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Matter of C-G-T-, Respondent 

Decided September 8, 2023 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals

(1) Determining whether the government is or was unable or unwilling to protect the 

respondent from harm is a fact-specific inquiry based on consideration of all evidence. 

(2) A respondent’s failure to report harm is not necessarily fatal to a claim of persecution 

if the respondent can demonstrate that reporting private abuse to government authorities 

would have been futile or dangerous. 

(3) When considering future harm, adjudicators should not expect a respondent to hide his 

or her sexual orientation if removed to his or her native country. 

FOR THE RESPONDENT: David B. Spitzer, Esquire, Boston, Massachusetts 

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; 

HUNSUCKER, Appellate Immigration Judge; NOFERI, Temporary Appellate 

Immigration Judge. 

NOFERI, Temporary Appellate Immigration Judge: 

The respondent, a native and citizen of the Dominican Republic, appeals 

from the Immigration Judge’s March 3, 2023, decision denying his 

applications for asylum and withholding of removal under sections 

208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality Act 

(“INA”), 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A) (2018).1

 The record will 

be remanded for the entry of a new decision.2

1

 The respondent has not challenged the Immigration Judge’s denial of protection under 

the regulations implementing the Convention Against Torture. Thus, we deem this issue 

waived on appeal. Matter of D-G-C-, 28 I&N Dec. 297, 297 n.1 (BIA 2021). 

2

 The Immigration Judge presided by televideo from the Immigration Adjudication 

Center in Richmond, Virginia, over the merits hearing in the Boston Immigration Court. 

The respondent correctly argues that precedent from the United States Court of Appeals 

for the First Circuit should govern this appeal because venue was changed to the Boston 

Immigration Court, which is located within the geographic boundaries of the First Circuit. 

See Matter of Garcia, 28 I&N Dec. 693, 703 (BIA 2023) (holding that the circuit law of 

the jurisdiction where venue lies will be controlling); see also Bazile v. Garland, 76 F.4th 

5, 13–14 (1st Cir. 2023) (finding Matter of Garcia persuasive in light of the agency’s 

expertise). 
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741 

I. FACTUAL AND PROCEDURAL HISTORY 

The respondent testified that he was abused by his father as a child 

because of his sexual orientation. He testified that he knew he was gay at a 

young age. He further testified that his father called him a girl, targeted him 

for particularly harsh treatment, and hit him almost every day. The 

declarations from the respondent’s brother and uncle state that they thought 

the respondent’s father beat the respondent because the father thought his son 

was gay. The respondent testified that he left his hometown when he was 

17 years old, and he came to the United States in 2007. The respondent 

testified that after he came to the United States, his mother told his father that 

he was gay, and the respondent’s father then abused his mother. In 2013, the 

respondent was diagnosed as HIV-positive. 

The Immigration Judge found the respondent credible and concluded that 

he is a member of two cognizable particular social groups, namely 

homosexual Dominican males and Dominicans who are HIV-positive. See 

Matter of Toboso-Alfonso, 20 I&N Dec. 819, 822–23 (BIA 1990) (holding 

that homosexuals in Cuba constituted a cognizable particular social group). 

The Immigration Judge denied asylum based on the 1-year bar in section 

208(a)(2)(B) of the INA, 8 U.S.C. § 1158(a)(2)(B). 

The Immigration Judge concluded that the respondent did not establish 

that the harm he suffered by his father in the Dominican Republic was on 

account of a protected ground since his father did not then know he was gay. 

The Immigration Judge also determined that the respondent did not establish 

past persecution because he did not show the government in the Dominican 

Republic was unable or unwilling to protect him from harm. See INA 

§ 101(a)(42), 8 U.S.C. § 1101(a)(42) (2018). The Immigration Judge 

concluded that the respondent was not more likely than not to suffer future 

persecution because he did not show that anyone in the Dominican Republic, 

aside from his father, knew he was gay or HIV-positive and would harm him 

for that reason. 

II. LEGAL ANALYSIS 

A. 1-Year Bar to Asylum 

We affirm the Immigration Judge’s denial of asylum because the 

respondent did not file his asylum application until July 2014, well beyond 

the 1-year deadline set forth in section 208(a)(2)(B) of the INA, 8 U.S.C. 

§ 1158(a)(2)(B). The respondent argues that his HIV-positive 

diagnosis should constitute changed circumstances excusing a late filing. 

INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). We need not decide whether 
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the respondent’s HIV-positive diagnosis in June 2013 amounts to changed 

circumstances because, even if it did, the respondent has not shown that his 

filing more than 1 year later was within a reasonable period of time after 

learning of the diagnosis. See 8 C.F.R. § 1208.4(a)(4)(ii) (2023); see also 

Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193, 195 (BIA 2010) 

(acknowledging that delays of 1 year or more will be justified in rare cases). 

B. Past Persecution on Account of a Protected Ground 

The Immigration Judge determined that the respondent did not establish 

past persecution on account of his membership in the particular social group 

of homosexual Dominican males because his father was not told he was gay 

until after he left the Dominican Republic.3

 However, the Immigration 

Judge’s analysis does not address all relevant evidence regarding the 

respondent’s father’s motive for harm before the respondent left the 

Dominican Republic. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) 

(describing an asylum applicant’s evidentiary burden with respect to nexus); 

Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (“A persecutor’s actual 

motive is a matter of fact to be determined by the Immigration Judge and 

reviewed by us for clear error.”). 

For example, the Immigration Judge did not consider the declarations 

from the respondent, his brother, and his uncle stating that the respondent’s 

father singled him out for abuse because the father thought the respondent 

was gay. The Immigration Judge’s nexus analysis also does not address the 

evidence that the respondent’s father called the respondent a girl and 

expressed animus towards gay people. We will remand the record to allow 

the Immigration Judge to consider all evidence of motive, as part of 

determining whether the respondent’s membership in the group homosexual 

Dominican males was at least one central reason he suffered or may suffer 

harm.4

 See Matter of S-H-, 23 I&N Dec. 462, 464–66 (BIA 2002) 

(describing the importance of clear and complete factual findings); see also

INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i) (requiring a showing that 

a protected ground “was or will be at least one central reason” for the 

persecution). 

3

 The Immigration Judge correctly concluded that the respondent did not suffer past 

persecution on account of his HIV-positive diagnosis because the respondent was not 

diagnosed until after he left the Dominican Republic. See Matter of H-L-S-A-, 28 I&N 

Dec. 228, 231 n.1 (BIA 2021) (“past persecution” must occur in the country of removal). 

The respondent does not challenge that determination on appeal. 

4

 The Immigration Judge did not determine whether the respondent suffered harm that 

rises to the level of severity to constitute persecution. On remand, the Immigration Judge 

should explicitly make that determination. 
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743 

C. Unable or Unwilling to Protect from Persecution 

In determining that the respondent did not demonstrate the government 

was unable or unwilling to protect him from persecution, the Immigration 

Judge cited the respondent’s failure to report the harm his father inflicted on 

him as a child. The respondent testified that it would have been futile for 

him to have reported the abuse as a child, and that reporting may have 

subjected him to additional abuse. 

Whether a government is unable or unwilling to protect an individual 

from persecution is a question of fact that we review for clear error. OrtizAraniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007). When engaging in this 

fact-specific inquiry, government authorities’ timely response to a 

respondent reporting harm may be indicative of their ability or willingness 

to protect the respondent from harm. See id. at 42 (observing that “a prompt 

response by local authorities to prior incidents is ‘the most telling datum’” in 

determining whether a government is able and willing to control persecutors) 

(quoting Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir. 2005)); see also

Pan v. Holder, 777 F.3d 540, 545 (2d Cir. 2015) (acknowledging that police 

inaction in response to the respondent’s reporting of harm “tends to prove 

that the government is unwilling to protect its citizens”). 

 “[A] failure to report mistreatment—even if based on the [respondent’s] 

subjective belief that authorities are corrupt—is not, without more, sufficient 

to show that” the government is unable or unwilling to protect the 

respondent. Morales-Morales v. Sessions, 857 F.3d 130, 135 (1st Cir. 2017) 

(collecting cases, and affirming the determination that the respondent failed 

to demonstrate government authorities were unable or unwilling to protect 

him); accord Vila-Castro v. Garland, 77 F.4th 10, 13–14 (1st Cir. 2023). 

However, failure to report harm is “not necessarily fatal” to a claim of 

persecution if the applicant “can demonstrate that reporting private abuse to 

government authorities would have been futile” or dangerous. Rosales Justo 

v. Sessions, 895 F.3d 154, 165 (1st Cir. 2018) (quoting Morales-Morales, 

857 F.3d at 135). 

In Matter of S-A-, the Board recognized that it may be futile or dangerous 

for an abused child to seek protection from the authorities. 22 I&N Dec. 

1328, 1332–33 (BIA 2000). Multiple circuit courts have recognized that due 

to their young age, children may not be able to articulate their fear, or 

approach law enforcement officials, in the same way as an adult. See, e.g., 

Portillo Flores v. Garland, 3 F.4th 615, 635–36 (4th Cir. 2021) (en banc);

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1071 (9th Cir. 2017) (en 

banc). When a child is being abused by a parent or relative, the child may 

be prevented by their abuser from contacting the authorities, or any attempt 

to report the harm might worsen the child’s circumstances. Portillo Flores, 
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744 

3 F.4th at 636. These are fact-specific inquiries, and we recognize that there 

may be a substantial difference in the ability of a young child to report abuse 

or recognize mistreatment as abuse, as compared to an older child. See 

Bringas-Rodriguez, 850 F.3d at 1071 (noting that younger children may lack 

the cognitive ability to understand harm as abuse). 

On remand, the Immigration Judge should consider the reasonableness of 

the respondent’s failure to seek assistance from the authorities in his country 

as part of considering all evidence regarding whether the government was 

unable or unwilling to protect the respondent. See id. at 1069 (stating that 

whether or not a victim reports harm, and evidence explaining why not, are 

factors in the unable or unwilling analysis). This analysis should include the 

respondent’s testimony, available corroborating evidence, and country 

conditions reports. See, e.g., Rosales Justo, 895 F.3d at 166 (emphasizing 

the importance of reviewing the entire record); Matter of S-A-, 22 I&N Dec. 

at 1332–33, 1335 (evaluating record evidence).5 For example, the record 

indicates the respondent testified that children do not make reports to the 

authorities in the Dominican Republic and they do what they are told. He 

testified that his father would have killed him if he reported the abuse to the 

authorities, that he did not report to a teacher because everyone knew his 

father, and that he reported the abuse to his grandmother but she did not take 

any action. The respondent also testified that his access to government 

assistance was further limited because he lived in a small town far from the 

nearest city. 

Determining whether it was reasonable for the respondent not to seek help 

from the authorities in his own country is a fact-based inquiry. Cf. Rosales 

Justo, 895 F.3d at 161 n.6. A mere “subjective belief” that reporting would 

be futile is not sufficient to establish that a government is unable or unwilling 

to provide protection. Morales-Morales, 857 F.3d at 135. Rather, a 

respondent must demonstrate, based on the record as a whole, that the 

government is unable or unwilling to protect him or her from persecution. 

Compare Morales-Morales, 857 F.3d at 136 (concluding that the respondent 

did not satisfy his burden because he testified that if he had reported 

incidents, the perpetrators “would go to jail”), with Doe v. Att’y Gen. of U.S., 

5

 If, on remand, the Immigration Judge finds that the respondent established past 

persecution, the respondent is entitled to a rebuttable presumption of future persecution for 

withholding of removal. 8 C.F.R. § 1208.16(b)(1) (2020). The Immigration Judge did not 

make findings regarding whether the respondent continues to fear persecution from his 

father. If the Immigration Judge determines that the respondent is not more likely than not 

to face persecution in the Dominican Republic from anyone else, the Immigration Judge 

may consider whether there are changed circumstances regarding the respondent’s fear of 

his father now that the respondent is an adult. See Matter of D-I-M-, 24 I&N Dec. 448, 

450 (BIA 2008) (describing the analytical framework for rebutting a presumption of future 

persecution); 8 C.F.R. § 1208.16(b)(1)(i)(A). 
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745 

956 F.3d 135, 146–49 (3d Cir. 2020) (considering testimony and country 

conditions evidence in determining that the Ghanian government was unable 

or unwilling to protect a gay respondent notwithstanding that he did not 

report an assault to the police). 

D. Future Persecution on Account of a Protected Ground 

The Immigration Judge concluded the respondent did not demonstrate 

that it is more likely than not he would be persecuted if returned to the 

Dominican Republic. Specifically, the Immigration Judge found the 

evidence did not demonstrate that anyone in the Dominican Republic other 

than the respondent’s father would know the respondent is gay.6

 To the 

extent this conclusion could be viewed as based on an assumption that the 

respondent could avoid future harm by not engaging in conduct that would 

identify himself as gay, it would be in error. 

As a general matter, we do not base consideration of an applicant’s fear 

of future harm on the ability or requirement to hide his or her sexual 

orientation. Protection under asylum and withholding of removal is available 

to applicants who fear persecution on account of their membership in a 

particular social group based on sexual orientation. Kadri v. Mukasey, 543 

F.3d 16, 21 (1st Cir. 2008); Matter of Toboso-Alfonso, 20 I&N Dec. at 

822–23. Sexual orientation, like other protected grounds, is “a characteristic 

that either is beyond the power of an individual to change or is so 

fundamental to individual identity or conscience that it ought not be required 

to be changed.” Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985), 

modified on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 

1987). 

As such, when considering future harm, adjudicators should not expect a 

respondent to hide his or her sexual orientation if removed to his or her native 

country. See Doe, 956 F.3d at 154 (holding that it was not reasonable to 

require an applicant “to return to hiding and suppressing his identity and 

sexuality as a gay man” in order to avoid persecution) (citing Shan Zhu Qiu 

v. Holder, 611 F.3d 403, 409 (7th Cir. 2010) (concluding that requiring a 

respondent to “cease the practice of [his religion] or hope to evade discovery 

. . . runs contrary to the language and purpose of our asylum laws”)); Singh 

v. Sessions, 898 F.3d 518, 522 (5th Cir. 2018) (“[A]n [asylum applicant] 

cannot be forced to live in hiding in order to avoid persecution.”). “[W]e see 

no appreciable difference between an individual . . . being persecuted for 

6

 The Immigration Judge also determined that the respondent did not provide any 

evidence that anyone in the Dominican Republic would know he is HIV-positive. On 

remand, the Immigration Judge may further consider the respondent’s claim based on his 

HIV-positive status, consistent with this decision. 
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being a homosexual and being persecuted for engaging in homosexual acts.” 

Karouni v. Gonzales, 399 F.3d 1163, 1173 (9th Cir. 2005).7

 

III. CONCLUSION 

We will remand the record for further consideration of the respondent’s 

claim for withholding of removal. Specifically, the Immigration Judge 

should reevaluate whether the respondent established past persecution and 

whether the Dominican government was unable or unwilling to protect the 

respondent from any past persecution on account of his asserted particular 

social group of “homosexual Dominican males.” The Immigration Judge 

should also reevaluate whether the respondent has established that he is more 

likely than not to suffer persecution on account of his membership in either 

of his asserted particular social groups, and consider whether the Dominican 

government would be unable or unwilling to protect the respondent in the 

future. On remand, the Immigration Judge may conduct further proceedings 

as appropriate. In remanding, we express no opinion as to the ultimate 

outcome of these proceedings. 

Accordingly, the following order will be entered. 

ORDER: The record is remanded to the Immigration Court for further 

proceedings consistent with the foregoing opinion and for the entry of a new 

decision. 

7

 Previously, in Matter of Toboso-Alfonso, the Board distinguished between the 

applicant’s “status as a homosexual” (i.e., membership in the particular social group) and 

his “conduct . . . e.g., . . . engaging in homosexual acts,” and declined to reach the question 

of whether harm based on conduct could constitute persecution on account of the protected 

ground, in part because “conduct” was criminalized in the United States at that time. 

Matter of Toboso-Alfonso, 20 I&N Dec. at 821–22; see id. at 825 (citing Bowers v. 

Hardwick, 478 U.S. 186 (1986)). United States law has since changed. See Karouni v. 

Gonzales, 399 F.3d at 1173 (citing Lawrence v. Texas, 539 U.S. 558, 567 (2003)).