On December 6, 2019, the Board of Immigration Appeals (BIA or Board) in a lengthy and extensively footnoted decision, dismissed the appeal of a respondent whose applications for political asylum, withholding of removal, and protection under the Convention Against Torture (CAT) were denied by the Immigration Judge (IJ); the court had pretermitted the asylum application as time-barred and denied both withholding and CAT relief.
Respondent, a Guatemalan citizen, had entered the U.S. without inspection. He testified that he had worked as a beverage salesman, been fired and received a severance package which he, in turn, used to purchase land and cattle, going into the cattle business. Thereafter, a family member warned him that a number of police cars had been spotted around his house and he had received an anonymous threatening phone call demanding money or his family would be killed. Two weeks later, 5 men wearing shirts with the insignia of Guatemala’s national police, the Policia Nacional Civil (PNC), appeared at Respondent’s door carrying high-caliber firearms, pushed their way in and hit him with a gun, dislocating his shoulder. The men then handcuffed him, trashed his house looking for money, and threatened to cut off his fingers if he did not pay them. Respondent told his captors that he had money in his car, which one of them retrieved; subsequently, another of the men received a phone call that a neighbor had contacted the police to report a disturbance at Respondent’s home and the police were on their way over. The men removed the handcuffs, telling Respondent he had 10 days to pay more money or he would be killed. One man threatened to take out Respondent’s good eye if he reported them to the police (he had lost an eye at the age of 12). Respondent did not report this incident to the police or see a doctor for his shoulder.
In denying the withholding application, the IJ found that Respondent had “failed to establish that it was more likely than not he would face persecution on account of a protected ground and that the Government of Guatemala was unwilling or unable to protect him from his attackers.” As to CAT protection, the IJ held that Respondent had failed to establish that his attackers were bona fide policemen; in the alternative, he concluded that, even if they were actually police officers, Respondent “did not establish that the men acted in an official capacity, as opposed to acting for personal gain, or that they acted with the consent or acquiescence of a public official or other person acting in an official capacity.” On appeal, Respondent claimed he had met his burden for proving eligibility for asylum, withholding of removal, and CAT relief.
The BIA began its analysis by setting forth the “primary issue” as whether the men who harmed Respondent were acting “in an official capacity,” that is, “under color of law” or were, instead, “rogue officials”; to resolve this, the decision looked to the language of the CAT, the implementing legislation, and the regulations.
First, the opinion noted that Article 1 of CAT defines “torture” as requiring that the severe pain or suffering that is intentionally inflicted by, at the instigation of, or with the consent or acquiescence “of a public official or other person acting in an official capacity” but does not include “pain or suffering arising only from, inherent in incidental to lawful sanctions.” It also stated when the President transmitted the signed Convention to the Senate, he observed that it only applied to torture occurring or inflicted under color of law. The Senate Committee on Foreign Relations’ report specifically explained that torture committed by private individuals is excluded from CAT. The Board also found that the Department of Justice interim rule implementing the U.S.’s obligations under Article 3 of CAT incorporated the Article 1 definition of torture, concluding the history and purpose of CAT “reflected that its protection was intended to apply only to torture that occurs in the context of governmental authority.
The BIA repeated this holding throughout the decision but admitted at footnote 4 that the Ninth Circuit Court of Appeals has held that there is no “rogue official” exception to protection under CAT and 8 C.F.R. §1208.18(a). However, the body of the decision went on to insist that “rogue officers” are public officials “who act outside of the official capacity”, e.g., not under color of law; footnote 4 expressly states that the Ninth Circuit’s position that torturous conduct inflicted by a public official acting in a private capacity is covered by CAT “is inconsistent with our interpretation of the regulation.”
The Board thus agreed that the term “in an official capacity” means “under color of law” and stated it would follow that approach in adjudicating removal case appeals, because of its obligation to promote consistent application of the immigration laws through precedent. However, the opinion stated that an act “motivated by personal objectives” is under color of law “when an official uses his official authority to fulfill his personal objectives.” To determine if a public official who tortured another acted “in an official capacity,” the BIA concluded, it must consider if “he was only able to accomplish the acts of torture by virtue of his official status.” Further, noted the decision, circuit court cases have relied on whether “government connections” provide an official with access to the victim, his whereabouts, or other identifying information.” The Board also found it relevant whether a law enforcement officer was on duty and in uniform at the time of his torturous conduct; if so, it is more likely that he acted under color of law. Still, the use of an official uniform or weapon “is not dispositive of the issue” as those items can be obtained by unofficial means and may not be necessary to the official’s ability to engage in torture.
Summarizing its “color of law” analysis, the BIA held that adjudicators must undertake a “fact-intensive inquiry” to determine when torture takes place in an official capacity, which requires the assessment of both direct and circumstantial evidence; it cautioned that when making factual findings in this regard, an IJ should not rely on “unproven assumptions to find that the official acted under color of law.” Again, repeated the Board, the key consideration is whether the public official was able to engage in torture “because of his government position.”
The decision disposed of the issue of “acquiescence” in a more efficient manner, concluding that a public official will be held to have engaged in torture in a private capacity, i.e., not under color of law, and an applicant thus found eligible for CAT relief if it is demonstrated that the official or another person “acting in an official capacity” consented to or acquiesced in the torture. The BIA held that acquiescence can be shown by evidence, “particularly county conditions evidence,” that torture is routine and “sufficiently connected to the criminal justice system” so that it can be reasonably inferred that “higher-level officials” know of or remain willfully blind to it.
Applying these considerations to Respondent, the BIA first held that the fact that his attackers wore the shirts of a government law-enforcement agency and had weapons “did not prove that they were actually police officers,” agreeing with the IJ that the shirts could have been fake and that criminals will often carry weapons. Additionally, they did not arrive in police vehicles and left upon learning that “an official police car” was on its way. The IJ’s determination that they were not bona fide officers was therefore permissible and not clear error. The Board also sanctioned the IJ’s alternative holding that, even if they actually were policemen, Respondent failed to establish that they were acting in an official capacity, finding instead that they were rogue officials acting for personal gain; a footnote stated that Respondent did not establish the men were acting with the consent or acquiescence of a public official or one acting in an official capacity. The opinion also concluded that the men’s threat to take out Respondent’s good eye raised further doubt that they acted “with government authority.” Finally, the BIA found it “significant” that Respondent did not report the incident to the police – although it seems clear why he did not – because there is thus no way to know if they would have investigated and taken action against any of the attackers.
As to the IJ’s denial of the asylum and withholding claims, the BIA held that Respondent had not established that he suffered past persecution because the incident at his home “was not severe enough to rise to the level of persecution.” Respondent was “briefly detained” and “did not suffer any permanent physical injury or seek formal medical attention” and was thus not entitled to a presumption of future persecution. Similarly, concluded the Board, the IJ did not clearly err in finding Respondent failed to prove that the Guatemalan Government is unwilling or unable to protect him from his attackers, noting that those who allege persecution by private actors must prove that their home county is unwilling or unable to assist because the INA only protects against persecution by non-governmental actors that the government cannot control. Again, the opinion cited Respondent’s failures to report either the threatening call or the home invasion incident, noting there was no showing it would have been futile to do so. The BIA found that a failure to report is generally fatal to a persecution claim unless it can be shown it would be futile to do so.
Lastly, as to country conditions evidence, the Board held that although the reports reflect “that the PNC lacks personnel and training to control gang activity and those police investigations typically do not result in an arrest or a conviction,” they do indicate the PNC has made “some progress” in reducing crime. Additionally, that police were dispatched to Respondent’s house when called was found to be evidence that the IJ reasonably considered in holding it would not have been futile to report the beating incident. The BIA, therefore, held that the IJ properly denied Respondent’s asylum claim and withholding application, as well as his request for CAT relief. Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019).