Asylum seeker failed to show Guatemalan government was unwilling or unable to control her persecutors and protect her.

In K.H. v. Barr, a published opinion issued Monday, the Sixth Circuit set forth an analysis to be used when determining if an asylum seeker has established that her home country is "unwilling or unable" to control persecutors and protect her.

In the removal proceeding below, “the parties stipulated that (1) the harm K.H. experienced rose to the level of persecution and (2) K.H. was persecuted on account of her race and her membership in a particular social group.  Thus, the only remaining issue was whether the Guatemalan government was unable or unwilling to control K.H.’s persecutors and protect her.”

The Sixth Circuit took the opportunity to provide guidance on the “unwilling or unable” analysis. In so doing, it rejected the First Circuit’s “one-dimensional approach.” Instead, the Sixth Circuit has instructed the immigration courts to “look to two general categories of information:  (1) the government’s response to an asylum applicant’s persecution and (2) general evidence of country conditions.”

Despite the Immigration Judge and BIA applying the incorrect analysis, the Sixth Circuit proceeds to review the facts of the case and concludes there is “substantial evidence” to support the BIA’s determination that “K.H. failed to show that the Guatemalan government was unwilling or unable to control her persecutors and protect her.” The Circuit therefore affirms the BIA’s finding that K.H. failed to meet her burden for asylum.

The Sixth Circuit further held that the BIA did not abuse its discretion when if found K.H. was not eligible for humanitarian asylum because she had failed to establish that she suffered past persecution.