BIA Holds That Torturous Conduct Committed By A Public Official Who Is “Acting In An Official Capacity”, Meaning Acting Under Color Of Law, Is Covered By The Regulations Implementing The Convention Against Torture, But Such Conduct By An Official Who Is Not Acting In An Official Capacity Is Not Covered. Matter Of O-F-A-S, 28 I&N Dec. 35 (A.G. 2020), Followed. The Key Consideration In Determining If An Official’s Torturous Conduct Was Undertaken In An Official Capacity For Purposes Of CAT Eligibility Is Whether The Official Was Able To Engage In The Conduct Because Of His Or Her Government Position, Or Whether The Official Could Have Done So Without Connection To The Government.
On August 11, 2023, the Board of Immigration Appeals (BIA or Board) granted Respondent’s motion to remand his removal proceedings to the Immigration Judge (IJ), who had previously denied his CAT applications. The case had been before the BIA in February 2021, when the Board dismissed Respondent’s appeal of the IJ’s CAT denial. In June 2023, the First Circuit Court of Appeals granted Respondent’s petition for review, holding that the BIA erred in affirming the IJ’s adverse credibility finding and vacated the Board’s decision as it could not conclude that Respondent’s CAT claim would fail absent the adverse credibility finding.
As background, Respondent was placed into removal proceedings in May 2017; he conceded removability and filed applications for political asylum, withholding of removal and CAT relief. He claimed 2 men in police uniforms detained him in a Dominican Republic police station, stabbed him with a screwdriver, and ordered him repay money they claimed he owed a local business owner. The men later shot him when he did not pay. He was hospitalized, then released to the custody of the 2 men who again stabbed him with a screwdriver.
The IJ denied Respondent’s applications because of an adverse credibility finding and, alternatively, for failing to meet his burdens of proof. On appeal, Respondent challenged both the adverse credibility finding and the denial of his CAT claim; the BIA affirmed the IJ’s adverse credibility finding and held that, as Respondent lacked credibility and there was no objective evidence in the record independently establishing his CAT eligibility, he had failed to satisfy his burden of proof. As explained above, this decision was vacated by the First Circuit.
In beginning its analysis, the Board noted that CAT relief is available when or acquiescence one demonstrates a clear probability of torture “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The decision further stated that torturous conduct committed by a public official who is “acting in a official capacity,” meaning acting under color of law, is covered by the CAT regulations, which in turn do not apply to “such conduct by an official who is not acting in an official capacity.” In a footnote, the BIA set forth that this standard does not control in Immigration Courts in the Ninth Circuit, which “does not recognize a distinction, for purposed of CAT protection, between public officials who engage in torturous conduct in an official capacity and those who engage in such conduct for purely private motivations.”
Next, in covering legal developments in this area, the opinion discussed Matter Of O-F-A-S, 27 I&N Dec. 709 (A.G. 2019), which examined the requirement that a public official be acting “in an official capacity” for purposes of CAT eligibility. The Attorney General had interpreted this phrase to mean “under color of law” as that term is used in the federal civil rights context. The BIA’s 2019 decision had attempted to articulate a “national standard” for determining whether tortuous conduct by public officials is undertaken “in an official capacity.”
Yet, subsequently, Attorney General Barr referred Matter of O-F-A-S- to himself and issued Matter of O-F-A-S-, (“O-F-A-S-II”), 28 I&N Dec. 35 (A.G. 2020), which agreed with the Board’s holding that “acting in an official capacity” meant acting “under color of law.” The Attorney General vacated and remanded O-F-A-S-, however, on grounds unrelated to the BIA’s original articulation of a national standard of “in an official” capacity; first, Attorney General Barr disagreed with the opinion’s definition and application of the phrase “rogue official” in the context of a CAT claim. Second, he disagreed with what he perceived to be the Board’s suggestion, however unintended, that there is a distinction between low-level and high-level officials in the “under color of law inquiry.” Therefore, stated the decision, in the new formulation of the standard expressed here, the BIA did not use or refer to the term “rogue official” and did “not suggest that the standard applies differently to high-level and low-level public officials.”
As to the phrase “under color of law”, the Board first opined that, for purposes of CAT protection, “acting in an official capacity” means acting “under color of law” and thus a public official acts “under color of law” when he or she exercises power possessed by virtue of law and made possible only because he or she was clothed with the authority of law. An act that is motivated by personal objectives may be under color of law when the actor uses his or her official authority to further those objectives.
In determining whether a public official who engaged in torture was “acting in an official capacity”, it is key to consider if he or she was “only able to accomplish the acts of torture by virtue of holding official status.” One consideration is “whether the actor’s government connection provided physical access to the victim or to the victim’s whereabouts or other identifying information.” Other relevant issues include whether the actor was on duty and in uniform, whether a service weapon was used, and whether “the official threatened and had the ability to retaliate throughout government channels if the victim reported the conduct to authorities.”
Thus, held the BIA, the key consideration in determining whether an official’s conduct was undertaken “in an official capacity” is “whether the official was able to engage in the conduct because of his or her government position, or whether the official could have done so without connection to the government.” In coming to a conclusion, an IJ should consider whether the actor’s government connections provided access to the victim, revealed his or her whereabouts, or provided identifying information. An IJ must also consider whether the official was on duty and/or in uniform during the torturous conduct and whether he or she threatened to retaliate through official channels – if reported.
The matter was remanded to the IJ to determine if Respondent is credible, consistent with the First Circuit’s order. If so, the IJ must reassess Respondent’s CAT eligibility under the above-enumerated formula, specifically addressing whether the 2 men who harmed Respondent “were able to engage in their conduct only because they were clothed with the authority of law.” If the 2 men were not police officers or did not act “in an official capacity,” the IJ should also determine whether Respondent “has established that a public official acquiesced in their conduct and would likely acquiesce in the future.” Matter of J-G-R-, 28 I&N Dec. 733 (BIA 2023).
