United States Court of Appeals 

for the Fifth Circuit 

No. 19-60620 

Lamy Bertrand, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

Petition for Review of the Order of the 

Board of Immigration Appeals 

Agency No. A209 395 475 

Before Davis, Elrod, and Haynes, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

Lamy Bertrand, a native and citizen of Haiti, petitions for review from 

an adverse decision by the Board of Immigration Appeals. Bertrand contends 

that the BIA erred in denying his requests for asylum and withholding of 

removal on the ground that the Haitian government was neither unable nor 

unwilling to prevent the violence committed against him. Because Bertrand 

does not carry his burden to show any error by the BIA, we DENY the 

petition for review. 

United States Court of Appeals 

Fifth Circuit 

FILED 

June 3, 2022 

Lyle W. Cayce 

Clerk 

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Lamy Bertrand applied for admission to the United States at a 

California point of entry in 2016. Upon being detained and transferred to a 

detention center in Texas, Bertrand filed applications for asylum, 

withholding of removal, and for protection under the Convention Against 

Torture (CAT). Before the Immigration Judge, Bertrand recounted several 

violent attacks allegedly committed against him and his family members in 

Haiti. 

Starting in August of 2009, Bertrand began receiving threatening 

telephone calls, which he attributed to his being a voodoo priest. He testified 

that he reported at least some of these calls, along with the phone numbers, 

to the police. About a month later, Bertrand testified that individuals entered 

his clothing shop, beat him up, cut him with a machete, and started to pour 

gasoline on him before being run off by a passing police car. Neither Bertrand 

nor any witnesses recognized his attackers. In the wake of his attack, the 

police took Bertrand to the hospital and took his report. However, Bertrand 

testified that while he was still hospitalized, his attackers returned to his shop 

and destroyed it. 

According to Bertrand, another attack occurred in October of that 

year. Bertrand testified that, while he was away from home, a “group of 

people” entered his home and killed his sister, his daughter, and another 

woman. He arrived home to see his uncle and his nephew giving a report to 

the police and a local judge, who said that they would investigate. In 

response, Bertrand left to go live with his mother in another city in Haiti, 

about four to five hours away by car. 

Bertrand testified that another incident occurred at mother’s house in 

December of 2009. He says that a group of people with “machete stick[s]” 

entered his mother’s house, beat her, and burned the house down. His 

mother was hospitalized for around seven days, but Bertrand escaped by 

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running “to the back of the house [and] jump[ing] through a window.” His 

mother filed a police report and, when she was discharged from the hospital, 

moved with Bertrand to the Dominican Republic, where they stayed together 

for four years. 

In August of 2013, Bertrand obtained a travel visa and moved to Brazil. 

And in July of 2016, Bertrand left Brazil for the United States, where he 

arrived later that year. 

The IJ denied all requested relief. The BIA affirmed and dismissed 

his appeal. Bertrand then filed a petition for review in this court. However, 

the government filed an unopposed motion to remand to the BIA for it to 

consider “whether further briefing would be appropriate in light of 

[Bertrand’s] claim that the Haitian Government was unable or unwilling to 

control private actors who threatened [Bertrand].” This court granted the 

motion and remanded the case to the BIA. On remand, the BIA reaffirmed 

its original decision, denied all forms of relief, and again dismissed the appeal. 

In relevant part, the BIA affirmed that Bertrand had not carried his burden to 

show that the Haitian government was unable or unwilling to protect 

Bertrand from his attackers. 

This petition for review follows. In it, Bertrand does not address the 

BIA’s denial of CAT relief or withholding of removal under 8 U.S.C. 

§ 1231(b)(3). Thus, he forfeits any claim about CAT relief, as well as any 

claim about withholding of removal that does not overlap with his asylum 

claim.1

 Therefore, the only questions here are whether: (1) the BIA applied 

the correct legal standard in determining that Bertrand had not shown the 

1 United States v. Bowen, 818 F.3d 179, 192 n.8 (5th Cir. 2016) (“We have made 

clear that any issue not raised in an appellant’s opening brief is forfeited.”). 

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Haitian government to be unable or unwilling to protect him; and (2) 

substantial evidence supported its conclusion. 

This court reviews the BIA’s legal conclusions de novo, and in 

appropriate cases applies Chevron deference to precedential BIA decisions. 

Jaco v. Garland, 24 F.4th 395, 401 (5th Cir. 2021).2

 “We use the substantial 

evidence standard to review the IJ’s factual conclusion that an alien is not 

eligible for asylum.” Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005). 

“Under this deferential standard, we will grant a petition for review only 

when the record evidence ‘compels’ a conclusion contrary to the agency’s 

determination.” Gjetani v. Barr, 968 F.3d 393, 396 (5th Cir. 2020) (quoting 

Zhao, 404 F.3d at 306); Wang v. Holder, 569 F.3d 531, 536–37 (5th Cir. 2009).3

 

“The applicant has the burden of showing that the evidence is so compelling 

that no reasonable factfinder could reach a contrary conclusion.” Chen v. 

Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).4

 

2 Chevron deference is not relevant here because the BIA’s decision was nonprecedential. 

3

 This is true even when, as here, we must accept the alien’s version of the facts 

because the IJ did not make a credibility determination. See Gjetani, 968 F.3d at 396, 397 

n.2; Zhao, 404 F.3d at 306. The parties do not dispute the standard of review and therefore 

forfeit any challenge to it. Bowen, 818 F.3d at 192 n.8. In any event, for the reasons that 

follow, the BIA did not err even under de novo review. Texas v. United States, 809 F.3d 134, 

178 n.158 (5th Cir. 2015) (“This circuit follows the rule that alternative holdings are binding 

precedent and not obiter dictum.” (quoting United States v. Potts, 644 F.3d 233, 237 n.3 

(5th Cir. 2011))). 

4

 The Supreme Court has recently emphasized the “very limited role” for courts 

of appeals in reviewing the Attorney General’s discretionary-relief decisions. Patel v. 

Garland, 142 S. Ct. 1614, 1618, 1622–23 (2022) (holding that 8 U.S.C. § 1252(a)(2)(B) 

precludes federal-court review of factual findings made in the discretionary-relief 

proceedings enumerated in § 1252(a)(2)(B)(i)). Nonetheless, asylum proceedings under 

§ 1158(a) are not listed in § 1252(a)(2)(B)(i) and are expressly excepted from a companion 

provision, § 1252(a)(2)(B)(ii). So we may review factual findings in asylum cases, but the 

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The attorney general may grant asylum to “refugees.” OrellanaMonson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012). Among other 

requirements, refugees must either have suffered past persecution or have a 

well-founded fear of future persecution. Id. (citing 8 C.F.R. § 208.13(b)).

Persecution refers to harm inflicted either by the government or by private 

actors whom the government “is unable or unwilling to control.” E.g., 

Sanchez-Amador v. Garland, 30 F.4th 529, 533 (5th Cir. 2022). Where private 

actors are concerned, the applicant must show that the government 

condoned the private violence “or at least demonstrated a complete 

helplessness to protect the [applicant].” Shehu v. Gonzales, 443 F.3d 435, 437 

(5th Cir. 2006) (quoting Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000)). 

This requires showing “that an alien’s home government has ‘more than 

difficulty . . . controlling private behavior.’” Gonzales-Veliz v. Barr, 938 F.3d 

219, 233 (5th Cir. 2019) (quoting Matter of A-B-, 27 I. & N. Dec. 316, 337 (AG 

2018) (A-B-I), vacated by Matter of A-B-, 28 I. & N. Dec. 307 (AG 2021) (AB-III), and Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (quoting 

In re McMullen, 17 I. & N. Dec. 542, 546 (BIA 1980))).5

 

“substantial evidence” standard strictly limits our ability to disturb them. 8 U.S.C. 

§ 1252(b)(4)(B). Furthermore, “[t]he Supreme Court recently clarified that we have 

jurisdiction to consider mixed questions of law and fact [under § 1252(a)(2)(D)], holding 

that ‘the application of law to undisputed or established facts is a “questio[n] of law” 

within the meaning of § 1252(a)(2)(D),’” which excludes “constitutional claims” and 

“questions of law” from § 1252(a)(2)(B)’s limitations on judicial review. Alexis v. Barr, 

960 F.3d 722, 730 (5th Cir. 2020) (second alteration in original) (quoting Guerrero-Lasprilla 

v. Barr, 140 S. Ct. 1062, 1069 (2020)); 8 U.S.C. § 1252(a)(2)(D). 

5 Since the parties’ briefs were filed, the Attorney General vacated A-B-I, including 

its “unable or unwilling to control” analysis, in A-B-III pending further rulemaking. 

Nonetheless, this court affirmed in Gonzales-Veliz that A-B-I merely applied the law of this 

circuit. Gonzales-Veliz, 938 F.3d at 233; Meza Benitez v. Garland, No. 19-60819, 2021 WL 

4998678, at *4 n.1 (5th Cir. 2021) (“[A-B-I] left unchanged the prior law in the Fifth 

Circuit . . . .”). Because A-B-I applied the legal standard also required by this court’s 

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The BIA correctly applied this legal standard, and substantial 

evidence supports its conclusion. The police responded to Bertrand’s 

September 2009 attack, took Bertrand to the hospital, and took a report about 

the incident. The police, along with a judge, responded to the October 2009 

attack on Bertrand’s home, took a report, and said that they would 

investigate. And the police similarly responded to the December 2009 attack 

on his mother’s house—in an entirely different city—and took her report. In 

the BIA’s words, the government “interviewed witnesses, came to the scene 

of a crime multiple times, and took the respondent to the hospital when he 

was attacked.” 

Bertrand has not carried his burden of “showing that the evidence is 

so compelling that no reasonable factfinder” could agree with the BIA’s 

decision. Chen, 470 F.3d at 1134. The first two alleged attacks occurred 

within roughly one month of each other. The third attack occurred roughly 

two months later in an entirely different city. And, crucially, neither 

Bertrand nor any witnesses were ever able to identify the attackers. A 

government is not “unable or unwilling” to protect against private violence 

merely because it has difficulty solving crimes or anticipating future acts of 

violence. Under these circumstances, substantial evidence confirms the 

conclusions of the IJ and the BIA that the Haitian government was not unable 

or unwilling to protect him.6 

precedents, the Attorney General’s vacation of A-B-I in A-B-III does not change the 

“unable or unwilling” standard reflected in Gonzales-Veliz and applied in this circuit. 

Sanchez-Amador, 30 F.4th at 533 n.3 (“[O]ur caselaw on the ‘unable or unwilling’ standard 

remains intact [post-A-B-III].”). 

6

 Bertrand contends that the BIA impermissibly departed from a precedential BIA 

decision, In re O-Z- & I-Z-, 22 I. & N. Dec. 23 (BIA 1998). In that case, a father and son 

claimed to have been persecuted in Kharkiv, Ukraine, on the basis of their Jewish 

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Bertrand and amici law professors contend that this circuit and others 

have erred by interpreting the “unable to control” standard to mean 

“complete helplessness.”7

 But these are simply different articulations of the 

same standard.8

 And, in any event, this panel is bound by precedent to the 

nationality. Id. at 23. The alleged persecution consisted primarily of several violent 

encounters between February 1992 and July 1993. Id. at 24. And the father “reported the 

[1992] burglary as well as the January 1993 and July 1993 assaults to the police.” Id. Noting 

that the police “took no action beyond writing a report,” the BIA concluded that the 

“Ukrainian Government was unable or unwilling to control the respondent’s attackers or 

protect him.” Id. at 26. 

O-Z- & I-Z- is distinguishable on several grounds. First, the BIA in O-Z- & I-Z- did 

not specify whether its holding rested on either the government’s unwillingness to protect 

the respondents or its inability to do so. Id. The failure to do anything beyond writing 

reports is stronger evidence of an unwillingness to help, and a government will likely only 

be “unable” to help if it is first willing to do so. In this case, there is evidence that the 

Haitian government was willing to help Bertrand. As the BIA recognized, the government 

did more than write reports. The police took Bertrand to the hospital, interviewed 

witnesses, and visited the scene of a crime on multiple occasions. 

Second, the persecution in O-Z- & I-Z- occurred over a longer period of time and 

apparently within the same geographic area. Id. at 24. In contrast, the persecution in this 

case occurred within several months and in different cities. Furthermore, there was 

evidence that the persecution in O-Z- & I-Z- was linked to a specific “nationalistic, proUkrainian independence movement.” Id. Here, while Bertrand did testify to turning over 

the phone numbers associated with his threatening calls, neither he nor any witnesses were 

ever able to identify any of his attackers. For these reasons, the BIA was justified in 

distinguishing O-Z- & I-Z-. 

7 Gonzales-Veliz, 938 F.3d at 233; Shehu, 443 F.3d at 437; see also Garcia-Garcia v. 

Mukasey, 294 F. App’x 827, 829 (5th Cir. 2008). 

8

 Both articulations “accomplish the same purpose”; they both require proof that 

“an alien’s home government has ‘more than difficulty . . . controlling private behavior.’” 

Gonzales-Veliz, 938 F.3d at 233 (quotation omitted). To that end, both rightly distinguish 

between the standard difficulties inherent in law enforcement and an utter inability to 

prevent private violence. As the BIA said on remand, “[a]n unsuccessful investigation is 

not conclusive evidence that the government was unable or unwilling to protect the 

respondent.”

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“complete helplessness” articulation. Mercado v. Lynch, 823 F.3d 276, 279 

(5th Cir. 2016) (“Under our rule of orderliness, ‘one panel of our court may 

not overturn another panel’s decision, absent an intervening change in the 

law. . . .’” (quoting Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 

(5th Cir. 2008))).9

 

Moreover, we hold that under either articulation of the relevant 

standard, the BIA did not err in concluding that Bertrand does not qualify for 

asylum. And because Bertrand does not qualify for asylum, he necessarily 

cannot meet the more stringent showing required for withholding of removal. 

Orellana-Monson, 685 F.3d at 522. 

* * * 

 For these reasons, the petition for review is DENIED. 

Bertrand and amici law professors urge courts to instead focus on whether the 

government can provide the applicant with “effective protection.” But the “unable or 

unwilling” standard already does that. This standard looks at whether the government is 

“completely helpless” to protect the applicant, i.e., completely helpless to provide the 

applicant with effective protection. See Gonzales-Veliz, 938 F.3d at 233–34 (explaining that 

the government must demonstrate a “complete helplessness” to protect the victim). Yet 

even so, standard investigatory constraints—like insufficient evidence—that impede the 

swift resolution of investigations are not conclusive evidence that the government is 

“unable or unwilling” to protect an applicant from future violence. See id. at 233 (stating 

that the home government must have “more than difficulty . . . controlling private 

behavior” (quotation omitted)); see also Sanchez-Amador, 30 F.4th at 534 (“The fact that 

the police could not complete their investigation to Sanchez-Amador’s satisfaction within 

a single week does not compel the conclusion that they were unable or unwilling to help 

her.”). 

9

 See supra note 7. 

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