“Active Protection” Defeats Persecution: The Second Circuit’s Clarification of the Unwilling-or-Unable Standard in Gualan-Pomaquiza v. Bondi

Introduction

In Gualan-Pomaquiza v. Bondi, No. 23-7852 (2d Cir. Aug. 25, 2025), the United States Court of Appeals for the Second Circuit confronted a recurring question in asylum and Convention Against Torture (CAT) jurisprudence: when does governmental action—however modest—defeat an applicant’s claim that authorities were “unable or unwilling” to protect against private harm? The petitioners, an Ecuadorian family that fled alleged threats from criminal actors, sought review of a Board of Immigration Appeals (BIA) decision affirming the Immigration Judge’s (IJ) denial of asylum, withholding of removal, and CAT protection. Their central contention was that Ecuadorian authorities had proved ineffective and that future persecution or torture was therefore likely.

The Second Circuit denied the petition in a non-precedential summary order, yet its analytic framework provides valuable guidance on the evidentiary threshold for demonstrating governmental incapacity or acquiescence. Despite the formal non-precedential label, the decision will undoubtedly be cited for its lucid application of the unwilling-or-unable standard and its emphasis on concrete evidence—such as prosecutorial involvement and protective orders—showing active protection.

Summary of the Judgment

• Holding: The petition for review was denied. The court upheld the BIA’s conclusion that petitioners failed to prove (1) that Ecuadorian authorities were unwilling or unable to protect them and (2) that they faced a likelihood of torture if removed.
• Key Findings:
  • Prosecutorial action (taking statements, pursuing a potential trial, issuing a protective order) is incompatible with a finding of governmental complete helplessness.
  • A lapse in reporting subsequent threats and a multi-year period without harm undermined claims of ongoing danger.
  • Past threats, unaccompanied by physical harm and uncorroborated by country-conditions evidence of systemic governmental complicity, did not meet the CAT “more likely than not” standard.

Analysis

A. Precedents Cited and Their Influence

1. Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) – The court relied heavily on the unwilling-or-unable standard requires more than government failure to act on a single report. The decision echoes Scarlett by demanding evidence of government condonation or complete helplessness.
2. Singh v. Garland, 11 F.4th 106 (2d Cir. 2021) – Cited for its formulation that persecution requires proof that authorities either perpetrated, condoned, or were helpless to stop the abuse.
3. Quituizaca v. Garland, 52 F.4th 103 (2d Cir. 2022) – Supplied the “one central reason” statutory standard, though the court ultimately resolved the case on the unwilling-or-unable prong.
4. INS v. Bagamasbad, 429 U.S. 24 (1976) – Quoted for the pragmatic rule that tribunals need not decide issues unnecessary to the outcome, enabling the court to bypass the nexus element once the “protection” element failed.
5. Procedural cases (Xue Hong Yang v. DOJ, Yan Chen v. Gonzales, Yanqin Weng v. Holder) – Invoked primarily to clarify standards of review (substantial-evidence vs. de novo).
6. CAT authorities (Savchuk v. Mukasey, Quintanilla-Mejia v. Garland) – Guided the CAT analysis on likelihood-of-torture and evidentiary reweighing.

B. Legal Reasoning

Step 1 – Issue Selection. Leveraging Bagamasbad, the court targeted the dispositive issue: governmental willingness/ability, leaving the nexus question untouched.

Step 2 – Governmental Response as Evidence. The record showed that (1) a prosecutor took statements, (2) a protection order issued, and (3) a potential trial was pending. These acts, while perhaps insufficient to eradicate all criminal threats, were deemed affirmative governmental interventions—antithetical to complete helplessness. Thus, petitioners’ evidence could not meet the Scarlett/Singh threshold.

Step 3 – Record Integrity. The court corrected the petitioners’ brief, noting misstatements that police had refused help; the hearing transcript revealed no such refusal. This credibility check further weakened the claim of governmental abdication.

Step 4 – CAT Evaluation. For CAT, the court distinguished threats from torture and emphasized the absence of physical harm, the cessation of threats in 2019, and the safe residence of relatives still in Ecuador. Because CAT requires a probability (“more likely than not”) of future torture with state acquiescence, the petition failed on both probability and acquiescence elements.

C. Impact and Forward-Looking Consequences

• Persuasive Weight Despite Non-Precedential Label: Second Circuit summary orders may be cited under Fed. R. App. P. 32.1; future litigants will likely invoke this case to argue that any documented prosecutorial or police engagement rebuts an “unwilling-or-unable” allegation.
• Higher Evidentiary Bar: Asylum applicants will need to supply either:
  • (i) proof of official complicity or refusal, or
  • (ii) systemic country-conditions evidence of pervasive state impotence,
  failing which courts will deem isolated protective measures dispositive.
  • CAT Claims Narrowed: The court’s focus on actual past torture, temporal distance of threats, and harm to similarly-situated relatives reinforces the demanding nature of CAT relief.
  • Litigation Strategy: Practitioners should gather detailed police-report histories, FOIA police logs, or expert declarations on corruption to overcome the “active protection” rebuttal showcased here.

  Complex Concepts Simplified

  • Unwilling-or-Unable Standard: A government is deemed unwilling or unable to protect when officials (a) participate in the persecution, (b) condone it, or (c) are so powerless that they cannot intervene. Mere delay, finite resources, or single-incident inaction do not suffice.
  • “One Central Reason” Test: For asylum, a protected ground must be at least a primary—though not necessarily the sole—motive behind the persecution.
  • Substantial Evidence Review: The appellate court asks only whether any reasonable adjudicator could reach the agency’s conclusion; it does not re-weigh evidence.
  • CAT Probability Standard: Relief requires showing a >50% chance of future torture by, or with the consent or acquiescence of, officials.
  • Summary Order: A Second Circuit decision without precedential effect; still citable but not binding.

  Conclusion

  The Second Circuit’s decision in Gualan-Pomaquiza v. Bondi underscores a pivotal principle in protection-based immigration law: concrete evidence of governmental engagement—no matter how preliminary—can decisively negate the “unwilling-or-unable” element of an asylum claim. Furthermore, the ruling tightens the evidentiary screws on CAT applicants by distinguishing mere threats from a probable future of state-sponsored torture. Though labeled a summary order, the opinion supplies a roadmap for both government attorneys opposing, and advocates supporting, claims of state incapacity or acquiescence. Its enduring lesson is that active protection—even in embryonic form—can be fatal to persecution-based relief unless the applicant can demonstrate systemic official complicity or impotence.