalbandian) denied a petition for review from a Board of Immigration Appeals (BIA) decision that refused asylum and withholding of removal. Petitioners—Colombian nationals Jhoan Sebastian Ruano-Flautero and Angy Marcela Suarez-Yela, along with Suarez-Yela’s minor son (J.M.T.S.)—sought protection based on two distinct theories: (1) political-opinion persecution arising from Ruano-Flautero’s participation in anti-government protests, and (2) domestic-violence-based persecution against Suarez-Yela by her former partner, with the Colombian state allegedly unable or unwilling to protect her.

The Sixth Circuit upheld the BIA’s determinations on two central grounds. First, the court deferred to the agency’s adverse credibility finding against Ruano-Flautero, which was grounded in several inconsistencies and omissions the agency reasonably viewed as embellishments. Second, the court held that Suarez-Yela’s “particular social group” (PSG) theory was unexhausted because she did not meaningfully challenge the IJ’s PSG ruling before the BIA; and on the record, the agency reasonably concluded that Colombian law enforcement was not “unable or unwilling” to protect her given their consistent responsiveness to her calls for help. As a result, the petition was denied.

Summary of the Opinion

Adverse Credibility (Ruano-Flautero): The court affirmed the BIA’s adverse credibility determination, emphasizing specific inconsistencies regarding the dates and details of protests, as well as uncorroborated claims of pervasive police harassment that were not included in the initial application or supporting declaration and were omitted from a corroborating letter. Under the deferential substantial-evidence standard, the record did not compel a contrary conclusion.
PSG Exhaustion (Suarez‑Yela): Because Suarez‑Yela did not “meaningfully challenge” the IJ’s finding that her proposed PSG—“Colombian females unable to leave their relationship”—was not cognizable, the issue was unexhausted and unreviewable in the court of appeals.
Unable or Unwilling to Protect (Suarez‑Yela): Applying Palucho v. Garland, the court concluded that the record did not compel a finding that Colombian authorities condoned Jayson's violence or were completely helpless. Police consistently responded to calls, removed the abuser, and deterred further incidents (e.g., he fled when she called). That responsiveness defeated the “unable or unwilling” prong, even though no arrests or prosecutions occurred and Colombia struggles with domestic violence.
Withholding of Removal: Because petitioners did not meet their burden for asylum, withholding necessarily failed as well.

Analysis

Precedents Cited and Their Roles

8 U.S.C. §§ 1158(b)(1)(B)(i), 1101(a)(42): Establish the asylum eligibility framework: an applicant must be a “refugee” who faces persecution or has a well-founded fear of persecution on protected grounds (including membership in a particular social group).
Palucho v. Garland, 49 F.4th 532 (6th Cir. 2022): Articulates the “unable or unwilling” standard for state action in persecution by private actors and frames the requirement to show governmental condonation or “complete helplessness.” The court uses Palucho to measure whether Colombian authorities’ conduct met (or failed to meet) that threshold; it did not, given consistent police responsiveness.
Vasquez-Rivera v. Garland, 96 F.4th 903 (6th Cir. 2024): Clarifies that failure to establish asylum eligibility generally forecloses withholding of removal, and sets the court’s approach to reviewing BIA and IJ decisions when the BIA adopts the IJ’s rationale.
Owusu v. Garland, 91 F.4th 460 (6th Cir. 2024); Cruz-Guzman v. Barr, 920 F.3d 1033 (6th Cir. 2019): Reinforce the highly deferential “substantial evidence” standard for reviewing agency factual findings; reversal is improper unless the evidence compels a different conclusion.
Luna-Romero v. Barr, 949 F.3d 292 (6th Cir. 2020): Supports adverse credibility based on inconsistencies/omissions not necessarily going to the heart of the claim and emphasizes that a merely plausible explanation is insufficient to overturn an adverse credibility finding on appeal.
Ventura-Reyes v. Lynch, 797 F.3d 348 (6th Cir. 2015): Requires that adverse credibility determinations be supported by specific reasons (noting abrogation on other grounds by Nasrallah v. Barr, 590 U.S. 573 (2020)). The court found that requirement satisfied here.
Slyusar v. Holder, 740 F.3d 1068 (6th Cir. 2014): Observes that a supported adverse credibility determination is generally fatal to asylum and related relief.
Kolov v. Garland, 78 F.4th 911 (6th Cir. 2023), abrogated on other grounds by Riley v. Bondi, 145 S. Ct. 2190 (2025): Endorses skepticism toward “evolving claims” that add new incidents as a case progresses; the court analogizes that logic to petitioner’s late-added harassment details.
Harmon v. Holder, 758 F.3d 728 (6th Cir. 2014); 8 U.S.C. § 1252(d)(1): Establish the exhaustion requirement. Because Suarez‑Yela did not meaningfully challenge the IJ’s PSG ruling at the BIA, the issue was unexhausted and unreviewable.
Reyes Almendarez v. Barr, 817 F. App’x 35 (6th Cir. 2020): Confirms that police responsiveness, even absent arrests or charges, can defeat the claim that the government is unable or unwilling to control a private persecutor.
8 U.S.C. § 1252(b)(4)(B): Codifies the deferential substantial-evidence review, preventing courts from substituting their judgment unless the record compels reversal.

Legal Reasoning

1) Adverse Credibility as to Political-Opinion Persecution (Ruano-Flautero)

The court upheld the BIA’s adverse credibility finding based on specific, material inconsistencies and omissions:

Protest timeline inconsistency: The application reported two protests in 2021 with tear gas at the first; testimony shifted to one protest in 2019 and one in 2021 with tear gas at the second; an official declaration identified only a single protest in 2021. Petitioners’ explanations (translation errors, misremembering, or immateriality) were deemed plausible but not compelling under the deferential standard.
Late-added harassment details: Petitioner testified to extensive, repeated police harassment after the 2021 protest—“between 20 to 25 times” and often in front of his home with his mother-in-law intervening—yet none of this appeared in his initial application/declaration. The mother-in-law’s letter described protests and police behavior generally but did not corroborate harassment of petitioner or her interventions. The agency could reasonably interpret these omissions as embellishments.
Ambiguous declaration language: A declaration sentence (in broken English) referencing “a moment” after the protest when “police were chasing you” was reasonably read not as specific to petitioner but as a generalized description of police following young people as protests dispersed.

Citing Luna-Romero and Ventura-Reyes, the court emphasized that (a) inconsistencies need not go to the heart of the claim; (b) a plausible alternative explanation is not enough to overturn an adverse credibility finding; and (c) the agency offered specific reasons tied to the record. Under Owusu and § 1252(b)(4)(B), the record did not compel a contrary credibility determination. Per Slyusar, the adverse credibility ruling was “generally fatal” to the asylum claim (and thus to withholding).

2) Exhaustion and PSG Cognizability (Suarez‑Yela)

The IJ rejected Suarez‑Yela’s proposed PSG—“Colombian females unable to leave their relationship”—as not cognizable. On appeal, the BIA held she did not “meaningfully challenge” that determination. In the Sixth Circuit, failure to develop an argument before the BIA constitutes lack of exhaustion under § 1252(d)(1), foreclosing judicial review. Suarez‑Yela’s brief to the court challenged the IJ’s PSG ruling, but she did not contest the BIA’s finding that the issue was unexhausted. Under Harmon, the panel declined to reach the issue.

3) “Unable or Unwilling” State Action in Domestic Violence Context (Suarez‑Yela)

On the separate question of whether the Colombian government was unable or unwilling to protect Suarez‑Yela from her abusive ex-partner, the court applied Palucho’s “condoned or completely helpless” standard. The record reflected:

Severe and persistent abuse by Jayson, including physical beatings, threats, and violation of a restraining order.
Suarez‑Yela’s testimony that she called the police about a hundred times and that they always responded, removed the abuser, sometimes used force against him, and deterred further escalation (e.g., on the final incident he fled when police were called).
Country conditions evidence indicating a widespread domestic violence problem in Colombia alongside evidence of government programs and enforcement efforts addressing the issue.

While acknowledging the gravity of the abuse and the systemic nature of the problem, the court stressed that the “persecution standard asks whether [the authorities] did next to nothing,” and here the police consistently did something: they responded, intervened, and deterred. The absence of arrests or prosecution did not compel a finding of state condonation or complete helplessness, echoing Reyes Almendarez. Under the substantial-evidence standard, the court would not substitute its judgment where evidence cut both ways.

4) Withholding of Removal

Citing Vasquez-Rivera, the court explained that because petitioners failed to meet the asylum burden—due to adverse credibility (for Ruano-Flautero) and failure on state action (for Suarez‑Yela)—their requests for withholding necessarily failed as well.

Impact

Credibility Litigation: The decision reinforces that even seemingly peripheral inconsistencies (timelines, sequencing of events) and omissions (especially when later filled in with dramatic detail) can sustain adverse credibility findings. Applicants should ensure that initial applications, declarations, and corroborating letters include all salient facts, especially repetitive or habitual incidents of harm, and that supporting witnesses address the specific events they personally observed.
“Plausible Explanations” Threshold: On appeal, a plausible explanation for inconsistency is not enough to overturn an adverse credibility finding. The record must compel the opposite conclusion. Practitioners should address discrepancies proactively before the IJ, with corroboration where possible (e.g., contemporaneous communications, medical records, affidavits from eyewitnesses).
Domestic Violence Asylum Claims—State Action: The panel articulates a practical guidepost: responsiveness can defeat “unable or unwilling.” If police consistently arrive, remove the abuser, and deter immediate harm, the government is not “completely helpless,” even if it fails to arrest or prosecute. To prevail, DV-based applicants will need robust proof of deliberate non-responsiveness, refusals to assist, or systemic barriers that effectively negate protection (e.g., documented ignored calls, police statements refusing intervention, unenforced orders after repeated notice).
Exhaustion Discipline at the BIA: The case underscores the necessity of “meaningfully challenging” all dispositive issues before the BIA, especially PSG cognizability. Failure to brief PSG elements (immutability, particularity, social distinction) or to contest an IJ’s PSG holding risks forfeiture on judicial review.
Use of General Country Reports: Mixed country-conditions evidence (showing both the prevalence of harm and the existence of government programs to combat it) may not tip the scale unless paired with case-specific proof of state condonation or helplessness. Reports acknowledging a problem but also detailing enforcement efforts can support the agency’s findings under deferential review.
Nonprecedential but Persuasive: Although “not recommended for publication,” the opinion is a clear application of Sixth Circuit doctrine. Its framing—particularly the “did next to nothing” gloss on the state-action prong—may be cited persuasively in agency and district practice within the circuit.
Cross-Reference to Supreme Court Developments: The court cites Kolov’s “evolving claims” rationale while noting abrogation on other grounds by Riley v. Bondi (2025). While the abrogation is not central here, the citation signals continuity in skepticism toward late-emerging factual additions when ample opportunity for earlier disclosure existed.

Complex Concepts Simplified

Refugee/Asylum Standard: To obtain asylum, an applicant must show past persecution or a well-founded fear of future persecution on account of a protected ground (e.g., race, religion, nationality, political opinion, or particular social group).
Persecution by Private Actors and State Action: When the persecutor is not the government, the applicant must show the government is “unable or unwilling” to control the persecutor—often framed as proof of government condonation or complete helplessness.
Particular Social Group (PSG): A PSG must be defined clearly and satisfy legal criteria (immutability, particularity, social distinction). If an IJ finds a PSG not cognizable, that determination must be meaningfully appealed to the BIA; otherwise, the issue is unexhausted and unreviewable by a federal court.
Adverse Credibility: An immigration judge may disbelieve an applicant based on inconsistencies, inaccuracies, or omissions—even if not central to the claim—so long as specific reasons are given. On appeal, a merely plausible alternative explanation will not overturn such a finding.
Substantial Evidence Review: A highly deferential standard. The court must affirm unless the evidence compels a contrary conclusion; it cannot reweigh evidence or substitute its judgment for the agency’s.
Exhaustion: Federal courts can only review issues first presented and developed before the BIA. Arguments not “meaningfully” raised below are forfeited.
Withholding of Removal: A separate form of relief requiring a higher likelihood of persecution than asylum. If an applicant cannot meet the lower asylum threshold (for factual/legal reasons), withholding will usually fail as well.

Conclusion

Ruano-Flautero v. Bondi offers two salient reminders in asylum litigation within the Sixth Circuit. First, credibility is king: inconsistencies in dates, sequencing, and omitted facts—especially when later introduced in dramatic fashion without corroboration—can sustain an adverse credibility finding that is practically dispositive. Appellants cannot rely on plausible explanations alone to undo such determinations on appeal. Second, in domestic-violence-based claims, the “unable or unwilling” prong turns on actual governmental conduct. Consistent police responsiveness—even absent arrests or prosecutions—defeats a claim of state condonation or complete helplessness under the deferential substantial-evidence review. Finally, the opinion underscores the non-negotiable imperative of issue preservation: PSG cognizability must be meaningfully challenged before the BIA or it is lost on judicial review.

While nonprecedential, the decision reinforces the Sixth Circuit’s steady applications of Palucho, Luna‑Romero, and related doctrines. Practitioners should heed its practical lessons: frontload and corroborate all material facts, ensure witness letters address key events, meticulously preserve PSG arguments at the BIA, and marshal case-specific proof of state inaction when harm is inflicted by private actors. Under these standards, the petitioners’ claims could not prevail, and the court therefore denied the petition for review.