Introduction

Asylum law carries a built-in tension. Most people who run to the United States are running from neighbors, relatives, employers, gangs, or political vigilantes, not from soldiers or uniformed police. Yet the legal definition of a refugee asks not only whether a person was harmed, but whether the government of the home country either inflicted that harm or stood aside, unable or unwilling to stop it. When the people doing the harm are private parties, that second question often decides the case. In Matter of K-S-H-, 29 I&N Dec. 307 (BIA 2025)1, the Board of Immigration Appeals took up how much an applicant must do to prove it.

The answer is narrow but consequential. A single, unsuccessful visit to a local police station, with nothing more, does not show that an entire national government is unable or unwilling to protect a person from private persecutors. This article walks through the decision, sets it inside the framework that governs persecution by non-state actors, and then turns to what the ruling means for asylum seekers in general and for the respondent in this case in particular.

The Place of Government Protection in an Asylum Claim

To win asylum on the basis of past harm, an applicant must show three things: that the treatment rose to the level of persecution; that it was inflicted on account of a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion; and that the persecution was carried out by the government or by forces the government was unable or unwilling to control.2 The first two elements look at the persecutor and the reason for the harm. The third looks at the state. It is the bridge that connects private violence to a claim against a country.

That third element exists because asylum is, at bottom, a substitute for the protection a person should have received at home. If the home government was willing and able to step in, the theory goes, the applicant did not need to flee the country to find safety. So when the persecutor is a relative, a neighbor, or a private group, the applicant must do more than prove the beating happened. The applicant must show that the state would not, or could not, help. For a fuller treatment of the three-part structure of a persecution claim, and of what asylum requires more broadly, the firm has written separately.

Whether a government is unable or unwilling to protect is treated as a question of fact, not a question of law. That classification matters a great deal on appeal. The Board reviews an Immigration Judge’s factual findings only for clear error, which means it will not disturb them simply because it might have weighed the evidence differently. Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023), confirmed this point, and K-S-H- applies it.3 Readers who want the background on how the unable-or-unwilling finding is reviewed for clear error can consult the firm’s discussion of C-G-T-.

What Happened to K-S-H-

The respondent is a Sikh man, a native and citizen of India. He had a relationship with a Hindu woman, and her family did not approve. On two occasions in 2018, men connected to her family, whom he identified as members of the Hindu nationalist organization known as the RSS, attacked him. They punched and kicked him, and they warned him to end the relationship or face worse. The Immigration Judge found his account credible. The judge also accepted that the harm was inflicted on account of his religion.

After the first attack, the respondent went to the police. The officer he spoke with refused to take a report. According to the respondent, the officer said he was foolish to file a complaint against a member of the girlfriend’s family because her father was an influential figure in the Bharatiya Janata Party, and the officer warned that the respondent himself could be detained if he insisted. The respondent did not return to the police, did not approach any other officer, and did not seek help from any higher authority. He left India and, years later, sought asylum, withholding of removal, and protection under the Convention Against Torture in removal proceedings.

The Immigration Judge denied all three forms of relief. On the asylum claim, the judge concluded that although the respondent had been harmed because of his religion, he had not shown that the harm came from the government or from forces the government was unable or unwilling to control. The judge noted that the girlfriend’s father had taken no part in the beatings, that there was no evidence he had interfered with the police, that his party held no governmental role in the relevant sense at the time, and that the respondent had made only one attempt to obtain protection. The judge also found the fear of future harm not objectively reasonable, given that the respondent had not been in contact with the woman for five years. The respondent appealed.

The Board’s Answer

The Board dismissed the appeal. Reviewing the unable-or-unwilling finding for clear error, it held that the Immigration Judge had permissibly concluded the respondent did not meet his burden. The reasoning is straightforward. The girlfriend’s father did not carry out the attacks and was not shown to have caused the police to turn the respondent away. His political affiliation, without evidence that it translated into actual control over the police, did not convert a private feud into state action. And the single officer who declined the report, even if he was afraid of a locally connected man, could not stand in for the Government of India as a whole.

That last move is the heart of the decision. An appellate court does not reweigh the record; so long as the record contains contrary evidence of a kind and quality that a reasonable factfinder could credit, the agency’s factual call stands, and the factfinder is free to accept part of a witness’s testimony without accepting all of it. Garland v. Ming Dai, 593 U.S. 357 (2021)4, supplies that deferential lens. On this record, one officer’s refusal was simply not enough to compel a finding that the whole country would fail to protect the respondent.

The Board reinforced its conclusion with decisions from other circuits. Although they do not bind the Board, it found them persuasive. In Singh-Kar v. Bondi, 137 F.4th 94 (2d Cir. 2025), the Second Circuit held that a single failure of the police to assist, without more, does not establish a government’s inability or unwillingness to protect, and it said so even where the applicant had been made to wait, slapped, and thrown out of the station. The Seventh Circuit reached similar results in Vahora v. Holder, 707 F.3d 904 (7th Cir. 2013), and Osorio-Morales v. Garland, 72 F.4th 738 (7th Cir. 2023), treating a one-off encounter with an unhelpful officer as insufficient. The Tenth Circuit did the same in Singh v. Bondi, 130 F.4th 848 (10th Cir. 2025), where the applicant was told to come back the next day and then ejected from the station.5

The Board was careful to explain what would have been different. In Davila v. Barr, 968 F.3d 1136 (9th Cir. 2020), the Ninth Circuit, in whose jurisdiction this case arises, found the Nicaraguan government unable or unwilling to control a private abuser. But the facts there were a world apart. The abuser had bribed the very officers the victim approached and then beat her more severely in retaliation for reporting; the police had also ignored her mother’s earlier reports; and country-conditions evidence documented official indifference to domestic abuse. The respondent in K-S-H- faced none of that. He suffered no violence during or after his single attempt to report, and he presented no evidence of a pattern of police collusion with his attackers.6

From these threads the Board drew its holding: a single attempt to report harm by private actors to local police, without further harm from the police themselves and without evidence of their widespread collusion with the persecutors, does not establish that the government, as a whole, is unable or unwilling to protect. The past-persecution claim therefore failed.

The Futility-or-Danger Exception, and Why It Did Not Apply

The rule in K-S-H- is not a demand that every asylum seeker exhaust the police bureaucracy of a hostile state. The law has long recognized that an applicant need not report, or keep reporting, when doing so would be futile or dangerous. Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006), says as much, and Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc), treats whether a victim reported, or credibly explained why not, as a factor in the analysis rather than a rigid checkbox.7

The problem for this respondent was not the legal standard but the record. He never argued, and he produced no evidence to suggest, that further attempts to seek protection, whether from another officer, a different station, or a higher level of government, would have been pointless or unsafe. The Board also noted that an applicant is not required to show the government would fail to protect him everywhere in the country; the inquiry focuses on his home city or area, as the Ninth Circuit explained in Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004). Even on that narrower view, the respondent fell short, because he never sought any other police assistance within his own area.8

Future Fear and the Convention Against Torture

Because the respondent did not establish past persecution, he could not rely on the presumption of future danger that a past-persecution finding would have triggered. He had to show an independently well-founded fear of future persecution. On that score, his counsel argued that the girlfriend’s family still wanted to harm him, that honor killings are common in India, and that the family could restore its reputation only by killing him. The trouble was that counsel pointed to no evidence in the record supporting any of it. As the Board reminded, the unsupported statements of counsel are not facts in evidence. INS v. Phinpathya, 464 U.S. 183 (1984)9. Whether a fear is objectively reasonable is reviewed without deference, as a legal determination, under Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015), but a legal question still needs facts to rest on, and here there were none showing the family’s continuing interest after five years of silence.10

With asylum gone, withholding of removal followed it out the door. Withholding requires a clear probability of harm, a more demanding standard than asylum’s well-founded fear, so an applicant who cannot meet the lower bar cannot meet the higher one. The relationship among asylum, statutory withholding, and protection under the Convention Against Torture is worth keeping in mind, because they are distinct forms of relief with different burdens.11

The Convention Against Torture claim failed on its own facts. The Immigration Judge found that the respondent could avoid harm by relocating within India and had not shown he would more likely than not be tortured if returned. The respondent argued that the judge skipped an individualized assessment of his relocation prospects. The Board was not persuaded, because the underlying prediction, that the family had no continuing interest in him after five years of no contact, was not clearly erroneous, and because a torture claim cannot be built by stringing together a chain of suppositions where each link is not shown to be more likely than not. Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006). Predictions about what will happen on return are themselves reviewed for clear error. Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020). On the question of internal relocation as a way to defeat a protection claim, the firm has written separately. The appeal was dismissed in full.12

K-S-H- as Part of a Larger Pattern

Read alone, K-S-H- looks like a routine application of settled law to thin facts. Read alongside its companion in the same volume, it looks like something more deliberate. In Matter of F-B-A-, 29 I&N Dec. 456 (BIA 2026), the Board held that the special allowances courts make for children who fail to report abuse do not carry over to adults, including adults describing harm they suffered as children, and it tightened the showing required to prove that a state is unable or unwilling to protect against private violence.13 Taken together, the two decisions point in one direction: the Board is asking applicants to do more, and to prove more, on the state-protection element.

The practical message of both rulings is that the unable-or-unwilling element is no longer a formality that a credible story of private violence will satisfy on its own. The persecutor and the protected ground may be conceded, the applicant may be found entirely truthful, and the claim can still fail at the bridge that links the harm to the state. That is precisely what happened here.

Practical Implications

For the issue in general. The lesson of K-S-H- is that the state-protection element must be built, not assumed. A few concrete steps follow from the decision.

First, document every effort to obtain protection, and make those efforts plural where it is safe to do so. A complaint to a local officer, a follow-up at a higher level, a written report, a complaint to a human rights commission or ombudsman, each one strengthens the record. One refusal by one officer, standing alone, is now squarely insufficient under K-S-H-.

Second, when a client reported only once, or could not safely report at all, build the futility-or-danger explanation deliberately. The exception recognized in Ornelas-Chavez and Bringas-Rodriguez is real, but it has to be supported. That means credible testimony about why further reporting would have been pointless or dangerous, corroborated wherever possible by country-conditions evidence and by accounts of how the authorities treated others in the same situation.

Third, get country-conditions evidence into the record, and make it specific. Generalized violence is not the point. What matters is documented official indifference, collusion, or incapacity directed at people in the applicant’s position. Sources such as the United States Department of State country reports, credible nongovernmental organization reporting, and qualified expert declarations are the raw material for this showing, and their absence is often fatal.14

Fourth, tie the future-fear theory to evidence in the record. K-S-H- failed in part because counsel’s honor-killing argument floated free of any proof. A theory of continuing risk, whether it rests on honor-based violence, a persecutor’s ongoing search for the client, or a group’s reach across regions, needs declarations, documents, or country-conditions support behind it. The advocate’s argument is not a substitute for the client’s evidence.

Fifth, address relocation head-on in any Convention Against Torture claim, with an individualized showing rather than a chain of assumptions. And remember that a favorable credibility finding, while valuable, does not by itself carry a claim across the finish line. Each legal element still has to be met.

For the respondent in particular. The dismissal leaves the respondent with an administratively final order of removal. His realistic options are now limited and time-sensitive. A petition for review may be filed with the United States Court of Appeals for the Ninth Circuit, where the case arises, but it must be filed within thirty days of the final order, and the deferential clear-error and substantial-evidence standards that doomed the appeal at the Board will work against him there as well, especially on a record this thin.15

The more promising long-term path, if the facts support it, may lie in the very gaps that sank the appeal. A motion to reopen could be considered if genuinely new and previously unavailable evidence emerges, for example proof that the girlfriend’s family has continued to search for the respondent, or developed country-conditions evidence about honor-based violence and about the practical reach and influence of the relevant political organizations in his home area. Such a motion faces strict numerical and deadline limits and a heavy evidentiary burden, so it should be evaluated carefully before it is filed, not after.

Finally, the practical stakes of inaction are real. A respondent who is subject to a final order and who fails to depart, or who reenters after removal, can face civil monetary penalties and criminal consequences, as the Board’s own closing notice in this case points out. For anyone in the respondent’s position, prompt consultation with an experienced immigration attorney about timing, forum, and the realistic prospects of each remaining option is not a formality. It is the difference between preserving a remedy and losing one.16

  1. Matter of K-S-H-, 29 I&N Dec. 307 (BIA 2025). The Board held that a single attempt to report harm by private actors to local police, without further harm from the police themselves or evidence of their widespread collusion with the alleged persecutors, does not establish that the government, as a whole, is unable or unwilling to protect a respondent from persecution. Id. at 307, 310.
  2. See INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (definition of refugee); INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A) (asylum). The applicant bears the burden of proof. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). The three-part formulation of a past-persecution claim is codified in relevant part through the REAL ID Act of 2005. See generally Persecution and Asylum Law, MyAttorney USA.
  3. The governing standard requires that the harm be inflicted by the government or by forces the government is unable or unwilling to control. Rodriguez Tornes v. Garland, 993 F.3d 743, 750-51 (9th Cir. 2021). Whether the government is unable or unwilling to protect is itself a question of fact reviewed for clear error. Matter of C-G-T-, 28 I&N Dec. 740, 743 (BIA 2023); see Reasonableness of Failure to Report Persecutory Harm for Minors, MyAttorney USA (discussing C-G-T-).
  4. Garland v. Ming Dai, 593 U.S. 357, 366 (2021) (a reviewing court may not overturn an agency factual determination so long as the record contains contrary evidence of a kind and quality a reasonable factfinder could find sufficient, and the factfinder may credit part of a witness’s testimony without accepting all of it).
  5. Singh-Kar v. Bondi, 137 F.4th 94, 99, 101, 103-04 (2d Cir. 2025) (testimony that the police failed to assist on one occasion, without more, does not establish an entire government’s inability or unwillingness to protect; a single, minor incident of police misconduct, together with general country conditions, insufficient); Vahora v. Holder, 707 F.3d 904, 909-10 (7th Cir. 2013); Osorio-Morales v. Garland, 72 F.4th 738, 743 (7th Cir. 2023) (a one-off conversation with an unhelpful officer does not necessarily show a government is unable or unwilling to protect); Singh v. Bondi, 130 F.4th 848, 864 (10th Cir. 2025). These decisions are persuasive, not binding, in the Ninth Circuit.
  6. Davila v. Barr, 968 F.3d 1136, 1142-44 (9th Cir. 2020) (government shown unable or unwilling where the abuser bribed the police, the applicant was beaten more severely in retaliation for reporting, the authorities had ignored similar reports, and country conditions documented official indifference); see also Truong v. Holder, 613 F.3d 938, 941-42 (9th Cir. 2010).
  7. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (an applicant need not report abuse if doing so would be futile or dangerous); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1069 (9th Cir. 2017) (en banc) (whether a victim reported or attempted to report, and any credible explanation for not reporting, is a factor to be considered).
  8. Mashiri v. Ashcroft, 383 F.3d 1112, 1122 (9th Cir. 2004) (the inquiry looks to the applicant’s home city or area, not the country as a whole). The Board found its conclusion consistent with Mashiri because the respondent never sought other police assistance within his home area. K-S-H-, 29 I&N Dec. at 310 n.3.
  9. INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984) (statements of counsel are not facts in evidence).
  10. Matter of Z-Z-O-, 26 I&N Dec. 586, 590-91 (BIA 2015) (whether an applicant has established an objectively reasonable fear of persecution is a legal determination reviewed de novo); see Matter of Z-Z-O-: Standard of Review for IJ Predictive Findings of Fact, MyAttorney USA. On the presumption of future persecution that follows a past-persecution finding, and its rebuttal, see 8 C.F.R. § 1208.13(b)(1); Matter of D-I-M-, 24 I&N Dec. 448, 450 (BIA 2008).
  11. INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); Davila, 968 F.3d at 1142 (an applicant who fails the lower asylum standard necessarily fails the more demanding clear-probability standard for withholding); INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (agencies need not decide issues unnecessary to the result). For the distinctions among the forms of relief, see Eligibility for Withholding of Removal and Deferral of Removal under the Convention Against Torture, MyAttorney USA.
  12. 8 C.F.R. § 1208.16(c) (2025); 8 C.F.R. § 1208.18(a) (2020); Matter of J-F-F-, 23 I&N Dec. 912, 917-18 & n.4 (A.G. 2006) (a torture claim cannot be established by stringing together suppositions where each step is not shown to be more likely than not); Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020) (predictions about future events reviewed for clear error). See generally Is Internal Relocation Available to an Asylum Seeker?, MyAttorney USA.
  13. Matter of F-B-A-, 29 I&N Dec. 456 (BIA 2026); see From Child-Sensitive Protection to Adult-Reporting Expectations: Matter of F-B-A- and the Recalibration of the “Unable or Unwilling” Inquiry in U.S. Asylum Law, MyAttorney USA.
  14. The record in K-S-H- contained no country-conditions evidence establishing official collusion with the respondent’s attackers or a pattern of police indifference of the kind present in Davila. As a general matter, practitioners building the state-protection element should consult primary sources such as the U.S. Department of State, Country Reports on Human Rights Practices, together with credible nongovernmental organization reporting and qualified expert declarations addressing the applicant’s specific home area and circumstances.
  15. A petition for review of a final order of removal must be filed with the appropriate court of appeals within 30 days. INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). Because the case arises within the Ninth Circuit, that court would be the proper forum. K-S-H-, 29 I&N Dec. at 309-10.
  16. On motions to reopen and their numerical and time limits, see INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c). On the consequences of a final order, the Board’s closing notice cites the civil monetary penalty for willful failure to depart, INA § 274D, 8 U.S.C. § 1324d, and the criminal penalty for unlawful reentry after removal, INA § 276(a), 8 U.S.C. § 1326(a). See K-S-H-, 29 I&N Dec. at 312.