Category: Matter of J-G-R-

⚖️ I DISSENT FROM BIA’S (NON) GUIDANCE ON “UNDER COLOR OF LAW” FOR THOSE WHO SUFFERED TORTURE BY GOVERNMENT OFFICIALS IN MATTER OF J-G-R-, 23 I &N DEC. 733 (BIA 2023)

Star Chamber Justice
Unless you work at Merrick “Garland’s BIA, it would be reasonable to assume that torture by government officials is “under color of law!”

BIA HEADNOTE:

(1) Torturous conduct committed by a public official who is “acting in an official capacity,” meaning acting under color of law, is covered by the regulations implementing the Convention Against Torture, but such conduct by an official who is not acting in an official capacity is not covered. Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020), followed.

(2) The key consideration in determining if an official’s torturous conduct was undertaken “in an official capacity” for purposes of CAT eligibility is whether the official was able to engage in the conduct because of his or her government position, or whether the official could have done so without connection to the government.

FOR THE RESPONDENT: Ethan R. Horowitz, Esquire, Lawrence, Massachusetts

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; CREPPY and HUNSUCKER; Appellate Immigration Judges.

MALPHRUS, Deputy Chief Appellate Immigration Judge:

*****************************

SCHMIDT, RETIRED JUDGE OF THE ROUND TABLE, DISSENTING:

I dissent.

A far fairer, more logical, efficient, and uniformity-promoting solution is staring us in the face: An applicant who credibly establishes torture by a public official or officials should be entitled to a rebuttable presumption that the torture was inflicted “under color of law.” The DHS should then be required to establish by a preponderance of evidence that the official was acting in another capacity if it wishes to contest that presumption.

The information and evidence that might overcome a logical presumption that government officials act “under color of law” is much more likely to be available to the DHS than to the applicant. This is particularly true in the many cases where CAT applicants are detained, unrepresented, or both.

This rebuttable presumption would also, as a practical matter, close the gap between our interpretation and the rule in the Ninth Circuit which wisely recognizes no exceptions when torture is inflicted by government officials. See, e.g., Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017).

In adjudicating claims from individuals who have already suffered torture at the hands of government officials we must err on the side of protection, not rejection. The panel’s mushy guidance amounts to no practical guidance at all. It will certainly result in conflicting results, increased trial times and backlogs, arbitrary denials, and violations of due process. More backlog-promoting, avoidable Circuit Court remands are sure to follow.

Consequently, I dissent.

🇺🇸 Due Process Forever!

PWS

08-14-23

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. 🏴‍☠️BIA’S MISOGYNISTIC, ANTI-ASYLUM, IGNORE THE EXPERTS & THE EVIDENCE APPROACH 🤮 REBUKED AGAIN — 9th Cir. Slams BIA Big Time In Rodriguez Tornes v. Garland! — “Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a ‘personal relationship.’”
  3. 🏴‍☠️👎🏼🤮 JUSTICE’S UNJUST “COURTS!” — Recent Reports Highlight Horribly Failed System —Asylum Free Zones, Unqualified Prosecutor-Judges, Deadly Denials, Blatant Information Imbalance, Dehumanizing Treatment, Poor Access To Counsel, Docket Mayhem, Unrealistic Timelines, Biased Outcomes, Indifference To Human Life, Unaccountability, Among The Myriad Problems Flagged By Those Forced To Deal With Garland’s Ongoing Mockery Of Due Process! — EXTRA! — How Poor Legal Performance @ DOJ Skews The Entire Immigration Debate!
  4. 🤮👎🏻EOIR’S CONTEMPT FOR CIRCUITS, UNPROFESSIONAL ABUSE OF EXPERTS, PRO-DHS BIAS EARNS STRONG REBUKE FROM 9TH! — End The Star Chambers!☠️ — No More “Governmental Malpractice” From The New Administration!