Unwilling or Unable Controls: Second Circuit Reaffirms Private-Actor Persecution Standard and Limits to the Administrative Record in Martinez‑Martinez v. Bondi

Introduction

In Martinez‑Martinez v. Bondi (No. 23‑7004, 2d Cir. Nov. 3, 2025), the United States Court of Appeals for the Second Circuit denied a petition for review filed by four Colombian nationals challenging the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) denial of asylum and withholding of removal. The case centers on threats allegedly made in 2011 and 2021 against the lead petitioner due to his affiliation with a right‑wing political party in Colombia. The petitioners argued that these threats amounted to persecution and that the Colombian government was unable or unwilling to protect them from harms inflicted by rival political party members.

The Second Circuit—via a non‑precedential summary order—held that substantial evidence supported the agency’s finding that the threats were not attributable to the Colombian government, and that Colombian authorities were not unwilling or unable to protect the petitioners. The court also refused to remand for further record development, reiterating that review is confined to the administrative record and that new evidence must be presented to the agency via a motion to reopen.

Although summary orders lack precedential effect in the Second Circuit, they provide practical guidance. This commentary explains the court’s reasoning, the authorities it relied upon, and the implications for future private‑actor persecution claims, particularly those grounded in political conflict abroad.

Summary of the Opinion

The petitioners—Diego Hernan Martinez‑Martinez and three family members—sought asylum and withholding of removal based on threats allegedly issued by rival political party members in Colombia. The IJ denied relief, and the BIA affirmed. On review, the Second Circuit:

Assumed, without deciding, that the threats were issued by members of a rival political party but emphasized that party members are not the government.
Held that petitioners failed to demonstrate that the Colombian government was unwilling or unable to control the alleged persecutors, a required showing where harms are inflicted by non‑state actors.
Relied on the petitioners’ own testimony that Colombian police accepted their complaint, collected evidence, and forwarded the matter to prosecutors, as well as the State Department’s 2021 Human Rights Report indicating government investigation and prosecution of abuses.
Found these facts dispositive, and therefore did not reach alternative questions about whether the threats rose to “persecution” or whether petitioners showed a well‑founded fear of future harm.
Denied a request for remand to expand the record and reiterated that new evidence must be channeled through a motion to reopen before the agency.
Noted that petitioners did not challenge the denial of Convention Against Torture (CAT) protection, and deemed any such claim abandoned.

The petition was therefore denied; all pending motions and applications were denied, and any stays were vacated.

Analysis

Precedents and Authorities Cited

Wangchuck v. Department of Homeland Security, 448 F.3d 524 (2d Cir. 2006): The court considered both the IJ’s and BIA’s decisions “for the sake of completeness.” This practice allows the reviewing court to assess the full administrative reasoning when, as here, the BIA affirms and supplements the IJ’s ruling.
Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009): Reiterates standards of review: factual findings are reviewed for substantial evidence, while legal questions and the application of law to fact are reviewed de novo.
8 U.S.C. § 1252(b)(4)(B): Administrative factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary—an exacting, highly deferential standard to the agency.
Singh v. Garland, 11 F.4th 106 (2d Cir. 2021): Central to this case, Singh confirms that members of a political party are not “the government.” Harms by party members qualify as persecution only if the applicant proves the government was unwilling or unable to control the attackers. This frames the threshold “state action or effective state failure” requirement.
Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020): Clarifies that, for private‑actor harms, an applicant must show the government either condoned the action or was completely helpless to protect the victim. This refines the “unwilling or unable” formulation.
Flores Anyosa v. Whitaker, 758 F. App’x 88 (2d Cir. 2018): A summary order illustrating that a governmental response—such as taking a report and gathering evidence—can defeat an “unwilling or unable” claim even if no arrest ensues.
Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008): Contrasts scenarios where repeated reports of violence are met with no significant police action; in such cases, the agency must grapple with evidence suggesting governmental unwillingness or inability.
U.S. Dep’t of State, Colombia 2021 Human Rights Report: The IJ took administrative notice (unchallenged on appeal) of the report’s statements that the government investigated and prosecuted abuses and that elections were free, fair, and peaceful—undercutting a systemic inference of government inability or unwillingness to protect right‑wing supporters.
INS v. Bagamasbad, 429 U.S. 24 (1976): Agencies and courts need not resolve issues unnecessary to the outcome. Because the “unwilling or unable” element was dispositive, the court did not reach whether threats rose to “persecution” or whether future harm was likely.
8 U.S.C. § 1252(b)(4)(A): Appellate review is confined to the administrative record; courts do not take new evidence on petition for review.
8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c): Provide the procedural avenue—motion to reopen—to present new evidence to the agency in the first instance.
Xiao Xing Ni v. Gonzales, 494 F.3d 260 (2d Cir. 2007): Even assuming an inherent power to remand, the court should not bypass the statutory/regulatory reopening framework to consider extra‑record documentary evidence.
Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Claims not adequately briefed are deemed abandoned on appeal. The petitioners did not pursue CAT relief or challenge the IJ’s administrative notice before the BIA, foreclosing those issues.

Legal Reasoning

The court’s reasoning proceeds in structured steps anchored in the burden‑allocation and evidentiary rules governing asylum and withholding of removal:

Threshold state‑action requirement for “persecution”: Persecution requires harm attributable to the government, either directly or because the government is unable or unwilling to control private actors. The court accepted, arguendo, that the threats came from rival party members but emphasized that “members of a political party are not the government” (Singh). Therefore, the dispositive question was the state’s (in)ability or (un)willingness to protect.
“Unwilling or unable” framed through Scarlett: To establish private‑actor persecution in the Second Circuit, an applicant must show that the government either condoned the harm or was completely helpless to stop it. This formulation requires more than general assertions about insecurity; it calls for concrete proof of state acquiescence or effective paralysis.
Application to the evidentiary record: The petitioners’ own testimony showed that Colombian police took their report, collected evidence, and opened an investigation, which was forwarded to prosecutors. Under Flores Anyosa, such actions ordinarily weigh against a finding of governmental unwillingness or inability, even if they do not culminate in arrests or convictions. The facts thus aligned more closely with Flores Anyosa than with Aliyev (where repeated reports produced no action).
Country conditions and administrative notice: The IJ took administrative notice—unchallenged on appeal—of the 2021 State Department report, which recorded that the Colombian government investigated and prosecuted abuses “to the extent possible,” and that recent elections were free, fair, and peaceful. The absence of evidence targeting supporters of right‑wing parties further undermined a claim of systemic state unwillingness or inability to protect them. Petitioners presented no countervailing country‑conditions evidence, leaving the State Department report unrebutted.
Dispositive nature of the state‑protection element: Because the record did not compel a finding that the Colombian government condoned the harms or was completely helpless to prevent them, petitioners could not establish “persecution” for asylum or the higher standard for withholding. Consistent with Bagamasbad, the court did not opine on whether the threats rose to the level of persecution or whether a fear of future harm was objectively reasonable.
Limits on appellate remand and the proper vehicle for new evidence: The court denied remand for further record development, reiterating that review on petition is confined to the administrative record (8 U.S.C. § 1252(b)(4)(A)). Any new evidence should be submitted through a motion to reopen under 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c). Xiao Xing Ni cautions against using appellate remand to circumvent that process.
Issue preservation and abandonment: The petitioners did not challenge the denial of CAT relief or the IJ’s administrative notice before the BIA; those issues were deemed waived/abandoned under Debique and were therefore not entertained on review.

Impact

Although non‑precedential, this summary order has practical significance for litigants and adjudicators handling private‑actor persecution claims, particularly in politically volatile contexts:

Reaffirmation of the “unwilling or unable” gatekeeper: Petitioners must marshal concrete evidence that the home government either condoned the harms or was completely helpless to prevent them. Evidence that authorities accepted reports, gathered evidence, and referred matters to prosecutors will often defeat this element, absent proof of sham or ineffectual proceedings.
Strategic weight of country conditions evidence: When applicants do not present their own country-conditions evidence, IJs may rely on State Department reports. If those reports indicate active investigation/prosecution and lack evidence of systematic targeting of the applicant’s political cohort, they can decisively undermine “unwilling or unable” claims. Practitioners should build robust, specific country-conditions records—including local reporting, NGO analyses, and expert affidavits—to counterbalance generalized State Department assessments.
Preservation and waiver pitfalls: Challenges to administrative notice and CAT claims must be raised to the BIA and briefed on petition, or they are forfeited. Martinez‑Martinez underscores that unpreserved issues will not be revived on appeal.
Appellate record constraints and remedial channels: New evidence cannot be introduced via petition for review. The appropriate vehicle is a motion to reopen before the BIA or IJ (as appropriate). Counsel should consider reopening where material, previously unavailable evidence bears on state protection or government acquiescence.
Practical guidance on evidentiary sufficiency: Reports of police engagement that do not yield arrests are not, by themselves, proof of unwillingness or inability. Applicants should document patterns of nonresponse, corruption, or collusion—e.g., repeated reports with no action, official threats, or systemic impunity—to meet the “condoned or completely helpless” threshold.

Complex Concepts Simplified

Persecution: Serious harm or threats of harm on account of a protected ground (such as political opinion). To count for asylum or withholding, the harm must be attributable to the government—either directly or because the government fails in its duty to protect.
Private‑actor persecution: When the persecutors are not government officials, the applicant must show the government either condoned the harm or was completely helpless to prevent it. Merely reporting crime in a country with some violence is insufficient; the focus is on the state’s actual response and capacity.
Asylum vs. withholding of removal: Both require showing “persecution,” but withholding has a higher probability standard (“more likely than not” risk of persecution). Failure to meet the “unwilling or unable” element defeats both forms of relief.
Substantial evidence review: A very deferential standard. The court asks whether a reasonable factfinder would be compelled to reach the opposite conclusion—not whether the court might have weighed the evidence differently.
Administrative notice: An immigration judge or the BIA may rely on certain public facts, such as State Department reports, without the parties formally submitting them. Challenges to administrative notice must be preserved before the BIA.
Administrative record limit on appeal: The court of appeals reviews only the evidence in the agency record. New evidence must be sent back to the agency through a motion to reopen.
Summary order (Second Circuit): A decision designated as a summary order lacks precedential effect but may be cited under specified rules. It often reflects the application of settled law to particular facts.

Conclusion

Martinez‑Martinez v. Bondi reinforces two core principles in the Second Circuit’s asylum jurisprudence: first, that harms inflicted by private actors—such as rival political party members—do not amount to persecution unless the applicant proves the home government condoned the conduct or was completely helpless to stop it; and second, that appellate review is confined to the administrative record, with new evidence funneled through the motion‑to‑reopen process. The court’s reliance on the petitioners’ own testimony about police engagement and on the State Department’s country report underscores the evidentiary burdens facing applicants alleging private‑actor political persecution.

For practitioners, the case highlights the need to: preserve issues at each stage; build a robust record that specifically documents governmental unwillingness or inability (beyond generalized country violence); and use the proper procedural mechanisms for introducing new evidence. While this summary order does not set binding precedent, it faithfully applies settled standards (Singh; Scarlett; Xiao Xing Ni) and offers a clear roadmap for how courts will analyze private‑actor claims, particularly where some governmental action—however preliminary—undercuts assertions of state abandonment.