A federal appeals court has upheld the deportation order of a Colombian family, ruling that a government’s inability to completely stop criminal threats does not automatically grant a victim the right to asylum in the United States.
The U.S. Court of Appeals for the First Circuit denied a petition for review filed by John Restrepo Castano, a bakery owner from Don Matías, Colombia, who fled to Massachusetts in 2022. Castano argued that the Colombian government was unable to protect him from the “Gulf Clan” (Clan de Golfo), a violent criminal syndicate that had issued multiple death threats against his family.
In a decision authored by Circuit Judge Julie Rikelman, the court affirmed findings by the Board of Immigration Appeals (BIA) that Colombian authorities were both willing and able to protect Castano, disqualifying him from asylum eligibility.
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The legal battle centered on a harrowing series of events beginning in 2020. According to court records, members of the Gulf Clan demanded Castano provide financial and political support for their organization. When he refused, they threatened to kill his wife and child. The situation escalated in September 2021 when two armed men wearing motorcycle helmets entered his bakery, warning him to comply or leave the area.
Castano filed a police report, a step that ultimately weakened his claim for asylum under U.S. law.
To qualify for asylum based on persecution by a private entity—such as a criminal gang—an applicant must prove their home government is “unwilling or unable” to control that entity. The court found that the Colombian police responded immediately to Castano’s report. They stationed a guard at his business during working hours and blocked specific phone lines to prevent harassment.
Following the police intervention, the in-person threats ceased. While Castano testified that telephonic threats continued from different numbers, he admitted that the gang never physically harmed him or his family during that period.
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Castano’s legal team argued that the ongoing phone calls and the government’s failure to arrest the perpetrators proved the state was unable to protect him. They contended the police investigation was inadequate because it yielded no charges.
The First Circuit panel disagreed, distinguishing between a lack of success and a lack of ability. Citing legal precedent, the court noted that “no government could provide the sort of absolute protection” sought by the petitioners.
“There is substantial evidence that the police ‘fruitfully’ responded to the actions known to them,” Judge Rikelman wrote. “The mere fact that a government is not entirely successful in combatting crime is not enough to establish that it is unable to protect an applicant.”
The court also noted that the record was unclear on whether Castano reported the continued phone calls to authorities after the police guard was assigned. Because the initial police response was deemed “fruitful”—successfully ending the physical confrontations—the court found that reasonable adjudicators would not be compelled to find the Colombian government incapable of protection.
The ruling leaves in place the removal orders for Castano, his wife, and his child, initially issued after they were detained by immigration authorities in Massachusetts in April 2022.
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