United States Court of Appeals For the First Circuit
No. 24-2117
JOHN RESTREPO CASTANO; DIANA LOPEZ VALENCIA; and M.R.L.,
Petitioners,
v.
PAMELA J. BONDI, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge, Lipez and Rikelman, Circuit Judges.
Ronald L. Abramson, with whom Shaheen & Gordon, P.A. was on brief, for petitioners.
John F. Stanton, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Yaakov M. Roth, Acting Assistant Attorney General, Civil Division, and John S. Hogan, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
November 26, 2025 RIKELMAN, Circuit Judge. A criminal gang issued
multiple death threats to Jhon Eduardo Restrepo Castano and his
family while he was working in his bakery in Colombia. After he
reported the conduct to the authorities, the police stationed a
guard at his workplace. Although the in-person death threats
ended, the criminal gang continued the threats by phone. Fearful
for their safety, Castano and his family fled to the United States
in 2022 and eventually sought asylum and withholding of removal.1
An Immigration Judge (IJ) found that Castano did not qualify for
these forms of relief because he could not establish that the
Colombian government was unwilling or unable to protect him from
the gang, and thus he could not demonstrate a government connection
to the harm he had experienced. The Board of Immigration Appeals
(BIA) affirmed the IJ's decision and dismissed Castano's appeal.
Castano now seeks this court's review, arguing primarily
that the IJ and BIA (together, "the agency") erred in finding that
the Colombian government was able to protect him from the criminal
gang. Because we conclude that substantial evidence supports the
agency's decision, we deny Castano's petition.
Castano's wife and child are listed as derivative 1
beneficiaries on his asylum application. Our disposition of Castano's application also resolves their derivative applications. See Cabrera v. Garland, 100 F.4th 312, 315 n.1 (1st Cir. 2024).
- 2 - I. BACKGROUND
A. Relevant Facts2
Jhon Eduardo Restrepo Castano was born in Medellín,
Colombia.3 In 2019, Castano opened his own bakery in the nearby
city of Don Matías. A year later, in 2020, Castano was working at
his bakery when he first received a phone call from the Gulf Clan.
The Gulf Clan, or Clan de Golfo in Spanish, is a violent Colombian
criminal enterprise involved with drug dealing and money
laundering. The gang members warned Castano that he had to
cooperate with the gang by providing monetary and political
support, or else they would kill his wife and child. Gulf Clan
members subsequently called Castano multiple times, and in each
conversation, they threatened Castano, his wife, and his child if
he did not provide material support to their organization. Castano
never paid or otherwise supported the Gulf Clan.
In September 2021, two armed Gulf Clan members wearing
motorcycle helmets descended on Castano's bakery and warned
2 "We draw the relevant facts from the administrative record," including "testimony before the IJ . . . [that] the IJ found to be credible and corroborated." Barnica-Lopez v. Garland, 59 F.4th 520, 525 n.1 (1st Cir. 2023) (citing Adeyanju v. Garland, 27 F.4th 25, 31 (1st Cir. 2022)). 3 In his petition for review, Castano explains that his legal name is "Jhon," but that "he is using the anglicized spelling of his first name as it is reflected in the administrative record." We maintain the spelling as "John" in the case caption, but use Castano's legal name in this opinion.
- 3 - Castano that they would kill him and his family if he did not
comply with the gang's demands or leave the area. Fearful, he
filed a complaint with the police.
The police assigned a "guard" who would "spend all day
at [Castano's] business until [Castano] would leave to go home."4
The police also investigated Castano's complaint, but he never
received "a response or any answer about that." Additionally, the
police "blocked" the "phone lines" of Castano and his family
members so they "could not receive more calls" from the gang.
Although the Gulf Clan did not menace Castano in person
again, gang members continued the telephonic threats from
different phone numbers. At his hearing before the IJ, Castano
testified that he informed the police about the ongoing calls, and
to his knowledge, the police did not take any additional action.
But during the federal government's cross-examination, Castano
admitted that he could not recall whether he reported these
continued calls to the authorities after the police stationed a
guard at his bakery. Castano also acknowledged that from the time
the threats started, the gang never physically harmed him or his
4 Castano testified that the police sent a "companion," and he repeatedly used the term "companion" throughout his brief. Castano's affidavit, however, states that he was given "a police guard." Further, the police commissioner's supporting affidavit indicates that the police "sent over a police officer as a guard."
- 4 - family. Nevertheless, feeling unsafe, Castano and his family fled
to the United States in March 2022.
B. Procedural History
Castano and his family entered the United States without
inspection and proceeded to Massachusetts, where they were
discovered by immigration authorities. On April 6, 2022, the
Department of Homeland Security served substantively identical
Notices to Appear on Castano and his family members, initiating
removal proceedings. Castano then applied for asylum, withholding
of removal, and protection under the Convention Against Torture
(CAT).
In his testimony before the IJ, Castano recounted the
Gulf Clan's death threats against him and his family. The IJ found
that Castano "testified credibly," noting that his testimony "was
generally consistent with his affidavit and his application."
Additionally, the IJ explained that Castano submitted some
corroborating evidence, including "a statement or letter from the
police chief," and made efforts to obtain additional corroborating
documents, such as the police reports. Thus, the IJ credited
Castano's testimony and affidavit.
Nevertheless, the IJ determined that Castano had not met
his burden of establishing a government connection to any
persecution he had faced in Colombia. As the IJ explained, because
the Gulf Clan was a private entity, not controlled by the
- 5 - government, Castano could demonstrate persecution only if he could
show that Colombia "was unwilling or unable to assist him" in
responding to the gang's threats. In particular, the IJ noted
that the police "took a somewhat extraordinary step of providing
on-site police protection," which showed the government's
willingness to protect Castano. The IJ also found that the
Colombian government was able to protect Castano and that it had
the resources to do so. Bolstering this conclusion, the IJ
highlighted that the in-person threats stopped after the police
sent a guard to Castano's bakery and that although the telephonic
threats continued, those threats "were never acted upon, nor was
there any apparent attempt to act on those [] threats." Thus, the
IJ concluded that Castano was not eligible for asylum. She then
denied Castano's request for withholding of removal because that
form of relief also required Castano to establish a government
nexus to any persecution.5
Castano appealed the IJ's decision, but the BIA
"dismiss[ed] the appeal," "discern[ing] no clear error in the
[IJ's] determination" that "the actions of local authorities
demonstrate[d] [Colombia's] willingness and ability to protect"
5 In assessing Castano's asylum request, the IJ considered and rejected Castano's argument that the Gulf Clan operates as a quasi-governmental organization. Additionally, the IJ denied Castano's request for protection under the CAT. Castano does not challenge either of these rulings.
- 6 - Castano and his family. Given that assessment, the BIA concluded
that Castano "did not establish that the Colombian government was
or will be unable or unwilling to protect [him and his family in
the future] from the threats he [had] experienced." The BIA also
agreed that because Castano did not meet his burden of proof for
asylum, he could not satisfy the more stringent standard for
withholding of removal.
Castano timely filed a petition for review.
II. STANDARD OF REVIEW
"In immigration cases, our review 'typically focuses on
the final decision of the BIA.'" Khalil v. Garland, 97 F.4th 54,
61 (1st Cir. 2024) (quoting Loja-Tene v. Barr, 975 F.3d 58, 60
(1st Cir. 2020)). "But 'to the extent that the BIA deferred to or
adopted the IJ's reasoning, we review those portions of the IJ's
decision' as well." Id. (quoting Chavez v. Garland, 51 F.4th 424,
429 (1st Cir. 2022)). When we review the BIA's and IJ's decisions
together as a unit, "we refer to the BIA and IJ as 'the agency.'"
Id. (citing Pineda-Maldonado v. Garland, 91 F.4th 76, 80 (1st Cir.
2024)).
Whether a government is unwilling or unable to protect
an asylum applicant from harm caused by a private actor is a
question of fact. See Medina-Suguilanda v. Garland, 121 F.4th
316, 322-23 (1st Cir. 2024). Thus, our review of the IJ's finding
on this issue proceeds under the substantial evidence standard.
- 7 - See Khalil, 97 F.4th at 61. Under that highly deferential
standard, we are required to uphold the "agency's findings of fact
so long as they are supported by reasonable, substantial, and
probative evidence on the record considered as a whole."
Medina-Suguilanda, 121 F.4th at 323 (internal quotation marks and
citations omitted). Put another way, we will disturb the agency's
findings only if "in reviewing the record as a whole, 'any
reasonable adjudicator would be compelled to conclude to the
contrary.'" Khalil, 97 F.4th at 61 (quoting Barnica-Lopez v.
Garland, 59 F.4th 520, 527 (1st Cir. 2023)).
III. DISCUSSION
We begin with the legal framework governing the issues
raised by Castano's petition. An applicant for asylum must qualify
as a "refugee" within the meaning of the Immigration and
Nationality Act. See Espinoza-Ochoa v. Garland, 89 F.4th 222, 230
(1st Cir. 2023); 8 U.S.C. § 1158(b)(1)(A). A refugee is someone
who cannot return to his home country "because of persecution or
a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." De Pena-Paniagua v. Barr, 957 F.3d 88, 92 (1st Cir.
2020) (quoting 8 U.S.C. § 1101(a)(42)(A)).
For conduct to qualify as "persecution," there must be
a connection to government action or inaction. See Khan v. Holder,
727 F.3d 1, 7 (1st Cir. 2013). Thus, if the alleged persecution
- 8 - is based on the conduct of a private actor, the asylum applicant
must establish that the "government is unwilling or unable" to
control that private conduct. Id.; see also 8 U.S.C.
§ 1101(a)(42)(A).6
A similar test applies to withholding of removal. See
Espinoza-Ochoa, 89 F.4th at 230. "To obtain relief in the form of
withholding of removal, an [applicant] must establish a clear
probability that, if returned to his homeland, he will be
persecuted on account of a statutorily protected ground."
Sanchez-Vasquez v. Garland, 994 F.3d 40, 46 (1st Cir. 2021) (citing
8 U.S.C. § 1231(b)(3)(A)). To meet this standard, an applicant
must prove "three discrete elements," including "a threshold level
of past or anticipated serious harm, [and] a nexus between that
harm and government action or inaction." Barnica-Lopez, 59 F.4th
at 528 (quoting Sanchez-Vasquez, 994 F.3d at 46). Unlike asylum,
6 Castano devotes a portion of his brief to arguing that the death threats levied against him by the gang were serious enough to rise to the level of persecution. But the agency did not reach this question -- nor was it obligated to do so under the circumstances -- because of its dispositive determination that Castano had failed to establish that the Colombian government was unwilling or unable to protect him from the gang. See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) ("As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach."). We also do not reach this issue because our review is limited to the grounds invoked by the agency. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) ("[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.").
- 9 - withholding of removal requires a showing of "a clear probability
of persecution," which is a more demanding standard than
"well-founded fear," and an applicant's subjective fear is not
relevant. See id. (first quoting Sanchez-Vasquez, 994 F.3d at 46;
and then citing Aguilar-Escoto v. Sessions, 874 F.3d 334, 337-38
(1st Cir. 2017)); see also Singh v. Garland, 87 F.4th 52, 62 (1st
Cir. 2023).
Castano does not challenge the agency's determination
that the Gulf Clan is a private entity. Thus, the key question
posed in this case is whether Castano demonstrated a government
connection to the Gulf Clan's actions by showing that Colombia was
either unwilling or unable to protect him and his family from the
gang's death threats.
The agency found, and the parties do not dispute, that
Colombia was willing to protect Castano from the Gulf Clan.
Castano contests, however, the agency's determination that
Colombia was able to protect him. After reviewing the record, we
conclude that there was substantial evidence to support the IJ's
factual findings as to Colombia's ability to protect Castano and
his family.
A. Government Nexus
Castano contends that the record compels the conclusion
that Colombia was unable to protect him and his family. To support
his argument, he emphasizes that (1) he continued to receive
- 10 - telephonic death threats even after the police had stationed a
guard at his bakery and (2) the government's response to his
complaint -- including its investigation into the threats -- was
woefully inadequate.
We cannot agree with Castano that the record compels the
conclusion he urges for at least two reasons. First, the record
is unclear as to whether Castano reported the continued telephonic
threats after the police stationed a guard at his bakery. And
even if he did, the Colombian government's inability to stop the
telephonic threats completely is not enough under our precedent to
overturn the agency's denial of relief here. Second, there is
substantial evidence in the record to support the agency's factual
determination that the police responded immediately to the death
threats and that the response was "fruitful," such that the
Colombian government was able to protect the family. We address
each of these points in turn.
To begin, to the extent that Castano focuses his petition
on the fact that the telephonic death threats continued even after
a police guard was posted at his bakery, it was his burden to
establish that he reported these ongoing threats to the authorities
at that time. See Morales-Morales v. Sessions, 857 F.3d 130, 135
(1st Cir. 2017) (noting that the "burden of showing the requisite
government . . . inaction" falls on the asylum applicant). The
record, however, is inconsistent on this point and thus cannot
- 11 - compel the conclusion that Castano urges us to adopt. See, e.g.,
Penafiel-Peralta v. Garland, 115 F.4th 1, 10 (1st Cir. 2024).
Although the failure to report may be excused if
reporting would be futile, Castano has not made a futility
argument. See Morales-Morales, 857 F.3d at 135. In any event,
the record would not compel the conclusion that an additional
report would have been futile, given the police's demonstrably
quick and meaningful response to Castano's initial complaint. To
the contrary, the record indicates that the police did take steps
to prevent telephonic threats after Castano's initial report,
including by blocking the specific numbers used to make those
threats.
Although the telephonic threats continued (from
different numbers), Castano does not identify additional
reasonable steps that the police could have taken to address the
threats. Rather, in his testimony before the IJ, Castano appeared
to indicate that he wanted "a police officer protecting [him] 24
hours a day." Such a request, however, would not be reasonable.
After all, "no government c[an] provide the sort of absolute
protection [Castano] seeks." Ortiz-Araniba v. Keisler, 505 F.3d
39, 43 (1st Cir. 2007). Instead, there is substantial evidence to
support the agency's conclusion that Colombia's response, even if
not entirely successful, was "[in]distinguishable from any other
government's struggles to combat a criminal element." Burbiene v.
- 12 - Holder, 568 F.3d 251, 255 (1st Cir. 2009). And as we have
explained, the mere fact that a government is not entirely
successful in combatting crime is not enough to establish that it
is unable to protect an applicant seeking refugee status under the
immigration laws. See id. at 255-56.
Next, as to Castano's claims about the police
investigation, "'the most telling datum' in determining whether
the government was willing and able to protect the petitioner is
whether 'the local authorities responded immediately to each
incident.'" Medina-Suguilanda, 121 F.4th at 324 (quoting
Gómez-Medina v. Barr, 975 F.3d 27, 32 (1st Cir. 2020)). If local
authorities have "appropriately responded to incidents of
violence," this court is "particularly unwilling to overturn [the
agency's] finding of no government connection." Khan, 727 F.3d at
7.
Here, the police acted immediately after Castano
reported the in-person threat by stationing a guard at his bakery.
After the police took this step, the in-person threats ceased.
Although we do not discount the fear Castano and his family
experienced from the ongoing telephonic death threats, the agency
appropriately considered the police's quick and meaningful
response to Castano's initial complaint. As the federal government
- 13 - argues, this is substantial evidence supporting the IJ's finding
that the Colombian government is able to protect Castano.7
Castano nevertheless contends that the police
investigation was inadequate, and that this alleged fact compels
the conclusion that the Colombian government was not able to
protect him. Specifically, Castano maintains in his brief to us
that the police did not interview witnesses or file charges. In
his testimony before the IJ, however, Castano admitted that the
police did investigate his complaint, but that he never received
"a response or any answer about" the investigation itself. The
record is therefore silent on what steps the police actually took
in conducting the investigation.
Castano invokes Rosales Justo v. Sessions, 895 F.3d 154
(1st Cir. 2018), but his reliance on that decision to support his
inadequate investigation argument is misplaced. As an initial
matter, Rosales Justo is distinguishable because the court in that
case was conducting a de novo review of the administrative record,
7 Castano notes that he and his family entered the United States several months after the in-person threats ceased. He therefore asserts that the agency incorrectly relied on the fact that he did not face any in-person threats "in the last few months before" departing for the United States to conclude that the Colombian government had "the situation [] under control." Castano cites no authority, however, to suggest that the effect of a government's response must extend over a particular duration for an IJ to find that the government is both willing and able to protect the petitioner. Thus, Castano's argument on this point does not compel the conclusion that the Colombian government was unable to protect him.
- 14 - not evaluating the agency's findings for substantial evidence.
See id. at 156; see also Vila-Castro v. Garland, 77 F.4th 10, 14
(1st Cir. 2023) (distinguishing Rosales Justo by procedural
posture and standard of review and applying the substantial
evidence standard). Mindful of the different standard of review
employed in Rosales Justo, we nevertheless consider that decision
as it applies to Castano's arguments.
In Rosales Justo, we concluded that the BIA had committed
legal error when it overturned the IJ's findings that Mexico was
unable to protect the petitioner and his family. The facts in
Rosales Justo were quite different: the petitioner's son was
murdered by a criminal organization shortly after it had issued
death threats to the family, and the family continued to be pursued
after it had relocated within Mexico. See 895 F.3d at 157-58.
After reviewing the record as a whole, we determined that the IJ's
factual finding that Mexico was unable to protect the petitioner
and his family could not be clearly erroneous. See id. at 167.
We reached that conclusion for a number of reasons, including that
the evidence "showed nothing about the quality of [Mexico's]
investigation [of the son's murder] or its likelihood of catching
the perpetrators" and instead "suggested that the investigation
was unlikely to make [petitioner's] family any safer." Id. at
164.
- 15 - The Rosales Justo court also distinguished our prior
decisions regarding the "unwilling or unable" standard, explaining
that the records in those cases included evidence that
"investigative efforts by the government had proved fruitful,
demonstrating the ability of the police to protect [the petitioner]
from persecution." Id. In prior cases like Khan, for example,
the court found substantial evidence to support the agency's
finding that the Pakistani government was able to protect the
petitioner because the police had investigated his reports of
threats and violence, made arrests, and called on the country's
army to secure the area where he lived. See 727 F.3d at 7-8. The
court so held even though Pakistan had not completely "eradicated"
the threats against the petitioner and the investigative efforts
had been "stymied by the fact that the identities of the
perpetrators remained unknown." Id. at 8. Since Rosales Justo,
we have continued to emphasize that "fruitful" government efforts
to protect an asylum applicant from harm -- even absent an
investigation leading to an arrest -- can support a finding that
the government is able to protect the applicant. See Singh, 87
F.4th at 61 (determining that governmental action was "fruitful"
given that the persecutors fled after the army was called).
Although the record here lacks details about the quality
of the police investigation of the Gulf Clan's actions, there is
substantial evidence that the police "fruitfully" responded to the
- 16 - actions known to them. After Castano initially reported the
in-person and telephonic threats, the police posted a guard at the
bakery and attempted to block future calls from the Gulf Clan to
Castano and his family. Once the police stepped in, there were no
more in-person threats. And while the telephonic threats did
continue even after the police response, there is no evidence in
the record of any attempt by Gulf Clan members to act upon the
telephonic threats. Further, Castano could not point to any
evidence that he reported the continued telephonic threats to the
authorities after the guard took up the post at his bakery.
Further, the fact that Castano never received a formal
response about the identity of the alleged perpetrators does not
necessarily indicate that the police were not investigating. To
be sure, the federal government conceded at oral argument before
us that it would be very difficult for the Colombian police to
catch the perpetrators, considering the size of the Gulf Clan, the
motorcycle helmets worn by the gang members when they threatened
Castano in person, and the unknown phone numbers used to make the
telephonic threats. Nevertheless, there is probative evidence
that the police's response here was "fruitful" with respect to the
conduct that Castano definitively reported. See Khan, 727 F.3d at
8.
Castano resists the conclusion that substantial evidence
supports the agency's findings, despite these record facts, and
- 17 - cites to J.R. v. Barr, 975 F.3d 778, 784 (9th Cir. 2020). He
claims that J.R. stands for the general proposition that he should
not have to wait for a criminal organization to carry out its death
threats to qualify for asylum.
As the federal government points out, however, J.R. is
inapposite. Critically, the court in J.R. determined that El
Salvador was unwilling to protect the petitioner because the
government had withdrawn protection from him after he had testified
at a murder trial against members of the Mara-18 gang. See 975
F.3d at 783. What is more, the extreme facts in J.R., which
involved severe physical harm to the petitioner and murders of two
of his family members, were materially different.8 Courts have
subsequently refused to apply J.R. to cases involving a
government's ability to protect those seeking asylum or to cases
involving less dire circumstances. See Aguilar v. Garland, No.
23-1256, 2024 WL 3886973, at *2 (9th Cir. Aug. 21, 2024); see also
Hidalgo-Nunez v. Garland, No. 22-9518, 2022 WL 6861520, at *3 (10th
Cir. Oct. 12, 2022). We similarly decline to apply the ruling in
J.R. to the very different facts here, especially when the issue
8 Specifically, gang members cut off two of the petitioner's fingers; shot him seven times, causing him to lose his right lung; and killed his son on the front porch of their home. See J.R., 975 F.3d at 780. After the petitioner fled with his family to a different part of the country to live with a relative, the gang began threatening the relative's family, offered a reward for the murder of the petitioner, and, ultimately, attacked the relative and killed his brother. See id. at 781.
- 18 - before us is a government's ability, rather than its willingness,
to provide protection.
Accordingly, we hold that substantial evidence supports
the agency's determination that the Colombian government was able
to protect Castano and his family. Thus, we will not disturb the
agency's ruling that Castano failed to demonstrate a government
nexus to the Gulf Clan's threats and, for that reason, he was not
eligible for asylum or withholding of removal.
B. Procedural Challenges
Castano also lodges two procedural challenges to the
BIA's decision. First, he argues that the BIA should have
evaluated de novo whether the undisputed facts in the record
demonstrated that the Colombian government was unable to protect
his family from the Gulf Clan. Instead, according to Castano, the
BIA merely "rubber-stamped the IJ's conclusion." Second, he
contends that the agency "turned a blind eye to the fact that
despite some modest police response, the [death] threats against
[him and his family] did not abate," thus committing a legal error
by overlooking significant aspects of the record. The federal
government replies that Castano has waived his first argument by
not including it in the "Statement of Issues" in his brief to us.
Putting aside any potential waiver, Castano's procedural arguments
are not supported by our precedent or the record.
- 19 - First, the BIA applied the correct standard of review to
the IJ's unwilling-or-unable determination. Our precedent makes
clear that whether a government is unwilling or unable to protect
an individual from harm by a private actor is a factual question,
and thus the BIA should review an IJ's finding on this issue for
clear error. See Medina-Suguilanda, 121 F.4th at 322.
Second, both the IJ and the BIA noted in their respective
decisions that the telephonic threats against Castano and his
family continued, and thus they did not overlook this aspect of
the record. Indeed, the BIA expressly discussed in its decision
that, "[a]s stated by the [IJ], Gulf Clan members continued their
telephonic threats, which were not acted upon, but did not threaten
[Castano] in person again after he was provided with police
protection." The BIA's decision may have been brief, but it was
sufficient to "reveal the essence of [its] decisional calculus."
Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir. 2009). "[A]n
agency's decision must illuminate the path of its reasoning, but
it need not do so at great length or in exquisite detail." Id.
This is especially so if the BIA is adopting the IJ's decision.
See id. at 460-61. Here, the BIA explained, citing many of the
cases we discussed above, that "where a government makes a
concerted effort to combat a particular problem, the fact of
limited success is not evidence that the government is unable or
- 20 - unwilling to control it." Thus, the agency considered, and did
not overlook, the evidence that Castano identifies.
IV. CONCLUSION
For all these reasons, we deny the petition for review.
- 21 -