Unwilling or Unable? The Failure to Conform the Nonstate Actor Standard in Asylum Claims to the Refugee Act

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Charles Shane Ellison is a Senior Lecturing Fellow at the Immigrant Rights Clinic at Duke Law School.

Anjum Gupta is a Professor of Law, Judge Chester J. Straub Scholar, and Director of the Immigrant Rights Clinic at Rutgers Law School.

Pursuant to its obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” For decades, both the Board of Immigration Appeals and federal courts recognized that individuals could obtain asylum based on a fear of persecution at the hands of nonstate actors, so long as the applicant demonstrated that their government was “unable or unwilling” to control the persecution.

As part of a wide-ranging attack on asylum, the Trump administration has sought to eliminate asylum based on nonstate actor persecution. In June 2018, the Attorney General (“AG”) issued a sweeping decision, Matter of A-B-, vacating a 2014 decision in which the Board of Immigration Appeals had held that those fearing domestic violence could obtain asylum relief. Among other things, the decision heightened the nonstate actor standard, requiring that applicants not only show that their governments were “unwilling or unable” to control the persecution, but also that the governments “condoned” or were “completely helpless” to stop the persecution.

After Matter of A-B- was decided, federal courts have disagreed as to which standard to apply, or, indeed, whether the two tests differ at all. Courts in some circuits found the two standards to be different and held that the change to heighten the nonstate actor test was arbitrary and capricious. Other courts held that the condone-or- completely-helpless formulation was merely a permissible interpretation of the familiar unwilling-or-unable standard.

In response, on January 14, 2021, the Acting AG issued Matter of A-B- II, redoubling the defense of the condone-or-complete-helplessness articulation and evoking the agency’s Chevron and Brand X authority to combat decisions from the courts of appeals that had rejected Matter of A-B- I. The Acting AG claimed that the condone-or-complete-helplessness articulation was not a departure from the older unable-or-unwilling test, but he argued that even if it was a change in policy, it constituted a reasonable construction of the ambiguous statutory term “persecution.” In his elaboration of the condone-or-complete-helplessness standard, however, the Acting AG revealed that the new test is vastly more difficult to satisfy. He concluded that any state effort to protect victims—including even the most minimal effort—is sufficient to deny asylum protections.

This Article provides the first systematic analysis of the impact of the heightened nonstate actor test in cases before both the Board of Immigration Appeals and federal courts. We argue that the two tests are, in fact, different by analyzing the plain language they employ as well as the divergent case outcomes they have produced. Then, rather than ground the nonstate actor standard in the term “persecution,” we anchor the standard in the statutory language defining refugees as those who are “unable or unwilling to avail [themselves] . . . of [state] protection,” a strangely ignored part of the U.S. asylum statute and international treaty. This novel theory has yet to be considered by the courts, but it demonstrates that the unwilling-or-unable test is the correct one. The heightened condone-or-complete-helplessness standard, by contrast, is antithetical to the protections afforded by the statute and treaty and poses an insurmountable hurdle for many of the world’s most vulnerable refugees.

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