Bertrand v. Garland, 36 F.4th 627

Background

Lamy Bertrand, a Haitian national, applied for admission to the U.S. in 2016 and sought asylum, withholding of removal, and CAT protection based on violent attacks in Haiti between 2009–2016.
Alleged incidents: threatening calls (attributed to his being a voodoo priest), a September 2009 machete attack on him and destruction of his shop (police took him to a hospital and took a report), an October 2009 attack at his home in which family members were killed (police and a judge said they would investigate), and a December 2009 attack on his mother’s house in a different city (police took her report; she later fled to the Dominican Republic with Bertrand).
Bertrand relocated abroad (Dominican Republic, then Brazil) before coming to the U.S. in 2016; neither he nor witnesses identified the attackers.
The IJ denied relief; the BIA affirmed. This court remanded once for BIA to consider the “unable or unwilling to control private actors” issue; on remand the BIA again denied relief. Bertrand appealed to the Fifth Circuit.
Bertrand did not challenge the BIA’s denial of CAT relief or non-asylum withholding claims in his opening brief and thus forfeited those claims; the Fifth Circuit therefore considered only the asylum-related unable/unwilling question and whether substantial evidence supported the BIA.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA applied correct legal standard for "unable or unwilling" to control private actors	Bertrand: BIA applied too stringent a “complete helplessness” standard and should assess whether government can provide "effective protection"	Government/BIA: Fifth Circuit precedent requires showing government more than difficulty; "complete helplessness" formulation reflects that standard	Held: BIA applied the correct circuit standard; the formulations are equivalent and binding Fifth Circuit precedent controls
Whether substantial evidence supports BIA’s finding that Haiti was not unable/unwilling to protect Bertrand	Bertrand: police investigations were ineffective, investigations stalled, and government failed to protect him from recurring attacks	Government/BIA: police responded to incidents, took reports, interviewed witnesses, transported victim to hospital; unsuccessful investigations do not prove inability/unwillingness	Held: Substantial evidence supports BIA—police action (reports, scene visits, hospital transport) shows government willingness/ability; record does not compel contrary conclusion
Whether BIA erred by departing from In re O‑Z‑ & I‑Z‑ precedent	Bertrand: O‑Z‑ & I‑Z‑ supports finding of unable/unwilling where police merely wrote reports and took no action	Government/BIA: O‑Z‑ & I‑Z‑ is distinguishable (longer period, same locale, evidence of link to nationalist movement; government there did nothing beyond reports)	Held: BIA permissibly distinguished O‑Z‑ & I‑Z‑ on facts; no erroneous departure from precedent
Whether Bertrand preserved non-asylum claims (CAT/withholding)	Bertrand attempted to raise them earlier	Government: Bertrand did not brief CAT/withholding in opening brief, so those claims are forfeited	Held: Bertrand forfeited independent CAT and withholding claims not overlapping with asylum issue

Key Cases Cited

Gonzales‑Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019) (articulates that government must have "more than difficulty" controlling private actors to be unable/unwilling)
Shehu v. Gonzales, 443 F.3d 435 (5th Cir. 2006) (government must condone private violence or be completely helpless to protect)
Orellana‑Monson v. Holder, 685 F.3d 511 (5th Cir. 2012) (refugee/asylum requirements: past persecution or well‑founded fear)
Sanchez‑Amador v. Garland, 30 F.4th 529 (5th Cir. 2022) (applies unable/unwilling standard post‑A‑B decisions)
Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (substantial‑evidence standard governs IJ factual findings in asylum cases)
Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (applicant must show evidence compels a contrary conclusion)
Gjetani v. Barr, 968 F.3d 393 (5th Cir. 2020) (accept petitioner’s version of facts when no credibility finding)
Guerrero‑Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (jurisdiction over mixed questions of law and fact)
Patel v. Garland, 142 S. Ct. 1614 (2022) (limits review of factual findings in certain discretionary‑relief proceedings)