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Immigration Law Advisor U.S. Department of Justice www.justice.gov/eoir/virtual-law-library Executive Office for Immigration Review Published since 2007 Immigration Law Advisor May 2015 A Legal Publication of the Executive Office for Immigration Review Vol. 9 No. 5 The Convention Against Torture and Third-Party In this issue... Abuse: When Does a Government Breach Its Duty Page 1: Feature Article: Through Acquiescence? The Convention Against Torture by Lissette Eusebio and Third-Party Abuse: When Does a Government Breach Its Duty Through he international community has long regarded torture as inhumane Acquiescence? and repugnant. In an attempt to combat the problem, nations, Page 4: Federal Court Activity Tincluding the United States, came together in joining the Page 7: BIA Precedent Decisions Convention Against Torture (CAT). The CAT prohibits a party State from removing any person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened The Immigration Law Advisor is a for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. professional newsletter of the Executive 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, Office for Immigration Review 1987; for the United States Apr. 18, 1988). (“EOIR”) that is intended solely as an educational resource to disseminate Although generally the torture must be inflicted at the hands of information on developments in the government, an applicant for protection under the CAT may obtain immigration law pertinent to the relief when such pain or suffering is inflicted by a private party with the Immigration Courts and the Board of Immigration Appeals. Any views consent or acquiescence of a public official. 8 C.F.R. § 1208.18(a)(1). The expressed are those of the authors and regulation states that a public official acquiesces to torture when, prior do not represent the positions of EOIR, to the activity constituting torture, the public official “[has] awareness the Department of Justice, the Attorney of such activity and thereafter breach[es] his or her legal responsibility to General, or the U.S. Government. This intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7).1 Black’s publication contains no legal advice Law Dictionary defines the verb “acquiesce” as “[t]o accept tacitly or and may not be construed to create passively; to give implied consent to (an act).” Black’s Law Dictionary 26 or limit any rights enforceable by (9th ed. 2009). law. EOIR will not answer questions concerning the publication’s content or The issue of acquiescence may arise in cases where a person seeks how it may pertain to any individual protection from third-party violence in a country where the government case. Guidance concerning proceedings before EOIR may be found in the appears to have the intent to provide protection, but is unable to do so. Immigration Court Practice Manual Although most circuits now consider a government to acquiesce where it and/or the Board of Immigration demonstrates “willful blindness,” the ability or inability of a government Appeals Practice Manual. to offer its protection is a factor that may be intertwined with the issue 1 of acquiescence. This article will review developments 237 F.3d 591 (6th Cir. 2001). These courts of appeals in the circuit courts’ interpretation of acquiescence and have concluded that a government may acquiesce to government action in the context of the CAT. torture either where the government has actual knowledge of such acts or where the government has awareness of Background such activity and demonstrates willful blindness. In Matter of S-V-, the Board took the position that The distinction between the “willful acceptance” a government’s inability to control a group ought not and “willful blindness” standards was addressed by the lead to the conclusion that the government acquiesced Fourth Circuit in Suarez v. Holder, 714 F.3d 241, 245–46 to the group’s activities. 22 I&N Dec. 1306, 1312 (4th Cir. 2013). The applicant in the case argued that the (BIA 2000). Instead, the Board held that an applicant Board, in citing Matter of S-V-, had wrongly relied on the “must do more than show that the officials are aware of “willful acceptance” standard. Specifically, the Board had the activity constituting torture but are powerless to stop cited Matter of S-V- for the proposition that the applicant it.” Id. The Board, however, acknowledged that actual “must demonstrate that officials are willfully accepting knowledge is not required, and that acquiescence may of the tortuous [sic] activities.” Suarez v. Holder, be established through willful blindness. See id. at 714 F.3d at 246. The court noted that the “willful 1311–12. The Attorney General subsequently added acceptance” standard had been discredited in multiple that, “the relevant inquiry under the [CAT] . is whether circuits, and that it applied the “willful blindness” governmental authorities would approve or ‘willfully standard. Id. The court cited to Zheng v. Ashcroft, accept’ atrocities committed against persons in the 332 F.3d 1186, 1194 (9th Cir. 2003), and stated, [applicant’s] position.” Matter of Y-L-, A-G- & R-S-R-, “pursuant to the willful blindness standard, government 23 I&N Dec. 270, 283 (A.G. 2002) (internal citation officials acquiesce to torture when they have actual omitted). knowledge of or turn a blind eye to torture.” Id. (internal quotation and citation omitted). Willful Blindness v. Willful Acceptance However, the court in Suarez v. Holder concluded As recognized in a prior article, the majority that the Board’s actual analysis of the applicant’s claim of circuit courts of appeal did not adopt the “willful was not inconsistent with the “willful blindness” standard. acceptance” standard articulated in Matter of Y-L-, but See id. at 246–47. The court noted that the Board had instead adopted a “willful blindness” standard. See not required the petitioner to show that the Peruvian Brea C. Burgie, The Convention Against Torture and government had actual knowledge of the mistreatment Acquiescence: Willful Blindness or Willful Awareness?, he feared. Id. at 247. The court also concluded that the Immigration Law Advisor, Vol. 5, No. 4 (April 2011). Board had properly evaluated “whether the government “Willful blindness” is defined as “[d]eliberate avoidance of was likely to turn a blind eye” to the applicant’s torture. knowledge of a crime, esp. by failing to make a reasonable Id. at 247. The court found that the Board’s denial of the inquiry about suspected wrongdoing despite being aware CAT claim was supported by evidence that the Peruvian that it is highly probable.” Black’s Law Dictionary 1737 government would not acquiesce to future torture because (9th ed. 2009). officials had denounced a rogue police officer’s behavior, prosecuted him, and incarcerated him. Id. at 247–48. The willful blindness standard was most recently adopted by the Fourth Circuit, and is now applied in the A Government’s Inability to Oppose Third-Party Torture majority of circuits, including the Second, Third, Fourth, Generally Held Not to Constitute Acquiescence Fifth, Sixth, Eighth, Ninth, and Tenth Circuits. See Suarez v. Holder, 714 F.3d 241 (4th Cir. 2013); Hakim Many circuits have addressed the issue of a v. Holder, 628 F.3d 151 (5th Cir. 2010); Mouawad v. government that is taking steps, but with mixed success, Gonzales, 479 F.3d 589 (8th Cir. 2007); Silva-Rengifo to address societal problems such as gang violence. For v. Att’y Gen. of U.S., 473 F.3d 58 (3d Cir. 2007); Cruz- example, the Fourth Circuit has held that there is no Funez v. Gonzales, 406 F.3d 1187 (10th Cir. 2005); acquiescence when the country report reflects that the Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004); Zheng government, although ineffectively, is taking steps to v. Aschroft, 332 F.3d 1186 (9th Cir. 2003); Ali v. Reno, deal with the torturous activity. See Martinez v. Holder, 2 740 F.3d 902, 914 (4th Cir. 2014) (finding no acquiescence the government’s inability to protect its citizens alone when a former member of the Mara Salvatrucha gang is not enough to establish acquiescence. 485 F.3d did not report attacks to the authorities and the country 405, 413 (8th Cir. 2007). The court reasoned that the report reflected that the government had taken steps inquiry must consider the willfulness of a government’s to address the “difficult problem” of gang violence). non-intervention. “A government does not acquiesce in Similarly, in Garcia v. Holder, 746 F.3d 869 (8th Cir. the torture of its citizens merely because it is aware of 2014), the court held that evidence in the country report torture but powerless to stop it, but it does cross the line suggested that the government was trying to address into acquiescence when it shows willful blindness towards the problem of gang violence, and that the applicant the torture of citizens by third parties.” Id. (internal did not establish that the government was unwilling citations and quotation marks omitted). The Eighth to protect him from the Mara Salvatrucha gang. In Circuit remanded the case for the Board to consider Garcia, the authorities arrested the assailant, and a rumor whether the Lebanese government would acquiesce to of the police receiving a bribe to release the assailant a mistreatment of an individual by Hizballah given that week later was not substantiated by the evidence. Id. at the government had not attempted to disarm the group, 873–74.
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