O-F-A-S- ( 2020 )

Cite as 28 I&N Dec. 35 (A.G. 2020) Interim Decision #3990
Matter of O-F-A-S-, Respondent
Decided by Attorney General July 14, 2020
U.S. Department of Justice
Office of the Attorney General
(1) Under Department of Justice regulations implementing the Convention Against
Torture, an act constitutes “torture” only if it is inflicted or approved by a public official
or other person “acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). This official
capacity requirement limits the scope of the Convention to actions performed “under
color of law.” Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). Nothing in Matter of
Y-L-, or any other Board precedent, should be construed to endorse a distinct, “rogue
official” standard.
(2) The “under color of law” standard draws no categorical distinction between the acts of
low- and high-level officials. A public official, regardless of rank, acts “under color of
law” when he “exercise[s] power ‘possessed by virtue of . . . law and made possible
only because [he was] clothed with the authority of . . . law.’” West v. Atkins, 487 U.S.
42, 47 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2020), I direct the Board of
Immigration Appeals (“Board”) to refer this case to me for review of its
decision. With the case thus referred, I hereby vacate the Board’s decision
and remand this case for review by a three-member panel.
In Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019), the Board dismissed
an appeal by the respondent of an immigration judge’s decision denying,
among other relief, the respondent’s claim for protection under the
regulations implementing the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty
Doc. No. 100–20, 1465 U.N.T.S. 85 (entered into force for United States
Nov. 20, 1994) (“CAT”). The respondent is a native and citizen of
Guatemala. He alleges that he will be tortured if he is removed to Guatemala,
citing a prior incident in which five men wearing police uniforms and
wielding high-caliber handguns forced their way into his home, assaulted
him, stole his money, and threatened further harm to him and his family.
Based on findings that the men either were not police officers or were “rogue
agent[s] acting outside the scope of law,” the immigration judge concluded
that the respondent had not met his burden to show 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.” See
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8 C.F.R. § 1208.18(a)(1). The Board agreed and dismissed the respondent’s
appeal.
In so doing, the Board announced a “national standard” for the “official
capacity” requirement, Matter of O-F-A-S-, 27 I&N Dec. at 715—a standard
it described at times as an “under color of law” inquiry, id. at 717, and at
others as “the rogue official question,” id. I granted review of this case to
clarify the proper approach for determining when public officials who
commit torture are “acting in an official capacity” for the purpose of deciding
an alien’s eligibility for protection under the CAT.
***
The implementing legislation for the CAT provides that “it shall be the
policy of the United States not to expel, extradite, or otherwise effect the
involuntary return of any person to a country in which there are substantial
grounds for believing the person would be in danger of being subjected to
torture.” Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, div. G, § 2242, 112 Stat. 2681-761, 2681-822 (codified at 8 U.S.C.
§ 1231 note (1999)). Consistent with this policy, the Department of Justice
has promulgated regulations that prohibit the removal of an alien to a country
where it is “more likely than not” that the alien would be tortured. 8 C.F.R.
§ 1208.16(c)(2); see generally id. §§ 1208.16(c)–1208.18. Those regulations
define “torture” as “any act by which severe pain or suffering . . . is
intentionally inflicted on a person” for an illicit purpose. Id. § 1208.18(a)(1).
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.” Id. (emphasis added).
The Attorney General first considered the meaning of the “official
capacity” requirement in Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002).
There, Attorney General Ashcroft explained that the official capacity
requirement confines the scope of the Convention “to torture that is inflicted
under color of law.” Id. at 285; see also id. at 279 (“To secure [CAT] relief,
the respondents must demonstrate that, if removed to their country of origin,
it is more likely than not they would be tortured by, or with the acquiescence
of, government officials acting under color of law.” (emphasis removed)). In
applying that general rule, Matter of Y-L- elaborated that the acts of “corrupt,
low-level agents” who “seek to exact personal vengeance . . . for personal
reasons” do not constitute “torture” under the CAT. Id. at 285; see id. at 283
(rejecting contention that government acquiescence could be shown “by
evidence of isolated rogue agents engaging in extrajudicial acts of brutality”).
Matter of Y-L-’s description of the “official capacity” standard—and the
way the immigration courts have applied that standard—has led some
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observers to question whether two different tests have evolved in the
immigration courts for determining whether torture is inflicted “in an official
capacity.” Every federal court of appeals to consider the question has read
Matter of Y-L- to hold that action “in an official capacity” means action
“under color of law.” See, e.g., Garcia v. Holder, 756 F.3d 885, 891 (5th
Cir. 2014); United States v. Belfast, 611 F.3d 783, 808–09 (11th Cir. 2010);
Ramirez-Peyro v. Holder, 574 F.3d 893, 900 (8th Cir. 2009); see also Ali
v. Reno, 237 F.3d 591, 597 (6th Cir. 2001) (adopting “under color of law”
standard in an opinion preceding Matter of Y-L-). Relying on their
precedents under 42 U.S.C. § 1983, those courts have held that “an act is
under color of law when it constitutes a misuse of power, possessed by virtue
of state law and made possible only because the wrongdoer is clothed with
the authority of state law.” E.g., Garcia, 756 F.3d at 891. But some
immigration judges have eschewed the “under color of law” rubric and
instead focused on Matter of Y-L-’s language distinguishing between
“authoritative” and “rogue” officials. Reviewing courts have interpreted
those immigration court decisions as applying a distinct “rogue official” test,
under which the “extrajudicial” acts of “corrupt, low-level agents” will not
constitute torture if government authorities would neither condone nor
acquiesce in the low-level agents’ behavior. 1 See, e.g., Marmorato
v. Holder, 376 F. App’x 380, 384–85 (5th Cir. 2010) (reversing IJ’s
determination that “acts conducted ‘under the cloak of being a government
official’ do not satisfy the [official capacity] standard,” and faulting
immigration judge for “announc[ing] an erroneous legal standard”).
The decisions of the immigration judge and the Board in this case
illustrate why some reviewing courts believe that the immigration courts
have developed multiple tests for determining whether torture would be
inflicted by someone acting “in an official capacity.” The immigration judge
1
Decisions by immigration judges are not generally available to the public, but the
following cases that were appealed to the federal courts of appeals are examples where
immigration judges applied the “rogue official” label: Hernandez-Torres v. Lynch, 642
F.App’x 814, 817 n.1 (10th Cir. 2016) (“The IJ characterized the low-level government
officers who threatened Mr. Hernandez-Torres as ‘rogue government officials’ and
contrasted those rogue officials with his ‘police superiors who did not threaten [him][.]’”);
Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1139 (7th Cir. 2015) (quoting immigration
judge’s statement that “the police officers who tortured the petitioner ‘were rogue officers
individually compensated . . . to engage in isolated incidents of retaliatory brutality, rather
than evidence of a broader pattern of governmental acquiescence in torture’”); Higueros
v. Holder, 582 F. App’x 692, 693 (9th Cir. 2014) (“In assessing Higueros’s fear of torture,
the BIA acknowledged the evidence showed the existence of ‘rogue officials’ in Guatemala,
and found the existence of rogue officials ‘cannot be used’ to demonstrate that government
officials would acquiesce to any torture of Higueros.”); Marmorato v. Holder, 376
F. App’x 380, 384–85 (5th Cir. 2010).
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concluded that the respondent’s assailants were “rogue actors who were
either not police officers” or “bad police officers acting outside the scope of
their authority.” Relying solely on the “rogue agent” discussion in Matter of
Y-L-, the immigration judge held that the CAT does not cover “rogue agent[s]
acting outside the scope of law, motivated by personal gain.”
The Board agreed with the immigration judge’s conclusion that the
respondent’s assailants were not acting “in an official capacity” and
dismissed the respondent’s appeal, but reached that conclusion through
different reasoning. Also citing Matter of Y-L-, the Board emphasized that
“‘in an official capacity’ means ‘under color of law’”—a phrase absent from
the immigration judge’s decision. 27 I&N Dec. at 714. The Board explained
that, because action “under color of law” characteristically involves
“misuse[]” of “power possessed by virtue . . . of law,” id. at 715 (quotations
omitted), certain acts motivated by personal objectives can fall within the
CAT’s scope. The Board clarified that “[a]n act that is motivated by personal
objectives is under color of law when an official uses his official authority to
fulfill his personal objectives.” Id.
In an apparent attempt to resolve any confusion about the “under color of
law” and “rogue official” standards and whether those standards establish
different tests, the Board explained that “under the treaty and its
implementing regulation, torturous conduct committed by a public official
who is acting ‘in an official capacity,’ that is, ‘under color of law’ is covered
by the Convention Against Torture, but such conduct by an official who is
not acting in an official capacity, also known as a ‘rogue official,’ is not
covered by the Convention.” Id. at 713 (emphasis added). “[R]ogue
official[s],” the Board explained, is simply a label for “public officials who
act outside of their official capacity, or in other words, not under color of
law.” Id. at 713–14. On the facts presented, the Board concluded that the
respondent’s assailants did not act “under color of law” and were therefore
“rogue officials.”
To the extent the Board used “rogue official” as shorthand for someone
not acting in an official capacity, it accurately stated the law. By definition,
the actions of such officials would not form the basis for a cognizable claim
under the CAT. But continued use of the “rogue official” language by the
immigration courts going forward risks confusion, not only because it
suggests a different standard from the “under color of law” standard, but also
because “rogue official” has been interpreted to have multiple meanings.
Compare Matter of O-F-A-S-, 27 I&N Dec. at 713–14 (a rogue official is one
who acts outside of his or her official capacity), with Rodriguez-Molinero
v. Lynch, 808 F.3d 1134, 1139 (7th Cir. 2015) (“rogue” means “not serving
the interests of the [entire] government”). For this reason and those described
more fully below, I agree with the Board that the “under color of law”
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standard is correct, and that it is the only standard that immigration courts
should apply when evaluating claims for protection under the CAT.
The relevant judicial backdrop, the CAT’s ratification history, and
subsequent judicial interpretation all support a single standard: public
officials or other persons act “in an official capacity” when they act “under
color of law.” As explained by the Supreme Court in another context, acts
are performed “under the color of law” when the actor misuses power
possessed by virtue of law and made possible only because the actor was
clothed with the authority of law. See Nat’l Collegiate Athletic Ass’n
v. Tarkanian, 488 U.S. 179, 191 (1988) (defining “color of law” in the
context of 42 U.S.C. § 1983).
Courts have long understood the phrases “in an official capacity” and
“under color of law” as alternative and overlapping ways of expressing the
concept of state action. Over a decade before the issuance of the CAT’s
implementing regulations, the Supreme Court acknowledged the connection
between the two formulations, holding that a public employee generally “acts
under color of state law while acting in his official capacity.” West v. Atkins,
487 U.S. 42, 50 (1988) (construing 42 U.S.C. § 1983); see also Martinez
v. Colon, 54 F.3d 980, 986 (1st Cir. 1995) (describing the “key determinant”
of an under color of law inquiry as “whether the actor, at the time in question,
purposes to act in an official capacity”). The implementing regulations under
the CAT are best construed in light of that judicial understanding about how
these terms are used in the law. Cf. Bragdon v. Abbott, 524 U.S. 624, 645
(1998) (explaining that Congress’s use of a phrase with a “settled” judicial
interpretation in a new statute generally implies an intent to incorporate the
settled interpretation).
A statement in the CAT’s ratification history bolsters the presumption
created by that judicial backdrop. When the President transmitted the treaty
to the Senate, the accompanying Department of State report made clear the
Executive Branch’s understanding that the “in an official capacity” and
“under color of law” formulations were interchangeable: “[I]n terms more
familiar in U.S. law,” the Department of State explained, the treaty “applies
to torture inflicted ‘under color of law.’” Message from the President of the
United States Transmitting the Convention against Torture and Other Cruel,
Inhuman, or Degrading Treatment of Punishment, S. Treaty Doc. No.
100-20, at 4 (1988). And there is no indication the Department of Justice
departed from that understanding in promulgating the CAT’s implementing
regulations, which parrot the Convention’s text in confining its scope to
torture inflicted by persons “acting in an official capacity.” Compare
8 C.F.R. § 1208.18(a)(1) with CAT art. 1; see 8 U.S.C. § 1231 note (directing
“the heads of the appropriate agencies” to “prescribe regulations to
implement the obligations of the United States” under the CAT). Citing the
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State Department’s report, the courts of appeals have therefore held that “in
an official capacity” under 8 C.F.R. § 1208.18(a)(1) bears the same meaning
as “under color of” law under 42 U.S.C. § 1983. See, e.g., Ramirez-Peyro,
574 F.3d at 900.
Congress also apparently understood those phrases as equivalent
alternatives, when it implemented the CAT’s directive to “ensure that all acts
of torture are offences under [domestic] criminal law.” CAT art. 4. The
criminal statute that executes the CAT defines “torture” to include only those
acts “committed by a person acting under the color of law.” 18 U.S.C.
§2340(1) (emphasis added). As the Eleventh Circuit has said in construing
that provision, “[t]here is no material difference between [the under color of
law] notion of official conduct and that imparted by the phrase ‘in an official
capacity.’” Belfast, 611 F.3d at 809. In light of all these factors, I agree and
now reaffirm Matter of Y-L-’s holding that “in an official capacity” means
“under color of law.”
This standard does not categorically exclude corrupt, low-level officials
from the CAT’s scope. Rather, regardless of rank, a public official acts
under color of law when he “exercise[s] power ‘possessed by virtue of . . .
law and made possible only because [he] is clothed with the authority of . . .
law.’” See, e.g., Atkins, 487 U.S. at 49 (describing the “traditional definition
of acting under color of state law”) (quoting United States v. Classic, 313
U.S. 299, 326 (1941)). Whether any particular official’s actions ultimately
satisfy this standard is a fact-intensive inquiry that depends on whether the
official’s conduct is “fairly attributable to the State.” Id. (quoting Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
Certain statements in Matter of Y-L- might be read to support the
alternative, “rogue official” formulation. But I do not understand Matter of
Y-L- to endorse a freestanding test that excludes from the CAT’s scope the
“extrajudicial acts” of “corrupt, low-level” agents who personally inflict
torture. Matter of Y-L- twice stated that the Convention applies to torture
inflicted “under color of law.” 23 I&N Dec. at 279, 285. And it discussed a
“rogue official” formulation only in applying the “under color of law”
standard to the particular facts presented in that case. With respect to one of
the respondents, the Attorney General stated that “evidence of isolated rogue
agents engaging in extrajudicial acts of brutality, which are not only in
contravention of the jurisdiction’s laws and policies but are committed
despite authorities’ best efforts to root out such misconduct,” was insufficient
to establish a claim for CAT protection. Id. at 283. And with respect to a
second respondent, the Attorney General similarly concluded that evidence
that “two corrupt, low-level agents may seek to exact personal vengeance on
him for personal reasons” was insufficient to establish a claim for CAT
protection. Id. at 285. Because these conclusions describe acts of private
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violence by persons who merely happened to be government officials, they
are consistent with the “under color of law” test. I do not believe that they
establish any other standard—such as the “rogue official” test—for
determining whether a public official or other person is acting “in an official
capacity,” and I do not afford any special significance to Matter of Y-L-’s
descriptions of the officials there as “isolated,” “corrupt,” or “low-level.”
As the Board correctly explained in its decision below, action “under
color of law” often involves misuse of authority. See Matter of O-F-A-S-,
27 I&N Dec. at 715 (“An act that is motivated by personal objectives is under
color of law when an official uses his official authority to fulfill his personal
objectives.”). Thus, an act’s very character as “extra-judicial”—that it is an
unlawful use of a power conferred by law—is what can make it “under color
of law.” And the “under color of law” test draws no distinction between
low-level and high-level officials. See, e.g., Ramirez-Peyro, 574 F.3d at 901(“[I]t is not contrary to . . . the under-color-of-law standard to hold Mexico
responsible for the acts of its officials, including low-level ones[.]”). It is
misuse of authority, “‘made possible only because the wrongdoer is clothed
with the authority’” of law, that may violate the CAT regulations. Atkins,
487 U.S. at 49 (quoting Classic, 313 U.S. at 326); see also Almand v. DeKalb
Cty., 103 F.3d 1510, 1513 (11th Cir. 1997) (noting that “[t]he dispositive
issue is whether the official was acting pursuant to the power he/she
possessed by state authority or acting only as a private individual”) (quoting
Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1523 (11th Cir. 1995)). By
immunizing extrajudicial action by low-level officials from the CAT’s scope,
a freestanding “rogue official” rule would appear to disqualify much of what
the “under color of law” rule might otherwise qualify as “torture.”
In its decision, the Board also suggested that there may be a legal
distinction between low- and high-level officials. The Board stated that “the
higher a position in law enforcement that a person holds, the more likely his
conduct will be under color of law,” because higher-level officers may abuse
authority “without adverse consequences” more easily than line police
officers. Matter of O-F-A-S-, 27 I&N Dec. at 716–17. Although I recognize
that the Board may have been seeking to reconcile all of the language in the
Attorney General’s decision in Matter of Y-L-, I do not think that any
distinction between low- and high- level officials can be maintained as part
of the “under color of law” inquiry. “[E]vidence that the government
prosecutes” corrupt law enforcement officers may be relevant to determining
whether some high-level official has acquiesced in torture, Garcia, 756 F.3d
at 892–93, but it makes no difference when determining whether a
law enforcement officer has himself inflicted, instigated, consented to,
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or acquiesced in torture under color of law. 2 Id. When police officers
inflict torture, “[i]t is irrelevant whether the police were rogue (in the
sense of not serving the interests of the [entire] government) or not.” See
Rodriguez-Molinero, 808 F.3d at 1139. The relevant question is whether
they acted under color of law—whether they misused power possessed by
virtue of law, made possible only because clothed with the authority of law.
Neither Matter of Y-L-, the Board’s decision below, nor any other Board
precedent should be read to endorse any inquiry distinct from the “under
color of law” standard. For the reasons discussed above, I vacate the Board’s
decision and remand this case for review by a three-member panel in
accordance with this opinion.
2
The question whether one public official has acquiesced in an act of torture is distinct
from whether another has inflicted torture under color of law, and I do not in this opinion
address the standard governing acquiescence. I hold only that a single standard applies
when determining whether a person has acted “in an official capacity”: the “under color of
law” standard, which, it bears repeating, demands a fact-intensive inquiry for determining
whether any particular person’s conduct is “fairly attributable to the State.” Atkins, 487
U.S. at 49 (quoting Edmondson Oil, 457 U.S. at 937).
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