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Keywords

tortburden of proofwillcase law
tortwill

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Rafiq v. Gonzales

Facts

Kaiser Rafiq, a lawful permanent resident of the United States and a native of Pakistan, was placed in removal proceedings due to a conviction for attempted criminal sale of a controlled substance. He argued that he would face torture upon returning to Pakistan because of his conversion to Catholicism and his grandfather's controversial political history. The IJ determined that Rafiq did not meet the burden of proof to show he would likely be tortured, a conclusion that was upheld by the BIA.

Rafiq, a lawful permanent resident of the United States but a native and citizen of Pakistan, was placed in removal proceedings as a result of his conviction for attempted criminal sale of a controlled substance, in violation of New York Penal Law 110, 220.39(1). Rafiq contends that he would be subject to torture if returned to Pakistan, both because he is a convert from Islam to Catholicism, and because his grandfather was a controversial political figure notorious in Pakistan for his pro-Bengali statesmanship.

Issue

Did the IJ apply the correct legal standard for determining whether Rafiq would be tortured if returned to Pakistan under Article 3 of the United Nations Convention Against Torture?

Did the IJ apply the correct legal standard for determining whether Rafiq would be tortured if returned to Pakistan under Article 3 of the United Nations Convention Against Torture?

Rule

Torture requires only that government officials know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it.

In Khouzam v. Ashcroft, this court held that "torture requires only that government officials know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it."

Analysis

The court reviewed the IJ's decision and the record of the removal proceedings, expressing doubt that the IJ applied the correct standard regarding the state action requirement for torture. The IJ's comments indicated a belief that direct government involvement was necessary for a finding of torture, which contradicted the legal standard established in prior case law.

On reviewing the IJ's decision and the record of the removal proceedings, we find it doubtful, at best, that the IJ applied the correct standard.

Conclusion

The petition for review was granted, the BIA's decision was vacated, and the case was remanded for further proceedings.

For the foregoing reasons, we GRANT the petition for review, VACATE the BIA's decision, and REMAND the case to the BIA for further proceedings consistent with this opinion.

Who won?

Kaiser Rafiq prevailed in the case because the court found that the IJ applied an incorrect legal standard regarding the requirement for state action in torture claims.

Rafiq's principal contention before us is that the IJ applied an incorrect legal standard for torture under CAT, specifically with respect to the state action requirement.

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