The Vail-Romero Doctrine: Abandonment of the “Unable-or-Unwilling” Challenge as a Complete Bar to Asylum Relief in the Eleventh Circuit

1. Introduction

Sandra Vail-Romero, a young indigenous woman from Guatemala, sought protection in the United States alleging severe domestic violence at the hands of her former partner. She applied for (i) asylum, (ii) withholding of removal, and (iii) relief under the Convention Against Torture (CAT), positing two gender-based particular social groups. The Immigration Judge (IJ) rejected all three forms of relief; the Board of Immigration Appeals (BIA) affirmed. Vail-Romero petitioned the Eleventh Circuit for review, also asking the court to remand so that she could seek voluntary departure in light of Niz-Chavez v. Garland.

The Eleventh Circuit—deciding without oral argument—denied the petition in full. The panel crystallised a critical procedural rule: if the petitioner does not squarely contest every independent ground on which the BIA relied, the unchallenged ground stands and the petition necessarily fails. Because Vail-Romero’s brief did not attack the BIA’s finding that Guatemalan authorities were willing and able to protect her, she abandoned an essential element of her asylum and withholding claims. The same abandonment logic doomed her CAT and remand arguments.

2. Summary of the Judgment

Asylum & Withholding: Petition denied. Vail-Romero abandoned her challenge to the “unable or unwilling” government-protection prong, an independent basis for the BIA’s decision.
CAT Relief: Petition denied. Substantial evidence supported the BIA’s conclusion that Guatemalan officials would not acquiesce in torture; police actually responded to her complaints and national legislation criminalises domestic violence and femicide.
Motion to Remand (Voluntary Departure): Petition denied. She had multiple opportunities to request voluntary departure before the IJ; reliance on Niz-Chavez was misplaced.
New Procedural Principle: The decision cements a stricter abandonment rule in immigration appeals—failure to brief any single dispositive ground is fatal.

3. Analysis

3.1 Precedents Cited and Their Influence

Sapuppo v. Allstate Floridian Ins. (11th Cir. 2014): Provides the general abandonment rule; the panel imported this civil-appellate doctrine into the immigration context.
Alvarado v. U.S. Att’y Gen. & Perez-Zenteno v. U.S. Att’y Gen.: Define the scope of review (BIA decision plus IJ reasoning expressly adopted).
Edwards v. U.S. Att’y Gen. (2024): Re-states the “record compels reversal” substantial-evidence threshold.
Reyes-Sanchez v. U.S. Att’y Gen. (2004): Holds that a government does not “acquiesce” in torture if it takes any meaningful steps to combat the abuse.
Pereira v. Sessions (2018) & Niz-Chavez v. Garland (2021): Address “stop-time” rule and the completeness of Notices to Appear; relevant to voluntary-departure eligibility.

The Eleventh Circuit wove these authorities into a coherent tapestry: procedural default (Sapuppo), standard of review (Edwards), and substantive CAT asylum rules (Reyes-Sanchez). The court distinguished Niz-Chavez on the ground that Vail-Romero could have recognised the issue earlier under Pereira.

3.2 Legal Reasoning

Strict Issue Preservation: The panel applied Sapuppo to hold that a petitioner must “challenge every stated ground for the judgment against her.” Because the BIA had relied independently on the finding that Guatemalan authorities were not unwilling or unable to protect, and because Vail-Romero’s brief never addressed this, she forfeited the entire asylum/withholding claim. The court therefore declined to reach her “particular social group” arguments.
Substantial Evidence for CAT Denial: The record contained a police report showing that officers interviewed the ex-boyfriend and that Guatemala criminalises domestic violence. Under Reyes-Sanchez, those facts precluded a finding of governmental acquiescence. The “record compels reversal” bar was not met.
Abuse of Discretion Standard for Remand: Because Vail-Romero never raised voluntary departure below—despite notice of Pereira and multiple procedural opportunities—the BIA acted neither arbitrarily nor capriciously in denying remand.

3.3 Anticipated Impact

Heightened Briefing Rigor: Practitioners in the Eleventh Circuit must now treat every independent element of an asylum or CAT claim as mandatory briefing territory; omission is fatal.
Gender-Based Asylum Strategy: While the substantive viability of gender-violence social groups remains unsettled, Vail-Romero shows that procedural missteps can eclipse substantive discussion. Counsel must thus foreground “state protection” evidence.
CAT Jurisprudence: The court reaffirmed that partial governmental efforts—even if ineffective—defeat CAT relief, reinforcing a high evidentiary bar for showing acquiescence.
Voluntary Departure Timing: The decision narrows the window for raising voluntary departure on appeal when Niz-Chavez issues arise; litigants must raise the claim at the IJ level whenever Pereira already signalled potential defects.

4. Complex Concepts Simplified

Particular Social Group (PSG): A category of people sharing a characteristic so fundamental to identity that they cannot—or should not be required to—change it, and which society recognises as distinct.
Unable or Unwilling to Protect: An asylum applicant must show that her home government cannot or will not shield her from persecution by private actors.
Abandonment on Appeal: When a party fails to raise an argument in its brief, appellate courts treat the point as waived; they will not construct arguments on the litigant’s behalf.
Acquiescence (CAT context): Requires more than governmental ineptitude; the applicant must show the state would consent or be willfully blind to torture.
Stop-Time Rule: In cancellation/voluntary-departure contexts, service of a statutorily compliant Notice to Appear halts the accumulation of continuous physical presence.

5. Conclusion

The Eleventh Circuit’s disposition in Sandra Vail-Romero v. U.S. Attorney General does more than reject an individual’s bid for humanitarian relief—it forges a procedural precedent: the abandonment of any independent basis for an adverse BIA ruling is dispositive. The “Vail-Romero Doctrine” compels immigration lawyers to attack every prong of a contested finding, especially the oft-overlooked “government unable or unwilling” element. Substantively, the decision underscores the formidable evidentiary threshold for CAT relief and circumscribes late-stage voluntary-departure requests. In the broader landscape, the ruling is a cautionary tale that procedural vigilance can be as determinative as the merits in immigration litigation.