## Facts

- Li Chen Zheng, a citizen of China, was apprehended near Guam after attempting to enter the United States by boat with other Chinese nationals transported by human smugglers (“snakeheads”).
- Zheng became a material witness in a federal prosecution of the smugglers and testified against them after reporting their identities to U.S. authorities.
- Zheng stated that passengers were tortured during the voyage and that a smuggler threatened that Zheng would be killed for cooperating.
- Zheng feared that, if returned to China, the smugglers would retaliate and kill him with the collusion of Chinese officials.
- As support for official complicity, Zheng testified he saw smugglers provide cartons of cigarettes to Chinese harbor police before departure.

## Issues

1. Whether “acquiescence” under the Convention Against Torture, as implemented by FARRA and 8 C.F.R. § 208.18, requires that government officials be “willfully accepting” of torture by private actors.
2. Whether the agency must reconsider Zheng’s CAT claim under the correct standard for governmental “acquiescence.”

## Decision

- The Ninth Circuit held that the BIA erred by applying a “willfully accepting” requirement for governmental acquiescence to torture by private actors.
- The court ruled that Congress contemplated acquiescence based on official “awareness,” including willful blindness, followed by a failure to intervene despite a duty to do so.
- The court granted the petition for review as to the legal standard and remanded to the BIA to apply the correct acquiescence standard to Zheng’s CAT claim.

## Legal Principles

- For CAT purposes, torture includes severe pain or suffering inflicted by, at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.
- “Acquiescence” does not require that officials approve of, have actual knowledge of, or be “willfully accepting” of third-party torture.
- “Acquiescence” is satisfied where public officials are aware (or willfully blind) that torture is likely to occur and then breach a legal duty to intervene.
- When the agency applies an incorrect legal standard governing CAT eligibility, the proper remedy is remand for reconsideration under the correct standard.

## Conclusion

The Ninth Circuit rejected the BIA’s heightened “willful acceptance” test for CAT acquiescence and required application of an “awareness or willful blindness plus failure to intervene” standard, remanding for the agency to reassess Zheng’s request for CAT protection under that rule.


Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003)