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Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA 2019)
(1) 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 and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988), 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.
(2) The key consideration in determining if a public official was acting under color of law is whether he was able to engage in torturous conduct because of his government position or if he could have done so without a connection to the government.