On July 14, 2020, U.S. Attorney General (AG) William Barr directed the Board of Immigration Appeals (BIA or Board) to refer the instant case to him for review of it’s decision per 8 C.F.R. §1003.1(h)(1)(i), vacating that decision and remanding the case to the BIA for review by a three-member panel, in what appears to be an attempt to reduce the number and source of those acts that constitute “torture” under the applicable regulations.
In its original decision, Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019)(O-F-A-S I), the Board had dismissed Respondent’s appeal of a decision by the Immigration Judge (IJ) denying his application for, among other relief, CAT protection. He claimed he would be tortured if removed to his native Guatemala, citing a prior incident in which 5 men wearing police uniforms and carrying high-caliber handguns had forced their way into his house, assaulted and robbed him “and threatened further harm to him and his family.” Concluding that the men either were not police officers or were “rogue agent[s] acting outside the scope of the law”, the IJ found that Respondent had not met his burden of showing that it is more likely than not that he will be tortured by or with the instigation, consent, or acquiescence of a public official or other person “acting in an official capacity.” The BIA agreed, dismissing the appeal, but in its opinion in O-F-A-S I, the Board announced a “national standard” for the “official capacity” requirement, a standard it termed both an “under color of law” inquiry and “the rogue official question.” The AG explained at the beginning of the instant decision (O-F-A-S II) that he granted review here “to clarify the proper approach for determining when public officials who commit torture are ‘acting in an official capacity’ for the purpose of deciding [one’s] eligibility for protection under the CAT.”
AG Barr initially explained that the DOJ has promulgated regulations prohibiting the removal of non-citizens to countries where it is more likely than not that they will be tortured. These regulations define “torture” as any “act by which severe pain or suffering…is intentionally inflicted on a person” for an illicit purpose. The “pain or suffering” must be “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.”
Noting that the “official capacity” requirement had first been raised by the DOJ in Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002), the AG stated that that decision’s description of the “offical capacity” standard, and the way Immigration Courts have applied it, has led observers to question “whether two different tests have evolved” to determine if torture is inflicted by one in an “official capacity”. The federal courts have interpreted Y-L- to hold that action in an official capacity means “under color of law,” while some IJs have disregarded this rubric and, instead, focused on Y-L-’s discussion distinguishing between “authoritative” and “rogue” officials. Courts have interpreted those decisions as applying a distinct “rogue official” test, claimed the AG, under which extrajudicial acts by corrupt, low-level agents will not constitute “torture” if government authorities would not condone or acquiesce in the low-level agents’ behavior.
The Board had agreed with the IJ in O-F-A-S I that Respondent’s attackers were not acting “in an official capacity” but seemingly reached that conclusion under a “rogue official” standard, explaining that certain, unlawful acts committed by one possessing power by virtue of law can fall within the CAT’s scope. The AG further noted that O-F-A-S I had clarified that an act motivated by personal objectives “is under color of law when an official uses his official authority to fulfill his personal objectives,” i.e., “tortuous conduct” by one acting “in an official capacity.” Thus, “under color of law” is covered by the CAT, but such conduct by an official not acting in an official capacity, also known as a “rogue official”, is not so covered. To the extent the BIA used “rogue official” as shorthand for one not acting in an official capacity, held the AG, it “accurately stated the law.” The “under color of law” standard, however, is “correct” and is “the only standard that immigration courts should apply when evaluating claims for protection under the CAT.”
Additionally, stated AG Barr, courts have long used “in an official capacity” and “under color of law” as “alternative and overlapping ways of expressing the concept of state action.” As such, there is “no material difference” between the two concepts of official conduct; in full agreement, the AG reaffirmed Matter of Y-L-’s holding that the two phrases mean the same thing. Whether the acts of any particular official, low-level, or otherwise, satisfy this standard is a fact-intensive inquiry that depends on whether the conduct in question is fairly attributable to the state. The AG, therefore, confirmed that misuse of authority made possible only because the wrongdoer is clothed with the authority of law may violate the CAT. The Board’s decision in O-F-A-S I was vacated and remanded for review by a three-member panel in accordance with the instant opinion. Matter of O-F-A-S- 28 I&N Dec. 35 (A.G. 2020).