UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 19-1419 ______

EDIL JOEL GALEAS FIGUEROA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________

On Petition for Review of a Decision of the Board of Immigration Appeals (A200-597-380) Immigration Judge: Honorable Daniel A. Morris ____________

Argued: January 13, 2020

Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges.

(Filed: May 19, 2021) Raechel K. Kummer [Argued] Susan B. Manning MORGAN LEWIS & BOCKIUS 1111 Pennsylvania Ave., N.W. Suite 800 North Washington, DC 20004 Stephanie R. Reiss MORGAN LEWIS & BOCKIUS 301 Grant Street One Oxford Centre, Suite 3200 Pittsburgh, PA 15219

Counsel for Edil Joel Galeas Figueroa

Anjum Gupta RUTGERS UNIVERSITY SCHOOL OF LAW 123 Washington Street Newark, NJ 07102

Counsel for Amicus Petitioners Immigration Law Professors

2 Jenny C. Lee [Argued] UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION P.O. Box 878 Ben Franklin Station Washington, DC 20004

Counsel for Attorney General United States of America

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OPINION OF THE COURT ____________ PHIPPS, Circuit Judge.

Edil Joel Galeas Figueroa petitions for relief from a final order of removal following his second illegal entry into the United States. To prevent deportation to his native Honduras, Galeas Figueroa seeks withholding of removal under both the Immigration and Nationality Act and the Convention Against Torture, asserting that he would be persecuted and tortured by a gang that raped his sister, killed his relatives, and threatened him and other family members.

On administrative appeal, the Board of Immigration Appeals affirmed a decision by an Immigration Judge denying Galeas Figueroa the relief he seeks. As to statutory withholding, the BIA determined that the violence and threats by the gang did not amount to governmental persecution, but rather constituted private harm for which withholding of removal under the INA is unavailable. In reaching that

3 outcome, the BIA treated as interchangeable two legal standards for evaluating the degree of governmental culpability in the harmful conduct of private actors: the unable-or- unwilling-to-control test and the condone-or-complete- helplessness test. With respect to CAT protection, the BIA concluded that the Honduran government would not acquiesce to any torture that Galeas Figueroa might experience because Honduran police would investigate reports that Galeas Figueroa would make.

Galeas Figueroa petitioned this Court to review the BIA’s final order of removal. He moved for a stay of removal for the pendency of his petition, and this Court denied his motion. Then, according to the Government, Galeas Figueroa did not report to governmental custody as ordered. Invoking the fugitive disentitlement doctrine, the Government moved to dismiss Galeas Figueroa’s petition.

Upon consideration of the Government’s motion and Galeas Figueroa’s petition, we will deny both. Galeas Figueroa may well be a fugitive disentitled to relief, but the Government’s evidence of his fugitive status is insufficiently probative to justify discretionary dismissal of his petition. As to the BIA’s denial of Galeas Figueroa’s application for statutory withholding of removal, the agency did not err in treating the unable-or-unwilling-to-control test and the condone-or-complete-helplessness test as legal equivalents. And substantial evidence supports its conclusion that Galeas Figueroa did not demon