998 F.3d 77
3rd Cir.2021Background
- Galeas Figueroa, a Honduran national, entered the U.S. without inspection in 2010, was removed, then reentered in 2012 and faced reinstatement of removal; he sought withholding of removal under the INA and protection under the CAT.
- He alleges Mara 18 (or MS-13 earlier) raped his sister, murdered his father, uncle, and cousins after police reports, threatened him and his family, and attempted extortion/kidnapping of his children; multiple police reports were filed but produced no prosecutions.
- An IJ denied relief (invoking res judicata for some prior issues); the BIA affirmed, finding private-actor violence but that the Honduran government neither condoned nor was helpless/unable to protect him—treating the "unable-or-unwilling-to-control" and the "condone-or-complete-helplessness" tests interchangeably.
- The Government moved to dismiss Galeas Figueroa’s petition under the fugitive-disentitlement doctrine based on an ICE bond-breach notice to his obligor; the Third Circuit found that evidence insufficient to justify dismissal.
- On the merits, the Third Circuit held the two private-actor standards legally equivalent and concluded that substantial evidence supported the BIA’s factual findings denying statutory withholding and CAT relief (Honduran police would likely investigate; that response is not legal acquiescence).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Motion to dismiss under fugitive-disentitlement doctrine | Galeas did not flee; bond form is insufficient proof of fugitive status | Bond-breach notice shows he failed to report and is a fugitive so petition should be dismissed | Denied — Government’s single I-323 to obligor was not sufficiently probative to justify discretionary dismissal |
| 2. Are the "unable-or-unwilling-to-control" and "condone-or-complete-helplessness" tests equivalent? | They are distinct; A-B- test is a heightened standard and BIA erred by using it | Tests are interchangeable formulations of the government-nexus requirement | Held — The tests are legally equivalent for attributing private-actor harm to the government |
| 3. Whether substantial evidence supports BIA denial of statutory withholding (government nexus) | Honduran police failed to prosecute prior crimes and country conditions show gangs operate with impunity; so gov’t is unable/unwilling to protect | Honduran government has taken steps to combat gangs; police-report deficiencies explain investigative failures; record does not compel a contrary finding | Held — Substantial evidence supports the BIA’s finding that the gov’t neither condoned the violence nor was completely helpless; withholding denied |
| 4. Whether BIA erred denying CAT relief by finding no governmental acquiescence | Government would be willfully blind/acquiescent to torture; past failures to prosecute show acquiescence | Honduran authorities would likely take reports and investigate; investigations are not acquiescence even if imperfect | Held — Substantial evidence supports BIA’s finding that police would likely investigate and that such investigatory response does not legally constitute acquiescence; CAT relief denied |
Key Cases Cited
- Molinaro v. New Jersey, 396 U.S. 365 (1970) (establishes fugitive-disentitlement doctrine for appellate dismissal)
- Ortega-Rodriguez v. United States, 507 U.S. 234 (1993) (recognizes dismissal of fugitive appeals)
- Degen v. United States, 517 U.S. 820 (1996) (cautions against overuse of disentitlement sanction)
- Arana v. INS, 673 F.2d 75 (3d Cir. 1982) (applies disentitlement in immigration context)
- Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285 (3d Cir. 2007) (discusses gov’t-nexus/unable-or-unwilling-to-control test)
- Stevic v. INS, 467 U.S. 407 (1984) (standard for withholding of removal under INA)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (deference to agency factual findings under substantial-evidence review)
- Myrie v. Att’y Gen., 855 F.3d 509 (3d Cir. 2017) (two-part governmental acquiescence analysis under CAT)
- Silva-Rengifo v. Att’y Gen., 473 F.3d 58 (3d Cir. 2007) (willful blindness/acquiescence framework for CAT)
- Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020) (outlier holding that A-B- imposes a heightened standard; not followed here)