Waiver of the “Unable or Unwilling to Control” Element in Tenth Circuit Asylum Petitions for Review

1. Introduction

Lopez-Martinez v. Blanche (10th Cir. Apr. 7, 2026) addresses a recurring appellate problem in asylum litigation: when the Board of Immigration Appeals (“BIA”) denies asylum on an independent ground—here, failure to prove that persecution was committed by the government or by forces the government was unable or unwilling to control—the petitioner must specifically challenge that determination in the opening brief on petition for review. If not, the Tenth Circuit may deny review on waiver/abandonment grounds, even if the petitioner presses other arguments (such as errors in “particular social group” analysis).

The petitioners, Lenis Yajaira Lopez-Martinez and her derivative-beneficiary daughter Linney Yamileth Rodriguez-Lopez, are Honduran citizens. Ms. Lopez-Martinez sought asylum, withholding of removal, and Convention Against Torture (“CAT”) protection based on years of abuse and threats by a former partner in Honduras. The Immigration Judge (“IJ”) denied relief; the BIA dismissed the appeal and later denied reconsideration. The Tenth Circuit reviewed the denial of reconsideration and ultimately denied the petition because the opening brief did not challenge the BIA’s government-protection determination.

2. Summary of the Opinion

The court reaffirmed that to establish past persecution for asylum, an applicant must show (among other elements) that the harm was “committed by the government or forces the government was either unable or unwilling to control.” The BIA affirmed the IJ’s finding that Ms. Lopez-Martinez did not satisfy that element. On petition for review, Ms. Lopez-Martinez argued mainly that the BIA erred in rejecting her proposed particular social groups (“PSGs”) and in assessing the nexus between harm and PSG membership, but she did not argue—within the opening brief—that Honduras was unable or unwilling to control her ex-partner.

Applying Tenth Circuit waiver principles, the court held that the failure to challenge this independent and dispositive element in the opening brief forfeited the argument. The court also rejected an attempt to revive the issue in a reply brief (including an argument that alleged PSG errors tainted the government-protection analysis). Because the government-protection element remained unchallenged, the court denied the petition for review.

3. Analysis

3.1. Precedents Cited

Standards of review and asylum framework

• Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012): Cited for the familiar division of review—legal conclusions de novo, factual findings for substantial evidence. It anchors the court’s posture that it will not reweigh facts and will treat agency factfinding as conclusive unless the record compels a contrary result.
• Nasrallah v. Barr, 590 U.S. 573 (2020): Quoted for the statutory substantial-evidence rule that agency findings are “conclusive” unless any reasonable adjudicator would be compelled to conclude otherwise. Even though this case ended on waiver, the citation signals that, had the issue been preserved, petitioner would still face a demanding standard to overturn factfinding.
• Singh v. Bondi, 130 F.4th 848 (10th Cir. 2025): Used to restate the governing asylum definition of “refugee” and the elements of a past-persecution claim, including the government-protection prong. Its role is structural: it frames the “unable or unwilling” requirement as an essential, independent component of eligibility.
• Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005): Cited both for the three-part past persecution test and to address petitioner’s claim that Niang imposes an order-of-operations rule (PSG first, government protection second). The court reads Niang narrowly as remand guidance rather than a mandatory sequencing requirement.

Waiver/forfeiture on appeal (opening brief controls)

• Sawyers v. Norton, 962 F.3d 1270 (10th Cir. 2020) and Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263 (10th Cir. 2004): Together establish the Tenth Circuit’s rule that issues not raised in the opening brief are abandoned/waived. This is the opinion’s decisive doctrinal lever: it converts a merits dispute into a procedural dismissal.
• Blue Mountain Energy v. Dir., Off. of Workers' Comp. Programs, U.S. Dept. of Labor, 805 F.3d 1254 (10th Cir. 2015) and Gaither v. Aetna Life Ins. Co., 394 F.3d 792 (10th Cir. 2004): Used to reject a common briefing tactic—listing an “issue presented” without developing an argument. The court treats “issue listed but not argued” as waived.
• United States v. Beckstead, 500 F.3d 1154 (10th Cir. 2007) and Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007): Cited for the complementary rule that arguments raised for the first time in a reply brief are waived. This foreclosed petitioner’s attempt to repackage the government-protection issue as derivative of PSG error.

Support from other circuits on “independent ground” waiver

• Henriquez-Monge v. Barr, 812 F. App'x 439 (9th Cir. 2020) (unpublished): Cited as persuasive support that failure to challenge an independent ground (there, “unable or unwilling”) waives review and defeats the petition. The Tenth Circuit uses it to show cross-circuit consistency in treating unchallenged dispositive findings as fatal.

3.2. Legal Reasoning

The court’s reasoning proceeds in three steps:

1. Identify an independently sufficient basis for denial. Under Singh v. Bondi and Niang v. Gonzales, asylum based on past persecution requires proof of the government-protection element. The IJ found, and the BIA affirmed, that petitioner did not show Honduras was unable or unwilling to control the abuser (notably, petitioner never reported him, citing perceived corruption).
2. Apply opening-brief waiver doctrine. Under Sawyers v. Norton and Tran v. Trs. of State Colls. in Colo., failure to argue an issue in the opening brief waives it. The opinion underscores that merely listing an issue is not enough (Blue Mountain Energy v. Dir., Off. of Workers' Comp. Programs, U.S. Dept. of Labor; Gaither v. Aetna Life Ins. Co.).
3. Reject reply-brief “repair” and the Niang sequencing theory. Petitioner’s reply-brief attempt to argue that PSG errors “infected” the government-protection analysis is waived under United States v. Beckstead and Hill v. Kemp. The court also rejects the substantive premise: Niang does not require PSG analysis to precede government-protection analysis, and petitioner cited no authority imposing that sequencing or conditioning the validity of the government-protection analysis on correct PSG identification.

The holding is thus less about asylum doctrine at the margins and more about appellate gatekeeping: when a dispositive element is left unchallenged, the court will not reach the rest.

3.3. Impact

• Briefing discipline becomes outcome-determinative. The decision reinforces that asylum petitions for review can be won or lost on whether the opening brief attacks every independent basis for denial. Even potentially substantial PSG arguments may be irrelevant if the government-protection prong is unchallenged.
• Sequencing arguments face skepticism. Litigants sometimes argue that an error in PSG definition necessarily undermines other elements (nexus, inability/unwillingness, internal relocation). This opinion signals that, at least in the absence of authority, the Tenth Circuit will not assume that downstream elements are legally “tainted” merely because PSG analysis is contested.
• Practical effect in domestic-violence and private-actor persecution cases. Many such cases turn on whether reporting to police was feasible and whether the state could or would offer protection. This opinion highlights that petitioners must directly brief the “unable or unwilling” issue—often a fact-intensive inquiry—rather than focusing only on PSG cognizability.
• Procedural posture matters: reconsideration review does not relax waiver. Although the petition sought review of denial of reconsideration, the court still required proper opening-brief presentation of the dispositive issue. The reconsideration posture did not create a shortcut around standard waiver rules.

4. Complex Concepts Simplified

“Particular social group” (PSG)

A protected ground for asylum. The applicant must define a social group that is legally recognizable and show persecution “on account of” membership in it. Here, petitioner proposed PSGs tied to being a Honduran woman unable to leave a relationship or viewed as property within one.

“Government unable or unwilling to control”

When the persecutor is a private person (not the government), asylum generally requires proof that the state cannot or will not protect the applicant. Evidence often includes reporting attempts, police response, country conditions, and barriers to protection. If the agency finds the state could or would protect, the asylum claim can fail regardless of how severe the private harm was.

Substantial-evidence review

A deferential appellate standard: the court upholds agency fact findings unless the record would compel any reasonable adjudicator to find otherwise. It is not enough that the court might have decided differently.

Waiver/abandonment in the opening brief

Appellate courts generally decide only issues that are properly argued in the opening brief. Listing an issue without argument does not preserve it, and raising an argument for the first time in a reply brief is usually too late.

Motion for reconsideration (BIA)

A request that the BIA reexamine its decision due to alleged legal or factual error. Denial of reconsideration can be reviewed, but the petitioner must still preserve and brief the issues that would justify relief.

5. Conclusion

Lopez-Martinez v. Blanche solidifies a practical rule for Tenth Circuit immigration appeals: if the BIA denies asylum because the applicant failed to prove the government was unable or unwilling to control a private persecutor, the petitioner must directly challenge that determination in the opening brief—or the petition may be denied on waiver grounds, regardless of other contested elements like PSG cognizability or nexus. The decision also clarifies that Niang v. Gonzales does not impose a required sequencing between PSG analysis and the government-protection inquiry.