Background
Jose Obed Vasquez-Barrera, a bisexual Salvadoran man, fled El Salvador after suffering repeated physical abuse and extortion by police officers, including Officer Daniel Gutierrez, due to his sexual orientation. He was previously convicted in El Salvador of the crime of ‘Terrorist Organizations to the detriment of the Salvadoran State’ and sentenced to supervised release. Upon entering the United States, he sought asylum, withholding of removal, and protection under the Convention Against Torture, claiming he would face torture upon return. The Board of Immigration Appeals denied all relief, finding the serious nonpolitical crime bar applied to asylum claims and that he failed to prove a likelihood of torture for Convention Against Torture relief.
The court’s reasoning
The court held that the Board correctly applied the serious nonpolitical crime bar to deny asylum and withholding of removal based on Vasquez’s conviction, as the record did not compel a contrary finding. However, the court found the Board erred in its analysis of Convention Against Torture relief by requiring proof that the Salvadoran government as a whole would condone torture. The court clarified that torture inflicted by a public official acting under color of law does not require separate proof of government acquiescence. The court also found the Board failed to properly consider corroborating affidavits from Vasquez’s family and partners regarding past abuse.
What it means going forward
The petitioner remains subject to removal but has a path to potential relief if the Board finds on remand that the abuse he suffered constitutes torture under the correct standard. The decision clarifies that police officers acting under color of law can be considered state actors for Convention Against Torture purposes without requiring proof of official government policy condoning the abuse.