J-G-R
28 I. & N. Dec. 733 (2023)
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Rule of Law:
Torturous conduct committed by a public official is considered "acting in an official capacity" under Convention Against Torture (CAT) regulations if the official was able to engage in the conduct because of their government position, or "under color of law," rather than as a purely private act, requiring a fact-intensive inquiry into the official's use of governmental authority.
Facts:
- The Department of Homeland Security placed J-G-R- in removal proceedings in May 2017.
- J-G-R- claimed two men wearing police uniforms detained him in a police station in the Dominican Republic.
- The men stabbed J-G-R- with a screwdriver and ordered him to repay money they claimed he owed a local business owner.
- The men later shot J-G-R- because he was unable to repay the money.
- After being hospitalized, J-G-R- was released into the custody of the same two men.
- The two men again stabbed J-G-R- with a screwdriver.
Procedural Posture:
- The Department of Homeland Security placed J-G-R- in removal proceedings in May 2017.
- J-G-R- conceded removability and filed applications for asylum, withholding of removal, and Convention Against Torture (CAT) protection with an Immigration Judge.
- On October 24, 2019, the Immigration Judge denied J-G-R-'s applications, based on an adverse credibility finding and, alternatively, for failure to meet his burden of proof.
- J-G-R- appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA), challenging the adverse credibility finding and the denial of CAT protection.
- The BIA affirmed the Immigration Judge's adverse credibility finding and held that J-G-R- did not satisfy his burden of proof for CAT protection.
- J-G-R- (as Reyes) filed a petition for review with the United States Court of Appeals for the First Circuit.
- On June 14, 2022, the First Circuit granted J-G-R-'s petition for review, holding that the BIA erred in affirming the Immigration Judge’s adverse credibility finding and vacated the BIA's decision because it could not conclude that the CAT claim would necessarily fail absent the adverse credibility finding.
- J-G-R- filed a motion to remand the record to the Immigration Judge for further proceedings before the BIA.
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Issue:
Does a public official's torturous conduct constitute "acting in an official capacity" for purposes of Convention Against Torture eligibility if the official's government position enabled the conduct, even if primarily motivated by personal objectives?
Opinions:
Majority - Malphrus, Deputy Chief Appellate Immigration Judge
Yes, a public official's torturous conduct constitutes "acting in an official capacity" for CAT eligibility if the official's government position enabled the conduct, aligning with the "under color of law" standard. The Board of Immigration Appeals (BIA) articulates a national standard, following Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020), that "acting in an official capacity" means acting "under color of law" as understood in federal civil rights contexts. This standard emphasizes whether the official "exercise[s] power 'possessed by virtue of . . . law and made possible only because [he or she was] clothed with the authority of . . . law'" (West v. Atkins). An act motivated by personal objectives can still be "under color of law" if the official used their authority to further those objectives. The key consideration is whether the official was able to accomplish the acts of torture by virtue of holding official status, or if they could have done so without any connection to the government. The BIA explicitly moves away from terms like "rogue official" and any suggestion of a distinction between low-level and high-level officials in this inquiry. The BIA notes that the Ninth Circuit's interpretation, which does not distinguish between official and private motivations for public officials' torturous conduct, is inconsistent with this national standard.
Analysis:
This decision from the Board of Immigration Appeals provides crucial clarification and a unified national standard for determining "official capacity" in Convention Against Torture claims, particularly by explicitly adopting the "under color of law" framework from civil rights jurisprudence. By focusing on whether an official's government position enabled the torturous conduct, even if personally motivated, the ruling broadens the scope of potential CAT protection while still requiring a direct link to governmental authority. This will guide Immigration Judges in conducting fact-intensive inquiries, requiring them to consider various factors beyond mere uniform or on-duty status, and is significant for asylum and immigration law, potentially impacting how evidence is gathered and presented in future CAT cases outside the Ninth Circuit.
