[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-13359 SEPTEMBER 19, 2007
________________________ THOMAS K. KAHN
CLERK
BIA No. A97-134-139
JEAN HEROLD JEAN-PIERRE,
a.k.a. Jean Harold Pierre,
a.k.a. Martina Jean Pierre,
a.k.a. Jean Pierre Jeanherold,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 19, 2007)
Before ANDERSON, MARCUS and COX, Circuit Judges.
MARCUS, Circuit Judge:
More than fifty years ago, Justice Frankfurter wrote that, when it comes to
torture, “there comes a point where this Court should not be ignorant as judges of
what we know as men.” Watts v. Indiana, 338 U.S. 49, 52 (1949). Today, we
decide not whether our humanity should inform our understanding of torture, but
whether, in the context of this claim, Congress has eliminated the jurisdiction of
the federal courts to address this issue in the first place. We conclude that the
question at the heart of this appeal -- whether a particular course of conduct
amounts to torture under the Convention Against Torture1 and the accompanying
legislation -- is a legal one, and accordingly falls squarely within our limited
jurisdiction under the REAL ID Act of 2005.2
Petitioner Jean Herold Jean Pierre (“Jean Pierre”), a gravely ill AIDS
patient, claims that he will be tortured in jail if he is removed to Haiti as a criminal
alien. He has consistently said, without any dispute, that he will be beaten with
metal rods, confined for weeks in a tiny crawl space, and subjected to the Haitian
practice of “kalot marassa” (severe boxing of the ears). This conduct, he argues, is
torture. Because the Board of Immigration Appeals failed to consider the heart of
these claims, we grant his petition for review, vacate the BIA’s decision, and
remand for further proceedings.
1
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment art. 3, § 1, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.
2
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 302 (codified in scattered
sections of 8 U.S.C.).
2
I.
A.
Jean Herold Jean Pierre, a Haitian citizen, entered the United States in
August 1992 on a temporary visa that expired in 1993. Thereafter, Jean Pierre was
convicted of violating Florida’s drug laws in 1995, 1997, and again in 2004.3 In
2005, while Jean Pierre was serving a two-year sentence in a St. Lucie County jail
on his third controlled substance conviction, the Department of Homeland Security
began removal proceedings against him pursuant to 8 U.S.C. § 1227. This section
of the immigration laws provides that any alien convicted of certain crimes,
including the drug crimes committed by Jean Pierre, is deportable upon the order
of the Attorney General. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is
convicted of an aggravated felony at any time after admission is deportable.”); id.
§ 1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted
of a violation of . . . any law or regulation of a State . . . relating to a controlled
substance . . . is deportable.”). Claiming that he will be tortured if he is sent to
Haiti, Jean Pierre sought withholding of removal under the Convention Against
3
Jean Pierre pled guilty to cocaine possession on April 11, 1995. He was sentenced to
five days in jail and two years of probation. R. 1488–93. On June 16, 1997, he was convicted of
cocaine possession and sale and sentenced to six months in prison. R. 1464–66. Finally, on
March 26, 2004, Jean Pierre was charged with possession with intent to sell or deliver cocaine,
use or possession of drug paraphernalia, and possession of 20 grams or less of cannabis. R. 1314.
Following a plea of nolo contendere, he was sentenced by the state court to 24 months
imprisonment. R. 1316.
3
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”) art. 3, § 1, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465
U.N.T.S. 85.
These basic facts are undisputed. Jean Pierre has AIDS. While in United
States custody, he has received life-saving medication, but the virus continues to
ravage his body. He is infected with cytomegalovirus, an infection dangerous in
immunocompromised individuals. The infection has caused him to go blind in his
left eye. He frequently suffers from headaches, fevers, and memory impairment; he
often becomes terrified when he awakens to hallucinatory visions of big snakes or
walls falling over. Jean Pierre claims that being deported to Haiti will amount to a
death sentence, and will be the same as if someone “put a gun to his head and shot
him.” R. at 188. In fact, he testified that he would prefer this quick death to being
deported.
Although Jean Pierre has served his sentence for violating Florida’s drug
laws, criminal deportees from the United States are subject to indefinite detention
in Haitian prisons upon their return to Haiti. R. at 190. No one disputes that the
conditions in Haitian prisons are appalling. According to the State Department,
prisoners in Haiti suffer from a lack of basic hygiene, malnutrition, and inadequate
or nonexistent health care. U.S. State Dep’t, Country Reports on Human Rights
Practices - 2004 - Haiti (Feb. 28, 2005). Infectious disease flourishes in the
4
overcrowded facilities, and even basic supplies such as water are limited. Id. In no
small measure, the prisoners’ suffering is undoubtedly a consequence of the fact
that Haiti is the poorest country in the Western Hemisphere. See In re J-E-, 23 I. &
N. Dec. 291, 301 (BIA 2002) (en banc) (“The record establishes that Haitian prison
conditions are the result of budgetary and management problems as well as the
country’s severe economic difficulties.”).
Poverty is not, however, the only problem. According to the State
Department, Haitian prison guards sometimes beat prisoners with fists, sticks, and
belts, and we have previously acknowledged that “certain isolated, vicious and
deliberate acts, such as burning with cigarettes, choking, hooding, kalot marassa
[severe boxing of the ears, sometimes leading to eardrum damage], and electric
shock do occur in Haitian prisons.” Cadet v. Bulger, 377 F.3d 1173, 1194 (11th
Cir. 2004).
Jean Pierre argues that Haitian jailors will single him out for especially harsh
treatment because of his HIV infection and accompanying mental illness. In
support of this claim, Jean Pierre presented materials specific to the treatment of
AIDS-infected persons in Haiti, including information from the U.S. Centers for
Disease Control and Prevention, reports from public health organizations,
newspaper articles describing the stigmatization of AIDS patients, and testimony
from a number of experts. Thus, for example, Jean Pierre pointed to the State
5
Department’s Country Report on Haiti, which says that “[s]ocietal discrimination
occurred against persons with HIV/AIDS.” 2004 Country Report. Jean Pierre also
produced an affidavit from Dr. Paul Farmer, a professor at Harvard Medical School
and founder of Partners in Health, an international public health organization with
extensive operations in Haiti. Farmer’s affidavit describes “the terrible social
stigma associated with the virus” and the fact that “discrimination and abuse
against poor Haitians with HIV/AIDS is a strong reality in Haiti.” R. at 424–26.
Jean Pierre also presented testimony from Chandra Kantor, a nurse
practitioner who estimated that, if deported to a Haitian prison, Jean Pierre would
likely develop a life-threatening disease within a month or two and die shortly
thereafter. This testimony was supported by Stacy Graziosi, an “intensive
adherence specialist” in HIV/AIDS who began monitoring Jean Pierre’s treatment
regimen in 2002. She opined that Jean Pierre’s AIDS-related complications would
worsen upon his return to Haiti and that his infection, left unmedicated, “will cross
[his] blood-brain barrier and will cause him to exhibit various neuropsychological
illnesses such as neurosyphilis, herpes encephalitis, or general paresis of the
insane.” R. at 194.
Dr. Francis Cournos, professor of clinical psychiatry at Columbia University
and deputy director of the New York State Psychiatric Institute, is an expert on the
mental consequences associated with HIV/AIDS. Her affidavit averred that
6
individuals like Jean Pierre with late-stage AIDS are often “unable to function
mentally, delirious, hallucinatory, or even psychotic,” and that they are also prone
to infection. R. at 192. In particular, she testified that cytomegalovirus -- an
infection that has already caused Jean Pierre to go blind in one eye -- “infects the
brain of an AIDS patient, causing rapid personality changes.” R. at 193.
Finally, Michelle Karshan, the director of Alternative Chance, a Haiti-based
program providing assistance to criminal deportees from the U.S., testified
regarding the link between conditions in Haitian prisons, stigmatization of AIDS
patients, and the treatment of mentally ill prisoners. Notably, Karshan said that
prisoners with mental health issues are more likely to act out, and that the officers
in a prison she visited used extended confinement in a tiny crawl space to deal with
these difficult patients:
[I]f they have mental health problems, and they act out, which a lot of
them do . . . . people think that they[] . . . have a spell, that they’re
possessed, . . . and when the officers cannot handle them, . . . they use
a crawl space under the stairs. It’s a tiny space where you can’t even
stand up, and they just lock them in there and sometimes for months
on end, and there’s no process to see them, either. They have to rely
on some compassionate fellow prisoner to bring them food. So, you
know, people can just die in the crawl space. I’m talking about just,
you know, that little space under the stairwell, and they’re just locked
in there. It’s a closet, and they can’t stand, and they don’t have a bed
or anything, and that’s where they stay for months, and I’ve
personally witnessed that. You know, we fought very hard against that
crawl space process, and they’re still using it right this second.
R. at 290.
7
Karshan further testified that food inside the prisons is distributed by other
inmates, and that sick or mentally ill prisoners were often unable to get any food.
R. at 189. Finally, she said that criminal deportees from the United States are
treated especially harshly, and that they are sometimes “beaten with metal wands
because the prison guards perceive them to be professional criminals deserving of
the punishment.” R. at 190. The government offered no facts in response to this
record.
B.
The Immigration Judge (“IJ”) denied Jean Pierre’s application for
withholding of removal under the Convention Against Torture on January 3, 2006.
Notably, he found that Jean Pierre’s testimony was “clear, believable, and
sufficiently detailed” and called him a credible witness. R. at 196–197. The IJ
ultimately decided, however, that Jean Pierre had “not met his burden of proof and
established that it is more likely than not that he will be tortured by the Haitian
government if he is returned to Haiti.” R. at 197. Following the reasoning of an
earlier Board of Immigration Appeals case, In re J-E-, 23 I. & N. Dec. 291, 301
(BIA 2002) (en banc), he said that there was “no evidence in the Record of
Proceedings that the Haitian government deliberately creates and maintains those
conditions as a means of torturing inmates.” R. at 197; see also R. at 198 (“To state
that the Haitian government, the poorest in the Western Hemisphere, intends to
8
torture its prisoners when it merely is incapable of remedying its prison system
unfairly twists the meaning of protection under the Convention Against Torture.”).
As for the fact that Jean Pierre has AIDS, the IJ concluded that there is “no
evidence that the government specifically targets [people with HIV/AIDS] for
mistreatment or lack of medical treatment.” R. at 198. Finally, he observed, “the
treatment the Respondent will encounter in the Haitian jail, while horrendous, does
not rise to the level of torture as contemplated by the Convention Against Torture.”
R. at 198.
Jean Pierre appealed the IJ’s decision to the Board of Immigration Appeals
(“BIA”), which affirmed the Immigration Judge in a short opinion. The BIA
“acknowledge[d], as did the Immigration Judge, that the respondent’s advanced
and untreated HIV illness would likely lead to delirium and other psychotic
symptoms,” and it could not “dispute the logical conclusion that prisoners who
suffer from such symptoms are likely to be less cooperative with the prison guards’
administration of their duties.” R. at 26 (emphases added). However, the BIA
concluded,
despite some evidence in the record indicating that those, like the
respondent, who are mentally ill or afflicted with HIV may endure
harsher circumstances as a result of their medical condition than the
average criminal deportee, the evidence does not support a finding
that it is more likely than not that the respondent will be tortured upon
his return to Haiti. See 8 C.F.R. § 1208.18(a)(1) (defining torture as
“any act by which severe pain or suffering, whether physical or
9
mental, is intentionally inflicted . . . .”) (emphasis added); 8 C.F.R.
§ 1208.18(a)(5) (the torturous act “must be specifically intended to
inflict severe physical or mental pain or suffering”) (emphasis added)
(“An act that results in unanticipated or unintended severity of pain
and suffering is not torture”); 8 C.F.R. § 1208.18(a)(3) (stating
“[t]orture does not include pain or suffering arising only from,
inherent [in] or incidental to law ful sanction[s]”); 8
C.F.R. § 1208.18(a)(2) (stating torture “does not include lesser forms
of cruel, inhuman[] or degrading [treatment or] punishment”).
R. at 26–27 (first two alterations in original; subsequent alterations added to
indicate the correct text of the regulations). Jean Pierre timely appealed the BIA’s
decision. On appeal, we review only the BIA opinion. See Al Najjar v. Ashcroft,
257 F.3d 1262, 1284 (11th Cir. 2001) (“We review only the Board’s decision,
except to the extent that it expressly adopts the IJ’s opinion.”).
II.
First, the government argues that we are without jurisdiction to consider
Jean Pierre’s claim because of the jurisdictional limits found in the REAL ID Act
of 2005, Pub. L. No. 109-13, 119 Stat. 231, 302 (codified in scattered sections of 8
U.S.C.). The REAL ID Act limits federal court jurisdiction in cases involving
certain criminal aliens to “constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals in accordance with
this section.” 8 U.S.C. § 1252(a)(2)(D); see also id. § 1252(a)(2)(C) (“[E]xcept as
provided in subparagraph (D), no court shall have jurisdiction to review any final
order of removal against an alien who is removable by reason of having committed
10
a criminal offense covered in [the enumerated sections].”).
Under the REAL ID Act, we have jurisdiction over “questions of law.” See
id. § 1252(a)(2)(D). Because the statute presents the jurisdictional provision in
§ 1252(a)(2)(D) as an exception to the general rule barring appellate review of
final removal orders in cases involving criminal aliens in § 1252(a)(2)(C),
moreover, we have jurisdiction only to the extent that Jean Pierre raises such
“constitutional claims or questions of law.” In other words, the REAL ID Act
prevents us from reviewing factual determinations made by the IJ or BIA in cases
involving aliens who have committed a listed criminal offense. Cf. Chacon-Botero
v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam) (holding, in a
case involving a related provision of the REAL ID Act, that “discretionary or
factual determinations continue to fall outside the jurisdiction of the court of
appeals entertaining a petition for review”).
According to the government, Jean Pierre’s claim does not raise a “question
of law” because he is really attempting to challenge a factual determination
concerning the likelihood that he will be subjected to torture. In other words, the
government asserts, Jean Pierre is really trying to circumvent the unambiguous
limitations Congress has placed on our jurisdiction by dressing up a purely factual
challenge as a question of law. We are unpersuaded.
We begin with Cadet, an immigration case involving a criminal alien
11
decided shortly before Congress passed the REAL ID Act. There, a panel of this
Court held that habeas corpus jurisdiction extends to the adjudication of mixed
questions of law and fact,4 including the question of whether a particular course of
conduct (fact) constitutes torture (law). See 377 F.3d at 1184 (“[T]he scope of
habeas review available in § 2241 petitions by aliens challenging removal
orders . . . includes constitutional issues and errors of law, including both statutory
interpretations and application of law to undisputed facts or adjudicated
facts . . . .”); see also INS v. St. Cyr, 533 U.S. 289, 302 (2001) (“[T]he issuance of
the writ [of habeas corpus] was not limited to challenges to the jurisdiction of the
custodian, but encompassed detentions based on errors of law, including the
erroneous application or interpretation of statutes.”). Having found jurisdiction, we
reviewed the BIA’s legal conclusions de novo, according Chevron deference to the
BIA’s interpretation of the immigration laws. See Cadet, 377 F.3d at 1185–86
4
The Supreme Court has defined such questions as those “in which the historical facts
are admitted or established, the rule of law is undisputed, and the issue is whether the facts
satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the
established facts is or is not violated.” Pullman-Standard v. Swint, 456 U.S. 273, 290 n.19
(1982). Mixed questions are generally held to fall within the jurisdiction of the reviewing court
even when the court’s jurisdiction to review the facts themselves has been limited or eliminated.
See, e.g., Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963) (“By ‘issues of fact’ we mean to refer
to what are termed basic, primary, or historical facts: facts ‘in the sense of a recital of external
events and the credibility of their narrators . . . .’ Brown v. Allen, 344 U.S. 443, 506 (opinion of
Mr. Justice Frankfurter). So-called mixed questions of fact and law, which require the
application of a legal standard to the historical-fact determinations, are not facts in this sense.”).
12
(“Thus, where a statute or regulation is silent or ambiguous, we are obliged to defer
to the BIA’s interpretation and application of statutes and regulations if that
interpretation is reasonable.”).
The REAL ID Act changed the basic mechanism of federal judicial review;
criminal aliens seeking review of an unsuccessful CAT claim may no longer
proceed in habeas. Rather, the exclusive mechanism for judicial review is a petition
for review filed with the appropriate court of appeals. 8 U.S.C. § 1252(a)(5); see
also Balogun v. United States AG, 425 F.3d 1356, 1359–60 (11th Cir. 2005)
(explaining how the REAL ID Act altered “double-layered review for criminal
aliens”). While the mechanism changed, however, the scope of our review of the
law did not. As we observed recently in Alexandre v. United States Attorney
General, 452 F.3d 1204 (11th Cir. 2006) (per curiam), the REAL ID Act “offers
the same scope of review as a habeas remedy” in a case involving a criminal
alien’s appeal of a removal order. Id. at 1206. Alexandre was not a CAT case, but
it did construe the same generally applicable jurisdictional limitations imposed by
the REAL ID Act. See id. We can see no reason why the result should be different
in the context of reviewing a CAT claim. Indeed, Alexandre specifically cited to
Cadet, the CAT case in which we determined that review of the application of law
to undisputed facts falls well within the scope of the court’s jurisdiction. See id.
(citing Cadet, 377 F.3d at 1184).
13
The necessary conclusion we draw from our precedent and from the
language found in the REAL ID Act is that we have jurisdiction to review Jean
Pierre’s claim in so far as he challenges the application of an undisputed fact
pattern to a legal standard. This conclusion is fully consonant with the decisions
reached by the other courts of appeal that have considered the issue. See Ramadan
v. Gonzales, 479 F.3d 646, 654 (9th Cir. 2007) (per curiam) (“We therefore
conclude that the phrase ‘questions of law’ as it is used in . . . the Real ID Act
includes review of the application of statutes and regulations to undisputed
historical facts. This construction is amply supported by the statute and legislative
history, and a narrower interpretation would pose a serious Suspension Clause
issue.” (footnote omitted)); id. at 650 (“‘[Q]uestions of law,’ as it is used in [the
REAL ID Act], extends to questions involving the application of statutes or
regulations to undisputed facts, sometimes referred to as mixed questions of fact
and law.”); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326–27 (2d Cir.
2006) (“We construe the intent of Congress’s restoration under the REAL ID Act
rubric of ‘constitutional claims or questions of law’ to encompass the same types
of issues that courts traditionally exercised in habeas review over Executive
detentions.”); Kamara v. Att’y Gen. of the U.S., 420 F.3d 202, 211 (3d Cir. 2005)
(holding that the scope of review under the REAL ID Act “mirrors our previously
enunciated standard of review over an alien’s habeas petition”).
14
This analysis is also fully consistent with the legislative history of the REAL
ID Act. The Conference Report for the Act specifically says that when “presented
with a mixed question of law and fact, the court should analyze it to the extent
there are legal elements, but should not review any factual elements.” Conference
Report for the REAL ID Act, H.R. Rep. No. 109-72, at 175 (2005), as reprinted in
2005 U.S.C.C.A.N. 240, 300; see also id. (“[W]hile the reforms in [8
U.S.C. § 1252] would preclude criminals from obtaining review over non-
constitutional, non-legal claims, it would not change the scope of review that
criminal aliens currently receive . . . .”).
Whether a particular fact pattern amounts to “torture” requires a court to
apply a legal definition to a set of undisputed or adjudicated historical facts. Our
resolution of this issue in Cadet could not have been clearer: “whether the
conditions in Haitian prisons constitute torture is a mixed question of law and fact
as we must apply CAT’s legal definition of ‘torture’ to the facts of what happens in
Haiti’s prisons.” 377 F.3d at 1192. Jean Pierre’s claim squarely and
unambiguously raises this question. In light of our binding precedent in Cadet and
Alexandre, the persuasive authority of the other courts of appeal, and the plain
language and legislative history of the REAL ID Act, we have little difficulty in
concluding that this Court has jurisdiction to entertain whether a fact pattern
constitutes torture.
15
III.
Plainly, Jean Pierre is subject to removal from the United States as a
criminal alien under 8 U.S.C. § 1227. Claiming that he would be tortured if
returned to his native Haiti, Jean Pierre applied for relief under the United Nations
Convention Against Torture.5 As a signatory to the Convention, the United States
has agreed not to “expel, return . . . 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.” Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment art. 3, § 1, Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 85. An alien is entitled to CAT protection if he is
“more likely than not to be tortured in the country of removal.” 8
C.F.R. § 208.16(c)(4). The petitioner bears the burden of proof on this point. See
Cadet v. Bulger, 377 F.3d 1173, 1180 (11th Cir. 2004).
The legislation and regulations implementing the CAT provide that torture
is an “extreme form of cruel and inhuman treatment and does not include lesser
5
Properly speaking, the Convention itself provides no legal protection. Because the
Convention is not self-executing, a petitioner raising a CAT claim is actually seeking relief
under the Convention’s implementing legislation, the Foreign Affairs Reform and Restructuring
Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822 (codified at 8 U.S.C. § 1231
note). This Act states that “[i]t shall be the policy of the United States not to expel, extradite, or
otherwise effect the involuntary return of any person to a country in which there are substantial
grounds for believing the person would be in danger of being subjected to torture.” Id.; see also
Cadet, 377 F.3d at 1179–80 & n.3 (discussing the ratification and implementation of the CAT).
For convenience, we refer to Jean Pierre’s claim as a “CAT claim.”
16
forms of cruel, inhuman or degrading treatment or punishment that do not amount
to torture.” 8 C.F.R. § 208.18(a)(2); see also Cadet, 377 F.3d at 1181. Moreover,
the actor must have specifically intended to inflict such severe pain or suffering, 8
C.F.R. § 208.18(a)(5), and the act must be inflicted for a proscribed purpose,
including “for any reason based on discrimination of any kind,” id. § 208.18(a)(1).
Public officials or other persons acting in an official capacity must be involved,
and the treatment must be directed at a person within their custody or physical
control. See id. (referring to “pain or suffering . . . inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in
an official capacity”); id. § 208.18(a)(7) (“Acquiescence of a public official
requires that the public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her legal responsibility to
intervene to prevent such activity.”); id. § 208.18(a)(6) (“In order to constitute
torture an act must be directed against a person in the offender’s custody or
physical control.”).
Jean Pierre’s argument for CAT relief was based on the claim that he will
likely be tortured in a Haitian prison when his AIDS infection, unchecked by
lifesaving medication, infects his mind and causes him to behave inappropriately or
erratically. He claims that the Haitian prison guards, acting out of fear or prejudice,
will likely beat him with metal rods, strike him about the head and ears (kalot
17
marassa), and, perhaps most disturbingly, lock him in a tiny crawl space for weeks
or months without food or even room to stand upright. The BIA, like the IJ, did not
directly address this central claim.
The BIA seems to have thought that two earlier cases, In re J-E-, 23 I. & N.
Dec. 291 (BIA 2002) (en banc), and Cadet v. Bulger, 377 F.3d 1173, disposed of
Jean Pierre’s claim. The BIA cited to both cases in observing that:
The mere fact that the Haitian government does not exempt those
criminal deportees who suffer from severe medical conditions from
their detention policy, a policy we have found to be a legitimate and
lawful sanction, does not constitute torture. See Matter of J-E, supra.
In addition, as noted by the Immigration Judge, nothing in the record
supports the notion that the Haitian government deliberately creates or
maintains the unhygienic conditions for purposes of torturing its
detainees. (I.J. at 21). See 8 C.F.R. §§ 1208.18(a)(1) and (5). Further,
the United States Court of Appeals for the Eleventh Circuit, the
jurisdiction in which this case arises, has deferred to our reasonable
interpretation that police brutality in Haiti, including “beatings, with
fists, sticks, and belts,” does not rise to the level of torture pursuant to
CAT. Cadet v. Bulger, 377 F.3d 1173, 1195 (11th Cir. 2004). Even if
intentional, none of the harm the respondent might face rises above
that which is characterized in the regulations as “lesser forms of cruel,
inhuman or degrading punishment,” and, therefore, it cannot be
deemed torture.
R. at 27 (footnote omitted). Cadet and In re J-E- held, among other things, that
Haiti is a poor country, and that its inability to maintain better prisons did not mean
that it tortures those it holds, even when it indefinitely confines criminals deported
from the United States and may subject them to mistreatment short of torture. See
In re J-E, 23 I. & N. Dec. at 301–04 (holding that poor prison conditions, indefinite
18
detention of criminal deportees, and police mistreatment such as “[b]eating with
the fists, sticks, and belts,” were not torture); Cadet, 377 F.3d at 1193 (deferring to
this interpretation).
Those cases are different. In both cases, the petitioners failed because,
among others, they could not establish that they would be individually and
intentionally singled out for harsh treatment. Although both petitioners produced
evidence of generalized mistreatment and some isolated instances of torture,6 the
evidence was insufficient to meet the petitioners’ burdens of showing that they
were individually “more likely than not to be tortured in the country of removal.” 8
C.F.R. § 208.16(c)(4); see In re J-E-, 23 I. & N. at 304 (“[W]e find that the
respondent has failed to establish that these severe instances of mistreatment are so
pervasive as to establish a probability that a person detained in a Haitian prison
will be subject to torture, as opposed to other acts of cruel, inhuman, or degrading
punishment or treatment.”); Cadet, 377 F.3d at 1195 (focusing on the petitioner’s
6
Both Cadet and In re J-E- acknowledge that some of the abuses discussed in the State
Department Country Reports on Haiti would, in fact, constitute torture. See Cadet, 377 F.3d at
1195 (“[W]e read the BIA’s decision in J-E as acknowledging that certain isolated, vicious and
deliberate acts, such as burning with cigarettes, choking, hooding, kalot marassa, and electric
shock do occur in Haitian prisons and that such acts constitute CAT-prohibited ‘torture.’”).
While we deferred to the BIA’s determination that “[b]eating[s] with the fists, sticks, and belts,”
were not torture but rather “lesser forms of cruel, inhuman or degrading treatment or
punishment,” we were unpersuaded by the argument that such misconduct was somehow not
intentional. See Cadet, 377 F.3d at 1195 n.20 (“We note that these types of physical abuse in
Haitian prisons are intentional acts, as opposed to inescapable results of Haiti’s economic
hardship. Accordingly, unlike the prison conditions addressed above, these types of physical
abuse cannot be described as ‘incident to’ a lawful sanction.”).
19
failure to make an individualized showing); see also Lavira v. Att’y Gen. of the
U.S., 478 F.3d 158, 164 (3d Cir. 2007) (“It cannot be questioned that the
undisputed facts Lavira presented in support of his claim are not merely an attack
on the ‘general state of affairs.’ Lavira’s CAT claim details how guards will treat
this HIV-positive prisoner . . . . The facts supporting Lavira’s claim are ‘evidence
tending to show that he faces an increased likelihood of torture’ compared to the
alien in Matter of J-E- . . . .”).
Jean Pierre’s claim, at both stages of the administrative process and on
appeal, was not limited to the assertion that placing a man with AIDS in a Haitian
prison amounts to a death sentence. Instead, as a thorough review of the 1,500-
page record reveals, Jean Pierre’s central claim has always been that placing this
man in a Haitian prison, with guards who beat mentally ill patients with metal rods
and lock them in small crawl spaces, would violate the commitment of the United
States not to remove a person who is “more likely than not to be tortured in the
country of removal,” 8 C.F.R. § 208.16(c)(4). See, e.g., R. at 1364 (“People with
mental health problems are singled out for torture in the prisons. . . . Jean Pierre
will act in deviant ways because of the mental health complications of his AIDS
and this will cause him to be singled out in the jails of Haiti and tortured.”); R. at
1372 (“The increased attention of Haitian prison guards [caused by deviant
behavior] is especially dangerous because country conditions reports confirm that
20
torture occurs in Haitian prisons.”); R. at 1373 (“[T]he general practice in the
National Penitentiary where Mr. Jean Pierre will be sent is to lock individuals with
mental illness into a crawl space under the stairs. People locked in the crawl space
are not given food to eat and are unable to stand for lack of room.” (citations
omitted)); R. at 1376 (“Violence has been directed particularly toward the mentally
ill in Haitian prisons. . . . People with mental illness are given the worst conditions
in prison.” (citations omitted)); R. at 1380 (“With the high likelihood of psychiatric
complications and consequent deviant behaviors, Mr. Jean Pierre is highly likely to
become a target of violence from prison guards . . . and be confined to the crawl
space under the stairs.”); R. at 1368 (kalot marassa); R. at 1369 (kalot marassa); R.
at 1375 (crawl space confinement); R. at 1378 (physical violence and crawl-space
confinement).
The government did not in any way dispute the facts underlying Jean
Pierre’s claim, and the IJ found him to be a credible witness. In his disposition of
the claim, however, the IJ did not discuss the harsher forms of mistreatment
detailed by Jean Pierre. More importantly, the BIA decision, the subject of our
review, makes no mention of kalot marassa, confinement in a crawl space, or
beatings with metal rods. These details are omitted despite the fact that the BIA has
itself recognized kalot marassa as an example of “mistreatment in Haitian prisons
that rise[s] to the level of torture.” In re J-E-, 23 I. & N. Dec. at 302; see also
21
Cadet, 377 F.3d at 1194–1195.
At best, the BIA opinion can be read as obliquely referencing Jean Pierre’s
argument that he would face harsher treatment as a result of mental illness. See R.
at 26 (referencing “some evidence in the record indicating that those, like the
respondent, who are mentally ill or afflicted with HIV may endure harsher
circumstances as a result of their medical condition”). In our view, the BIA omitted
from its analysis any review of the most important facts presented in this case.
There is, of course, an important difference between considering the evidence and
reciting it; the BIA need not mechanically list every piece of evidence in the record
on its way to rendering a decision. See Tan v. U.S. Att’y Gen., 446 F.3d 1369,
1376–77 (11th Cir. 2006) (observing that, although the IJ must consider all the
evidence before him, he is not required to discuss every piece of evidence
presented). But in this case, the BIA erred in apparently omitting from its review
the central and undisputed facts that drive this petition.
Moreover, the BIA erred in failing to address the petitioner’s essential legal
arguments -- arguments so central to Jean Pierre’s claim that we are unable to
review the issue presented by this appeal. Jean Pierre was not rearguing In re J-E-
and Cadet. Instead, he presented a new and different legal question: whether a
petitioner is entitled to withholding of removal under the Convention Against
Torture when the undisputed evidence seems to show that he likely will be singled
22
out for crawl-space confinement, kalot marassa, and beatings with metal rods as a
result of AIDS-related mental illness. As best as we can tell, the BIA did not
answer this question.
Accordingly, we are constrained to agree with Jean Pierre that the BIA failed
to give reasoned consideration to his claims. See 8 C.F.R. § 208.16(c)(3) (“In
assessing whether it is more likely than not that an applicant would be tortured in
the proposed country of removal, all evidence relevant to the possibility of future
torture shall be considered . . . .” (emphasis added)); see, e.g., Lavira v. Att’y Gen.
of the U.S., 478 F.3d 158, 164 (3d Cir. 2007) (holding, in a case involving an HIV-
positive criminal alien who claimed that he would be singled out for torture if
returned to Haiti, that a “decision that flatly ignores the grounds presented by the
petitioner fails to furnish the Court of Appeals with the basis for its particular
decision, and as such any meaningful review is not possible”); see also, e.g., Tan v.
U.S. Att’y Gen., 446 F.3d 1369, 1375–77 (11th Cir. 2006) (granting a petition for
review of an application for withholding of removal when the absence of a
reasoned decision and adequate factual findings left the court unable to review the
claim); Mezvrishvili v. U.S. Att’y Gen., 467 F.3d 1292, 1297 (11th Cir. 2006) (per
curiam) (same result in an asylum case); Enwonwu v. Gonzales, 438 F.3d 22, 35
(1st Cir. 2006) (remanding a CAT determination to the BIA because it was
“insufficiently reasoned as a matter of law”); Antipova v. U.S. Att’y Gen., 392
23
F.3d 1259, 1265 (11th Cir. 2004) (remanding a petition for asylum to the BIA
because the court could not “undertak[e] meaningful judicial review of the
merits”).
The BIA is obliged to resolve the basic questions raised in this CAT petition
in the first instance. See Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per
curiam) (“A court of appeals ‘is not generally empowered to conduct a de novo
inquiry into the matter being reviewed and to reach its own conclusions based on
such an inquiry.’” (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam));
see also Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1236 (11th Cir. 2007)
(“The Supreme Court has instructed that, when the IJ or BIA has not made findings
of fact or has not applied the law to those facts, appellate courts should remand to
allow the IJ to make such determinations in the first instance.”); Lopez v. U.S.
Att’y Gen., 490 F.3d 1312, 1316 (11th Cir. 2007) (discussing the “ordinary remand
rule”).
Indeed, in a motion filed with us following oral argument in this case, the
government “agree[d] that a remand to the Board would be appropriate with
instructions that the agency consider and address the factual allegations concerning
whether Jean Pierre, upon his return to Haiti, would be subject to physical abuse
amounting to torture (to include kalot marassa, confinement in crawl spaces and
beatings with metal rods), as that term has been defined by regulations, Board
24
decisions, and this Court, as to warrant deferral of removal under the Convention
Against Torture . . . . Given the importance of this issue, the Board should have an
opportunity to address this claim in the first instance.” Respondent’s Motion to
Remand at 1–2.
On remand, the BIA must squarely address Jean Pierre’s claim that he likely
will be singled out for crawl-space confinement, beatings with metal rods, and
kalot marassa in light of the five-part analysis employed by this Court in Cadet.
See 377 F.3d at 1192 (“[F]or an act to constitute ‘torture’ under CAT and its
implementing regulations, it must be: (1) an act causing severe physical or mental
pain or suffering; (2) intentionally inflicted; (3) for an illicit or 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 1195 (focusing on whether the petitioner presented
evidence “qualitatively different than or superior to the J-E- record”).
The essential problem we face is that we are unable to meaningfully review
the application of the law of torture to the basic facts of the case without first
having the benefit of the BIA’s review and resolution of Jean Pierre’s central
claim. Accordingly, we are required to GRANT Jean Pierre’s petition for review,
VACATE the BIA’s decision, and REMAND for further proceedings consistent
with this opinion.
25
VACATED AND REMANDED.
26