Wilerms Oxygene v. Loretta Lynch

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2380

WILERMS OXYGENE,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

No. 15-1099

WILERMS OXYGENE,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petitions for Review of Orders of the Board of Immigration
Appeals.

Argued: December 8, 2015 Decided: February 22, 2016

Before MOTZ, KING, and KEENAN, Circuit Judges.
Petitions for review denied in part and dismissed in part by
published opinion. Judge Motz wrote the opinion, in which Judge
King and Judge Keenan joined.

ARGUED: Tamara L. Jezic, YACUB LAW OFFICES, Woodbridge,
Virginia, for Petitioner. Jeffery R. Leist, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Ernesto H. Molina, Jr., Assistant
Director, Gladys M. Steffens Guzman, Trial Attorney, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

2
DIANA GRIBBON MOTZ, Circuit Judge:

Wilerms Oxygene petitions for review of orders denying his

application for deferral of removal under the Convention Against

Torture (“CAT”) and subsequent motion to reopen his removal

proceedings. For the reasons that follow, the petition for

review is denied in part and dismissed in part.

I.

In 1994, Oxygene, accompanied by his mother and siblings,

fled political violence in his native country of Haiti. This

violence included occasions when death squads fired on the

family home while Oxygene and others were inside the house.

Oxygene entered the United States as a refugee; in 1996 the

United States granted him lawful permanent resident status.

Five years later, a Virginia court convicted Oxygene of

several state crimes, including burglary, grand larceny,

robbery, and use of a firearm to commit a felony. In 2011, the

Department of Homeland Security (“DHS” or “the Government”)

commenced removal proceedings against him. Oxygene conceded

that he was removable under various subsections of 8 U.S.C.

§ 1227(a)(2) (2012) due to his convictions for aggravated

felonies and firearm offenses, but applied for deferral of

removal under the CAT.

3
 At his removal hearing before an Immigration Judge (“IJ”),

Oxygene testified to his family’s past persecution in Haiti and

his fear that, if removed, he would face indefinite detention in

Haitian prisons. Oxygene also expressed fear that, if detained

in Haiti, he would not receive the medical care necessary to

prevent his latent tuberculosis from becoming active. Oxygene

and his sister testified that they had no remaining family

members in Haiti who could provide support in the form of food,

medicine, or payment for release from detention.

Oxygene submitted documentary evidence to substantiate his

allegations of poor prison conditions in Haiti. The

administrative record contains several State Department country

reports for Haiti, a report from various non-governmental

organizations submitted to the United Nations (“the 2011 NGO

report”), and news articles and press releases concerning human

rights abuses in the country. Together, these sources paint a

bleak picture of what criminal deportees like Oxygene can expect

upon removal to Haiti.

According to the State Department country reports, as early

as 2000, Haiti began detaining criminal deportees “who [have]

already served full sentences overseas . . . for indefinite

periods of time.” The 2013 country report describes “detention

center overcrowding” as “severe,” explaining that “[i]n some

prisons detainees slept in shifts due to lack of space” and that

4
“[s]ome prisons had no beds for detainees, and some cells had no

access to sunlight.” Prisoners and detainees generally had no

access to treated drinking water, and approximately seventy

percent “suffered from a lack of basic hygiene, malnutrition,

poor quality health care, and water-borne illness.” As a

result, the report concludes that malaria, drug-resistant

tuberculosis, and other infectious diseases present a “serious

problem.” The 2013 country report also states that, despite

laws prohibiting such practices, on several occasions police

“allegedly beat or otherwise abused detainees and suspects,” and

“corrections officers use[d] physical punishment and

psychological abuse to mistreat prisoners.”

The record is unclear as to whether Haiti’s blanket policy

of detaining criminal deportees remains in force. While the

2013 State Department report makes no mention of the policy, the

2011 NGO report indicates that Haitian officials have continued

to detain a majority of criminal deportees immediately upon

arrival. A 2013 press release by the human rights group

Alternative Chance also notes skepticism as to recent claims by

the Haitian government that it had abandoned the indefinite

detention program.

The IJ carefully considered this documentary evidence and

the testimony of Oxygene and his sister when evaluating

Oxygene’s claim for CAT relief. The IJ found “no doubt that

5
prison conditions in Haiti remain deplorable, and that as a

criminal deportee [Oxygene] may possibly be held in custody upon

his return to Haiti for some unknown period of time in those

poor conditions.” He also noted that Oxygene “could be at a

higher risk than normal of disease, given his diagnosis of

latent tuberculosis.” Finally, the IJ recognized that “[t]he

record evidence even indicates that there have been some

incidents of mistreatment of Haitian prisoners so severe as to

constitute torture.”

Despite these findings, the IJ denied Oxygene’s application

for deferral of removal under the CAT. The IJ found that

Oxygene had not demonstrated that it was more likely than not he

would suffer torture upon removal to Haiti. The IJ concluded

that application of BIA precedent, In re J-E-, 23 I. & N. Dec.

291 (BIA 2002) (en banc), foreclosed Oxygene’s argument that

Haiti’s detention policy and prison conditions necessarily

constitute torture under the CAT. This was so, the IJ

explained, because Oxygene offered “no evidence that the

[Haitian] authorities intentionally and deliberately detain

deportees in order to inflict torture.” Rather, the record only

contained evidence of “isolated incidents” of mistreatment by

correctional officers that would qualify as torture. Thus,

Oxygene failed to meet the more-likely-than-not burden of proof

required for relief under the CAT.

6
 Oxygene appealed the IJ’s removal order to the Board of

Immigration Appeals (“BIA”) and at the same time moved the BIA

to remand the case for the IJ to consider whether Oxygene’s

recent diagnoses of post-traumatic stress disorder and

depression impacted his CAT claim. The BIA affirmed the removal

order and denied the remand motion for lack of evidence

concerning the recent diagnoses. Oxygene then moved the BIA to

reconsider this decision, attaching relevant medical evidence

and an article on the stigma associated with mental illness in

Haiti. The BIA construed this filing as a timely motion to

reopen the removal proceedings and denied it, concluding that

Oxygene failed to show that the new evidence would change the

result of the case.

Oxygene filed two appeals to this court -- one challenges

the BIA’s denial of his application for CAT relief, and the

other challenges its denial of his motion to reopen the removal

proceedings. We have consolidated the two cases.

II.

Oxygene concedes that a Virginia court convicted him of

committing an aggravated felony. For this reason, Congress has

limited our jurisdiction over his petition for review of the

order denying him CAT relief to questions of law and

constitutional claims. See 8 U.S.C. § 1252(a)(2)(C), (D)

7
(2012); Saintha v. Mukasey, 516 F.3d 243, 248 (4th Cir. 2008).

Congress has similarly limited our review of the order denying

his motion to reopen his removal proceedings. See

§ 1252(a)(2)(C), (D); Larngar v. Holder, 562 F.3d 71, 75 (1st

Cir. 2009). Given this limitation, as a “threshold question,”

we must analyze each argument Oxygene raises to determine

whether it presents a legal or constitutional question, or

raises only a factual dispute. Saintha, 516 F.3d at 248-252.

In challenging the order denying his application for CAT

relief, Oxygene offers two arguments. First, he maintains that

In re J-E-, on which the IJ and BIA relied, incorrectly states

the legal test for the intent necessary to establish torture

under the CAT. This is a question of law over which we retain

jurisdiction despite Oxygene’s aggravated felony conviction.

See 8 U.S.C. § 1252(a)(2)(D); Cherichel v. Holder, 591 F.3d

1002, 1009 (8th Cir. 2010). Oxygene argues in the alternative

that, even if In re J-E- correctly states the intent requirement

for CAT claims, the IJ and BIA erred in their application of

that requirement to his case. At bottom, Oxygene contends that

substantial evidence does not support the IJ and BIA decisions

to deny him CAT relief. We ordinarily can “review[] decisions

to deny CAT relief for substantial evidence.” Suarez-Valenzuela

v. Holder, 714 F.3d 241, 245 (4th Cir. 2013). But when an

applicant for CAT relief has committed an aggravated felony,

8
§ 1252(a)(2)(C) eliminates appellate review for sufficiency of

evidence. See Saintha, 516 F.3d at 249-50. Consequently, we

lack jurisdiction to consider his alternative argument. 1

In his challenge to the order denying his motion to reopen

his application for CAT relief, Oxygene maintains that, given

his recent mental health diagnoses, the BIA abused its

discretion in denying relief. According to Oxygene, Haitian

officials will likely single him out for torture because of the

stigma associated with mental health conditions in Haiti. But

the BIA disagreed, finding that that the record evidence, along

with his newly proffered evidence, did not demonstrate that it

was more likely than not Oxygene would suffer torture upon

removal. This constitutes a quintessentially factual

determination over which we lack jurisdiction. See Hernandez-

Nolasco v. Lynch, 807 F.3d 95, 99 (4th Cir. 2015).

1Oxygene also raises a related claim of legal error in this
alternative argument. According to Oxygene, the IJ and BIA
committed legal error by “ignor[ing] unrebutted, legally
significant evidence” and failing to offer a “reasoned
explanation” for their rulings. Pet. Br. at 25. This argument
fails. In fact, the IJ carefully considered Oxygene’s testimony
and documentary evidence, including facts that potentially
distinguished his case from In re J-E-, before concluding that
In re J-E- compelled him to deny the application. And the BIA’s
opinion affirming the IJ’s decision adequately explains why the
IJ’s decision was correct.

9
 Accordingly, we turn now to consider a single issue:

whether In re J-E- states the correct legal standard for intent

in CAT claims.

III.

The Government maintains that In re J-E- correctly

articulates the intent element in the CAT definition of torture.

According to the Government, to establish torture meriting CAT

relief, Oxygene must demonstrate that Haitian officials

specifically intend not only the act of detention, but also the

severe pain and suffering that is the near-inevitable result of

prolonged detention in Haitian prisons. The Government argues

that mere knowledge does not suffice to prove intent. Rather,

the alleged torturers must actually desire the consequences of

their actions. Oxygene maintains that In re J-E- does not state

the correct legal standard. He contends that the intent to

detain, coupled with knowledge to a near certainty that severe

pain and suffering will result, qualifies as specific intent to

torture under the CAT.

To resolve this question, we must examine the CAT and its

implementing regulations to determine its definition of torture

and the resulting treaty obligations of the United States. The

United Nations General Assembly adopted the CAT on December 10,

1984. See Convention Against Torture and Other Cruel, Inhuman

10
or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty

Doc. No. 100-20 (1988). As a signatory to this multinational

treaty, the United States agreed not to “expel, return

(refouler) or extradite a person to another State where there

are substantial grounds for believing that he would be in danger

of being subjected to torture.” Id. art. 3.1. The CAT defines

torture, in relevant part, as “any act by which severe pain or

suffering, whether physical or mental, is intentionally

inflicted on a person.” Id. art. 1.1 (emphasis added).

Upon signing the CAT, the President proposed, and the

Senate adopted, a number of reservations, understandings, and

declarations. Relevant here is the understanding that “in order

to constitute torture, an act must be specifically intended to

inflict severe physical or mental pain or suffering.” S. Exec.

Rep. 101-30, at 9, 30, 36 (1990) (emphasis added). Such an

express understanding reflects the intent of the United States

to influence how executive and judicial bodies later interpret

the treaty on both the international and domestic level. See

Stefan A. Riesenfeld & Frederick M. Abbot, The Scope of U.S.

Senate Control over the Conclusion and Operation of Treaties, 67

Chi.-Kent L. Rev. 571, 604 (1991). Thus, by the time of

ratification, the intent requirement in the CAT had acquired a

“specific intent” gloss in the United States.

11
 Congress enacted the Foreign Affairs Reform and

Restructuring Act of 1998 (“FARRA”) to implement the CAT. See

Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822 (codified

as note to 8 U.S.C. § 1231 (2012)). FARRA itself does not

define torture. Instead, it directs “the heads of the

appropriate agencies [to] prescribe regulations to implement the

obligations of the United States under Article 3 of the [CAT],

subject to any reservations, understandings, declarations, and

provisos contained in the United States Senate resolution of

ratification of the Convention.” Id. Pursuant to FARRA, the

Department of Justice promulgated regulations governing claims

for CAT relief. See Regulations Concerning the Convention

Against Torture, 64 Fed. Reg. 8478-01 (Feb. 19, 1999) (codified

at 8 C.F.R. §§ 208.16-208.18 (2016)).

These regulations adopt the specific intent interpretation

of the definition of torture, echoing the understanding of the

President and Senate. The regulations define torture as “any

act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person.” 8 C.F.R.

§ 208.18(a)(1) (2016). A separate subsection provides that,

“[i]n order to constitute torture, an act must be specifically

intended to inflict severe physical or mental pain or suffering.

An act that results in unanticipated or unintended severity of

12
pain and suffering is not torture.” Id. § 208.18(a)(5)

(emphasis added).

Thus, every entity responsible for the progress of the CAT

from treaty to domestic law of the United States -- the

President, the Senate, and the Department of Justice -- made

clear that, in order to qualify as torture under the treaty, an

act must be specifically intended to cause severe pain and

suffering. But at no point did any entity define specific

intent. Nor did any entity address the question this case

presents: whether an actor must actually desire to cause severe

pain and suffering for his actions to constitute torture under

the CAT. That task fell to the BIA, which in 2002 issued its en

banc decision in In re J-E-, announcing the standard for

evaluating CAT claims. See 23 I. & N. Dec. at 296-99. Thus, In

re J-E- articulated a five prong test in defining torture under

the CAT:

(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.

Id. at 297.

Most relevant here, In re J-E- expressly addressed whether

the practice of the Haitian government of indefinitely detaining

criminal deportees under horrific conditions constitutes

13
torture. See id. at 303-04. The BIA denied J-E-’s claim for

CAT relief, finding it deficient under the test’s second prong

because he offered “no evidence that Haitian authorities are

detaining criminal deportees with the specific intent to inflict

severe physical or mental pain or suffering.” Id. at 300. In

so holding, the BIA rejected the applicant’s argument that

Haiti’s detention of deportees with knowledge of the substandard

conditions they will face in and of itself satisfied the

specific intent requirement for torture under the CAT. The BIA

held that “[a]lthough Haitian authorities are intentionally

detaining criminal deportees knowing that the detention

facilities are substandard,” the applicant needed to show that

officials were “intentionally and deliberately creating and

maintaining such prison conditions in order to inflict torture”

to secure relief under the CAT. Id. at 301.

In re J-E- relied on the definition in Black’s Law

Dictionary that “[s]pecific intent is defined as the intent to

accomplish the precise criminal act that one is later charged

with while general intent commonly takes the form of

recklessness or negligence.” Id. (internal quotation marks and

alteration omitted). On the record before it, the BIA found

that “Haitian prison conditions are the result of budgetary and

management problems as well as the country’s severe economic

difficulties,” and not part of an intentional effort to punish

14
criminal deportees. Id. Consequently, the BIA denied the

applicant’s claim. 2

IV.

With these legal principles in mind, we consider their

application to the case at hand.

The BIA explained in In re J-E- that, as usually defined,

“specific intent” constitutes “[t]he intent to accomplish the

precise criminal act that one is later charged with.” 23 I. &

N. Dec. at 301 (quoting Intent, Black’s Law Dictionary (10th ed.

2014)). This contrasts with “general intent,” defined as “[t]he

intent to perform an act even though the actor does not desire

the consequences that result.” Intent, Black’s Law Dictionary.

Thus, the distinction between specific and general intent rests

on the mens rea related to the consequences of a wrongful act.

2 The BIA in In re J-E- also held that the CAT claim failed
under the test’s third prong, finding no evidence that Haitian
officials inflicted severe pain and suffering on detainees for a
proscribed purpose. See id. at 300. The IJ in Oxygene’s case
made a similar finding. In his petition for review, Oxygene
makes a passing challenge to In re J-E-‘s proscribed purpose
holding, but fails to develop any arguments with respect to it.
As a result, Oxygene has waived this argument. See Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009). Even if preserved and meritorious, Oxygene’s argument
concerning the purpose prong would not save his petition. This
is so because, as we explain in Part IV, Oxygene’s challenge to
the intent prong fails, providing an independent ground on which
to deny his petition for review.

15
 Haiti’s detention of criminal deportees under extremely

substandard conditions constitutes the challenged wrongful act

both here and in In re J-E-. And in both cases, the applicant

argues that this detention results in pain and suffering from

malnutrition and disease severe enough to constitute torture

under the CAT. The BIA in In re J-E- rejected that argument.

The BIA concluded that, in light of the prevailing meaning of

“specific intent,” a claimant needed to show that Haitian

officials “are intentionally and deliberately creating and

maintaining such prison conditions in order to inflict torture,”

and that the record before it did not support such a finding.

23 I. & N. Dec. at 301. Put another way, In re J-E- requires a

CAT claimant to demonstrate that the state actor who mistreats

him desires to cause his severe pain and suffering, and is not

merely negligent nor reckless as to the risk.

Oxygene argues that a claimant should be able to satisfy

this requirement by demonstrating that an official acts with

knowledge to a near certainty that he will cause severe pain and

suffering. This constitutes one possible interpretation of the

CAT and its implementing regulations, given the legal

presumption that people intend the foreseeable consequences of

their actions and given the trivial difference in culpability

between one who desires harm and one who acts knowing he will

cause harm. See United States v. Bailey, 444 U.S. 394, 404

16
(1980). After all, no entity -- not the President, not the

Senate, not the Department of Justice -- defined specific intent

as the CAT progressed from treaty to domestic law. And specific

intent occupies a notoriously ambiguous space in the criminal

law. See, e.g., id. at 403. Indeed, in In re J-E-, six of the

BIA’s nineteen board members agreed with the view Oxygene

asserts here. See 23 I. & N. Dec. at 304-318.

But the majority of the BIA in In re J-E- interpreted

§ 208.18(a)(5) as expressly foreclosing this argument. While we

review the BIA’s legal conclusions de novo, we afford them

appropriate deference. See Turkson v. Holder, 667 F.3d 523, 527

(4th Cir. 2012); see also INS v. Aguirre-Aguirre, 526 U.S. 415,

424 (1999). 3 Such deference is well deserved here. Although the

conclusion reached by the BIA in In re J-E- is not the only

plausible interpretation of the CAT, this interpretation accords

with the prevailing meaning of specific intent and reflects the

3
Despite consensus among our sister circuits that courts
owe deference to In re J-E-, they have not agreed on the
appropriate degree of deference due to the BIA. Compare Auguste
v. Ridge, 395 F.3d 123, 144-45 (3d Cir. 2005) (applying Chevron
deference to uphold the BIA’s interpretation as reasonable),
with Pierre v. Gonzales, 502 F.3d 109, 116-17 (2d Cir. 2007)
(affording the BIA “substantial deference” and citing cases
applying the standard from Auer). We need not wade into the
debate over the proper degree of deference, for it makes no
difference in this case. The BIA’s interpretation is not
plainly erroneous nor inconsistent with the regulation under
Auer, nor is it unreasonable under Chevron.

17
likely wish of the President and Senate to incorporate that

meaning into the CAT regulations.

Courts routinely describe the requisite mens rea for

specific intent crimes as akin to purpose or desire, rather than

mere knowledge. The Supreme Court has noted that specific

intent “corresponds loosely” with “purpose,” whereas general

intent “corresponds loosely” with “knowledge.” Bailey, 444 U.S.

at 405. This distinction holds true even when the actor

possesses knowledge to a near certainty that something will

occur. See, e.g., 21 Am. Jur. 2d Criminal Law § 119 (2015)

(“[A] specific-intent crime requires not simply the general

intent to do the immediate act with no particular, clear, or

undifferentiated end in mind, but the additional deliberate and

conscious purpose or design of accomplishing a very specific and

more remote result; mere knowledge that a result is

substantially certain to follow from one’s actions is not the

same as the specific intent or desire to achieve that result.”)

(emphasis added).

Of course, the factfinder in a criminal trial may infer an

actor’s desire to bring about a consequence from facts

illustrating that he knew precisely what would result from his

actions. Thus, judges regularly instruct juries in criminal

cases that they may infer intent from knowledge. See, e.g.,

United States v. Arthur, 544 F.2d 730, 737 (4th Cir. 1976) (“An

18
instruction that it is reasonable to infer that a person

ordinarily intends the natural and probable consequences of his

voluntary acts has generally been held proper.”). But it is the

prerogative of the factfinder to make the inferential leap from

knowledge to desire. Id. In this way, the factfinder remains

free to consider facts suggesting that, despite a defendant’s

knowledge of a likely result, the defendant in fact did not

desire a certain consequence. Oxygene’s proposed interpretation

of § 208.18(a) would preclude such an inquiry. 4

Oxygene’s contrary view ignores the significance of the

understanding of the President and Senate at ratification that

torture under the treaty required heightened intent. As

explained above, the definition of torture in the CAT included

an intent requirement. Section 208.18(a)(5) incorporates the

4 None of the cases Oxygene cites suggest that the BIA
rendered an unreasonable interpretation of § 208.18(a) in In re
J-E-. At most, those cases illustrate the occasional difficulty
courts have in applying the common-law concept of specific
intent to particular facts or statutes. Even in United States
v. Neiswender, 590 F.2d 1269, 1274 (4th Cir. 1979), where we
held that knowledge of foreseeable consequences satisfied the
intent element of a obstruction of justice conviction, the jury
instruction we approved merely charged the jury to “find an
intent to obstruct justice,” noting that “[i]t is ordinarily
reasonable to infer that a person intends the natural and
probable consequences of acts knowingly done or undertaken.”
Id. (emphasis added). While we recognized that some courts had
characterized obstruction of justice as a “specific intent”
crime, we saw “no need to undertake an extended excursion into
the subtleties of specific intent,” and did not define the term.
Id. at 1273.

19
instruction of the President and the Senate to require “specific

intent” -- a more stringent standard than the unqualified

“intent” from Article 1 of the CAT. The position of the BIA in

In re J-E- accords with this instruction.

In contrast, Oxygene’s argument goes a long way toward

requiring only general intent for claims under the CAT, reading

the explicit understanding of the President and Senate out of

the regulation. While the President and Senate never expressly

stated that knowledge to a near certainty would not constitute

specific intent, at common-law the term “specific intent”

traditionally referred to “certain narrow classes of crimes”

where “heightened culpability has been thought to merit special

attention.” Bailey, 444 U.S. at 405. It was entirely

reasonable for the BIA to conclude that the President and Senate

wished to incorporate into the CAT regulations a more exacting

intent standard that excludes mere knowledge when they chose a

term traditionally associated with heightened intent.

In sum, we join the majority of our sister circuits, who

have considered the issue, in deferring to the BIA’s

interpretation of the CAT’s intent requirement as articulated in

In re J-E-. See Villegas v. Mukasey, 523 F.3d 984, 988 (9th

Cir. 2008); Pierre, 502 F.3d at 116-17 (2d Cir.); Auguste, 395

F.3d at 144 (3d Cir.); Cadet v. Bulger, 377 F.3d 1173, 1185-86

(11th Cir. 2004); Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st

20
Cir. 2004). But see Cherichel, 591 F.3d at 1014 (8th Cir.)

(affirming denial of CAT relief based on the court’s own reading

of the CAT and § 208.18(a) and taking no position on whether the

BIA’s interpretation in In re J-E- is entitled to deference). 5

We note that, in many cases, In re J-E- will pose no

significant hurdle for CAT applicants. For instance, if a CAT

claimant proves it is more likely than not he will be abducted

and severely beaten upon removal, the specific intent of the

torturer to inflict pain and suffering on his victim would be

established. Moreover, even for claims premised on Haitian

prison conditions in which intent is more difficult to prove, In

re J-E- does not prevent an IJ from inferring specific intent if

the facts allow. Rather, In re J-E- leaves the window open to

such claimants. See Pierre, 502 F.3d at 116, 118 n.6 (deferring

to In re J-E- but noting that nothing in that opinion “prevents

the agency from drawing the inference, should the agency choose

5 The fact that the BIA relied on a legal dictionary in its
analysis, and that specific intent derives its meaning from
criminal law, does not negate the deference due to the BIA.
While the BIA may not have particular expertise in the
construction of criminal laws, it is expert at construing
ambiguous immigration regulations like § 208.18(a). For that
same reason, Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005),
offers Oxygene no assistance. In Soliman we declined to defer
to the BIA’s interpretation of a Virginia criminal statute. See
419 F.3d at 281. Soliman thus involved a very different
question than the deference due the BIA when interpreting not a
state statute but an immigration regulation promulgated by the
federal government.

21
to do so, that a particular course of action is taken with

specific intent to inflict severe pain and suffering”). 6

Thus, other CAT applicants have succeeded where Oxygene and

the applicant in In re J-E- fell short. For example, at his

removal hearing, the petitioner in Ridore v. Holder offered

testimony from an expert witness as to the intent of Haitian

officials in their detention of criminal deportees. See 696

F.3d 907, 910, 916-17 (9th Cir. 2012). Accordingly, the IJ in

Ridore assessed a more robust factual record than that in In re

J-E- (and here). On that basis, the IJ there found that

allowing disease “to run rampant through the prison population”

and failing to “maintain proper medical facilities in those

institutions [could] only be attributable to [Haitian

officials’] willingness to use the jails to harm the inmates so

that they will never be a threat to the population again.” Id.

at 913. Accordingly, the IJ granted CAT relief. Id. at 912-14.

6
Some commentators have asserted that after In re J-E- the
BIA has categorically denied CAT claims based on prison
conditions in Haiti. See, e.g., Renee C. Redman, Defining
“Torture”: The Collateral Effect on Immigration Law of the
Attorney General’s Narrow Interpretation of “Specifically
Intended” When Applied to United States Interrogators, 62 N.Y.U.
Ann. Surv. Am. L. 465, 482 (2007). To the extent that
individual IJs or BIA members interpret In re J-E- as a
categorical impediment to CAT relief, they misread that
precedent. In its treatment of specific intent under the CAT,
the BIA in In re J-E- merely held that the record facts in that
case did not support an inference that the Haitian officials
desired the pain and suffering of its detainees. See 23 I. & N.
Dec. at 300-01.

22
The BIA reversed. Id. at 914. But the Ninth Circuit held there

was “nothing illogical” in the IJ’s findings “inferring the

government intends to put those prisoners at risk of cruel,

abusive treatment that would qualify as ‘severe suffering’ or

‘torture.’” Id. at 917. For that reason, the court granted the

petition for review. Id. at 917, 919.

We call attention to Ridore as an example of how, even when

a court defers to the BIA’s interpretation of specific intent in

In re J-E-, a Haitian citizen may be able to obtain CAT relief.

Of course, the record in Oxygene’s case does not contain similar

evidence as to Haitian officials’ specific intent to torture,

and the IJ and BIA declined to infer such intent.

V.

In conclusion, we reject Oxygene’s contention that the IJ

and BIA committed legal error in following the precedent

established in In re J-E- to deny his application for deferral

of removal under the CAT. Accordingly, we deny his petition for

review of that order. We dismiss for lack of jurisdiction

Oxygene’s petition for review from the order denying his motion

to reopen.

DENIED IN PART AND DISMISSED IN PART

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