The Third Circuit was on a roll this week with interesting unpublished cases.  Rita Bhatt, a citizen of Indian, sought protection under the Convention Against Torture (CAT) based on the torture she feared at the hands of her family because she had married a man from another caste.  The Immigration Judge granted her application, but the BIA reversed, finding insufficient evidence that the Indian government would acquiescence in any torture.  The BIA noted that Bhatt had never reported her family's abuse to the police (she testified that to do so would be fruitless because she could afford to bribe the police and the police would not get involved in what they considered to be a family dispute).  The BIA cited country conditions reports noting the Indian government's attempts to mitigate the stigma of the caste system, but ignored the Immigration Judge's determination that India had a long history of failing to protect women and that the Indian government remains “apathetic to the point of maintaining a de facto policy of discrimination and violence against women.” 

The Third Circuit reversed, criticizing the BIA for applying the wrong legal standard.  "The BIA here appears simply to have ignored the evidence that was before the IJ.  In reviewing the country conditions, the BIA focused on the government’s official policies—as set forth in India’s Constitution, and the 'instructions' of the Supreme Court—while largely ignoring the IJ’s findings regarding the evidence of actual country conditions . . . And in reviewing Bhatt’s testimony, the BIA concluded that Bhatt’s failure to give the police the opportunity to respond to her past torture materially undermined her case but did not address Bhatt’s testimony explaining her reasons for declining to report her abuse, which the IJ found credible.  The BIA’s conclusions are in conflict with what we and other courts have said are appropriate considerations in determining whether a government will likely acquiesce in a petitioner’s torture . . . While evidence that a petitioner did notify police, and they did nothing, can support the claim, specific knowledge by the government need not be shown.  Rather, willful blindness may be proven by other evidence, which may include testimony like petitioner offered here as to her reasons for declining to report. The BIA did not take issue with the IJ’s credibility finding concerning this or other aspects of the petitioner’s testimony, yet it failed to acknowledge, much less discuss, that evidence before concluding the IJ clearly erred.  Perhaps the more fundamental flaw in the BIA’s analysis was its focus on government efforts rather than actual conduct, i.e., the results of those efforts . . . A government’s policies to root out torturous activity are also not dispositive of the issue of whether such torturous activity occurs with acquiescence.  We conclude that the BIA misapplied the clear evidence standard of review and misconstrued what determines “acquiescence”—i.e., actual conditions and conduct that would be present and occur rather than dogma or court “instructions” that amount to no more than the government’s position or efforts—and, thus, erred in applying the law to the facts."

This insightful analysis may be useful to practitioners facing seemingly positive government steps to protect citizens that are starkly different than the actual country conditions reported by a client.

The full text of Bhatt v. Att'y General can be found here: