In Matter of O-F-A-S, one of the several decisions made on cases before the Board of Immigration Appeals by Attorneys General during the Trump administration for the purpose of limiting immigration, the Attorney General held that “torture” under the Convention Against Torture refers only to conduct inflicted or approved by a public official or other person acting in an official capacity. The Attorney General stated the official capacity requirement limits protections only to conduct performed “under color of law” while simultaneously rejecting any “rogue official” standard. The color of law standard applies to all public officials, regardless of rank or level, when exercising power “possessed by virtue of law and made possibly only because he was clothed with the authority of law.”

It is apparent the Attorney General decided this case only to make it harder for immigrants seeking protection under the Convention Against Torture because the case had already been decided with the same outcome produced by the Attorney General. There was no reason relating to OFAS’s case itself for the Attorney General to review the case. While the case was only one year old, it demonstrates a willingness by the Attorney General to reopen old cases to suit his purposes. Such a practice not only deprives the Board of Immigration Appeals of authority and credibility, it also raises the potential for reopening older cases for which there is no reason to reopen them other than to establish or change a policy.

This behavior raises the real concern that immigration law could be manipulated by each administration preventing any continuity of law, depriving the courts of any predictability, and creating permanent uncertainty for everyone in immigration courts. No system of law can operate competently or credibly when policies are subject to change based on ever-changing political whims. While the Attorney General took and decided this case for the purpose of narrowing the people eligible for relief under the Convention Against Torture, what he really did was demonstrate why the immigration courts must be reconstructed as independent constitutional courts where the judges are not subject to binding directives from future Attorneys General, where final decisions are actually final, and where precedential caselaw remains precedential unless a panel of non-politically motivated federal judges reconsiders the precedent.

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