O‑F‑A‑S‑

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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