Edil Galeas Figueroa v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1419
______
EDIL JOEL GALEAS FIGUEROA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(A200-597-380)
Immigration Judge: Honorable Daniel A. Morris
____________
Argued: January 13, 2020
Before: HARDIMAN, PORTER, and PHIPPS,
Circuit Judges.
(Filed: May 19, 2021)
Raechel K. Kummer [Argued]
Susan B. Manning
MORGAN LEWIS & BOCKIUS
1111 Pennsylvania Ave., N.W.
Suite 800 North
Washington, DC 20004
Stephanie R. Reiss
MORGAN LEWIS & BOCKIUS
301 Grant Street
One Oxford Centre, Suite 3200
Pittsburgh, PA 15219
Counsel for Edil Joel Galeas Figueroa
Anjum Gupta
RUTGERS UNIVERSITY SCHOOL OF LAW
123 Washington Street
Newark, NJ 07102
Counsel for Amicus Petitioners Immigration
Law Professors
2
Jenny C. Lee [Argued]
UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. Box 878
Ben Franklin Station
Washington, DC 20004
Counsel for Attorney General United States of
America
____________
OPINION OF THE COURT
____________
PHIPPS, Circuit Judge.
Edil Joel Galeas Figueroa petitions for relief from a final
order of removal following his second illegal entry into the
United States. To prevent deportation to his native Honduras,
Galeas Figueroa seeks withholding of removal under both the
Immigration and Nationality Act and the Convention Against
Torture, asserting that he would be persecuted and tortured by
a gang that raped his sister, killed his relatives, and threatened
him and other family members.
On administrative appeal, the Board of Immigration
Appeals affirmed a decision by an Immigration Judge denying
Galeas Figueroa the relief he seeks. As to statutory
withholding, the BIA determined that the violence and threats
by the gang did not amount to governmental persecution, but
rather constituted private harm for which withholding of
removal under the INA is unavailable. In reaching that
3
outcome, the BIA treated as interchangeable two legal
standards for evaluating the degree of governmental culpability
in the harmful conduct of private actors: the unable-or-
unwilling-to-control test and the condone-or-complete-
helplessness test. With respect to CAT protection, the BIA
concluded that the Honduran government would not acquiesce
to any torture that Galeas Figueroa might experience because
Honduran police would investigate reports that Galeas
Figueroa would make.
Galeas Figueroa petitioned this Court to review the BIA’s
final order of removal. He moved for a stay of removal for the
pendency of his petition, and this Court denied his motion.
Then, according to the Government, Galeas Figueroa did not
report to governmental custody as ordered. Invoking the
fugitive disentitlement doctrine, the Government moved to
dismiss Galeas Figueroa’s petition.
Upon consideration of the Government’s motion and
Galeas Figueroa’s petition, we will deny both. Galeas
Figueroa may well be a fugitive disentitled to relief, but the
Government’s evidence of his fugitive status is insufficiently
probative to justify discretionary dismissal of his petition. As
to the BIA’s denial of Galeas Figueroa’s application for
statutory withholding of removal, the agency did not err in
treating the unable-or-unwilling-to-control test and the
condone-or-complete-helplessness test as legal equivalents.
And substantial evidence supports its conclusion that Galeas
Figueroa did not demonstrate the requisite connection between
the gang’s harmful acts and the Honduran government. Nor
was the BIA’s denial of CAT protection unsound. Substantial
evidence supports its conclusion that Honduran police would
4
investigate reports from Galeas Figueroa, and thus he failed to
establish governmental acquiescence to torture.
I. BACKGROUND
Galeas Figueroa, a native and citizen of Honduras, has
twice entered the United States unlawfully. His explanation
for doing so unfolds in greater detail with each successive
telling.
A. Galeas Figueroa’s Illegal Entry in 2010
In 2010, Galeas Figueroa entered the United States without
inspection or parole. In his initial interview with a border
patrol agent, Galeas Figueroa stated that he had come to the
United States to obtain work in New Jersey and that he had no
fear of returning to Honduras. But not long after his entry,
during a credible-fear interview with an asylum officer, see
8 C.F.R. § 1208.30, Galeas Figueroa stated that his father,
uncle, and some cousins were killed in Honduras and that he
feared their killers would also kill him. Though he professed
not to know the assailants or their motives, he reported that his
father had previously received death threats and surmised that
gang members had targeted his family out of envy or jealousy.
Galeas Figueroa also noted that he and his father were
members of a farmers’ organization, but he did not believe that
the people who killed his father would want to harm other
members. From that information, the asylum officer
concluded that Galeas Figueroa had a credible fear of
persecution.
During removal proceedings, Galeas Figueroa applied for
asylum and statutory withholding of removal under the INA.
5
Through his application and testimony, Galeas Figueroa
supplied several additional details. He indicated that a rival
farmers’ organization seeking to seize his father’s land killed
his father. Galeas Figueroa also testified that his father was
killed for previously reporting to the police his sister’s rape by
gang members. He further explained the killings of his uncle
and his two cousins: his uncle was killed at the same time as
his father, and his cousins were killed to prevent them from
retaliating against the killers. Galeas Figueroa revealed that
after his father’s death, he fled to another part of Honduras and
after receiving death threats, to the United States. The
Immigration Judge ultimately concluded that Galeas Figueroa
was not entitled to relief, denied his application, and ordered
him removed. Galeas Figueroa waived any appeal and was
removed to Honduras the following week.
B. Galeas Figueroa’s Illegal Entry in 2012
After remaining in Honduras for approximately one year,
Galeas Figueroa reentered the United States in 2012. He came
with his longtime girlfriend but not his children. They lived
undetected in New Jersey for several years, but in late 2017,
the Department of Homeland Security reinstated Galeas
Figueroa’s prior removal order.
During a reasonable-fear interview, see 8 C.F.R. § 1208.31,
Galeas Figueroa again expressed fear of returning to Honduras.
This time, he attributed the deaths of his family members to
either the Mara 18 gang or the MS-13 gang. He explained that
one of those gangs raped his sister, and after his father reported
the assault to the police, the gang killed his father (and his
uncle) in retaliation. As told by Galeas Figueroa, that sequence
of events repeated with his cousins. After one cousin reported
6
his father’s and uncle’s murders to the police, the gang killed
him. And after another cousin reported the first cousin’s
murder, the gang killed him as well. Galeas Figueroa informed
the asylum officer that the gang then turned their attention to
him, threatening to kill him for trying to protect his father from
the gang but never physically harming him. The asylum officer
found Galeas Figueroa to be credible and referred him for a
withholding-only hearing before an Immigration Judge. See
8 C.F.R. 1208.31(e).
At that hearing, Galeas Figueroa applied for withholding of
removal under the INA and the CAT.1 In testifying again about
events that occurred in Honduras before his first illegal entry,
Galeas Figueroa was no longer uncertain about who had
harmed his family and threatened to kill him – it was the Mara
18 gang. Galeas Figueroa ascribed several motives to the
gang’s murder of his father: his father reported to the police
that gang members raped his sister; his father tried to protect
another woman who was raped by the gang; his father
participated in a farmers’ organization (which, as Galeas
Figueroa reported, was a rival of another organization
comprised of gang members); and his father was involved in
anti-gang political activities. Galeas Figueroa also added
another previously omitted detail – in addition to threatening
to kill him for taking care of his father, the gang once beat him
on the back with a belt buckle. Galeas Figueroa stated that he
did not inform the Immigration Judge at his prior hearing about
1
Galeas Figueroa conceded that he was statutorily ineligible
for asylum due to the denial of his prior asylum application and
his reinstated removal order. See 8 U.S.C. §§ 1158(a)(2)(C),
1231(a)(5).
7
everything that had happened to him because he feared
retaliation from the gang.
Galeas Figueroa also described other later-in-time
developments. He alleged that the Mara 18 gang continued to
threaten him and his family, including threatening to cut out
his brother’s tongue. He also testified that the gang called
twice (first his mother and then him directly) with death threats
after his 2011 removal to Honduras.
Those threats prompted Galeas Figueroa to enter the United
States again in 2012. After his arrival, Galeas Figueroa learned
from his mother in Honduras that the gang shot at their house
and killed his dog. And later, in 2014, the gang phoned Galeas
Figueroa and threatened to kidnap his children in Honduras
unless he paid a ransom. Rather than pay the gang, Galeas
Figueroa’s mother brought the children to the United States.
Since that time, neither Galeas Figueroa nor his mother (who
returned to Honduras) has received any threats from the gang.
Galeas Figueroa also submitted evidence to show that the
Honduran government could not and would not protect him
from the gang. He produced police reports that had been filed
concerning his sister’s rape, his family members’ murders, and
the threatened kidnapping of his children. He also testified that
those reports never resulted in any arrests and that the
Honduran police were allied with the gang.
Following the hearing, the Immigration Judge determined
that Galeas Figueroa was not entitled to withholding of
removal under the INA or the CAT. The Immigration Judge
invoked res judicata and collateral estoppel to prevent
relitigating any issues resolved at his first removal hearing.
8
And considering only the events that occurred after his first
removal, the Immigration Judge found that, although Galeas
Figueroa was credible, he had not suffered past persecution.
The Immigration Judge nonetheless found that Galeas
Figueroa faced a clear probability of future harm in Honduras
due to his membership in a particular social group (his father’s
family). However, because Galeas Figueroa did not
demonstrate that such harm from private actors would
constitute persecution or torture, he was ineligible for relief
from removal.
Galeas Figueroa administratively appealed that decision to
the BIA. See 8 C.F.R. § 1003.1(b)(3). Unlike the Immigration
Judge, the BIA considered all of Galeas Figueroa’s allegations
of past harm, including events from before his first removal
hearing. Like the Immigration Judge, the BIA concluded that
Galeas Figueroa did not demonstrate past persecution or a
likelihood of future persecution or torture. In denying statutory
withholding of removal, the BIA recognized a likelihood that
Galeas Figueroa would be a victim of harmful conduct by
private actors. But, using two legal tests interchangeably, the
BIA determined that Galeas Figueroa did not establish either
that the Honduran government was “unable or unwilling to
control” the Mara 18 gang, BIA Op. 2 (AR4), or that the
government “condoned the private actions or at least
demonstrated a complete helplessness to protect [him],” id.(internal quotation marks omitted) (quoting In re A-B-,
27 I. & N. Dec. 316, 337 (A.G. 2018)) (AR4). Because Galeas
Figueroa did not satisfy either of those tests, the BIA found that
the harmful conduct of the Mara 18 gang could not be
attributed to the Honduran government. For a similar reason,
the BIA concluded that Galeas Figueroa was not entitled to
CAT protection: he did not demonstrate that public officials in
9
Honduras would acquiesce to the gang’s violence. Based on
those findings, the BIA affirmed the Immigration Judge’s
decision and entered a final order of removal.
Galeas Figueroa timely petitioned for review of that order,
bringing his case within this Court’s jurisdiction. See 8 U.S.C.
§ 1252(a)(1).
C. The Government’s Motion to Dismiss Galeas
Figueroa’s Petition
Galeas Figueroa’s petition did not automatically stay his
removal. Accordingly, to prevent his removal during the
pendency of the petition, Galeas Figueroa moved for a stay.2
That motion was denied.
At that point, without a court-ordered stay, the Government
could remove Galeas Figueroa during the pendency of this
petition. See 8 U.S.C. § 1252(b)(3)(B) (“Service of the petition
[for review] on the officer or employee does not stay the
removal of an alien pending the court’s decision on the
petition, unless the court orders otherwise.”). And while this
matter was pending, the Government produced one piece of
circumstantial evidence suggesting that Galeas Figueroa
received an order to report to custody for removal and that he
violated that order. The evidence, a Notice of Immigration
Bond Breach (ICE Form I-323), was not addressed to Galeas
Figueroa but to his bond obligor. That document indicated that
2
Through an order implementing this Court’s standing order
of August 8, 2015, upon filing his motion for a stay, Galeas
Figueroa received a temporary stay of removal only for the
pendency of his motion to stay.
10
the bond obligor did not deliver Galeas Figueroa to
governmental custody, and it notified the bond obligor that the
cash bond would be forfeited.
Based on that form, the Government asserted that Galeas
Figueroa was a fugitive and moved to dismiss Galeas
Figueroa’s petition under the fugitive disentitlement doctrine.
II. DISCUSSION
A. The Fugitive Disentitlement Doctrine
As a threshold matter, if Galeas Figueroa is a fugitive, then
this Court may, in its discretion, dismiss his petition under the
fugitive disentitlement doctrine. That doctrine originates in the
criminal context, and, as explained by the Supreme Court, it
protects a court’s ability to enforce its judgments by permitting
dismissal of a fugitive’s appeal:
No persuasive reason exists why this Court
should proceed to adjudicate the merits of a
criminal case after the convicted defendant who
has sought review escapes from the restraints
placed upon him pursuant to the conviction.
While such an escape does not strip the case of
its character as an adjudicable case or
controversy, we believe it disentitles the
defendant to call upon the resources of the Court
for determination of his claims.
Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per
curiam); see also Ortega-Rodriguez v. United States, 507 U.S.
234, 239 (1993) (“It has been settled for well over a century
11
that an appellate court may dismiss the appeal of a defendant
who is a fugitive from justice during the pendency of his
appeal.”); Smith v. United States, 94 U.S. 97, 97 (1876) (“It is
clearly within our discretion to refuse to hear a criminal case
in error, unless the convicted party, suing out the writ, is where
he can be made to respond to any judgment we may render.”).
This Court has applied the doctrine in the criminal context, see
United States v. Wright, 902 F.2d 241, 242–43 (3d Cir. 1990);
Virgin Islands v. James, 621 F.2d 588, 589 (3d Cir. 1980) (per
curiam), and in an asset-freeze case, see In re Assets of Martin,
1 F.3d 1351, 1356–57 (3d Cir. 1993). It has further recognized
that “nothing in the Supreme Court’s opinion [in Molinaro]
suggests that the rule announced there is applicable only in the
criminal-law context.” Arana v. INS, 673 F.2d 75, 77 n.2 (3d
Cir. 1982) (per curiam). Accordingly, this Circuit – along with
every other circuit to consider the issue3 – has applied the
doctrine in the immigration context. See id. at 76–77.
Dismissal under the fugitive disentitlement doctrine
remains discretionary, and the Supreme Court has cautioned
3
See Martin v. Mukasey, 517 F.3d 1201, 1204–05 (10th Cir.
2008); Giri v. Keisler, 507 F.3d 833, 835–36 (5th Cir. 2007)
(per curiam); Garcia-Flores v. Gonzales, 477 F.3d 439, 441–
42 (6th Cir. 2007); Sapoundjiev v. Ashcroft, 376 F.3d 727,
728–30 (7th Cir. 2004); Antonio-Martinez v. INS, 317 F.3d
1089, 1091–93 (9th Cir. 2003); Bar-Levy v. U.S. Dep’t of Just.,
990 F.2d 33, 34–35 (2d Cir. 1993); see also Hassan v.
Gonzales, 484 F.3d 513, 516 (8th Cir. 2007) (recognizing the
doctrine, but declining to apply it after an alien voluntarily
departed but then failed to meet with government officials to
discuss her request for a stay of deportation while no longer in
the United States).
12
against “too free a recourse” to the “sanction of
disentitlement.” Degen v. United States, 517 U.S. 820, 828
(1996); see also Wright, 902 F.2d at 243 (stating that dismissal
under the fugitive disentitlement doctrine is discretionary). As
a limiting principle, this Court has explained that “permitting
‘an appellate court to sanction by dismissal any conduct that
exhibited disrespect for any aspect of the judicial system, even
where such conduct has no connection to the course of the
appellate proceedings,’ would sweep too broadly.” Marran v.
Marran, 376 F.3d 143, 149 (3d Cir. 2004) (quoting Ortega-
Rodriguez, 507 U.S. at 246). But the doctrine unquestionably
allows dismissal of an appeal when a fugitive has violated a
court order to appear. See, e.g., Arana, 673 F.2d at 77.
Similarly, violation of an immigration agency’s order to appear
is sufficiently connected to a fugitive’s petition for review of a
final order of removal to allow for dismissal under the doctrine.
See, e.g., Martin v. Mukasey, 517 F.3d 1201, 1202–03, 1207
(10th Cir. 2008); Giri v. Keisler, 507 F.3d 833, 834–35 (5th
Cir. 2007) (per curiam); Gao v. Gonzales, 481 F.3d 173, 174
(2d Cir. 2007).
But here, the Government fails to produce sufficient
evidence of such a violation. The sole evidence proffered by
the Government, the Notice of Immigration Bond Breach (ICE
Form I-323), may well have been issued because Galeas
Figueroa violated an order to report to custody for removal.
But drawing such an inference on the paucity of evidence
presented here is not warranted. More probative evidence of
Galeas Figueroa’s fugitive status – such as an order requiring
Galeas Figueroa to report to custody coupled with proof that
he did not do so – should be readily available. And without
more evidence that Galeas Figueroa is now a fugitive, we
13
decline to impose the “most severe” sanction of dismissal.
Degen, 517 U.S. at 828.4
B. Statutory Withholding of Removal Under the
Immigration and Nationality Act
Through his petition, Galeas Figueroa challenges the BIA’s
denial of his request for statutory withholding of removal under
the INA. To be entitled to such withholding, an applicant must
prove that it is more likely than not that he or she will be
persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion
upon removal to a particular country. See 8 U.S.C.
§ 1231(b)(3)(A); see also INS v. Stevic, 467 U.S. 407, 429–30
(1984); Gonzalez-Posada v. Att’y Gen., 781 F.3d 677, 684
(3d Cir. 2015). If an applicant makes a showing of future
persecution, then he or she cannot be removed to that country
but may be removed to another country. See Doe v. Att’y Gen.,
956 F.3d 135, 155 (3d Cir. 2020) (noting that “withholding of
removal is nondiscretionary”); Abdulai v. Ashcroft, 239 F.3d
542, 545 (3d Cir. 2001) (“Withholding of removal . . . confers
only the right not to be deported to a particular country—not a
right to remain in this one.”).
4
Had the Government produced more probative evidence that
Galeas Figueroa breached an order to report to custody, then
dismissal under the fugitive disentitlement doctrine would
have been appropriate. See Sapoundjev, 376 F.3d at 729
(“When an alien fails to report for custody, this sets up the
situation . . . called ‘heads I win, tails you’ll never find me.’”
(quoting Antonio-Martinez, 317 F.3d at 1093)).
14
Here, the BIA agreed with the Immigration Judge’s
determination that Galeas Figueroa had demonstrated a
likelihood of future harm on account of a protected ground
(membership in a particular social group, his father’s family)
upon his return to Honduras.5 But that alone does not suffice
for persecution: the government must also be complicit to some
degree in the harm through either act or omission. See
Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir. 2005)
(“[P]ersecution always implies some connection to
government action or inaction.”); Rodas-Mendoza v. INS,
246 F.3d 1237, 1240 (9th Cir. 2001) (“[V]iolence that the
government does not sponsor and in which it is not complicit[]
cannot support a reasonable fear of persecution.”). And the
5
The BIA reached that conclusion without affording Galeas
Figueroa a presumption of future persecution: it determined
that he did not establish past persecution and thus did not
qualify for that presumption. See generally 8 C.F.R.
§ 1208.16(b)(1) (providing that proof of past persecution raises
a rebuttable presumption of future persecution). Galeas
Figueroa disputes that finding, arguing that the BIA failed to
consider the cumulative suffering he endured and that the
limited harm considered by the BIA still suffices for
persecution. But persecution is not established by harm alone,
and the BIA concluded that the Honduran government was not
sufficiently culpable for those prior harmful acts. Because, as
explained infra, that separate determination regarding the
involvement of the Honduran government was not erroneous,
any error in assessing the magnitude of past harms was
harmless. See Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir.
2011) (applying the harmless error doctrine to a final order of
the BIA such that remand is unnecessary “when it is highly
probable that the error did not affect the outcome of the case”).
15
BIA determined that the danger Galeas Figueroa feared from
the Mara 18 gang did not sufficiently implicate acts or
omissions of the Honduran government to constitute
persecution.
The BIA arrived at that conclusion by treating as
interchangeable two legal standards for determining whether
the harmful conduct of private actors may be attributed to the
government. The first standard – the unable-or-unwilling-to-
control test – evaluates whether the government was “unable
or unwilling to control” the individual or group that committed
the harm. Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285,
288 (3d Cir. 2007) (citation omitted); see also In re Acosta,
19 I. & N. Dec. 211, 222 (B.I.A. 1985) (“[H]arm or suffering
ha[s] to be inflicted either by the government of a country or
by persons or an organization that the government was unable
or unwilling to control.”). The second standard – the condone-
or-complete-helplessness test – examines whether the “the
government condoned the private actions or at least
demonstrated a complete helplessness to protect the victims.”
A-B-, 27 I. & N. Dec. at 337 (citation and internal quotation
marks omitted).
Galeas Figueroa challenges two aspects of the BIA’s
analysis. First, he contends that the two legal tests are not
interchangeable, submitting instead that the condone-or-
complete-helplessness test imposes a heightened standard,
which the BIA erred by applying. Second, he argues that the
unable-or-unwilling-to-control test should govern his case and
that, under that test, he would be entitled to statutory
withholding. As he sees it, the record lacks substantial
evidence that the Honduran government would be able and
16
willing to control the Mara 18 gang. As explained below,
neither argument succeeds.
1. The Legal Equivalence of the Unable-or-
Unwilling-to-Control Test and the
Condone-or-Complete-Helplessness Test
Galeas Figueroa’s challenge to the BIA’s denial of
statutory withholding rests on his contention that the two legal
standards for private-actor persecution are distinct and may not
be treated as legal alternatives.6 That is an incorrect premise.
6
Related to his contention that the two standards for private-
actor persecution are distinct, Galeas Figueroa also argues that
through the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Congress incorporated the unable-
or-unwilling-to-control standard into the INA. But that is
immaterial because, as explained infra, the two standards are
legally equivalent. Moreover, it would be inappropriate to
apply the prior construction canon here. That canon requires a
settled meaning of a statutory provision at the time of that
provision’s reenactment. See Lightfoot v. Cendant Mortg.
Corp., 137 S. Ct. 553, 563 (2017); see also Bragdon v. Abbott,
524 U.S. 624, 645 (1998) (“When administrative and judicial
interpretations have settled the meaning of an existing statutory
provision, repetition of the same language in a new statute
indicates, as a general matter, the intent to incorporate its
administrative and judicial interpretations as well.”). And
before IIRIRA’s enactment, courts had not uniformly applied
the unable-or-willing-to-control formulation as the standard
for private-actor persecution. See, e.g., Ghaly v. INS, 58 F.3d
1425, 1431 (9th Cir. 1995) (“[W]here private discrimination is
17
neither condoned by the state nor the prevailing social norm, it
clearly does not amount to ‘persecution’ within the meaning of
the Act.” (emphasis added)); Sotelo-Aquije v. Slattery, 17 F.3d
33, 37 (2d Cir. 1994) (“[T]he statute protects against
persecution . . . by nongovernmental groups that the
government cannot control.” (emphasis added)); Adebisi v.
INS, 952 F.2d 910, 914 (5th Cir. 1992) (noting the unable-or-
unwilling-to-control test, but also finding that the feared harm
“does not arise from activities instigated or sanctioned by” the
government (emphasis added)); Rosa v. INS, 440 F.2d 100, 102
(1st Cir. 1971) (stating that nongovernmental acts may
constitute persecution where the group “has sufficient de facto
political power to carry out its purposes without effective
hindrance” (emphasis added)); Dunat v. Hurney, 297 F.2d 744,
746 (3d Cir. 1961) (observing that the INA “does not concern
itself with the manner in which physical persecution is
inflicted, so long as that is the net effect of the forces or the
circumstances that the . . . government will impose” (emphasis
added)). Nor had the BIA. See, e.g., In re Maccaud, 14 I. & N.
Dec. 429, 434 (B.I.A. 1973) (stating that “persecution must be
at the hands of the government, unless the government cannot
control the persecutors” (emphasis added)); In re Tan,
12 I. & N. Dec. 564, 568 (B.I.A. 1967) (“Mob action may be a
ground for staying deportation under section 243(h) where it is
established that a government cannot control the mob.”
(emphasis added)); In re Eusaph, 10 I. & N. Dec. 453, 454–55
(B.I.A. 1964) (stating that private-actor persecution arises
when the government is “unable to take proper measures to
control individual cases of violence” or when the private
violence is “the result of a program sponsored or tolerated” by
the government or the result of acts which the government
18
Although the tests use different expressions, they are legally
equivalent.
Both tests have an overriding commonality: they recognize
that to constitute persecution, the government must be
complicit to some degree in the harmful conduct of non-
governmental actors through either act or omission. The
unable-or-unwilling-to-control test does so by requiring that
the feared harm be inflicted “by forces that the government is
unable or unwilling to control.” Orellana v. Att’y Gen.,
956 F.3d 171, 178 (3d Cir. 2020) (emphasis added); accord
Acosta, 19 I. & N. Dec. at 222 (explaining that the harm must
be inflicted “by persons or an organization that the government
was unable or unwilling to control” (emphasis added)).
Similarly, the condone-or-complete-helplessness test requires
a showing “that the government condoned the private actions
or at least demonstrated a complete helplessness to protect the
“condones” (emphasis added)); In re Stojkovic, 10 I. & N. Dec.
281, 286–87 (B.I.A. 1963) (declining to decide “whether
physical harm inflicted upon a person by a mob acting without
governmental sanction” constitutes persecution because “there
is no evidence that the authorities could not adequately protect
respondent by controlling any outbursts of mob violence”
(emphasis added)); In re Diaz, 10 I. & N. Dec. 199, 204–05
(B.I.A. 1963) (declining to decide whether “governmental
authorities must inflict or sanction the physical persecution”
(emphasis added)).
19
victims.” A-B-, 27 I. & N. Dec. at 337 (emphasis added)
(citation and internal quotation marks omitted).
Despite that commonality, the two tests are formulated
differently. In the abstract, ‘complete helplessness’ suggests a
greater incapacity than ‘unable to control.’ Similarly,
untethered to context, ‘condone’ implies a degree of approval
not necessarily present in ‘unwilling to control.’
But those terms do not operate in isolation; the words
surrounding those terms affect their meaning. Notably, the
tests measure the degree of the government’s relationship to
different aspects of private-actor persecution – either to the
private actor, the harmful conduct, or the victim. The unable-
or-unwilling-to-control test examines whether the government
is unable or unwilling to control the private actor who inflicts
harm. See Orellana, 956 F.3d at 178; Acosta, 19 I. & N. Dec.
at 222. By contrast, the first component of the condone-or-
complete-helplessness test assesses whether the government
condoned the harm. See A-B-, 27 I. & N. Dec. at 337. And the
second component evaluates whether the government has
demonstrated a complete helplessness to protect the potential
victim of the private harm. See id.
A proper comparison of the tests thus requires examining
their effect as to the same aspect of private-actor persecution.
And that can be done by examining how each test applies to
the potential victim of private harm – the applicant seeking
relief from removal.
From that perspective, the unable-or-unwilling-to-control
test is a shorthand of sorts. It depends on more than merely the
government’s inability or unwillingness to control a violent
20
group in the abstract. Rather, that inability or unwillingness to
control a violent group becomes relevant only in the context of
a specific individual, the applicant. And a government’s
inability or unwillingness to control a violent group as a
general matter does not necessarily mean that the government
cannot or will not protect the specific applicant. See
Valdiviezo-Galdamez, 502 F.3d at 289 (linking the unable-or-
unwilling-to-control test to the government’s protection of the
victim); see also In re McMullen, 17 I. & N. Dec. 542, 544–45
(B.I.A. 1980) (same). Accordingly, the unable-or-unwilling-
to-control test evaluates the government’s ability and
willingness to control private actors not at a general level, but
rather with respect to the specific applicant seeking relief.
The condone-or-complete-helplessness test similarly
focuses on the applicant, only more explicitly. The ‘complete
helplessness’ component assesses the government’s ability to
protect a particular applicant from private harmful conduct.
And the ‘condone’ component examines whether the
government condoned private harm to that applicant.
Recognizing those differences, the corresponding parts of
each test may be compared. The apparent capacity differential
between ‘unable to control’ and ‘complete helplessness’ relates
to different objects. The ‘unable to control’ prong describes
the government’s power relative to private actors who intend
to harm the applicant for asylum or withholding. The
‘complete helplessness’ prong describes a different
relationship, the government’s power in relation to the
potential victim. Calibrating for context, however, harmonizes
the two standards: when the government is unable to control
private actors with respect to a specific potential victim, it
21
demonstrates a complete helplessness to protect that victim
from those actors.
Surrounding words also aid comparison of the other
analogous components of the two tests. The ‘unwilling to
control’ prong describes the relationship between the
government and a private actor as it affects the safety of the
applicant for asylum or withholding. By contrast, the
‘condone’ prong describes the government’s relationship not
to private actors, but to the harm those private actors inflict.
Thus, those two standards – ‘unwilling to control’ and
‘condone’ – derive their meaning from separate objects.
Accounting for that, the two standards converge – at least when
a government is unwilling but able to control a violent group
for purposes of protecting the applicant. In that case, when the
government can protect the individual but does not, it condones
the group’s harmful acts through its unwillingness to control
the group.
Nonetheless, the parity between the ‘condone’ and
‘unwilling to control’ prongs has a limit. While the two
formulations cover the same ground when the government is
unwilling but able to control a violent group, that congruence
ceases when the government is unwilling and unable to control
a violent group. In that latter circumstance, the government
cannot be said to condone harm inflicted by a violent group
that the government is unable to control. Therefore, the
‘condone’ prong is not coterminous with the ‘unwilling to
control’ prong in all instances.
But that gap is not fatal to the legal equivalence of the two
tests. As explained above, when a government is unable to
control a violent group with respect to a particular person, that
22
government is completely helpless to protect that person from
that group. Thus, through the combined operation of the
‘condone’ and ‘complete helplessness’ prongs, the condone-
or-complete-helplessness test becomes legally equivalent to
the unable-or-unwilling-to-control test. By either condoning
private harm or being completely helpless to protect a potential
victim from such harm, a government is sufficiently culpable
to have committed persecution.
A broader perspective confirms that conclusion. The
unable-or-unwilling-to-control standard governs four discrete
factual scenarios of governmental responsiveness to private-
actor harm:
• Scenario 1 – able and willing to control the
violent group;
• Scenario 2 – unable but willing to control the
violent group;
• Scenario 3 – able but unwilling to control the
violent group; and
• Scenario 4 – unable and unwilling to control
the violent group.
Under the unable-or-unwilling-to-control test, a government is
complicit in private-actor persecution in all but Scenario 1 –
that is in Scenarios 2, 3, and 4. The condone-or-complete-
helplessness standard yields the same result. By operation of
the ‘complete helplessness’ prong, the government is culpable
for private harm in Scenarios 2 and 4 because in both instances
the government is unable to protect the victim from the private
actors. And the ‘condone’ prong renders the government
complicit in private harm in Scenario 3. In that circumstance,
23
by having the ability but not the willingness to prevent the
harm, the government condones the harm to the victim.
Accordingly, both tests generate the same results in each of the
four factual scenarios.
For these reasons, the unable-or-unwilling-to-control test
and the condone-or-complete-helplessness test are legally
equivalent alternatives. Distilled to their essence, both tests
stand for the same fundamental proposition: if a government is
willing and able to afford some protection to an individual
against harms inflicted by private actors, then that government
is not sufficiently complicit in the private conduct for those
acts to constitute persecution for purposes of relief from
removal.
Of the other circuits to consider this issue, all but one have
reached a similar conclusion. Several circuits use the condone-
or-complete-helplessness test as an alternative for the unable-
or-unwilling-to-control test. See, e.g., Guillen-Hernandez v.
Holder, 592 F.3d 883, 886–87 (8th Cir. 2010); Shehu v.
Gonzales, 443 F.3d 435, 437 (5th Cir. 2006); Galina v. INS,
213 F.3d 955, 958 (7th Cir. 2000); see also Kere v. Gonzales,
252 F. App’x 708, 712 (6th Cir. 2007). And some have
expressly held that the two standards are the same. See Scarlett
v. Barr, 957 F.3d 316, 331–34 (2d Cir. 2020); Gonzales-Veliz
v. Barr, 938 F.3d 219, 233–34 (5th Cir. 2019); see also Rosales
Justo v. Sessions, 895 F.3d 154, 166 n.9 (1st Cir. 2018)
(describing A-B-’s description of the government-nexus
requirement as “consistent with our precedent”). This
conclusion also comports with the most recent interpretation
by the former Acting Attorney General in an administratively
precedential decision. That opinion, In re A-B- II, explained
that “[t]he ‘complete helplessness’ language does not depart
24
from the ‘unable or unwilling’ standard; the two are
interchangeable formulations.” 28 I. & N. Dec. 199, 200–02
(A.G. 2021).
The sole outlier is the D.C. Circuit. It has rejected the legal
equivalence of the tests, holding instead that the condone-or-
complete-helplessness test imposes a heightened standard for
private-actor persecution claims. See Grace v. Barr, 965 F.3d
883, 897–900 (D.C. Cir. 2020). But that decision does not
account for the combined effect of the two prongs of the
condone-or-complete-helplessness test; instead, it isolates the
standards from their surrounding words and overlooks the
relationships they describe. See id. at 898–99. We are neither
persuaded nor bound by that analysis.7 Instead, we align with
the majority of circuits to have considered this issue by holding
that the unable-or-unwilling-to-control test and the condone-
or-complete-helplessness test are legally equivalent for
purposes of evaluating private-actor persecution.
7
Although a partial affirmance of a nationwide injunction, the
D.C. Circuit’s ruling in Grace does not govern this case.
Galeas Figueroa was not a party to that litigation, and his
petition does not relate to the enjoined conduct: the
Government’s process for making credible fear
determinations. See Grace v. Whitaker, 344 F. Supp. 3d 96,
105 (D.D.C. 2018) (permanently enjoining the government
from continuing to apply credible fear policies). And even if
Galeas Figueroa were within the scope of the limited
injunction, it is uncertain whether the injunction of the A-B-
decision has any lingering potency after A-B- II.
25
2. Substantial Evidence Supports the BIA’s
Determination of No Private-Actor
Persecution
Applying both the unable-or-unwilling-to-control test and
the condone-or-complete-helplessness test, the BIA denied
Galeas Figueroa’s application for statutory withholding.
Specifically, the BIA found that Galeas Figueroa had failed to
establish that the Honduran government “condoned the acts of
violence or is completely helpless to protect victims of crime,”
or is “unable or unwilling to control the feared gangs.” BIA
Op. 2–3 (AR4–5). Those factual findings are subject to
substantial-evidence review and may not be set aside “unless
any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Doe,
956 F.3d at 140; Mendoza-Ordonez v. Att’y Gen., 869 F.3d
164, 170 n.15 (3d Cir. 2017).
Galeas Figueroa contends that two pieces of record
evidence compel the conclusion that the Honduran government
cannot or will not control the Mara 18 gang. First, he cites the
non-investigation and non-prosecution of the gang for its
repeated violence toward his family, despite the filing of
multiple police reports. Second, he relies on the State
Department’s country conditions report for Honduras, which
identifies the Mara 18 gang as among the criminal elements
that “committed murders, extortion, kidnappings, human
trafficking, and acts of intimidation against police, prosecutors,
journalists, women, and human rights defenders.” U.S. Dep’t
of State, Bureau of Democracy, H.R. and Lab., Country Report
on Human Rights Practices for 2016: Honduras 4 (2016)
(AR499).
26
The BIA considered Galeas Figueroa’s evidence. It
acknowledged that “multiple police reports were filed, without
satisfactory results, when [Galeas Figueroa’s] family members
were killed or harmed or he was threatened.” BIA Op. 2
(AR4). The BIA also recognized that, according to the country
conditions report, “many murders in Honduras go unsolved,”
and the government “has been unable to completely eradicate
gangs.” Id.But the BIA ultimately determined that “the Honduran
government has taken significant steps to combat gang
violence and public corruption” – reflecting neither an inability
nor an unwillingness to protect Galeas Figueroa from the gang.
Id. at 2–3 (AR4–5). In addition, the BIA concluded that the
lack of success in prosecuting the gang members for their past
violent acts could be due to the vagueness and deficiencies in
the police reports that Galeas Figueroa and his family filed –
not the government’s condonation of the gang’s harmful acts
or its complete helplessness to protect him. Indeed, one report
was filed years after the incident, and most of the others did
not even describe the assailants, let alone identify them as gang
members. The BIA thus found that the record evidence,
considered as a whole, was insufficient to justify relief.
Because a reasonable adjudicator would not be compelled
to reject that conclusion, substantial evidence supports the
BIA’s denial of Galeas Figueroa’s application for statutory
withholding of removal. See 8 U.S.C. § 1252(b)(4)(B);
Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 106 (3d Cir.
2010) (recognizing that substantial-evidence review is “highly
deferential” to the agency).
27
C. Protection Under the Convention Against
Torture
Galeas Figueroa next challenges the BIA’s denial of his
request for withholding of removal under the Convention
Against Torture. To qualify for mandatory CAT withholding,
an alien must demonstrate that “it is more likely than not that
he or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 1208.16(c)(2) (2020). As defined by
the CAT implementing regulations, torture is “an extreme form
of cruel and inhuman treatment.” Id. § 1208.18(a)(2); see
Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005) (listing the
elements of torture). One of the elements of torture requires
that the severe pain or suffering be inflicted “by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8 C.F.R.
§ 1208.18(a)(1) (2020); see also Auguste, 395 F.3d at 151.
The BIA determined that Galeas Figueroa failed to prove
that element, and on that basis, it denied CAT relief. Galeas
Figueroa disputes that ruling and contends that through willful
blindness, the Honduran government would acquiesce to his
likely torture by the Mara 18 gang. See Silva-Rengifo v. Att’y
Gen., 473 F.3d 58, 65 (3d Cir. 2007) (“[A]n alien can satisfy
the burden established for CAT relief by producing sufficient
evidence that the government in question is willfully blind to
such activities.”).
In this Circuit, the analysis of governmental acquiescence
to torture involves a two-part inquiry. See Myrie v. Att’y Gen.,
855 F.3d 509, 516 (3d Cir. 2017). The first question is one of
fact: How will public officials likely act in response to the harm
that the alien fears? The second step involves a legal question:
28
Will the public officials’ likely response amount to
acquiescence?
Regarding the first inquiry – the government’s likely
response to the feared harm – the BIA concluded that public
officials in Honduras would likely investigate the threats
against Galeas Figueroa. Under the “highly deferential”
substantial-evidence standard of review that applies to the
agency’s factual findings, Nasrallah v. Barr, 140 S. Ct. 1683,
1692 (2020), that determination is “conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary,” 8 U.S.C. § 1252(b)(4)(B).
Galeas Figueroa disputes the BIA’s conclusion. He relies
on the government’s failure to prosecute the gang members for
their violent acts against him and his family. And he also cites
the country conditions report’s identification of the Mara 18
gang as a dangerous criminal group in Honduras.
Consistent with its obligation to consider “all evidence
relevant to the possibility of future torture,” 8 C.F.R.
§ 1208.16(c)(3) (2020), the BIA weighed Galeas Figueroa’s
evidence. It acknowledged that “the Honduran government
was unable to bring the gang members who harmed [Galeas
Figueroa’s] family to justice.” BIA Op. 3 (AR5); see also id.
at 2 (AR4) (recognizing that “many murders in Honduras go
unsolved”). But even accounting for that evidence, the BIA
determined that “the Honduran government is actively taking
measures to combat gang violence,” such that the Honduran
police would likely take a report and open an investigation. Id.
at 3 (AR5); see also id. at 2 (AR4) (confirming that “the
Honduran government has taken significant steps to combat
gang violence and public corruption”). While every predictive
29
judgment is subject to second-guessing, especially when it
involves the behavior of foreign governmental actors, the
BIA’s conclusion is not one that a reasonable adjudicator
would be compelled to reject. See 8 U.S.C. § 1252(b)(4)(B).
Therefore, the BIA’s factual assessment of the Honduran
government’s likely response to the pain or suffering that
Galeas Figueroa may experience in Honduras survives
substantial-evidence review.
As a legal question, the second acquiescence inquiry –
whether the government’s likely response constitutes
acquiescence – receives de novo review. See Myrie, 855 F.3d
at 515–16. On this issue, Galeas Figueroa argues that the
Honduran government would acquiesce through willful
blindness to his future harm in Honduras. But a government
that investigates reports of private violence is not willfully
blind to that violence. See Valdiviezo-Galdamez v. Att’y Gen.,
663 F.3d 582, 610–12 (3d Cir. 2011) (upholding the BIA’s
determination that the Honduran government was not willfully
blind to gang violence where the police were investigating five
police reports, even though the victim “never saw any
progress” (citation omitted)). Nor does the ineffectiveness of
the Honduran police in solving the Galeas Figueroa family’s
prior reports of crime mean that investigations of future reports
of crime would be so unsuccessful as to constitute
acquiescence. The delay by the Galeas Figueroa family in
reporting a crime along with the incomplete leads they
provided made the investigations more difficult. And as the
BIA recognized, the Honduran government has since improved
its anti-crime efforts. Thus, as a matter of law, the Honduran
government’s likely response to future reports of crime –
taking a report and commencing an investigation – does not
constitute acquiescence.
30
Accordingly, neither prong of the acquiescence inquiry
provides a basis to grant Galeas Figueroa’s petition for CAT
withholding. Substantial evidence supports the BIA’s
conclusion that the Honduran government would likely
investigate reports that Galeas Figueroa would make to the
police. And on this record, that response does not constitute
acquiescence.
***
For the foregoing reasons, we will deny both the
Government’s motion to dismiss and Galeas Figueroa’s
petition seeking statutory withholding of removal and CAT
protection.
31