Abstract

In Matter of F-B-A-, 29 I. & N. Dec. 456 (B.I.A. 2026), the Board of Immigration Appeals held that the “unique barriers” children face in reporting abuse to authorities do not extend to adults—even adults describing childhood harm—when adjudicators assess whether the state is “unable or unwilling” to protect against private-actor persecution. The Board also reversed an immigration judge’s no-relocation finding, emphasizing regulatory burden-shifting in private-actor cases and demanding evidence of a persecutor’s continuing interest and practical reach. This Article situates F-B-A- within (1) the Refugee Act’s state-protection premise; (2) decades of doctrinal oscillation between “unable or unwilling” and tougher “condoned or completely helpless” formulations; (3) the rise of child-sensitive adjudication and its uneasy fit with adult survivors of childhood coercion; and (4) the internal-relocation doctrine’s growing case-dispositive force. It argues that F-B-A- is less a narrow “clarification” than a structural signal: in private-actor claims, the BIA is tightening evidentiary demands for (a) nonreporting explanations, (b) nexus-tailored country-conditions proof, and (c) relocation rebuttals.

Introduction

American asylum law is anchored in a paradox: persecution is often inflicted by non-state actors, yet refugee protection presupposes a failure of state protection. In the modern docket—family-based violence, honor-based threats, gang coercion, and community persecution—the “unable or unwilling” inquiry routinely becomes the fulcrum on which claims turn.

Matter of F-B-A- is formally modest: a decision on a motion to reconsider, reaffirming removal and “clarifying” the Board’s reasoning. But its practical implications are outsized. The Board holds that “unique barriers” to reporting harm faced by children do not apply to adults, including adults who suffered harm as children. It then uses adulthood as a proxy for agency: because the respondent traveled, lived outside family control at times, and could communicate, she “could have requested assistance,” and her nonreporting significantly undermined her showing that the state would not protect her. See Matter of F-B-A-, 29 I. & N. Dec. at 460–61.

This is not merely a rule about age. It is a statement about proof: what kinds of evidence “count” to establish futility and danger, what counts as sufficiently tailored country-conditions corroboration, and how quickly internal relocation can become dispositive in private-actor cases.

The State-Protection Premise After the Refugee Act

The Refugee Act of 1980 incorporated the international refugee definition into U.S. law and created a unified domestic asylum framework. Contemporary legislative-history accounts emphasize Congress’s effort to move toward a coherent, nondiscriminatory, humanitarian policy.1

Where persecution emanates from private actors, adjudicators still demand a protection-failure showing: that authorities refuse protection or are unable to provide it. The central challenge has never been the premise; it is operationalization—how much an applicant must do to “test” state protection before fleeing, particularly under constraints of coercive control and vulnerability.

International training materials and guidance have long treated private-actor claims as protection-failure cases and highlight the evidentiary role of country information in that inquiry.2

In the U.S. administrative tradition, Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), remains a foundational interpretive baseline for core concepts in asylum adjudication, including the statutory architecture through which protected-ground persecution and state protection failure are evaluated.

Reporting, Futility, and the Long Shadow of the “Police Report”

Formally, U.S. asylum law does not impose a per se requirement that an applicant report harm to police. The Board has recognized that reporting may be futile or dangerous, particularly where the persecutor is a family member or a powerful private actor. In practice, however, nonreporting often functions as a proxy for “adequate” state protection unless the applicant supplies persuasive counterproof.

Scholarly critiques describe this drift as a de facto “reporting requirement” that can operate as a categorical bar in certain adjudicatory settings, even though the doctrine is supposed to remain context-sensitive.3

F-B-A- underscores how the nonreporting issue can become dispositive even in claims where harm is not disputed. The case involved religiously motivated family persecution (conversion from Islam to Russian Orthodox Christianity). The Board faulted the immigration judge for relying on general domestic-violence evidence and treated the respondent’s failure to seek protection as an adult as a “significant factor” undermining the unable-or-unwilling showing. See Matter of F-B-A-, 29 I. & N. Dec. at 460–62.

Historically, intra-family persecution has been recognized as a viable asylum theory when tied to a protected ground. For example, Matter of S-A-, 22 I. & N. Dec. 1328 (B.I.A. 2000), recognized religion- and gender-inflected persecution within a family setting. F-B-A- does not repudiate S-A-, but it narrows the evidentiary gate: generalized evidence about “domestic violence” may be treated as mismatched where the nexus theory is religious conversion and the feared harm is interfaith family violence.

The Child-Sensitive Turn—and Its Limits

U.S. asylum adjudication has, for decades, recognized that children experience and report harm differently. The INS/USCIS Guidelines for Children’s Asylum Claims instruct adjudicators to account for children’s developmental and psychological constraints and to adapt evidentiary expectations accordingly.4

Federal courts have reinforced child-sensitive logic. In Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc), the Ninth Circuit rejected a heightened evidentiary “gap” construct tied to a child’s failure to report sexual abuse. In Portillo Flores v. Garland, 3 F.4th 615 (4th Cir. 2021) (en banc), the Fourth Circuit emphasized the need to assess a child’s reporting barriers and the practical risks of seeking state protection.

The Board’s own child reporting doctrine is encapsulated in Matter of C-G-T-, 28 I. & N. Dec. 740 (B.I.A. 2023), which treats reporting as fact-specific and recognizes that children may be unable to recognize abuse, articulate fear, or access authorities—particularly when the abuser is a relative.

Practitioner commentary on C-G-T- has emphasized that age is central to the reporting analysis, but country conditions and contextual proof remain important.5

F-B-A- draws a sharper boundary: child-specific reporting barriers do not “carry over” to adults, even adults describing childhood harm. The practical consequence is a life-course proof problem. Adult applicants must now do more than narrate childhood incapacity; they must establish why they could not reasonably seek protection later as adults, or why adult reporting would have been futile or dangerous for adult-specific reasons. See Matter of F-B-A-, 29 I. & N. Dec. at 460.

F-B-A- as a Pivot in Private-Actor Litigation

F-B-A- contains three record-centered moves that are likely to have broad practical reach.

First, it operationalizes an “adult autonomy heuristic.” The Board relies on travel, periods living outside family control, and the ability to communicate as evidence of capacity to seek protection. Those facts are used to undercut futility arguments and to justify treating nonreporting as a significant weakness. See Matter of F-B-A-, 29 I. & N. Dec. at 460–61.

Second, it tightens the “fit” requirement for country conditions evidence. The Board rejected the immigration judge’s reliance on generalized domestic-violence evidence where the fear was framed as religious persecution by family members, and it discounted evidence that did not specifically address interfaith violence or protection for religious converts. See id. at 461–62.

Third, it treats internal relocation as a record-sufficiency issue. Under the governing regulations, where the feared harm is from private actors, internal relocation is presumed reasonable unless the applicant proves otherwise by a preponderance. See 8 C.F.R. § 1208.13(b)(3)(i). The Board found clear error in the no-relocation finding, emphasizing Russia’s size, the respondent’s membership in the majority religion, and thin evidence of continuing interest more than two years after the last threat. See Matter of F-B-A-, 29 I. & N. Dec. at 462–63.

International refugee law materials caution against mechanical internal-relocation reasoning and emphasize both safety and reasonableness; those principles can be used to resist relocation becoming a purely formal “large country” inference.6

In domestic administrative doctrine, the Board’s relocation framework similarly requires a two-step inquiry—feasibility and then reasonableness “under all the circumstances.” See Matter of M-Z-M-R-, 26 I. & N. Dec. 28, 33–36 (B.I.A. 2012). F-B-A- does not rewrite that test, but it illustrates how quickly “reasonableness” becomes a matter of evidence quantity and specificity.

The “Unable or Unwilling” vs. “Condoned or Completely Helpless” Debate

Doctrinal instability in the non-state actor standard was amplified by the Matter of A-B- line of Attorney General decisions. In Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), the Attorney General used “condoned or completely helpless” language in discussing state protection. In Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021), the Acting Attorney General defended that articulation as consistent with the traditional unable-or-unwilling inquiry. Attorney General Garland later vacated those decisions in Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021), returning the system to preexisting precedent pending rulemaking.

Scholarship has traced how the “condone or completely helpless” formulation can operate as a stealth elevation of the government-control requirement, producing divergent outcomes across circuits.7

F-B-A- aligns rhetorically with the tougher articulation by citing Fifth Circuit authority describing inability/unwillingness in “condone or complete helplessness” terms. See Mejia-Alvarenga v. Garland, 95 F.4th 319, 326 (5th Cir. 2024). Whether framed as equivalent or heightened, that rhetoric often drives evidentiary expectations—particularly around nonreporting and futility.

Circuit Convergence and Conflict on Nonreporting

F-B-A- sits within a broader split in how circuits operationalize the state-protection inquiry when applicants do not report to police.

The Fifth Circuit frequently emphasizes that an applicant’s subjective belief about futility, without objective corroboration, is insufficient—particularly where the record shows some governmental response capacity. See Mejia-Alvarenga, 95 F.4th at 326–27.

Other circuits have required more careful engagement with futility and danger evidence when the applicant was a child. See Castellanos-Ventura v. Garland, 118 F.4th 250, 259–62 (2d Cir. 2024) (faulting the agency for insufficient consideration of whether reporting would have been futile or dangerous for an abused child).

The life-course problem exposed by F-B-A- is that many applicants are adults describing persecution systems that began in childhood and persist. A simplistic adult/child cutoff risks conflating physical mobility with genuine autonomy and treats adulthood as severing the relevance of early coercion unless the applicant can re-prove the same constraints in adult terms.

CAT Collateral Consequences

Although F-B-A- is primarily an asylum/withholding decision, its logic predictably spills into CAT litigation. CAT requires a distinct showing: torture must be inflicted by, at the instigation of, or with the consent or acquiescence of a public official acting in an official capacity. See 8 C.F.R. § 1208.18(a)(1).

Recent BIA precedent emphasizes that CAT “acquiescence” is not the same as asylum’s “unable or unwilling” inquiry, and generally requires a greater degree of governmental complicity. See Matter of O-A-R-G-, 29 I. & N. Dec. 30, 36 (B.I.A. 2025); Matter of M-S-I-, 29 I. & N. Dec. 61, 64–65 (B.I.A. 2025).

Scholarly critiques of the willful-blindness framework argue that adjudicators sometimes treat minimal official action as defeating acquiescence even where torture is foreseeable and preventable.8

Practical Reach: What F-B-A- Will Change in Daily Litigation

F-B-A- will likely matter less for its particular facts than for the evidentiary posture it encourages in private-actor claims. Three practical shifts follow.

First, expect more aggressive challenges to nonreporting explanations for adult applicants. After F-B-A-, reliance on C-G-T- must be paired with adult-period proof: specific retaliation threats, credible evidence of institutional complicity, patterns of police referral back to family control, or expert testimony on coercive control and honor-based violence dynamics. See Matter of F-B-A-, 29 I. & N. Dec. at 460–61.

Second, country conditions will be scrutinized for nexus fit. General “police are bad on domestic violence” evidence will be more vulnerable where the protected-ground mechanism is religion, conversion, apostasy stigma, or interfaith family violence. See id. at 461–62.

Third, internal relocation will remain a record-sufficiency trap. In private-actor cases, counsel should expect DHS to press the regulatory presumption of reasonable relocation and attack thin records on continuing interest and persecutor reach. See 8 C.F.R. § 1208.13(b)(3)(i); Matter of F-B-A-, 29 I. & N. Dec. at 462–63.

Conclusion

Matter of F-B-A- signals a tightening approach to proof in private-actor persecution cases. By limiting child-reporting logic to child applicants, demanding nexus-tailored country evidence, and treating relocation rebuttal as a specificity exercise, the Board increases the risk that asylum turns on a formalized “help-seeking” narrative rather than a realistic appraisal of protection failure. The task for practitioners is to build life-course records—documenting how coercion, social control, and institutional behavior shape both the feasibility and the danger of seeking protection—while preserving the statute’s protective purpose.

  1. Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L. Rev. 9 (1981
  2. U.N. High Comm’r for Refugees, Basics of Refugee Protection (training module) (2014
  3. Amelia S. McGowan, Forced Back Into the Lion’s Mouth: Per Se Reporting Requirements in U.S. Asylum Law, 107 Marq. L. Rev. 633 (2024
  4. U.S. Citizenship & Immigr. Servs., Guidelines for Children’s Asylum Claims (Dec. 10, 1998
  5. Catholic Legal Immigration Network, Inc. (CLINIC), BIA Addresses How Asylum Applicants Can Show Government “Unable or Unwilling” to Protect Them (May 2023
  6. U.N. High Comm’r for Refugees, Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” (HCR/GIP/03/04) (July 23, 2003
  7. Charles Shane Ellison & Anjum Gupta, Unwilling or Unable? The Failure to Conform the Nonstate Actor Standard in Asylum Claims to the Refugee Act, 52 Colum. Hum. Rts. L. Rev. 441 (2021
  8. Jon Bauer, Obscured by “Willful Blindness”: States’ Preventive Obligations and the Meaning of Acquiescence Under the Convention Against Torture, 52 Colum. Hum. Rts. L. Rev. 738 (2021