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Follow on Google News | Does the Government need to know you will be tortured?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
By: Brian D. Lerner Answer: There is a case that just came down in the 9th 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- 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’ Question: This certainly seems unfair. What was the outcome in the 9th 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. # # # I have been a licensed attorney since 1992. I have passed a rigorous examination and extensive experience requirements by the State Bar of California, Board of Legal Specialization. My firm helps with deportation, green cards, work permits, etc. End
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