Barr on Torture: Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020)

Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020)

(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)).

"... For the reasons discussed above, I vacate the Board’s decision [Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019)] and remand this case for review by a three-member panel in accordance with this opinion."