Asylum – A First Circuit Distinction between “Unwilling” and “Unable”


                                                                             Rosales Justo v. Sessions, No. 17-1457 (1st Cir. July 16, 2018)

To qualify for asylum, an applicant must demonstrate either past persecution or a well-founded fear of future persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group.[i] The persecutor in these cases is often the government – but not always. Where a private actor, like organized crime, is the persecutor, the applicant must demonstrate “some connection” between the actions of private actor and “governmental action or inaction.”[ii] To demonstrate that connection, the applicant bears the burden of proving that the government was either “unwilling or unable” to protect him from persecution.[iii]

The conjunction “or” is a vital part of determining whether or not an applicant has meet his burden in establishing that element of their asylum claim.[iv] The First Circuit has previously held that an asylum applicant may be able to prove inability without establishing unwillingness where the government’s willing efforts to protect its citizens fall short.[v] Accordingly, the First Circuit recently remanded a case to the BIA for failing to recognize the distinction between governmental unwillingness and governmental inability to protect its citizens from persecution.[vi]

Rosales was a police officer in Acapulco, Guerrero in Mexico. His family operated a side business and organized crime members threatened them with “rent” payments. Rosales did not report the threats to the police or pay the rent. Shortly thereafter, Rosales’ son was found tortured and shot to death nearby, which the police investigated but did not prosecute. The family quickly moved to a nearby town but within a short period of time unfamiliar individuals began coming around and asking about the whereabouts of Rosales and his family. Rosales did not report that incident either, but instead fled to the U.S. and applied for asylum at the U.S. border crossing in San Ysidro, California on May 9, 2016.[vii]

Rosales was detained and transferred to a detention facility in Plymouth, Massachusetts pending the outcome of his asylum application and removal proceedings.[viii] He remained detained until his hearing before the Immigration Judge.[ix] The Immigration Judge granted the asylum claim, finding that although the Mexican government was willing to investigate the death of Rosales’ son, the police remained unable to protect Rosales and his family.[x] The various country reports for Mexico supported this conclusion, specifically in its identification of Rosales’ home state of Guerrero as plagued with organized crime, rampant homicides, and impunity for perpetrators.[xi] The country reports noted the police corruption in Guerrero as well.[xii] The Immigration Judge considered the particular facts of the case as compared to the general reporting of the area and found that the Mexican government would be unable to protect Rosales, and ultimately granted the asylum claim.[xiii]

Presumably, Rosales was released from detention at that time. DHS appealed the Immigration Judge’s decision to the BIA, which reversed.[xiv] However, the BIA placed a significant amount of emphasis on the Mexican government’s willingness to protect Rosales by investigating his son’s murder, but gave short shift to the government’s ability to subsequently protect Rosales from the same fate.[xv] Rosales appealed the BIA’s decision to the First Circuit.

The First Circuit disagreed with the BIA’s analysis and remanded the case. DHS cited to Khan v. Holder[xvi] and Ortiz-Araniba v. Keisler[xvii] to support their position, but the facts in the instant case failed to justify a similar result. In Khan, the Pakistani government’s actions to protect the applicant from persecution were actually successful, and in Ortiz-Araniba the persecutor was actually arrested, tried, convicted, and sentenced.[xviii] In Rosales Justo, a murder had been investigated but “the evidence showed nothing about the quality of this investigation or its likelihood of catching the perpetrators.”[xix] On the contrary, the country report’s specific identification of Guerrero as a corrupt and violent area “suggested the investigation was unlikely to make Rosales’ family any safer.”[xx]

The First Circuit found the Immigration Judge to have properly relied on the country reports to corroborate Rosales’ testimony and establish the Mexican government’s inability to protect Rosales.[xxi] Despite the deployment of more federal police to the state, one report described a skyrocketing homicide rate in Guerrero coupled with impunity.[xxii] The Department of State report identified Guerrero police involvement with the murder of 43 students by drug traffickers the year before Rosales’ son was murdered.[xxiii] The reports “specifically addressed the failure of the police in Rosales’s home state of Guerrero to protect its citizens from targeted kidnappings and murders committed by organized crime, and they corroborated Rosales’s testimony regarding his first-hand experience with organized crime as a police officer.”[xxiv] The First Circuit concluded that it was the BIA that erred in discounting the country reports as too general, not the Immigration Judge.[xxv]

This case serves as another reminder that country reports, particularly those issued by the Department of State, are not always too general to be helpful and should not be included just as a matter of course. In this case, the asylum applicant was actually from one of the most violent areas in Mexico – so violent that it transcended the broad brushstrokes of generality that plague most country reports and was singled out for special recognition. This is important because the governments in Mexico, El Salvador, Guatemala, and Honduras are all taking steps to address crime and violence and these efforts are often cited favorably in the reports and can inadvertently weaken an asylum claim. However, when certain regions of a country are particularly notorious for violence or persecution they will often be singled out, even in the DOS reports: Ukraine specifically mentions the Crimean region; the Indian states of Jammu and Kashmir have been consistently identified; and the Anglophone regions of Cameroon are pointed out in the 2017 report. Asylum applicants coming from these regions will find these reports unusually helpful. But by the same token, country reports can also work against the applicant. For example, if an individual is fleeing the Bajo Aguan region of Honduras, they will have to be prepared to respond to the DOS country report that states “[t]here continued to be reports of violence related to land conflicts and criminal activity in the Bajo Aguan region, but the overall level of violence in the area was far below its 2012 peak.”[xxvi] Consequently, country reports should be read carefully before being submitted to fully appreciate how they help or hurt a particular case.


Ryan Morgan Knight is an associate attorney with Haynes Novick Immigration in Washington, DC, focusing his practice on a broad spectrum of employment-based nonimmigrant and immigrant visas. His previous experience includes removal defense, asylum, family-based petitions, investment visas, consular processing, and administrative/federal appeals.

[i] INA 101(a)(42)(A).

[ii] Ortiz-Araniba v. Keisler, 505 F.3d 39, 41 (1st Cir. 2007).

[iii] Burbiene v. Holder, 568 F.3d 251, 255 (1st Cir. 2009).

[iv] See Khattak v. Holder, 704 F.3d 197, 206 (1st Cir. 2013); Khan v. Holder, 727 F.3d 1, 7 (1st Cir. 2013); Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir. 2008); and Ortiz-Araniba v. Keisler, 505 F.3d 39, 41 (1st Cir. 2007).

[v] Khattak v. Holder, 704 F.3d 197, 206 (1st Cir. 2013) (Pakistani military’s actions in fighting the Taliban showed both willingness and ability to protect an anti-Taliban politician “but does not show that the Pakistani government is able to protect its citizens from Taliban attacks”).

[vi] Rosales Justo v. Sessions, No. 17-1457 (1st Cir. July 16, 2018).

[vii] Rosales Justo v. Sessions, No. 17-1457, slip op. 3-6.

[viii] Id., 3.

[ix] Id., 6 (the detention limited Rosales’ ability to collect additional information from contacts in Mexico as to whether the organized crime members who still looking for him).

[x] Id., 9.

[xi] Id., 9-10.

[xii] Id., 10.

[xiii] Id.

[xiv] Id., 10.

[xv] Id., 11, 19.

[xvi] Khan v. Holder, 727 F.3d 1, 7 (1st Cir. 2013).

[xvii] Ortiz-Araniba v. Keisler, 505 F.3d 39, 41 (1st Cir. 2007).

[xviii] Rosales Justo v. Sessions, No. 17-1457, slip op. 20. (See also Matter of A-B-, 27 I&N Dec. 316, 343 (AG 2018) (finding that the BIA erred in overturning the IJ’s finding that the police were able to protect the petitioner where she “not only reached out to police, but received various restraining orders and had [the persecutor] arrested on at least one occasion”).

[xix] Id. 21.

[xx] Id.

[xxi] Id., 22 (but see also Mendez-Barrera v. Holder, 602 F.3d 21, 28 (1st Cir. 2010) and Amouri v. Holder, 572 F.3d 29, 25 (1st Cir. 2009), finding that in some cases country reports can be too generalized to support a finding of inability).

[xxii] Id., 22.

[xxiii] Id.

[xxiv] Id., 24.

[xxv] Id.

[xxvi] Country Reports on Human Rights Practices for 2017: Honduras.