The Attorney General has backtracked on the Board of Immigration Appeals’ attempt to carve out a “rogue official” exception to protection under the Convention Against Torture (CAT). “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.”
“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.’ 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.’” The Attorney General further noted that there should be no distinction between acts of torture by high ranking or low level officials.
The Attorney General vacated the Board of Immigration Appeals’ prior published decision on the case.
The full text of Matter of O-F-A-S- can be found here: