Persecution by Government Actors and Non-State Actors in Asylum Claims

Date of Information: 05/12/2026

Check back soon; we update these materials frequently.

Introduction

One of the most misunderstood aspects of American asylum law is the distinction between persecution by a government and harm inflicted by private individuals. United States asylum law does not provide protection against all forms of violence, discrimination, criminality, or instability abroad. Rather, asylum law is designed to protect individuals who face persecution that their own government either inflicts, condones, sponsors, tolerates, or is unable or unwilling to stop.

That distinction is critical. A person fleeing ordinary crime, generalized civil disorder, or random violence usually does not qualify for asylum. By contrast, a person targeted by a government—or by forces the government cannot or will not control—may qualify for protection under U.S. immigration law if the persecution is connected to a protected ground.

The General Rule: Asylum Is Not a Remedy for Ordinary Private Violence

Under the Immigration and Nationality Act (“INA”), asylum may be granted to a person who meets the statutory definition of a “refugee.” See INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). A refugee is a person who is unable or unwilling to return to his or her country because of persecution or a well-founded fear of persecution on account of:

Not every serious harm constitutes “persecution” for asylum purposes. Equally important, not every persecutor creates a viable asylum claim. American asylum law has long recognized that persecution generally must involve some connection to state power. In the classic asylum paradigm, the persecutor is the government itself: police, intelligence services, military forces, political authorities, or other organs of the state.

Examples include:

Dissidents imprisoned by authoritarian governments
Religious minorities persecuted under blasphemy laws
Political activists tortured by security services
Ethnic minorities targeted by state-backed militias
LGBTQ individuals criminalized by the government itself

In these scenarios, the nexus to state action is obvious. But many modern asylum claims arise in a more complicated context: violence by gangs, militias, insurgent organizations, cartels, clans, terrorist groups, extremist movements, or abusive family members. Those claims raise a more difficult question: When does violence by a private actor become persecution for asylum purposes?

The “Unable or Unwilling to Control” Standard

American asylum law recognizes an important and longstanding exception to the general rule requiring state involvement. A persecutor does not need to be a formal government official if the applicant can demonstrate that the government is unable or unwilling to control the persecutor. This doctrine is foundational in modern asylum jurisprudence. Under this framework, persecution by non-state actors may qualify where:

The government lacks the ability to stop the persecution;
The government refuses to intervene;
The authorities are corrupt, complicit, or sympathetic to the persecutors;
Law enforcement is ineffective or nonexistent;
Reporting the harm would be futile or dangerous; or
The state has effectively lost control over portions of its territory.

The principle recognizes an important reality of international affairs: governments do not always monopolize violence within their own borders. This is especially the case in environments identified in sociological circles as “undergoverned spaces.”

In many countries, non-state organizations wield extraordinary coercive power. Cartels, insurgent groups, sectarian militias, tribal organizations, terrorist networks, and criminal syndicates may exercise de facto territorial control that rivals or exceeds the authority of the state itself. In those circumstances, the distinction between “governmental” and “private” persecution can become largely theoretical.

Historical Origins of the Doctrine

The “unable or unwilling” doctrine developed from international refugee law principles after World War II and was incorporated into American asylum jurisprudence through administrative and federal court decisions. The doctrine reflects the underlying purpose of refugee protection: protecting individuals whose governments cannot or will not protect them. Importantly, asylum law does not require proof that the government affirmatively supports the persecution. Passive tolerance, institutional weakness, deliberate indifference, or systemic incapacity may suffice. The doctrine is especially important in modern conflicts involving:

Failed states
Civil wars
Insurgencies
Warlordism
Narco-terrorism
Sectarian violence
State collapse
Corrupt or captured law enforcement systems

Circuit Splits and Differences Between Federal Courts

Although the “unable or unwilling to control” doctrine is recognized nationwide, federal courts do not always apply the standard identically. Outcomes can vary significantly depending on the federal circuit hearing the case.

Some circuits apply the doctrine relatively flexibly, especially where country-conditions evidence demonstrates systemic corruption, institutional weakness, territorial loss of control, or widespread impunity. Other circuits apply the doctrine more narrowly and place greater emphasis on whether the applicant personally sought governmental protection before fleeing.

The Fifth Circuit, in particular, has often applied a comparatively demanding version of the standard. In several cases, the Fifth Circuit has emphasized that applicants generally should provide authorities a meaningful opportunity to respond before concluding that protection would be futile. See, e.g., Sanchez-Amador v. Garland, 30 F.4th 529, 534–35 (5th Cir. 2022) (holding that evidence supported denial where applicant fled before police completed investigation and relied largely on a subjective belief that authorities would not protect her). The Fifth Circuit has also repeatedly stated that persecution by private actors requires proof that authorities either condoned the persecution or demonstrated “complete helplessness” in preventing it. See Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006); Shehu v. Gonzales, 443 F.3d 435, 437 (5th Cir. 2006).

Other circuits have sometimes taken a broader approach. The Sixth Circuit, for example, recently emphasized that adjudicators must examine not only the government’s direct response to a particular report, but also broader documentary evidence concerning country conditions, institutional weakness, and the practical realities facing victims seeking protection. See Tista-Ruiz de Ajualip v. Garland, 114 F.4th 487, 500–03 (6th Cir. 2024). In that case, the Sixth Circuit concluded that substantial evidence did not support the agency’s finding that Guatemala was willing and able to protect the applicant’s family from severe domestic violence and death threats.

Similarly, several circuits have recognized that requiring victims to repeatedly seek protection from corrupt or ineffective authorities may be unrealistic where evidence demonstrates that reporting abuse would itself create additional danger.

These inter-circuit differences can materially affect:

gang-based asylum claims;
domestic violence claims;
LGBTQ persecution claims;
reporting requirements;
internal-relocation analysis; and
particular-social-group litigation.

As a practical matter, federal asylum jurisprudence continues to evolve rapidly, particularly in cases involving non-state actors operating in regions with weak governance, insurgent violence, cartel influence, or institutional corruption.

Common Categories of Non-State Actor Claims

Gang-Based Persecution

Many asylum claims from Central America involve persecution by transnational gangs such as MS-13 or Barrio 18. These cases often involve:

extortion;
forced recruitment;
retaliation for resisting gang authority;
violence against witnesses;
violence against family members;
gender-based targeting; and
targeting of former gang members.

These claims are difficult because immigration courts often distinguish between generalized criminal violence and persecution connected to a protected ground. Applicants must usually demonstrate both:

a nexus to a protected ground; and
that the government cannot or will not protect them.

Some gang-based claims have nevertheless succeeded where applicants demonstrated individualized targeting and governmental inability or unwillingness to protect. See, e.g., Hernandez-Avalos v. Lynch, 784 F.3d 944, 949–52 (4th Cir. 2015) (finding persecution where gang threatened mother for refusing to allow recruitment of her son); Crespin-Valladares v. Holder, 632 F.3d 117, 125–28 (4th Cir. 2011) (recognizing family members of anti-gang witnesses as a cognizable particular social group); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1088–93 (9th Cir. 2013) (en banc) (recognizing witnesses who testified against gangs as a particular social group).

By contrast, courts often reject claims framed solely as exposure to ordinary criminal violence or generalized gang activity. See, e.g., Sanchez-Amador v. Garland, 30 F.4th 529, 533–35 (5th Cir. 2022) (upholding denial where applicant fled before authorities completed investigation and evidence did not compel finding that government was unable or unwilling to protect her).

Terrorist and Insurgent Organizations

Asylum claims may also arise from persecution by insurgent or terrorist organizations. Examples include:

Taliban persecution in Afghanistan;
ISIS persecution in Iraq and Syria;
FARC persecution in Colombia;
Al-Shabaab persecution in Somalia; and
Boko Haram persecution in Nigeria.

These organizations often operate as quasi-governments in certain territories. In some regions, they exercise greater practical authority than the state itself.

Federal courts have repeatedly recognized that persecution by insurgent organizations may qualify where the state lacks effective territorial control or cannot provide meaningful protection. See, e.g., Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 107–10 (3d Cir. 2010) (FARC threats and targeting in Colombia); Delgado v. Mukasey, 508 F.3d 702, 706–09 (2d Cir. 2007) (recognizing persecution by FARC where applicant resisted cooperation); Matter of Villalta, 20 I. & N. Dec. 142, 147–49 (B.I.A. 1990) (Salvadoran civil-war persecution by insurgent actors).

Gender-Based and Domestic Violence Claims

Claims involving domestic violence and gender-based persecution have produced significant legal controversy in American asylum law.

Historically, many such claims were denied on the theory that domestic abuse constituted “private” violence rather than persecution. Over time, however, courts and the Board of Immigration Appeals increasingly recognized that some governments systematically fail to protect victims of domestic abuse, honor violence, forced marriage, female genital mutilation, or gender-based violence.

Important cases include Matter of A-R-C-G-, 26 I. & N. Dec. 388, 392–95 (B.I.A. 2014) (recognizing married women in Guatemala unable to leave their relationships as a cognizable particular social group); Tista-Ruiz de Ajualip v. Garland, 114 F.4th 487, 500–04 (6th Cir. 2024) (holding record compelled conclusion that Guatemalan authorities were unable or unwilling to protect family from severe domestic violence and death threats); and Abay v. Ashcroft, 368 F.3d 634, 638–42 (6th Cir. 2004) (female genital mutilation claim involving persecution by family and community actors). At the same time, these claims remain heavily litigated and continue to evolve across different presidential administrations and federal circuits.

LGBTQ Persecution by Non-State Actors

In some countries, LGBTQ individuals face severe violence not only from the government itself but from extremist groups, militias, family networks, religious organizations, or vigilante actors. Federal courts have recognized asylum claims where governments tolerated or failed to prevent anti-LGBTQ violence by private actors. See, e.g., Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062–74 (9th Cir. 2017) (en banc) (finding agency improperly discounted evidence of sexual abuse and governmental inability to protect gay youth in Mexico); Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088–91 (9th Cir. 2005) (recognizing persecution of gay man where authorities participated in and tolerated abuse).

What Evidence Helps Prove Government Inability or Unwillingness?

Applicants frequently misunderstand the type of evidence necessary to establish state inability or unwillingness to protect. Strong evidence often includes:

Prior Police Reports

Evidence that the applicant sought protection from authorities but received no meaningful assistance can be highly important. Examples include:

Refused police reports
Ignored complaints
Failure to investigate
Threats by police
Collusion between authorities and persecutors

However, asylum law does not always require reporting to authorities. In many situations, reporting may be futile or dangerous.

Country Conditions Evidence

Country conditions evidence is often central to these claims. Useful evidence may include:

U.S. State Department Human Rights Reports
United Nations reports
NGO documentation
Academic research
News reporting
Expert testimony

This evidence may demonstrate:

Systemic corruption
Impunity
Territorial loss of state control
Human rights abuses
Government collusion with criminal organizations

Evidence of State Collapse or Weak Governance

Some governments retain formal sovereignty while lacking meaningful control over substantial portions of the country. This issue frequently arises in cases involving:

Civil wars
Failed states
Narco-controlled regions
Militia-dominated territories

Modern insurgency and counterinsurgency literature repeatedly recognizes that governments can lose practical control over regions long before formal collapse occurs. Revolutionary movements often establish parallel institutions, shadow governance structures, and territorial dominance while the state remains internationally recognized as sovereign. Asylum law sometimes intersects directly with those realities.

The Difference Between Generalized Violence and Persecution

One of the most difficult issues in these claims is distinguishing generalized violence from individualized persecution. Even in extremely dangerous countries, widespread violence alone is usually insufficient for asylum.

For example:

high homicide rates alone do not establish asylum eligibility;
general gang violence alone does not establish persecution; and
civil disorder alone is usually insufficient.

The applicant must still show:

targeting connected to a protected ground; and
government inability or unwillingness to provide protection.

Federal courts frequently emphasize this distinction. Compare Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”), with Hernandez-Avalos v. Lynch, 784 F.3d 944, 949–52 (4th Cir. 2015) (finding persecution where threats were specifically connected to petitioner’s status as the mother of a child targeted for gang recruitment).

Similarly, generalized fear arising from civil unrest or criminal instability is ordinarily insufficient absent individualized targeting. See Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999). But individualized threats, retaliation, or targeting connected to family membership, political opinion, religion, or another protected ground may transform what initially appears to be generalized violence into legally cognizable persecution.

Beware of Internal-Relocation Arguments

Even where persecution by non-state actors is established, the government may argue that the applicant could safely relocate elsewhere within the country. Internal relocation analysis becomes especially important where:

The persecutor operates regionally rather than nationally;
The government retains control over some areas;
Violence is localized.

However, relocation may not be reasonable where:

The persecutor has national reach;
The government lacks effective control broadly;
The applicant would face severe hardship;
The applicant could be tracked through family or social networks.

Modern Trends and Continuing Controversy

Claims involving non-state actors remain among the most heavily litigated and politically contested issues in asylum law.

Several broader trends have influenced these cases:

Expansion of transnational criminal organizations;
Growth of quasi-state insurgent movements;
Collapse of governance in certain regions;
Increased recognition of gender-based persecution;
Evolving jurisprudence concerning particular social groups.

Federal courts and presidential administrations have also differed significantly regarding how broadly the “unable or unwilling” standard should be applied.

As a result, this area of law continues to evolve rapidly.

Conclusion

American asylum law does not provide protection against all violence or instability abroad. In general, asylum requires persecution connected in some meaningful way to state power.

Nevertheless, asylum law also recognizes a critical reality of modern conflict and governance: governments sometimes lose the ability or willingness to protect their own populations.

Where a government cannot or will not control persecutors—whether gangs, insurgents, militias, terrorist organizations, extremist movements, or abusive private actors—persecution by non-state actors may still qualify as persecution under American asylum law.

The central question is not merely whether the persecutor wears a government uniform. The real inquiry is whether the applicant’s own country is capable of providing meaningful protection.

Discuss Your Asylum Case With Charles International Law

Claims involving gangs, militias, insurgent organizations, domestic violence, trafficking networks, extremist groups, or other non-state actors are among the most legally complex areas of modern asylum law. These cases often require extensive country-conditions evidence, careful factual development, and sophisticated analysis of rapidly evolving federal case law.

Charles International Law represents asylum seekers in affirmative asylum proceedings, Immigration Court litigation, and federal appeals involving persecution by both governmental and non-state actors. To schedule a confidential consultation regarding your asylum or withholding-of-removal case, please use the scheduling tool below.

Frequently Asked Questions

1. Can I qualify for asylum if I was harmed by gangs or criminals rather than the government?

Possibly. American asylum law recognizes that persecution may come from non-state actors such as gangs, militias, traffickers, terrorist organizations, or abusive family members if the government is unable or unwilling to control them. However, generalized crime alone is usually not enough. The applicant must also show that the harm was connected to a protected ground such as political opinion, religion, nationality, race, or membership in a particular social group.

2. What does “unable or unwilling to control” mean in asylum law?

This standard refers to situations where a government cannot or will not provide meaningful protection against persecution. Examples may include police corruption, refusal to investigate crimes, collusion with gangs, systemic impunity, territorial loss of governmental control, or situations where reporting abuse would be dangerous or futile.

3. Do I always have to report threats or violence to the police before seeking asylum?

Not necessarily. Some courts recognize that reporting may be dangerous or futile in countries where authorities are corrupt, complicit, or ineffective. However, failure to report persecution can sometimes weaken an asylum claim, especially in certain federal circuits. Whenever possible, asylum applicants should carefully document any attempts to seek governmental protection.

4. Is generalized violence or a dangerous country enough to win asylum?

Usually not. High crime rates, civil unrest, or widespread violence alone generally do not qualify someone for asylum. The applicant must typically show individualized targeting connected to a protected ground and demonstrate that the government cannot or will not provide protection.

5. Can victims of domestic violence qualify for asylum?

In some cases, yes. Domestic violence claims have been heavily litigated and remain legally complex, but asylum may be available where the abuse is connected to a protected ground and the government systematically fails to protect victims.

6. Can LGBTQ individuals qualify for asylum based on violence from private individuals?

Yes. LGBTQ asylum claims may involve persecution by family members, vigilante groups, extremist organizations, militias, or other non-state actors. A key issue is often whether the government meaningfully protects LGBTQ individuals or instead tolerates, ignores, or participates in the abuse.

7. What evidence is most helpful in proving that a government could not protect me?

Important evidence may include:

police reports;
ignored complaints;
witness statements;
medical records;
country conditions reports;
human rights documentation;
expert testimony;
evidence of corruption or impunity; and
proof that similarly situated individuals were denied protection.

8. What is the difference between asylum and protection under the Convention Against Torture (CAT)?

Asylum requires persecution connected to a protected ground such as political opinion or religion. CAT protection does not require a protected ground but instead requires proof that the applicant is likely to face torture with the consent, acquiescence, or willful blindness of a public official or government actor.

9. Does it matter which federal circuit hears my asylum case?

Yes. Federal circuits sometimes interpret asylum law differently, particularly regarding:

gang-based claims;
domestic violence claims;
reporting requirements;
government inability or unwillingness to protect; and
particular social group definitions.

These differences can significantly affect litigation strategy and case outcomes.

10. Should I speak with an attorney before filing an asylum claim involving non-state actors?

Strongly yes. Claims involving gangs, militias, traffickers, insurgent groups, domestic violence, or other non-state actors are among the most legally complicated areas of asylum law. These cases often require careful development of country-conditions evidence, protected-ground analysis, corroborating documentation, and federal case law research.