Tenth Circuit Clarifies Evidence Required to Prove Government “Unable or Unwilling” in Failure‑to‑Report Asylum Claims: Rosas‑Garcia v. Bondi

Introduction

This commentary examines the Tenth Circuit’s nonprecedential decision in Rosas‑Garcia v. Bondi, No. 24‑9567 (10th Cir. Oct. 6, 2025), denying a petition for review from a Board of Immigration Appeals (BIA) affirmance of an Immigration Judge’s (IJ) denial of asylum. The petitioners—Deisy Ernestina Rosas‑Garcia, her husband Rafael Pico‑Garcia, and their minor child—are Colombian nationals who fled extortion threats from BACRIM (bandas criminales) targeting a family‑run restaurant.

The case presents recurring issues in gang‑based asylum claims: (1) whether threats and extortion amount to “persecution,” (2) how to prove that a home government is “unable or unwilling to control” private persecutors when the applicant never reported to police, and (3) how internal relocation within the country affects a claim of future persecution. While the court’s order is not binding precedent (it may be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1), it consolidates and applies recent Tenth Circuit and BIA guidance on the evidentiary showing required when applicants decline to report persecution to authorities.

Summary of the Opinion

The Tenth Circuit denied the petition for review, holding that substantial evidence supported the BIA’s decision on two dispositive grounds:

Government unable or unwilling to protect: Petitioners failed to show the Colombian government was unable or unwilling to control BACRIM where they never reported threats to police and offered only generalized testimony of police corruption without specific corroboration or country-conditions evidence.
Internal relocation: Petitioners did not adequately challenge the BIA’s finding that they could safely relocate within Colombia, given the family’s year-long safe residence in Bucaramanga and the continued safety of the mother‑in‑law and sister‑in‑law elsewhere in Colombia.

Because these points were dispositive, the court did not reach the IJ’s alternative nexus determination (that the feared harm was generalized criminality rather than harm “on account of” a protected ground). The panel also did not need to resolve whether the threats alone rose to the level of past persecution, although at one point it referenced affirming the BIA’s “past persecution determination”—best read as underscoring that other grounds were sufficient to sustain the denial.

Analysis

Precedents Cited and Their Role

Singh v. Bondi, 130 F.4th 848 (10th Cir. 2025): Provided core standards:
- “Private persecution” requires showing the government was “unable or unwilling to control” the persecutor.
- Failure to report is not automatically fatal, but if the applicant did not report, they must show reporting would have been futile or dangerous with objective, specific evidence.
- Substantial evidence review: agency findings stand unless any reasonable adjudicator would be compelled to reach the opposite conclusion.
In re C‑G‑T‑, 28 I. & N. Dec. 740 (BIA 2023): Consolidated BIA doctrine that applicants who do not report persecution must present credible, particularized evidence that reporting would have been futile or dangerous; a mere “subjective belief” is insufficient.
Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005): Articulates the “unable or unwilling to control” requirement where persecution is by private actors.
Aviles‑Gonzalez v. Garland, No. 23‑9547, 2024 WL 3066987 (10th Cir. June 20, 2024): Persuasive authority used by the BIA; generalized testimony about police complicity, without more, does not carry the burden to show futility/danger in a failure‑to‑report case.
Morales‑Morales v. Sessions, 857 F.3d 130 (1st Cir. 2017): Cited for the principle that an applicant’s subjective belief in police corruption, standing alone, does not establish governmental inability or unwillingness; used comparatively to underscore the evidentiary shortfall here.
Rosales Justo v. Sessions, 895 F.3d 154 (1st Cir. 2018), and Pan v. Holder, 777 F.3d 540 (2d Cir. 2015): Examples where failure to report did not doom the claim because applicants provided significant documentary evidence and corroboration of police corruption/complicity; used to contrast the sparse record here.
Ritonga v. Holder, 633 F.3d 971 (10th Cir. 2011), and 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3): Internal relocation doctrine: fear of future persecution is not objectively reasonable if the applicant can reasonably avoid harm by relocating inside the country.
Vatulev v. Ashcroft, 354 F.3d 1207 (10th Cir. 2003): Cited by the IJ for the proposition that threats, while frightening, often fall short of “persecution” without more; although the panel’s resolution did not turn on this ground, it is consistent with longstanding Tenth Circuit caution about conflating threats with persecution absent severe or imminent harm.
Vicente‑Elias v. Mukasey, 532 F.3d 1086 (10th Cir. 2008): Confirms that whether persecution occurred is a factual question reviewed for substantial evidence.
Tulengkey v. Gonzales, 425 F.3d 1277 (10th Cir. 2005): Explains “well‑founded fear” requires subjective sincerity and objective reasonableness.
Matumona v. Barr, 945 F.3d 1294 (10th Cir. 2019): Burden of proof: asylum applicants must establish that they qualify as “refugees” under the INA.
Sarr v. Gonzales, 474 F.3d 783 (10th Cir. 2007) and Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006): Scope of judicial review focused on the BIA’s reasons in a single‑member decision; the court may consult the IJ’s analysis for context but will not affirm on grounds the BIA did not adopt.
Miguel‑Pena v. Garland, 94 F.4th 1145 (10th Cir. 2024): Nexus standard (not reached here): the persecution must be on account of a protected ground (race, religion, nationality, political opinion, or membership in a particular social group).

Legal Reasoning

The panel applied the “substantial evidence” standard under 8 U.S.C. § 1252(b)(4)(B), emphasizing its highly deferential nature: agency fact findings stand unless any reasonable adjudicator would be compelled to reach a different conclusion. The BIA issued a reasoned, single‑member decision under 8 C.F.R. § 1003.1(e)(5), so the court confined its review to the BIA’s grounds and looked to the IJ’s decision only for explanatory context.

On the “unable or unwilling” requirement, the court took the case as a textbook failure‑to‑report scenario:

Petitioners introduced no country‑conditions reports or documentary evidence about police corruption, state capacity, or BACRIM’s reach.
They never reported the extortion or threats to the police.
Their only evidence of official complicity was Mr. Pico‑Garcia’s generalized belief that BACRIM bribed police (the “vacuna” extortion scheme allegedly extending to law enforcement), without specific incidents, patterns, or corroborating sources.

Against this record, the BIA recognized the correct legal rule: failure to report is not per se fatal. But consistent with In re C‑G‑T‑ and Singh, when applicants do not report, they must supply specific, objective evidence that reporting would have been futile or dangerous (e.g., prior instances of ignored complaints; threats or retaliation for reporting; human rights or State Department reports documenting police collusion in the relevant locale; affidavits from similarly situated victims; expert testimony). The court agreed with the BIA that generalized assertions and subjective fears, without more, do not compel a finding that the government was unable or unwilling to control the private persecutors.

On future persecution, the BIA (and the panel) focused on internal relocation. The regulation forbids finding a fear objectively reasonable if the applicant can avoid persecution by relocating to another part of the country and it would be reasonable to expect relocation. Facts the BIA relied on included:

Petitioners relocated to Bucaramanga and lived there safely for approximately one year without direct contact from BACRIM.
The mother‑in‑law, a direct recipient of threats, later moved to Medellín and reported no subsequent harassment.

Petitioners did not meaningfully challenge these internal‑relocation findings, instead tethering their argument to overturning a past‑persecution determination. Because the court upheld the BIA’s denial on the government‑protection and internal‑relocation grounds, it concluded that petitioners’ future‑fear theory failed.

Notably, the BIA did not reach nexus, and the panel adhered to that limitation, declining to decide whether the BACRIM threats were “on account of” a protected ground (e.g., a particular social group such as nuclear family). The IJ had found the harm was “general criminal activity,” which alone does not qualify for asylum; but because other grounds were dispositive, neither the BIA nor the court reached that issue.

Impact

Although nonprecedential, Rosas‑Garcia is a crisp and practical application of the Tenth Circuit’s emerging body of law (anchored by Singh v. Bondi and In re C‑G‑T‑) governing failure‑to‑report cases involving private persecutors such as gangs and criminal syndicates. Key anticipated effects include:

Higher evidentiary rigor in failure‑to‑report cases: Applicants who did not report to police must marshal specific, corroborated evidence demonstrating that reporting would have been futile or dangerous. Generic allegations of corruption, without documentation or concrete examples, will generally be insufficient.
Centrality of country‑conditions evidence: The absence of State Department reports, NGO documentation, news accounts, expert affidavits, or comparable materials can be fatal where the claim hinges on official complicity or incapacity.
Internal relocation as a decisive filter: Evidence that applicants lived safely in another region, and that similarly targeted family members remain safe elsewhere in the country, strongly undermines the “objective reasonableness” of a claimed future fear.
Preservation and briefing discipline: Petitioners must distinctly challenge each independent BIA ground. Tying the future‑fear argument exclusively to past persecution (while leaving internal relocation largely unchallenged) invites affirmance.
Latin America “vacuna” (extortion) cases: For claims based on gang extortion, this decision reinforces that asylum cannot rest on generalized criminality. Where nexus is arguable (e.g., persecution on account of family membership), practitioners must still meet the government‑protection and internal‑relocation showings with robust evidence.

Complex Concepts Simplified

Persecution vs. threats: “Persecution” is a severe concept. Threats alone may be insufficient unless they are highly specific, imminent, repeated, or accompanied by other harms. Different circuits and fact patterns vary, but the Tenth Circuit often looks for more than unfulfilled threats to find past persecution.
Private persecution: When harm is inflicted by non‑state actors (e.g., gangs), the applicant must prove the government either cannot or will not control them. That can be shown by prior requests for help that went nowhere, or—if no report was made—by objective evidence that reporting would have been dangerous or useless.
Failure to report: Not telling police is not automatically disqualifying. But applicants who did not report must offer concrete proof—beyond personal belief—that reporting would be futile or perilous (e.g., documented police collusion, reprisals in similar cases, credible expert testimony).
Internal relocation: Even if an applicant fears harm, asylum requires showing that the fear can’t reasonably be avoided by moving to another part of the home country. Evidence of safe residence in another region, or the ongoing safety of family members elsewhere, may defeat a future‑fear claim.
Nexus to a protected ground: Asylum does not cover generalized criminality. The harm must be “on account of” race, religion, nationality, political opinion, or membership in a particular social group (such as a nuclear family). This case did not reach nexus because other grounds disposed of the claim.
Substantial evidence review: On appeal, courts defer heavily to agency fact‑finding. Petitioners must show that the record compels a contrary result—not simply that a different result is plausible.
Nonprecedential orders: This decision is an “order and judgment” and is not binding precedent in the Tenth Circuit, though it can be cited for persuasive value.

Practical Takeaways for Future Cases

In failure‑to‑report cases, compile robust, localized country‑conditions evidence documenting police corruption/complicity or state incapacity in the relevant region; consider expert affidavits and corroborating witness testimony.
When reporting was dangerous, detail specific prior instances of retaliation or ignored complaints in the locale; submit affidavits or credible media/human rights reports.
Anticipate and address internal relocation: if relocation was attempted but threats persisted, document time, place, manner, and frequency of continuing threats; explain why the persecutor’s reach is national or transregional.
Preserve and distinctly brief challenges to each independent BIA ground (past persecution, government protection, internal relocation, and nexus) to avoid waiver or inadequacy findings.
If arguing nexus (e.g., family as a particular social group), develop it fully at the IJ level with clear theory, membership, particularity/social distinction evidence, and motive evidence, even if the agency does not reach it on appeal.

Conclusion

Rosas‑Garcia v. Bondi reinforces a practical but exacting proposition in Tenth Circuit asylum law: when applicants do not report private‑actor harms to authorities, they must fill that evidentiary gap with specific, corroborated proof that reporting would have been futile or dangerous. Generalized assertions about corruption will not satisfy the “unable or unwilling” requirement. Combined with the court’s reliance on evidence of safe internal relocation, the decision underscores two recurring obstacles in gang‑extortion claims: proving governmental failure to protect and negating the reasonableness of relocation. While not a binding precedent, Rosas‑Garcia aligns with—and operationalizes—the Tenth Circuit’s recent guidance in Singh and the BIA’s In re C‑G‑T‑, and it offers a clear roadmap for the evidentiary showings practitioners must make in private‑persecution asylum cases.