Edil Galeas Figueroa v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-1419

______

EDIL JOEL GALEAS FIGUEROA,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES 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

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 of the United States of

America

2

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OPINION OF THE COURT

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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 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

3

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

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

4

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. 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.

5

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

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.

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).

6

Galeas Figueroa stated that he did not inform the Immigration Judge at

his prior hearing about 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.

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

7

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 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).

8

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 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.

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.

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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 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-

10

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 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

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).

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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 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

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)).

12

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.”).

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.

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”).

13

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 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 willing to control the Mara 18 gang. As

explained below, neither argument succeeds.

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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. 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

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 neither condoned by the state nor the

prevailing social norm, it clearly does not amount to ‘persecution’ within

15

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 “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

16

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 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

(B.I.A. 1963) (declining to decide whether “governmental authorities

must inflict or sanction the physical persecution” (emphasis added)).

17

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 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

18

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 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 government is completely helpless

19

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, 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.

20

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 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

21

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.

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.”

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.

22

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).

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

23

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).

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

24

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: 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

25

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

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.

26

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.

27