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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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734 

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.