The Third Circuit has determined that the “government-unable-or-unwilling-to-control” test and the “condone-or-complete-helplessness” test are legal equivalents. “Both tests have an overriding commonality: they recognize that to constitute persecution, the government must be complicit to some degree in the harmful conduct of nongovernmental actors through either act or omission.”
“From that perspective, the unable-or-unwilling-to-control test is a shorthand of sorts. It depends on more than merely the government’s inability or unwillingness to control a violent group in the abstract. Rather, that inability or unwillingness to control a violent group becomes relevant only in the context of a specific individual, the applicant. And a government’s inability or unwillingness to control a violent group as a general matter does not necessarily mean that the government cannot or will not protect the specific applicant. Accordingly, the unable-or-unwilling-to-control test evaluates the government’s ability and willingness to control private actors not at a general level, but rather with respect to the specific applicant seeking relief. The condone-or-complete-helplessness test similarly focuses on the applicant, only more explicitly. The ‘complete helplessness’ component assesses the government’s ability to protect a particular applicant from private harmful conduct. And the ‘condone’ component examines whether the government condoned private harm to that applicant.” “Calibrating for context, however, harmonizes the two standards: when the government is unable to control private actors with respect to a specific potential victim, it demonstrates a complete helplessness to protect that victim from those actors.”
The full text of Galeas Figueroa v. Attorney General can be found here: