J-G-R-

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Matter of J-G-R-, Respondent
Decided August 11, 2023
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(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:
This case was last before us on February 2, 2021, when we dismissed the
respondent’s appeal of the denial of his application for protection under the
regulations implementing the Convention Against Torture (“CAT”). 1 	On
June 14, 2022, the United States Court of Appeals for the First Circuit
granted the respondent’s petition for review. 	Reyes v. Garland, 37 F.4th 1
(1st Cir. 2022). The respondent has filed a motion to remand the record to
the Immigration Judge for further proceedings. We will grant the motion to
remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Department of Homeland Security placed the respondent in removal
proceedings in May 2017. The respondent conceded removability and filed
applications 	for 	asylum 	and 	withholding 	of 	removal 	under 	sections
1 	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). 8 C.F.R. §§ 1208.16(c)–1208.18.

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208(b)(1)(A) and 241(b)(3)(A) of the Immigration and Nationality Act, 8
U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A) (2018), and for CAT protection.
The respondent claims two men wearing police uniforms detained him in
a police station in the Dominican Republic, stabbed him with a screwdriver,
and ordered him to repay money they claimed he owed a local business
owner. He testified the men later shot him because he was unable to repay
the money. 	He was hospitalized and then released into the custody of the
same two men, who again stabbed him with a screwdriver.
On October 24, 2019, the Immigration Judge denied the respondent’s
applications based on an adverse credibility finding and, alternatively, for
failure to meet his burdens of proof. On appeal, the respondent challenged
only the Immigration Judge’s adverse credibility finding and the denial of
CAT protection. 	We affirmed the Immigration Judge’s adverse credibility
finding and held that, because the respondent lacked credibility and there was
no objective evidence in the record independently establishing his eligibility
for CAT protection, he did not satisfy his burden of proof. 	Granting the
respondent’s petition for review, the First Circuit held that the Board erred
in affirming the Immigration Judge’s adverse credibility finding and vacated
our decision because it could not conclude that the respondent’s CAT claim
would necessarily fail absent the adverse credibility finding. Reyes, 37 F.4th
at 6–8.
II. ANALYSIS
CAT protection is available when a respondent demonstrates a clear
probability of torture “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.” 	8 C.F.R. § 1208.18(a)(1) (2020). 	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. 	This decision articulates a
national standard for Immigration Judges to apply when determining whether
torturous conduct is undertaken “in an official capacity,” i.e., under color of
law, for purposes of CAT eligibility. 2
2 	The standard articulated here is not controlling in Immigration Courts within the
jurisdiction of the Ninth Circuit. The Ninth Circuit does not recognize a distinction, for
purposes of CAT protection, between public officials who engage in torturous conduct in
an official capacity and those who engage in such conduct for purely private motivations.
See Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017); see also Macedo Templos
v. Wilkinson, 987 F.3d 877, 884 (9th Cir. 2021) (citing Barajas-Romero approvingly and
holding that “[e]ven if the judicial officers were not in uniform and did not act in their

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A. Legal Developments
In 2019, the Board issued Matter of O-F-A-S-, 27 I&N Dec. 709 (BIA
2019), examining the requirement that a public official be acting “in an
official capacity” for the purposes of CAT protection. 	We recognized that
the Attorney General had interpreted the phrase “in an official capacity” in
8 C.F.R. § 1208.18(a)(1) to mean “under color of law” as that term is used in
the federal civil rights context. 	See Matter of O-F-A-S-, 27 I&N Dec. at
714–15 (citing Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 285 (A.G.
2002), where the Attorney General held that “[t]he scope of the Convention
is confined to torture that is inflicted under color of law”); see also
Garcia-Aranda v. Garland, 53 F.4th 752, 759 (2d Cir. 2022) (“As for who
qualifies as a government actor, the Attorney General and our sister circuits
have interpreted the regulation’s reference to public officials (or other
persons) ‘acting in an official capacity’ to mean any public official at any
level of government (or any other person) acting ‘under color of law,’ as that
phrase is used in the civil-rights context.”).
Our decision articulated a national standard for determining whether
torturous conduct by public officials is undertaken “in an official capacity.”
Matter of O-F-A-S-, 27 I&N Dec. at 715–18. 	This standard imported
principles from federal civil rights cases addressing whether a public
official’s actions were taken “under color of law.” Id.
The Attorney General later referred the decision in Matter of O-F-A-S- to
himself for review and decided Matter of O-F-A-S- (“O-F-A-S- II”), 28 I&N
Dec. 35 (A.G. 2020). The Attorney General agreed with the Board’s holding
that “acting in an official capacity” means acting “under color of law.” 	28
I&N Dec. at 38–39, 41; see also H.H. v. Garland, 52 F.4th 8, 22–23 (1st Cir.
2022) (explaining that in Matter of O-F-A-S- II, “the Attorney General issued
a precedential opinion interpreting the CAT’s ‘official capacity’ requirement,
official capacity, [the respondent had] sufficiently demonstrated that he was the victim of
an official perpetration of violence,” and was therefore eligible for CAT protection).
The Ninth Circuit’s interpretation is inconsistent with our understanding of 8 C.F.R
§ 1208.18(a)(1), which, like the CAT (which the regulation implements), “applies only to
torture that occurs in the context of governmental authority, excluding torture that occurs
as a wholly private act or, in terms more familiar in U.S. law, it 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 or
Punishment, S. Treaty Doc. No. 100-20, at 4 (1988). If the regulation is read as the Ninth
Circuit interprets it, then it would provide protection to persons tortured by public officials
acting in a purely private capacity and in furtherance only of their own personal objectives.
In our view, this was not the intent of the Convention Against Torture or the regulations
implementing it.

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holding that the term ‘official capacity’ is subject to the same analysis
applicable to actions taken ‘under color of law’ in the [42 U.S.C.] § 1983
context”).
The Attorney General vacated and remanded the Board’s decision,
however, on grounds unrelated to our articulation of a national standard for
determining when a public official acts “in an official capacity” for purposes
of determining CAT eligibility. See Matter of O-F-A-S- II, 28 I&N Dec. at
38–41. First, the Attorney General disagreed with the Board’s definition and
application of the phrase “rogue official” in the context of determining CAT
eligibility. 	He explained that continued reliance on that phrase “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.” 	Id. at 38 (citations omitted). 	Second, the
Attorney General disagreed with what he perceived to be the Board’s
suggestion, albeit unintended, that there is a distinction between low-level
and high-level officials in the “under color of law inquiry.” Id. at 41–42.
Thus, in the new articulation of the standard presented here, we do not
use or refer to the term “rogue official,” and we do not suggest that the
standard applies differently to high-level and low-level public officials.
B. “Under Color of Law”
For purposes of CAT protection, “acting in an official capacity” means
acting “under color of law.” A public official acts “under color of law” when
he or she “exercise[s] power ‘possessed by virtue of . . . law and made
possible only because [he or she was] clothed with the authority of . . . law.’”
West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic,
313 U.S. 299, 326 (1941)); see also DiDonato v. Panatera, 24 F.4th 1156,
1161 (7th Cir. 2022) (“To plead that a defendant acted under color of state
law, a § 1983 plaintiff must allege that a defendant’s invocation of state
authority in one way or another facilitated or enabled the alleged misconduct.
That the defendant is a state employee is not enough.”).
An act that is motivated by personal objectives may be under color of law
when the actor uses his or her official authority to further those objectives.
See Garcia v. Holder, 756 F.3d 885, 892 (5th Cir. 2014) (involving extortion
by apparent police officers). 	“The dispositive question is whether the
[official] was exercising the power [he or] she possessed based on state
authority or was acting only as a private individual.” Butler v. Sheriff of Palm
Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012).
Thus, in determining if a public official who engaged in torture was
“acting in an official capacity,” it is key to consider whether he or she was
only able to accomplish the acts of torture by virtue of holding official status.

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See United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991) (addressing
assault by police officer for personal reasons while cloaked with the authority
of law). 	In evaluating if a public official acted under color of law, circuit
courts have often relied on whether the actor’s government connections
provided physical access to the victim, or to the victim’s whereabouts or
other identifying information.
For example, in Garcia, 756 F.3d at 887–89, the victim was extorted,
threatened, and beaten shortly after he had provided required information to
government officials: 	first, when he applied for a national identity card;
second, when he was stopped and questioned at a police checkpoint. 	The
Fifth Circuit determined that the offenders’ ability to obtain information
about the victim’s whereabouts and his financial status from other public
officials who had acquired that information in their official capacities was a
strong indication that the offenders’ actions were taken under color of law
and therefore “in an official capacity” for purposes of CAT eligibility. Id. at
892–93.
Similarly, in Ramirez-Peyro v. Holder, 574 F.3d 893, 902–04 (8th Cir.
2009), the Eighth Circuit recognized that Mexican government officials who,
in their official capacity, obtained information about the victim’s identity and
whereabouts would be acting under color of law if they provide that
information to drug cartels who then tortured the victim. In these cases, the
actor’s official capacity effectively provided the means to access, locate, or
harm the victim.
Also relevant to, but not dispositive of, the “under color of law” analysis
is whether a law enforcement officer was on duty and in official uniform at
the time of the torturous conduct. 	See United States v. Christian, 342 F.3d
744, 751–52 (7th Cir. 2003) (holding that an officer acted under color of law
when he attacked an inmate because, even though the attack was motivated
by the officer’s personal reasons, the officer was on duty and in uniform at
the time of the attack, had access due to his official status, and enlisted the
aid of other officers in the jail); see also DiDonato, 24 F.4th at 1160 (“Nor
is it dispositive whether the state employee was on- or off-duty at the time
the incident occurred.”).
Whether the official is in uniform and/or used a service weapon at the
time of the conduct is not dispositive. Those items can be obtained outside
the normal channels of government operations, and they may not be
necessary to the public official’s ability to engage in the conduct. See Butler,
685 F.3d at 1267–68 (holding that an officer’s use of her service weapon and
handcuffs to restrain, threaten, and beat the victim did not render her conduct
undertaken 	under 	color 	of 	law 	because 	someone 	who 	is 	not 	a 	law
enforcement officer could also own a handgun and handcuffs, and use them
to restrain and beat a person); see also Barna v. City of Perth Amboy, 42 F.3d

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809, 817–18 (3d Cir. 1994) (holding that a police officer did not act under
color of law, even though he was in uniform and used a government-issued
nightstick to beat the victim, because he was off duty, outside his jurisdiction,
and he did not encounter the victim as part of police business); see also
Almand v. DeKalb Cnty., 103 F.3d 1510, 1515 (11th Cir. 1997) (holding that
an officer’s conduct in breaking down an apartment door and raping a woman
occupant while he was in uniform was not under color of law because there
was no evidence that he accomplished the act because of the power he
possessed under state authority).
Another relevant consideration in determining whether an official’s
conduct is under color of law is whether the official threatened and had the
ability to retaliate through governmental channels if the victim reported the
conduct to authorities. See Tarpley, 945 F.2d at 809 (holding that an assault
by a police officer was under color of law where he repeatedly told the victim
that he could beat and kill the man without any consequences because he was
an officer, and enlisted the aid of another officer during the assault).
In sum, 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. 	In making this determination, the
Immigration 	Judge 	should 	consider 	whether 	the 	official’s 	government
connections provided access to the victim, revealed his or her whereabouts,
or provided other identifying information. 	The Immigration Judge should
also consider whether the official was on duty and/or in uniform at the time
he or she engaged in the torturous conduct, and whether other officials
cooperated or facilitated the conduct. 	The Immigration Judge should
additionally consider whether the offending official threatened to retaliate
through official channels if the victim reported the conduct to authorities.
See Magee v. Trs. of Hamline Univ. 747 F.3d 532, 535 (8th Cir. 2014)
(holding that factors relevant to the color of law analysis include “whether
the officer is on duty and in uniform, the motivation behind the officer’s
actions, whether the officer had access to the victim because of his position,
and whether the officer threatened official conduct in the future”).
The 	analysis 	required 	by 	this 	standard 	is 	fact 	intensive. 	See
Garcia-Aranda, 53 F.4th at 760 (“[W]hether any particular official’s actions
ultimately satisfy [the color of law] standard is a fact-intensive inquiry, as
‘there is no bright line test for distinguishing “personal pursuits” from
activities taken under color of law.’” (quoting Pitchell v. Callan, 13 F.3d 545,
548 (2d Cir. 1994))). 	In making factual findings regarding the official’s
conduct, the Immigration Judge should assess both direct and circumstantial
evidence.

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III. CONCLUSION
We will remand the record to the Immigration Judge to determine if the
respondent is credible, consistent with the First Circuit’s remand order. 	If
the Immigration Judge finds the respondent credible on remand, she should
reassess the respondent’s eligibility for CAT protection. 	Her review of the
respondent’s CAT claim should include a determination as to whether the
two men who detained, stabbed, and threatened the respondent were actual
police officers and, if so, whether their conduct was undertaken “in an official
capacity,” i.e., under color of law, using the standard articulated above.
Specifically, the Immigration Judge should address whether the men were
able to engage in their conduct only because they were clothed with the
authority of law.
If the Immigration Judge determines that the two men were not actual
police officers or did not engage in their conduct “in an official capacity,”
the Immigration Judge must also determine whether the respondent has
established that a public official acquiesced in their conduct and would likely
acquiesce in the future. See H.H., 52 F.4th at 19–20 (“An applicant seeking
to establish acquiescence must first demonstrate the likelihood of a foreign
government’s awareness of torture, and then show a likely breach of the
government’s duty to intervene to prevent the torture.”).
The parties should be provided the opportunity to file additional evidence
and legal arguments on remand. The following order will be entered.
ORDER: The motion to remand is granted, and the record is remanded
to 	the 	Immigration 	Court 	for 	further 	proceedings 	consistent 	with 	the
foregoing opinion and for the entry of a new decision.