Introduction

In order to establish eligibility for asylum [see category], an applicant must establish that he or she “is unable or unwilling to return to, and is unable or unwilling to avail himself hr herself to the protection of” his or her country of nationality due a well-founded fear of persecution on account of his or her race, religion, nationality, membership in a particular social group, or political opinion. INA 101(a)(42)(A); INA 208; 8 C.F.R. 1208.13(b)(2)(C). The same applies for statutory withholding of removal [see article] under INA 241(b)(3). In this article, we will focus on the “unable or unwilling to avail himself or herself” to the protection of authorities in the country of nationality. This issue is especially likely to be contested in cases where a respondent fears persecution from persons or entities that are not a part of the government of the country in question. In a 2023 Board of Immigration Appeals decision titled Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023) [PDF version], the Board considered a case wherein the applicant for asylum did not report instances of harm to local authorities. This issue is especially pressing in cases such as Matter of C-G-T- where the respondent alleged harm from private, non-governmental actors. Matter of C-G-T- provides general guidance on the matter, but it is primarily concerned with situations wherein the asylum or withholding applicant was a minor when past harm occurred.

General Introduction to Matter of C-G-T

Matter of C-G-T- concerned the asylum and withholding of removal applications of a respondent from the Dominican Republic who claimed that he was subjected to persecution by his father on account of his sexual orientation. Id. at 741. The Board ultimately only reviewed the respondent’s application for withholding of removal after affirming the immigration judge’s finding that the respondent’s application was time-barred for purpose of asylum. Id. at 741-42. With respect to past persecution, the Board remanded the record on account of shortcomings in the immigration judge’s analysis. Id. at 742.

For this article, we will focus on the Board’s assessment of the immigration judge’s concluding that the respondent had failed to establish that the Dominican government was unable or unwilling to protect the respondent from harm.

Assessing Minor’s Failure to Report Harm

The Board summarized the immigration judge’s conclusion: “In determining that the respondent did not demonstrate the [Dominican] government was unable or unwilling to protect him from persecution, the Immigration Judge cited the respondent’s failure to report the harm his father inflicted on him as a child.” Id. at 743. That is, the immigration judge found that because the respondent had not sought help from Dominican authorities when he was being beaten and abused by his father, he could not establish that authorities were, or would continue to be, unable or unwilling to protect him. The respondent had argued before the immigration judge “that it would have been futile for him to have reported the abuse as a child, and that reporting may have subjected him to additional abuse.” Id. at 743.

The Board ultimately did not decide whether it would have been reasonable for this particular respondent to report his victimization to Dominican authorities, but it remanded the record to the immigration judge with instructions on how to reconsider the initial decision.

The Board began its analysis by explaining that “[w]hether a government is unable or unwilling to protect an individual from persecution is a question of fact that we review for clear error.” Id. at 743; Citing Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) [link]. This means that the initial asylum adjudicator or an immigration judge must make a factual determination as to whether a particular government was or will be able or willing to protect an individual from harm. Because this is a factual finding, the Board reviews to see if the factual finding was erroneous.

In a case where the respondent reported harm to authorities, “government authorities’ timely response … may be indicative of their ability or willingness to protect the respondent from harm.” Id. However, Matter of C-G-T- concerned a respondent who did not report harm in the first place.

Citing to the precedent of the United States Court of Appeals for the First Circuit, in whose jurisdiction Matter of C-G-T- arose, the Board explained that a respondent cannot rely solely on his or her belief that local authorities are corrupt to explain why he or she did not attempt to report harm. Id.; Citing Morales-Morales v. Sessions, 857 F.3d 130, 135 (1st Cir. 2017).

The Board articulated its central holding on the reporting harm issue: “[F]ailure to report harm is not necessarily fatal to a claim of persecution if the applicant can demonstrate that reporting private abuse to government authorities would have been futile or dangerous.” Id. (Internal quotes omitted.); Quoting Rosales Justo v. Sessions, 895 F.3d 154, 165 (1st Cir. 2018) [link].

The Board had recognized in prior cases that it may be futile or dangerous for an abused child to seek protection from authorities. Id. Discussing Matter of S-A-, 22 I&N Dec. 1328, 1332-33 (BIA 2000) [PDF version]. The Board noted that multiple circuit courts have recognized that children may not be capable of reporting harm or articulating their fear in the same way as an adult. Id. Discussing Portillo Flores v. Garland, 3 F.4th 615, 635-36 (4th Cir. 2021) (en banc); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1071 (9th Cir. 2017) (en banc). Moreover, the Board recognized — in accord with the Fourth Circuit — that an abused child may be prevented from seeking help from authorities by his or her abuser(s), or, in the alternative, any attempt to report harm may make the abuse worse. Matter of C-G-T-, 28 I&N Dec. at 743-44; Citing to Portillo Flores, 3 F.4th at 636.

The Board instructed the immigration judge to consider the following points on remand in determining whether the instant respondent’s failure to report his being harmed by his father was reasonable (Id. at 744):

The respondent’s testimony;
Available corroborating evidence; and
Country conditions reports.

While the Board determined that the immigration judge needed to reconsider his initial decision, it cautioned that the respondent still bore the burden of establishing the reasonableness of his failure to report: “[A] respondent must demonstrate, based on the record as a whole, that the government is unable or unwilling to protect him.” Id. As the Board noted earlier in the decision, the respondent must provide more than a “subjective belief” that authorities would not help him or her to sustain the burden. Id. The respondent’s testimony must be consistent with, and supported by, the available evidence.

Conclusion

Matter of C-G-T- provides some general guidance for asylum and withholding applicants who are trying to establish that their failure to report harm was reasonable. The decision makes clear that while the failure to report harm is not necessarily fatal, the respondent will bear the burden of establishing reasonableness. The respondent cannot rely solely on his or her subjective view that his or her failure to report was reasonable. Instead, the respondent must clearly explain why he or she did not report harm and that failure to report must be consistent with and supported by the evidence in record. The Board recommends that adjudicators consider any available corroborating evidence and evidence about conditions in the country where the respondent fears persecution.

In addition to this general guidance, Matter of C-G-T- provided more specific analysis with respect to cases where the asylum or withholding applicant was a minor when the harm occurred. The Board recognized that there may be specific issues that prevent a minor from reporting abuse to authorities. For example, the minor may be unable to articulate the harm and his or her fear of harm. Minors may also be physically prevented from reporting harm by their abusers or have reason to believe that reporting harm would make their situation worse. Thus, while the applicant always has the burden of proving reasonableness, there are specific factors to consider when the applicant was a minor when the abuse occurred.

It is important to make clear that in the scenario that establishing that a failure to report persecution is reasonable is only one issue in cases like Matter of C-G-T-. For example, the Board wrote in a footnote that even if the immigration judge determined on remand that the respondent suffered past persecution on account of a protected ground and that his failure to report was reasonable (which would entitle the respondent to the presumption of a well-founded fear on the same basis), there could be additional issues such as the question of whether the respondent, who was no longer a minor, continued to have a well-founded fear of persecution from his father. Id. at 744.

As always, we recommend that foreign nationals who fear persecution in their home country consult with an experienced immigration attorney for case-specific guidance.