Saraj

MEMORANDUM **

Hares Sayed Saraj, a native and citizen of Afghanistan, petitions for review of the Board of Immigration Appeals’ order denying his application for deferral of removal under the Convention Against Torture. Saraj contends that if he returns to Afghanistan, he will be likely to suffer torture at the hands of General Dostum, a warlord who controls large areas of Afghanistan in defiance of the legitimate government of that country. We grant the petition and remand to the Board.

After an Immigration Judge denied Sa-raj’s application, the Board affirmed the denial, saying:

On petition for review, Saraj raises two legal issues arising under the regulations implementing the Convention Against Torture, 8 C.F.R. § 208.18 (a)(1): (1) whether a warlord who controls a part of a country qualifies as a person “acting in an official capacity,” and (2) whether the legitimate government of Afghanistan could be said to “acquiesce” in conduct by the warlord when the government is aware of the conduct but has been unable to stop it.

Our jurisdiction over Saraj’s petition is subject to 8 U.S.C. § 1252 (a)(2)(C), which bars us from reviewing a removal order against an alien who has…