Gourdet v. Holder

United States Court of Appeals
For the First Circuit

No. 08-2422

MACKENDY GOURDET,

Petitioner,

v.

ERIC H. HOLDER,*

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
**
Ebel and Lipez, Circuit Judges.

Jeffrey B. Rubin on brief for petitioner.
Stefanie Notarino Hennes, Trial Attorney, Office of
Immigration Litigation, Michael F. Hertz, Acting Assistant Attorney
General, Civil Division, and John W. Blakeley, Assistant Director,
Office of Immigration Litigation, on brief for respondent.

November 4, 2009

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as the respondent.
**
Of the Tenth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Mackendy Gourdet, a native and

citizen of Haiti, seeks review of a decision of the Board of

Immigration Appeals (BIA) denying his application for relief from

removal under the Convention Against Torture (CAT). In addressing

claims for CAT relief based on substandard prison conditions, we

have distinguished between generally substandard prison conditions,

such as deprivation of adequate space, food, water, sanitation or

exercise, and acts of mistreatment of individual prisoners by

prison officials, such as "burning with cigarettes and use of

electric shock." See Settenda v. Ashcroft, 377 F.3d 89, 96 (1st

Cir. 2004) (citing In re J-E-, 23 I. & N. Dec. 291, 2002 WL 481156

(BIA 2002) (en banc)). Gourdet claims that he is entitled to CAT

relief based on circumstances falling into each of these two

categories, and therefore argues that he has met his burden under

the CAT of proving that he "is more likely than not to be tortured

if removed to the proposed country of removal." Id. at 94

(internal quotation marks and citation omitted).

Relying on settled precedent, we conclude that the

general detention conditions in Haiti, although grossly inadequate,

are not sufficiently severe to rise to the level of torture. We

likewise conclude that the acts of mistreatment that Gourdet will

likely be subjected to in detention, such as rough treatment by

police officers, do not amount to torture. Finally, we conclude

that we lack jurisdiction to address Gourdet's remaining

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contentions that he has met his burden of proving that torture of

criminal deportees in Haiti is widespread and that he is more

likely to be singled out for mistreatment by Haitian authorities

because of his personal characteristics. Therefore, we deny the

petition.

I.

Gourdet entered the United States at some time prior to

2002 and was granted legal permanent resident status on January 2,

2002. On February 2, 2007, federal authorities filed a Notice to

Appear charging Gourdet with removability under section

237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8

U.S.C. § 1227(a)(2)(B)(i), as a person convicted of a controlled

substance violation. Gourdet conceded removability and applied for

asylum, withholding of removal, CAT relief, and voluntary

departure.

At a merits hearing before an Immigration Judge (IJ),

Gourdet offered his own testimony, the testimony of his mother, and

the testimony of Michelle Karshan, an expert on detention

conditions in Haiti. Karshan testified as to general prison

conditions faced by criminal detainees in Haiti, as well as

physical abuse inflicted on individual detainees by prison

officials. Gourdet also submitted documentary evidence of current

country conditions in Haiti. At the close of the hearing, the IJ

issued a decision finding the proffered testimony credible, but

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denying Gourdet's applications for relief.

The IJ made the following findings of fact. Upon

Gourdet's return to Haiti, he will be held as a criminal deportee

for a period of two to four weeks in a police holding cell. The

conditions in this cell "will be horrible." He will share a ten-

by-ten foot cell with up to 30 men, both deportees and local

detainees, and the cell will have no toilet, sink, mattress or bed.

The cell will be hot and unsanitary and there will be no apparent

ventilation. No food or medical care will be provided, and food

"may be deliberately withheld to make conditions harsh."

In addition to these abysmal prison conditions, the IJ

found that individual detainees may be subjected to acts of

mistreatment by police officers. Local detainees1 held in the cell

may be removed for "torture . . . of an unspecified nature," and

other detainees will be made aware of this practice. Gourdet "may

also be struck by police officers, initially as a matter of course,

and possibly later for other reasons such as not speaking Creole,"

and other detainees may be directed to strike Gourdet. The purpose

of this physical abuse "will be to extort money from the respondent

(and/or other criminal deportees)." The IJ found that although

criminal deportees have died in detention, there was no evidence

that Gourdet would be killed deliberately or as the result of

1
The IJ distinguished local detainees from criminal
deportees, such as Gourdet.

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torture.

Based on these findings of fact, the IJ denied Gourdet's

application for CAT relief, concluding that he failed to establish

the first and second elements of torture under the CAT.2 "For an

act to constitute torture it must be: (1) an act causing severe

physical or mental pain or suffering; (2) intentionally inflicted;

(3) for a proscribed purpose; (4) by or at the instigation of or

with the consent or acquiescence of a public official who has

custody or physical control of the victim; and (5) not arising from

lawful sanctions." Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.

2004) (quoting In re J-E-, 23 I. & N. Dec. at 297).

Examining these elements, the IJ first found that Gourdet

failed to establish an "act causing severe physical or mental pain

or suffering." Relying on the BIA's decision in In re J-E-, 23 I.

& N. Dec. 291, she determined that although Gourdet would "suffer,

perhaps both physically and mentally," upon removal to Haiti, the

substandard prison conditions in Haiti did not constitute torture

under the CAT. She further concluded that "[a]s to the respondent

being struck by police officers and/or other detainees or inmates

in the police holding cells, the Court is compelled to find that

such physical abuse falls in the category of a 'lesser form of

2
The IJ also denied Gourdet's applications for asylum,
withholding of removal, and voluntary departure. Gourdet's
petition does not challenge the disposition of these claims, and
therefore we do not discuss them.

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cruel, inhuman, or degrading treatment or punishment,' as opposed

to an act which causes severe pain or suffering, physical or

mental."

Second, the IJ found that Gourdet failed to establish

that the alleged acts were "specifically intended to inflict severe

physical or mental pain or suffering." She explained that there

was no evidence that "the act of hitting the respondent, or the act

of providing him with substandard prison or holding cell conditions

would be specifically intended to inflict severe physical or mental

pain or suffering." Instead, she pointed to expert witness

Karshan's testimony that these acts "would be intended to extort

payments of $3,000 to $5,000 from the respondent, and/or possibly,

to punish him for acts that he committed in the United States."

The IJ also found that Gourdet had not demonstrated that he would

be personally targeted for acts of mistreatment that would

constitute torture.

On appeal, the BIA rejected Gourdet's CAT claim for

substantially the same reasons, stating:

We find no reason to disturb the Immigration
Judge's finding that the respondent failed to
prove that he more likely than not would be
tortured upon his return to Haiti. 8 C.F.R. §
1003.1(d)(3). Although the respondent
provided general evidence of horrible prison
and detention conditions, he did not show that
it is more likely than not that he will be
tortured. 8 C.F.R. § 1208.16(c)(2). We
rejected a similar claim by a Haitian citizen
who asserted that he would be tortured if
returned to Haiti because, as a repatriated

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 convict, he would be subjected to indefinite
detention and imprisonment in the Haitian
prison system. See Matter of J-E-, 23 I&N
Dec. 291 (BIA 2002) (relied upon by Elien v.
Ashcroft, 364 F.3d 392 (1st Cir. 2004)).
There, notwithstanding evidence of gross
inadequacies in Haitian prisons, we concluded
that indefinite detention and severely
substandard prison conditions did not
constitute torture under CAT, even though they
might very well be considered "cruel, inhuman,
or degrading punishment or treatment." Id. at
301, 304.

The BIA further held that Gourdet had not established

that he would be specifically targeted for any mistreatment by

Haitian authorities that would constitute torture. He had not

shown that he would be subjected to the torture methods used on

local detainees, and had not shown any unique personal

characteristics that would cause him to be singled out for torture.

Gourdet filed this timely petition for review.

II.

First, Gourdet contends that upon return to Haiti, he

will be detained as a criminal deportee and subjected to

substandard detention conditions, and these substandard detention

conditions constitute torture under the CAT. Second, he argues

that, above and beyond the generally substandard detention

conditions in Haiti, he will suffer acts of mistreatment by Haitian

authorities that rise to the level of torture. After discussing

the applicable standard of review, we address each contention in

turn.

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A. Standard of Review

We have limited jurisdiction to review Gourdet's claim.

Under the INA, as amended by the REAL ID Act of 2005, "no court

shall have jurisdiction to review any final order of removal

against an alien who is removable by reason of having committed a

criminal offense," including a controlled substance offense. 8

U.S.C. § 1252(a)(2)(C); Silva v. Gonzales, 455 F.3d 26, 27-28 (1st

Cir. 2006). The statute carves out an exception to this

jurisdictional bar, permitting judicial review of a removal order

"to the extent that an alien raises legal or constitutional

questions." Silva, 455 F.3d at 28; see 8 U.S.C. § 1252(a)(2)(D).

The government has agreed that we have jurisdiction under

the REAL ID Act, but only to review the issue of whether an

undisputed or adjudicated course of conduct constitutes "torture"

because this issue raises a question of law. Singh v. U.S. Att'y

Gen., 561 F.3d 1275, 1280 (11th Cir. 2009). In a criminal alien

case, "we may not review the administrative fact findings of the IJ

or the BIA as to the sufficiency of the alien's evidence and the

likelihood that the alien will be tortured if returned to the

country in question." Id.; see also Conteh v. Gonzales, 461 F.3d

46, 63 (1st Cir. 2006) (explaining that we lack jurisdiction to

review the factual findings underlying the removal order in a

criminal alien case and "[t]his proscription extends to review of

the BIA's factual findings as to credibility, evidentiary weight,

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and satisfaction of a correctly framed burden of proof").

Therefore, we review only whether the undisputed and adjudicated

course of conduct described by the BIA amounts to torture. We

review legal questions de novo, “with appropriate deference to the

agency's interpretation of the underlying statute in accordance

with administrative law principles.” Manzoor v. U.S. Dep't of

Justice, 254 F.3d 342, 346 (1st Cir. 2001) (quotation marks and

citation omitted).

Ordinarily, we review the decision of the BIA and not

that of the IJ. Settenda, 377 F.3d at 92-93. Where the BIA

deferred to or adopted the IJ's reasoning, however, we review those

portions of the IJ's decision as part of the BIA's final decision.

Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004).

B. Substandard Detention Conditions

Gourdet contends that the generally substandard detention

conditions in Haiti amount to torture under the CAT. He argues

that the BIA erred in concluding that the detention conditions do

not satisfy the first and second elements of torture under the CAT

in that (1) they are not acts causing severe physical or mental

pain or suffering and (2) they are not intentionally inflicted.

See Elien, 364 F.3d at 398. We conclude that the BIA did not err

in finding that Haiti's substandard prison conditions are not acts

causing severe physical or mental pain or suffering. Because this

is an independent basis for denying Gourdet's CAT claim, we do not

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address Gourdet's contention that he has established that the

substandard prison conditions are intentionally inflicted on

detainees by Haitian authorities.3

In this case, both the IJ and the BIA relied on In re J-

E- to conclude that Gourdet failed to establish the first element

of his CAT claim; that is, he did not establish acts causing severe

physical or mental pain or suffering. They held that the prison

conditions described by Gourdet, although "horrible" and "gross[ly]

inadequa[te]," did not rise to the level of torture.

In In re J-E-, the BIA rejected a claim nearly identical

to Gourdet's, holding that Haiti's indefinite detention of criminal

deportees, coupled with substandard prison conditions consisting of

overcrowding and deprivation of adequate food, water, medical care,

sanitation, and exercise, did not amount to torture. In re J-E-,

23 I. & N. Dec. at 301, 304. The BIA first discussed the

definition of torture under the CAT. The BIA explained that "[t]he

severity of the pain or suffering inflicted is a distinguishing

characteristic of torture." Id. at 295. Under the applicable

regulations, torture "must cause severe pain or suffering, physical

3
However, we reject Gourdet's argument, relying on an
overruled Third Circuit opinion, Lavira v. Att'y Gen., 478 F.3d 158
(3d Cir. 2007), that specific intent to cause severe physical or
mental pain or suffering can be established through a showing of
indifference or willful blindness to such harm. That is not the
law. Pierre v. Att'y Gen., 528 F.3d 180, 189 (3d Cir. 2008) (en
banc); Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008);
Pierre v. Gonzales, 502 F.3d 109, 118 (2d Cir. 2007).

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or mental," and does not include "lesser forms of cruel, inhuman or

degrading treatment or punishment." Id. at 297 (citing 8 C.F.R. §

208.18(a)(1),(2)) (emphasis in original); see also id. at 298

(discussing the court's holding in Ireland v. United Kingdom, 2

Eur. Ct. H.R. 25 (1978), that suspected terrorists who were

deprived of sleep, food, and water by the British Army had been

subjected to inhuman and degrading treatment, not torture).

The BIA in In re J-E- held that the substandard prison

conditions in Haiti did not constitute torture under the CAT. The

BIA found that it was clear that the prison conditions, although

substandard, fell within the category of "other acts of cruel,

inhuman or degrading punishment or treatment," rather than torture.

Id. at 304.4

We have previously deferred to the BIA's determination in

In re J-E- that prevailing prison conditions in Haiti do not rise

to the level of torture. See Elien, 364 F.3d at 399 (affirming

BIA's denial of motion to reopen petitioner's claim for CAT relief

based on Haitian detention policy, because petitioner "made no

attempt on appeal to demonstrate in what respect his proffer is

qualitatively different than or superior to the In re J-E-

4
The BIA further found that there was no evidence that
Haitian authorities intentionally and deliberately created and
maintained substandard prison conditions in order to inflict
torture. Instead, the evidence showed that the prison conditions
were the result of budgetary and management problems in the
country. Id. at 301.

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record"); see also Settenda, 377 F.3d at 96 (affirming BIA's denial

of CAT claim based on Ugandan detention conditions, where the

petitioner's case was "on all fours with In re J-E- and Elien").5

Other circuits have likewise found the BIA's holding in In re J-E-

deserving of deference. See, e.g., Pierre v. Gonzales, 502 F.3d

109, 121 (3d Cir. 2007) ("[W]e defer to In re J-E-'s interpretation

of 8 C.F.R. § 208.18(a)(5): The failure to maintain standards of

diet, hygiene, and living space in prison does not constitute

torture under the CAT unless the deficits are sufficiently extreme

and are inflicted intentionally rather than as a result of poverty,

neglect, or incompetence." (emphasis added)).

Gourdet contends that In re J-E- and its progeny do not

govern his case, because these decisions were decided on the basis

of the second element of torture under the CAT, specific intent,

rather than the first element, severity. He contends that no

authority supports the BIA's conclusion in his case that Haitian

detention conditions are not sufficiently severe to constitute

torture. We disagree. The BIA concluded in In re J-E- that the

substandard prison conditions in Haiti, although "abysmal," did not

rise to the level of torture. In re J-E-, 23 I. & N. Dec. at 304.

Instead, these conditions fell "squarely" within the category of

"other acts of cruel, inhuman or degrading treatment or

5
We note that Elien and Settenda were decided prior to the
enactment of the REAL ID Act of 2005, and therefore had a broader
scope of review.

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punishment." Id. Thus, we read In re J-E- to hold that the

substandard prison conditions do not constitute torture both

because they are not intentionally inflicted, and because they are

not acts causing severe pain or suffering. See id.; see also

Settenda, 377 F.3d at 96 (explaining that in In re J-E-, "the BIA

concluded that the indefinite detention and severely substandard

prison conditions did not constitute torture under the CAT, even

though they might very well be considered 'cruel, inhuman, or

degrading punishment or treatment.'" (citing In re J-E-, 23 I. & N.

Dec. at 301, 304)).

The undisputed, adjudicated facts described by the BIA in

this case demonstrate that upon Gourdet's return to Haiti, he will

be detained as a criminal deportee and will face overcrowding,

unsanitary conditions, and deprivation of food, water and medical

care. These detention conditions are not more severe or otherwise

different than those described by In re J-E-. See 23 I. & N. Dec.

at 293. Therefore, the BIA did not err in relying on In re J-E- to

conclude that Haiti's substandard detention conditions do not rise

to the level of torture. See Elien, 364 F.3d at 399; Settenda, 377

F.3d at 96.

C. Acts of Mistreatment

Gourdet further contends that he has established that if

returned to Haiti, he will likely be subjected to acts of

mistreatment by Haitian authorities that rise to the level of

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torture.

Gourdet points to undisputed evidence that he may be

struck by Haitian authorities while in detention. The IJ found

that Gourdet "may also be struck by police officers, initially as

a matter of course, and possibly later for other reasons such as

not speaking Creole," and that other detainees may be directed to

strike Gourdet. However, the IJ concluded that "[a]s to the

respondent being struck by police officers and/or other detainees

or inmates in the police holding cells, the Court is compelled to

find that such physical abuse falls in the category of a 'lesser

form of cruel, inhuman, or degrading treatment or punishment,' as

opposed to an act which causes severe pain or suffering, physical

or mental." The IJ did not err in concluding that this kind of

rough treatment by police officers is not so severe as to rise to

the level of torture. See In re J-E-, 23 I. & N. Dec. at 298

(noting that "rough and deplorable treatment, such as police

brutality, does not amount to torture" (emphasis in original)).6

The petition for review is denied.

6
Gourdet also contends that he has met his burden to show
that torture of criminal deportees in Haiti is "routine and
widespread," and that, because of his personal characteristics, he
is more likely to be singled out for mistreatment by Haitian
authorities. However, the BIA found that Gourdet provided
insufficient evidence on these points. We lack jurisdiction to
review these factual findings by the BIA. Conteh, 461 F.3d at 63.

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