Vargas Rincon: Investigation Evidence Supported the Agency’s Finding on Government Control

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Unpublished and nonprecedential: Vargas Rincon v. Blanche, No. 25-3332, is not precedent except as Ninth Circuit Rule 36-3 permits. The court denied a Colombian family’s petition from the BIA’s denial of asylum, withholding, and CAT protection. The panel held that the BIA stated the unwilling-or-unable standard correctly and that police response, prosecutorial follow-up, and country evidence allowed—though did not compel—the finding that the Colombian government was willing and able to respond to the Gulf Clan.

Scope and standard of judicial review

The BIA conducted its own legal and evidentiary review rather than simply adopting the IJ. The Ninth Circuit therefore reviewed the BIA decision, including portions of the IJ’s analysis expressly adopted. Legal conclusions received de novo review; factual findings and applications of undisputed fact to law received substantial-evidence review.

That standard was outcome-critical. The court could reverse the factual determination only if any reasonable factfinder reviewing the record would be compelled to reach the contrary conclusion. Showing that evidence might support another inference was not enough.

The private-actor persecution framework

For persecution by a nonstate actor, an asylum applicant must show harm by forces the government is unwilling or unable to control. The family argued that the BIA effectively demanded proof of both unwillingness and inability. The panel disagreed, noting that the agency repeatedly used the disjunctive rule and separately considered indicators of willingness and capacity.

The BIA examined police commitment to investigate death threats, a prosecutor’s follow-up after an assassination attempt, and country materials describing government efforts against cartel violence. The Ninth Circuit concluded that this was the correct legal inquiry under its private-actor cases.

Why the record did not compel a contrary finding

The family left Colombia three weeks after reporting death threats and one day after reporting the attempted assassination; a prosecutor contacted them a few weeks later as part of the investigation. Country evidence also described efforts and successful prosecutions targeting armed cartel leaders and members. The petitioners did not dispute willingness but argued that Colombia lacked actual ability to control the Gulf Clan.

The panel answered that “[a] government’s failure to ‘prevent all risk of harm’ does not necessarily demonstrate inability to control a non-state actor.” Vargas Rincon v. Blanche, No. 25-3332, mem. at 4 (9th Cir. Sept. 18, 2026) (unpublished). Given the response chronology and country record, substantial evidence supported the BIA because the evidence did not compel a finding of inability.

CAT, disposition, and analytical limits

The panel also held—assuming the issue was sufficiently preserved—that substantial evidence supported the BIA’s conclusion that the petitioners had not shown it more likely than not they would be tortured by or with government consent or acquiescence. It denied the petition and the opposed stay motion.

The memorandum does not establish that Colombia always controls the Gulf Clan or that making a police report defeats every asylum claim. The inquiry is record-specific and forward-looking. Response delays, corruption, impunity, threats after reporting, local versus national capacity, and contrary country materials may matter in another case. Here, deferential review and the particular evidence controlled.

What this means in practice

• Document each request for government help, the agency response, follow-up, delay, failure, and any retaliation after reporting.
• Connect country evidence to the locality, actor, time period, and type of state response rather than relying on generalized violence.
• Address unwillingness and inability as alternative grounds and explain why nominal efforts did or did not provide meaningful protection.
• For CAT, separately analyze likelihood of torture and government consent or acquiescence; asylum analysis is not a substitute.

Related reading: Deportation defense practice; Removal defense FAQ; Removal proceeding guide.