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First Circuit Confirms ‘Willful Blindness’ Sufficient to Demonstrate Awareness of Torture

Court’s decision reflects core arguments in amicus brief filed by Cooley

Boston – November 18, 2022 – Cooley submitted an amicus brief in H.H. v. Garland on behalf of 36 former immigration judges and former members of the Board of Immigration Appeals (BIA), urging the US Court of Appeals for the First Circuit to adopt the “willful blindness” standard as sufficient to demonstrate a foreign public official’s awareness of torture under the United Nations Convention Against Torture (CAT). Partners Adam Gershenson and Marc Suskin, along with associate Samantha Kirby, led the Cooley effort. 

The core arguments in Cooley’s brief in support of the petitioner were reflected in the court’s decision to grant the petition for review, vacate the relevant part of the BIA’s decision and remand for further proceedings.

“These claims have life-or-death consequences,” Gershenson said. “In applying this standard, the First Circuit has recognized the real-world reality that turning a blind eye to torture is a form of letting that torture happen.”

Cooley’s brief further urged the First Circuit to clarify that acquiescence under the CAT requires a two-step inquiry, such that “willful blindness” applies only to “awareness” of the torture, not to whether a breach of the duty to intervene is likely to occur. With this ruling, the First Circuit is now one of only two circuit courts of appeal to have drawn this distinction expressly. In doing so, the court provided guidance to practitioners and adjudicators alike when it expressed skepticism that “any record evidence of efforts taken by the foreign government to prevent torture, no matter how minimal,” would satisfy a legal obligation to intervene to prevent torture.

Read the decision

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Related Contacts
Adam Gershenson  Partner Boston
Marc Suskin  Partner New York
Samantha Kirby  Associate Palo Alto
Zach Sisko  Associate Boston
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