# Edil Galeas Figueroa v. Attorney General United States

> Court of Appeals for the Third Circuit · May 19, 2021 · 998 F.3d 77

URL: https://www.frixlaw.com/law-library/cases/4688216

## Case

- **Court:** Court of Appeals for the Third Circuit
- **Decided:** May 19, 2021
- **Citations:** 998 F.3d 77
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4688216

## How later opinions describe it (automated extraction)

- finding BIA’s conclusion supported by substantial evidence where the government’s lack of success in prosecuting gang members was more likely attributable to “vagueness and deficiencies in the [alien’s] police reports,” than to “the government’s condonation of the gang’s harmf…
- explaining that we review determinations of a government’s inability or unwillingness to respond for only substantial evidence
- holding that police “ineffectiveness” was not acquiescence where “incomplete leads [the victim] provided made the investigations more difficult”
- concluding no acquiescence when the government (i) investigates police reports, even if an applicant saw no action on the police report, or (ii) is otherwise ineffective

## Opinion text

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

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
____________

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 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.

9
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).

11
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.

14
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4688216. Public record. Not legal advice.