9th Circuit Strikes Down BIA's Strict Interpretation Of Acquiescence Under The Convention Against Torture

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

9TH CIRCUIT STRIKES DOWN BIA’S STRICT INTERPRETATION OF ACQUIESCENCE UNDER THE CONVENTION AGAINST TORTURE
Immigrants' Rights Update, Vol. 17, No. 4, July 15, 2003

In an important decision that affects how the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is to be applied, the Ninth Circuit Court of Appeals has ruled that, under the CAT, for a petitioner to show government acquiescence to torture, the petitioner need not demonstrate that government officials are “willfully accepting” of their country’s citizens being tortured at the hands of a third party. Applying clearly expressed congressional intent, the court reversed and remanded the Board of Immigration Appeals and ruled that in order for the petitioner to qualify for relief under the CAT, government officials need only be “aware” that it is likely that a third party is torturing citizens of their country.

The case before the Ninth Circuit was that of Li Chen Zheng, a 16-year-old Chinese national who was brought to Guam by smugglers. Both of Zheng’s parents had fled to the United States from China; his father was in New York and his mother resided in Guam. While attempting to enter the U.S., Zheng was apprehended by U.S. authorities and subsequently became a material witness in a criminal prosecution against the smugglers.

At his removal hearing before an immigration judge, Zheng claimed that because he had testified against the smugglers, provided all of their names to U.S. authorities, and reported that they had tortured him and others, the smugglers would torture and kill him if he were returned to China. Zheng also testified that Chinese government officials would not protect him from the smugglers because the smugglers had connections to public officials.

Zheng himself testified, and he also presented declarations by two other Chinese nationals who had been smuggled into Guam with him. He also relied on the congressional findings in the Trafficking Victims Protection Act to show that trafficking is often aided by official corruption in countries of origin and that traffickers often resort to violence and torture, or threats of torture, to keep their victims in line. In addition, Zheng provided evidence of the smugglers’ collusion with government officials and recounted how, after he had testified in the smugglers’ trial, one of the smugglers threatened him with death. Based on these facts, the immigration judge granted Zheng’s request for protection under the CAT. The Immigration and Naturalization Service appealed to the BIA.

Under the CAT, the U.S. will not “effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture,” if the torture is “inflicted by or at the instigation of or with the consent or acquiescence of a public official” (emphasis added). On appeal, the INS argued that the Chinese government’s turning a blind eye to the fact that its citizens were being smuggled out of the country was not tantamount to acquiescing to the torture that smugglers sometimes engage in.

Citing Matter of SV-, Int. Dec. 3439 (BIA 2000), the BIA sustained the INS’s appeal. The BIA interpreted the term “acquiescence” to require that a government official be “willfully accepting of” a third party’s torturous activities. The BIA vacated the IJ’s withholding of removal, finding that even if Chinese government officials acquiesced in the smuggling operations, Zheng had failed to show that they would willfully accept torturous activities. Zheng appealed the BIA’s decision to the Ninth Circuit.

On appeal, the INS argued that the BIA was owed deference in determining the meaning of “acquiescence,” but the Ninth Circuit criticized the BIA’s interpretation of the term as ignoring clear congressional intent. The court held that Congress clearly intended that neither actual knowledge nor willful acceptance is necessary for a government to acquiesce in the torture of its citizens. Tracing the legislative history of the Senate’s consent to the CAT, the court showed how the Senate replaced the word “knowledge” with “awareness” in the definition of acquiescence. It did so in order to clarify that both actual knowledge and willful blindness fall within the definition. Acquiescence was defined as awareness on the part of public officials, prior to the activity constituting torture, of such activity and their subsequent breach of their legal duty to intervene to prevent such activity.

Because the BIA’s requirement of “willful acceptance” misinterpreted the term “acquiescence” and created a standard more stringent than what Congress clearly intended, the court expressed disapproval of prior BIA decisions that had required actual knowledge and willful acceptance instead of awareness. The court thus remanded the case to the BIA to give the BIA an opportunity to apply the correct standard for “acquiescence.”

Zheng v. Ashcroft, No. 02-70193 (9th Cir. June 18, 2003).