Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

 Question: I have heard a great deal about the Convention Against Torture and what might be needed. I have a friend that escaped his country because he thought he was going to be killed. However, I am not sure if the government knew that this group of rebels wanted to torture him. Will this qualify for the Convention Against Torture?

Answer: There is a case that just came down in the 9^th Circuit Courts of Appeal and it address this issue. First, it is necessary to discuss the facts of that case. In Colombia, Ochoa owned a women’s clothing store in the San Andresito Shopping Center. Initially, Ochoa purchased clothes in Colombia and sold them at his shop. Then in 1996, he started traveling to the United States to purchase clothing. The clothes he purchased were shipped to Colombia, where he sold them wholesale and retail. In the course of Ochoa’s business he borrowed $20,000 from a private lender. The money was lent to Ochoa at six percent interest monthly, seventy-two percent interest annually. In addition to lending money, the lender sent retailers to Ochoa. The retailers would buy clothing from Ochoa on credit and then resell the clothes. The retailers would post-date OCHOA v. GONZALES 5235 checks for the clothes and thirty days later Ochoa would cash the checks. Several of the retailers defaulted on their checks. Ochoa never recovered the money. Because the retailers defaulted on their credit, Ochoa could not repay his loan. Soon thereafter a man named Efrain came to Ochoa’s store on behalf of the lender to collect the money. In a very harsh way, Efrain demanded Ochoa repay the money immediately. Ochoa had heard that Efrain was the “kind of person that you had to watch out for, that he had possibly killed one or two people, but that no one could really prove it.” Ochoa was also approached by a person who claimed to own the money lent to Ochoa. This person, who never said his name, proposed a plan for Ochoa to work for him to repay the loan. Ochoa testified, “he simply wanted me to keep on doing my traveling, so they’d be in charge of picking up my merchandise, send it to Colombia, and then delivering it to me.” Ochoa’s testimony and evidence in the record indicates the lender was a narco trafficker and that he was pressuring Ochoa to participate in a narco-trafficking money laundering scheme. Ochoa did not accept the proposal. Instead, Ochoa offered to give the lender/narco-trafficker his house, car, and business to pay off the loan. The approximate value of these things was $30,000. This would have been an immediate fifty percent profit on the loan. The lender refused. Ochoa’s friends and family advised him to reject the deal and “to just get out, to leave.” They said that people who “worked” for the lenders “normally got killed, or else those who refused to work for them got killed right away.” Ochoa said in his asylum declaration that “In San Andrecito merchants disappeared on a regular basis without any police inquiry, when the merchants had fallen in disgrace with the money lenders.” Because of the threats to their lives Ochoa and Diaz left Colombia and came to the United States. Ochoa entered the United States on December 4, 1997. Diaz entered approximately a month and a half later. They have not returned to 5236 OCHOA v. GONZALES Colombia since. Ochoa believes the situation in Colombia has “actually gotten worse” since they left.

Question: What happened at the Immigration Court with these people?

Answer: The Judge found the petitioners credible and directed Colombia as the country of removal. The Judge denied the petitioners’ applications for asylum and withholding because he found the petitioners did not prove their fear of persecution was “on account of” an enumerated basis. The Judge found the petitioners would be subject to torture if they returned to Colombia and he granted them withholding under the Convention Against Torture (CAT.) The Board of Immigration Appeals reversed the Judges decision that granted relief under CAT. The BIA found there was not sufficient evidence to show the government’s acquiescence in the feared torture.

Question: This certainly seems unfair. What was the outcome in the 9^th Circuit Court of Appeals?

Answer: Under CAT a person qualifies for relief if “it is more likely than not that he or she would be tortured in their home country. CAT define torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for . . . any reason based on discrimination of any kind . . . by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The BIA found Ochoa could not show the Colombian government acquiesced to the feared torture. That standard (which is now overruled) requires a petitioner to “do more than show that the officials are aware of the activity constituting torture but are powerless to stop it.” In that standard, it is required that government officials to be “willfully accepting” of the feared torturous activities.

The proper standard under CAT is that a petitioner need only prove the government is aware of a third party’s tortuous activity and does nothing to intervene to prevent it. Therefore, in your friend’s case, if he can show the government is aware of the rebel activity, but does nothing to stop it, he will have met that standard for CATS.

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