J-E

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In re J-E-, Respondent
Decided March 22, 2002
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) An alien seeking protection under Article 3 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment must establish that it is more
likely than not that he will be tortured in the country of removal.
(2) Torture within the meaning of the Convention Against Torture and 8 C.F.R. § 208.18(a)
(2001) is an extreme form of cruel and inhuman treatment and does not extend to lesser
forms of cruel, inhuman, or degrading treatment or punishment.
(3) For an act to constitute “torture” it must satisfy each of the following five elements
in the definition of torture set forth at 8 C.F.R. § 208.18(a): (1) the act must cause
severe physical or mental pain or suffering; (2) the act must be intentionally inflicted; (3)
the act must be inflicted for a proscribed purpose; (4) the act must be inflicted 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) the act cannot arise from lawful sanctions.
(4) According to 8 C.F.R. § 208.16(c)(3) (2001), in adjudicating a claim for protection
under Article 3 of the Convention Against Torture, all evidence relevant to the possibility
of future torture must be considered, including, but not limited to: (1) evidence of past
torture inflicted upon the applicant; (2) evidence that the applicant could relocate to a part
of the country of removal where he or she is not likely to be tortured; (3) evidence of gross,
flagrant, or mass violations of human rights within the country of removal, where
applicable; and (4) other relevant information regarding conditions in the country of
removal.

(5) The indefinite detention of criminal deportees by Haitian authorities does not constitute
torture within the meaning of 8 C.F.R. § 208.18(a) where there is no evidence that the
authorities intentionally and deliberately detain deportees in order to inflict torture.
(6) Substandard prison conditions in Haiti do not constitute torture within the meaning of
8 C.F.R. § 208.18(a) where there is no evidence that the authorities intentionally create and
maintain such conditions in order to inflict torture.
(7) Evidence of the occurrence in Haitian prisons of isolated instances of mistreatment that
may rise to the level of torture as defined in the Convention Against Torture is insufficient
to establish that it is more likely than not that the respondent will be tortured if returned to
Haiti.

FOR RESPONDENT: Andrean Eaton, Esquire, Naples, Florida

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: John W. Seaman,
Assistant District Counsel

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BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;
HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, GRANT, MOSCATO,
MILLER, OHLSON, HESS, and PAULEY, Board Members. Dissenting
Opinions: SCHMIDT, Board Member, joined by GUENDELSBERGER,
BRENNAN, ESPENOZA, and OSUNA, Board Members; ROSENBERG, Board
Member, joined by ESPENOZA, Board Member.
GRANT, Board Member:

In a decision dated July 2, 2001, an Immigration Judge found the
respondent removable as an alien convicted of a controlled substance
violation and as an alien present in the United States without being admitted
or paroled. The Immigration Judge denied the respondent’s applications for
asylum, withholding of removal under section 241(b)(3) of the Immigration
and Nationality Act, 8 U.S.C. § 1231(b)(3) (2000), and protection under
Article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture” or
“Convention”). The respondent has appealed from the Immigration Judge’s
decision. The appeal will be dismissed. The respondent’s request for oral
argument is denied, and the request for a fee waiver is granted. See C.F.R.
§§ 3.1(e), 3.8(c) (2001).
I. ISSUE
The issue before us is whether the respondent is eligible for protection
under Article 3 of the Convention Against Torture. To decide this issue, we
must address two questions in particular: first, whether any actions by the
Haitian authorities—indefinite detention, inhuman prison conditions, and
police mistreatment—constitute torturous acts within the definition of torture
at 8 C.F.R. § 208.18(a) (2001); and, if so, whether the respondent has
established that it is more likely than not that he will be tortured if removed
to Haiti. See 8 C.F.R. § 208.16(c) (2001).

II. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Haiti. He entered the United
States without inspection at an unknown time and place.1 On June 22, 2000,
the respondent was convicted of sale of cocaine, a second degree felony
under Florida law.

1
According to the respondent’s Application for Asylum and Withholding of Removal (Form
I-589), he last entered the United States on September 17, 1990.

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At a continued removal hearing on July 2, 2001, the respondent testified
that upon his return to Haiti he will be persecuted and tortured by Haitian
authorities. He related that he left Haiti in 1990, and that his mother was
killed in 1990 and his grandfather in 1995, each as a result of a property
dispute. The respondent’s father, who testified on his son’s behalf, explained
that his family had never had any problems with the Haitian Government, only
property disputes with neighbors. His testimony differed from the
respondent’s regarding his last trip to Haiti.
In further support of his claim, the respondent submitted five recent
newspaper articles addressing Haitian prison conditions, as well as a set of
photographs of malnourished, dying Haitian inmates. He also submitted the
Department of State’s Background Note: Haiti, dated April 2001. Bureau of
Western Hemisphere Affairs, U.S. Dep’t of State, Background Note:
Haiti (Apr. 2001), available at http://www.state.gov/r/pa/bgn/index.htm
(“Background Note”). All of the articles confirm the Department of State’s
assessment of the inhuman prison conditions in Haiti. Only one article,
written by a Miami Herald reporter in 2001, references police mistreatment.
The reporter spoke with two inmates at the Penitentier National prison, who
stated that they had been abused by the authorities. One male inmate had
burn marks on his chest and arm, and one female inmate claimed that the
guard beat her. When confronted with these accusations, the prison warden’s
response was equivocal. He intimated that prisoners are beaten, but not
severely.
The record also contains a letter dated April 12, 2001, to the Immigration
Judge from Mr. William E. Dilday, Director of the Office of Country Reports
and Asylum Affairs at the Department of State’s Bureau of Democracy,
Human Rights and Labor. Mr. Dilday reports that Haitians deported from the
United States on criminal grounds will be detained in Haiti until a commission
determines a release date. The commission does not meet regularly, so
Haitian detainees may be held for weeks in police holding cells before they
are released. According to Haitian authorities, criminal detainees are
temporarily detained to deter criminal activity in Haiti. The State Department
also reports that prison facilities are overcrowded and inadequate. Haitian
prisoners are deprived of adequate food, water, medical care, sanitation, and
exercise. Many prisoners are malnourished. According to prison officials,
in November 2000, 5 of the 10 prison deaths were attributable to
malnutrition. At the conclusion of the respondent’s hearing, the Immigration
Judge found him removable as charged; statutorily ineligible for asylum
because of his aggravated felony conviction; ineligible for withholding of
removal; and ineligible for protection under Article 3 of the Convention
Against Torture because of his failure to establish that it is more likely than
not that he will be tortured if returned to Haiti. Accordingly, he ordered the
respondent deported to Haiti.

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On appeal, the respondent claims that he will be persecuted and tortured
if returned to Haiti because he will be subject to indefinite detention as a
repatriated Haitian convict. 2 The Immigration and Naturalization Service
filed a memorandum adopting the decision of the Immigration Judge and
requesting that his decision be affirmed. For the reasons set forth below, the
appeal will be dismissed.
III. ANALYSIS
A. Convention Against Torture
Article 3 of the Convention Against Torture precludes the United States
from returning an alien to a state where there are substantial grounds for
believing that he would be subjected to torture.3 To ascertain the nature and
extent of the protection afforded by the United States under Article 3, we
must examine the history of the negotiations, ratification, and implementation
of the Convention in the United States.
We begin our analysis by examining the origins of the Convention Against
Torture. In 1977, the United Nations General Assembly requested that the
United Nations Human Rights Commission draft a convention against torture.
For more than 6 years, several nations, including the United States, negotiated
the provisions of the instrument. In March 1984, a draft convention was
accepted by the Commission and was directed to the United Nations General
Assembly. On December 10, 1984, the General Assembly unanimously
adopted the Convention Against Torture, which entered into force on June 26,
1987. See Report of the Committee on Foreign Relations, S. Exec. Rep. No.
30, 101st Cong., 2d Sess. 1, 2 (1990) (“Senate Report”). The purpose of the
Convention is “to make more effective the struggle against torture and other
cruel, inhuman or degrading treatment or punishment throughout the world.”
Convention Against Torture, supra, pmbl.
2
Although the respondent, through counsel, indicated that he would file an additional brief or
statement in support of his appeal, he has failed to provide such a brief or an explanation for
his failure to do so. It is unclear whether the respondent is challenging the denial of his
withholding of removal claim under section 241(b)(3) of the Act. Despite the fact that the
respondent withdrew his request for withholding of removal, the Immigration Judge
adjudicated the claim and denied it for failure to meet the burden of proof. On review, we find
no reason to disturb that portion of the Immigration Judge’s decision.
3
Article 3 of the Convention provides as follows:
1. No State Party shall 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.
2. For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including, where applicable,
the existence in the State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights.

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The history of the negotiations reveals that a central issue for the drafters
of the Convention Against Torture was whether the definition of “torture”
should include solely acts of torture or also “other acts of cruel, inhuman, and
degrading treatment or punishment.” See Ahcene Boulesbaa, The U.N.
Convention on Torture and the Prospects for Enforcement 5 (1999) (citing
U.N. Doc. E/CN.4/1314 (1978)). The United States took the position that
“torture” is limited to extreme forms of cruel, inhuman, or degrading treatment
or punishment. Id.; see also Senate Report, supra, at 2-3. The definition of
torture ultimately adopted by the General Assembly and set forth in Article
1 of the Convention Against Torture does not include “other acts of cruel,
inhuman or degrading treatment or punishment.”4
Instead, “other acts of cruel, inhuman or degrading treatment or
punishment” are prohibited under Article 16 of the Convention. Article 16.1
obligates Convention signatories to prevent in any territory under their
jurisdiction
other acts of cruel, inhuman or degrading treatment or punishment which do not amount
to torture as defined in article 1, when such acts are committed by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in an official
capacity.

Thus, the Convention Against Torture draws a clear distinction between
torturous acts as defined in Article 1 and acts not involving torture referenced
in Article 16. The severity of the pain and suffering inflicted is a
distinguishing characteristic of torture.5 This distinction is further emphasized
by the different obligations that attach to each. The obligations undertaken
by a State Party regarding acts of torture are far more comprehensive than
those regarding nontorturous acts.6 Notably, the protection afforded under
4
Article 1 of the Convention defines “torture” as
any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed or is suspected
of having committed, or intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is 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. It does not include pain or suffering arising only from, inherent in
or incidental to lawful sanctions.
5
During the negotiations on the Convention there were several unsuccessful attempts to
eliminate the term “severe” from the torture definition. See Boulesbaa, supra, at 16; see also
J. Herman Burgers & Hans Danelius, The United Nations Convention against Torture 117
(1988).
6
For example, as a signatory to the Convention, the United States agreed not to expel, return,
or extradite a person to a state where there are substantial grounds for believing that he would
be subjected to torture (Article 3). The United States also agreed to criminalize acts of torture
(Article 4); to establish universal jurisdiction over acts of torture and to prosecute and extradite
(continued...)

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Article 3 extends only to acts of torture as defined in Article 1 of the
Convention.
On April 18, 1988, President Reagan signed the Convention Against
Torture and transmitted it to the Senate the following month with
17 conditions, which were later revised by the Bush Administration. On
October 27, 1990, the Senate adopted its resolution of advice and consent to
ratification. The treaty became effectively binding on the United States on
November 20, 1994.
The Senate ratified the Convention subject to two reservations, five
understandings, two declarations, and a proviso. See 136 Cong. Rec.
S17,486, S17,491-92 (daily ed. Oct. 27, 1990) (“Senate Resolution”). Two
of the Senate’s understandings directly relate to Article 3 of the Convention
and, consequently, to this case in particular. 7 These understandings, which
have been incorporated in the implementing regulations, are critical to
comprehending the United States’ obligations under Article 3. Notably, the
Senate ratified the Convention subject to an understanding that refines the
definition of torture contained in Article 1 of the Convention. See Senate
Resolution, supra, II.(1)(a)-(e). As detailed below, this understanding is
incorporated into the federal regulations at 8 C.F.R. § 208.18(a).
Another of the Senate’s understandings provides that “where there are
substantial grounds for believing that he would be in danger of being
subjected to torture,” as used in Article 3 of the Convention, means “if it is
more likely than not that he would be tortured.” Senate Resolution, supra,
II.(2). The ratification history reveals that the standard of proof for protection
under Article 3 is the same as the standard of proof for withholding of
removal under section 241(b)(3) of the Act. See Report of the Committee on
Foreign Relations, S. Exec. Rep. No. 30, 101st Cong., 2d Sess., 16-17 (1990)
(“Senate Report”). This understanding is incorporated in the federal
regulations at 8 C.F.R. § 208.16(c)(2).
B. Regulatory Definition of Torture
On October 21, 1998, the President signed into law the Foreign Affairs
Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div. G, § 2242,
112 Stat. 2681-761, 2681-822, which authorized the implementation of
Article 3 of the Convention Against Torture and required that implementing

6
(...continued)
alleged torturers (Articles 5, 6, and 7); and to give victims of torture the legal right to receive
compensation (Article 14). These obligations do not extend to other acts of cruel, inhuman,
or degrading treatment or punishment.
7
An “understanding” binds only the United States, not other Convention signatories. See
Restatement (Third) of the Foreign Relations Law of the United States § 314 (1986).

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regulations be promulgated by the interested agencies within 120 days.8 As
directed, the Service promulgated interim regulations implementing Article 3
of the Convention in the context of the removal of aliens by the Attorney
General. Regulations Concerning the Convention Against Torture, 64 Fed.
Reg. 8478 (Feb. 19, 1999) (effective Mar. 22, 1999).
These federal regulations govern our decision in this case. The regulatory
definition of torture incorporates the definition of Article 1 of the Convention
and draws directly from the reservations, understandings, declarations, and
proviso contained in the Senate’s resolution of advice and consent to ratify
the Convention, and the ratification documents. See Senate Resolution,
supra, II.(1)(a)-(e), 4; see also Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. at 8482-83 (Supplementary Information). The
regulations reflect the United States’ longstanding position that torture is an
extreme form of cruel, inhuman, or degrading treatment or punishment. See
8 C.F.R. §§ 208.18(a)(1), (2); see also Senate Report, supra, at 13.
Instead of categorizing acts that constitute torture, the regulatory definition
of torture sets forth criteria that must be applied in determining whether a
given act amounts to torture. See Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. at 8482. 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.
8 C.F.R. § 208.18(a).
First, the act must cause severe pain or suffering, physical or mental. It
must be an extreme form of cruel and inhuman treatment, not lesser forms of
cruel, inhuman, or degrading treatment or punishment that do not amount to
torture. 8 C.F.R. §§ 208.18(a)(1), (2). Mental pain or suffering may
constitute torture if it falls within the regulatory definition at 8 C.F.R.
§ 208.18(a)(4). See Senate Resolution, supra, II.(1)(a).
While the Convention Against Torture makes a clear distinction between
torturous and nontorturous acts, actually differentiating between acts of
torture and other bad acts is not so obvious. Although not binding on the
United States, the opinions of other governmental bodies adjudicating torture
claims can be instructive.
Pursuant to Article 3 of the European Convention on Human Rights, a
Contracting State Party may not expel an individual to a country where he
would be placed at risk of torture or inhuman or degrading treatment.
8
Just 2 months earlier, we held that we lacked jurisdiction to adjudicate a claim for relief from
deportation pursuant to Article 3 of the Convention Against Torture, in the absence of specific
legislation or regulations implementing the provisions of Article 3, given the Senate’s
declaration that Article 3 is not a self-executing treaty provision. Matter of H-M-V, Interim
Decision 3365 (BIA 1998).

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European Convention for the Protection of Human Rights and Fundamental
Freedoms, opened for signature Nov. 4, 1950 (“European Convention”),
available at http://www.hrcr.org/docs/Eur_Convention/euroconv.html .9 In
adjudicating such claims, the European Court has differentiated three levels
of mistreatment: torture, inhuman treatment, and degrading treatment. 10 See
Greek Case, 12 Y.B. Eur. Conv. on H.R. 1 (1969).
In Ireland v. United Kingdom, 2 Eur. Ct. H.R. 25 (1978), the European
Court struggled to determine whether the acts complained of constituted
torture or other, lesser forms of cruel or inhuman treatment. It observed that
torture is an aggravated and deliberate form of cruel, inhuman, or degrading
treatment resulting in intense suffering. Degrading treatment is characterized
by gross humiliation of an individual. In that case, the court held that
suspected terrorists who were detained and subjected to wall standing,
hooding, and constant loud, hissing noise, and who were deprived of sleep,
food, and drink by the British Army had been subjected to inhuman and
degrading treatment, but not torture.
Second, the act must be specifically intended to inflict severe physical or
mental pain or suffering. 8 C.F.R. § 208.18(a)(5). This specific intent
requirement is taken directly from the understanding contained in the Senate’s
ratification resolution. Senate Resolution, supra, II.(1)(a). Thus, an act that
results in unanticipated or unintended severity of pain or suffering does not
constitute torture. In view of the specific intent requirement, the Senate
Foreign Relations Committee noted that rough and deplorable treatment, such
as police brutality, does not amount to torture. See Senate Report, supra, at
13-14.11
Third, the act must have an illicit purpose. The definition of torture
illustrates, but does not define, what constitutes a proscribed or prohibited
purpose. Examples of such purposes include the following: obtaining
information or a confession; punishment for a victim’s or another’s act;
intimidating or coercing a victim or another; or any discriminatory purpose.
The Foreign Relations Committee noted that these listed purposes indicate the
type of motivation that typically underlies torture, and it recognized that the
illicit purpose requirement emphasizes the specific intent requirement. Id. at
14.

9
Article 3 of the European Convention provides: “No one shall be subject to torture or to
inhuman or degrading treatment or punishment.”
10
The European Court of Human Rights was created to hear human rights claims asserted
under the European Convention. The United States is not a party to the European Convention
and is not subject to its jurisdiction, and we recognize the differences between the Convention
Against Torture and the European Convention. However, the court’s jurisprudence regarding
torture claims is instructive, and we consider the court’s decisions to be advisory only.
11
A deliberate act is not necessarily an intentional act. See Burgers & Danelius, supra, at
118-19.

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Fourth, torture covers intentional governmental acts, not negligent acts or
acts by private individuals not acting on behalf of the government. The
regulations require that the harm be “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.” 8 C.F.R. § 208.18(a)(1); see also Matter of Y-L-, A-G-
& R-S-R-, 23 I&N Dec. 270 (A.G. 2002); Matter of S-V-, Interim Decision
3430 (BIA 2000).
To constitute torture, an act must be directed against a person in the
offender’s custody or control. 8 C.F.R. § 208.18(a)(6). The term
“acquiescence” requires that the public official, prior to the activity
constituting torture, have awareness of such activity and thereafter breach his
legal responsibility to intervene to prevent such activity. 8 C.F.R.
§ 208.18(a)(7). These federal regulations are taken directly from the Senate’s
understandings upon which ratification was conditioned. See Senate
Resolution, supra, II.(1)(b), (d); see also Matter of Y-L-, A-G- & R-S-R-,
supra; Matter of S-V-, supra.
Finally, the regulations incorporate the second sentence of Article 1 of the
Convention Against Torture, which states that torture “does not include pain
or suffering arising only from, inherent in or incidental to lawful sanctions.”
8 C.F.R. § 208.18(a)(3) (emphasis added). “Lawful sanctions include
judicially imposed sanctions and other enforcement actions authorized by law,
including the death penalty, but do not include sanctions that defeat the object
and purpose of the Convention Against Torture to prohibit torture.” Id.; see
also Senate Resolution, supra, II.(1)(c), (e).
C. Treatment of Deportees to Haiti
In the case before us, the respondent asserts that he will be tortured in Haiti
by the Government because Haitians deported from the United States on
criminal grounds are detained indefinitely in prison facilities where prisoners
are subjected to inhuman conditions and police mistreatment. We must
determine whether any of these state actions—indefinite detention, inhuman
prison conditions, and police mistreatment—constitute torturous acts within
the meaning of the regulatory definition of torture.
First, the respondent asserts that he will be tortured if returned to Haiti
because he will be indefinitely detained by the Haitian authorities. It is
undisputed that the respondent will be subject to detention of an indeterminate
length on his return to Haiti. Letter from William E. Dilday, Director of
Office of Country Reports and Asylum Affairs, Bureau of Democracy,
Human Rights and Labor, U.S. Dep’t of State, to Immigration Judge
(Apr. 12, 2001) (“Dilday letter”); Bureau of Democracy, Human
Rights, and Labor, U.S. Dep’t of State, Haiti Country Reports on
Human Rights Practices - 2000 (Feb. 2001), available at

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http://www.state.gov/g/drl/rls/hrrpt/2000/wha/index.htm, reprinted in
Committees on Foreign Relations and International Relations, 107th Cong.,
1st Sess., Country Reports on Human Rights Practices for 2000 2625 (Joint
Comm. Print 2001) (“Country Reports”). 12 According to the State
Department, criminal deportees were once processed and released within
1 week. Country Reports, supra, at 2630. Now, due to irregular commission
meetings, deportees are held for weeks in police holding cells prior to their
release. Dilday letter, supra.
We recognize that Haiti has a legitimate national interest in protecting its
citizens from increased criminal activity. According to the Country Reports,
this detention procedure is designed “to prevent the ‘bandits’ from increasing
the level of insecurity and crime in the country.” Country Reports, supra, at
2630. This confirms Mr. Dilday’s report that Haitian authorities detain
criminal deportees “as a warning and deterrent not to commit crimes in Haiti.”
Dilday letter, supra. Thus, Haiti’s detention policy in itself appears to be a
lawful enforcement sanction designed by the Haitian Ministry of Justice to
protect the populace from criminal acts committed by Haitians who are forced
to return to the country after having been convicted of crimes abroad. We
find that this policy is a lawful sanction and, therefore, does not constitute
torture. See 8 C.F.R. § 208.18(a)(3). Additionally, there is no evidence that
Haiti’s detention policy is intended to defeat the purpose of the Convention
to prohibit torture.
Notwithstanding, the United States has condemned the manner in which
Haiti is implementing its detention policy, that is, by detaining deportees for
an indeterminate period. Although this practice is unacceptable and must be
discontinued, there is no evidence that Haitian authorities are detaining
criminal deportees with the specific intent to inflict severe physical or mental
pain or suffering. 8 C.F.R. § 208.18(a)(5). Nor is there any evidence that
Haiti’s detention procedure is inflicted on criminal deportees for a proscribed
purpose, such as obtaining information or a confession; punishment for a
victim’s or another’s act; intimidating or coercing a victim or another; or any
discriminatory purpose. 8 C.F.R. § 208.18(a)(1). Based on the foregoing, we
find that Haiti’s detention practice alone does not constitute torture within the
meaning of the regulations.
The respondent asserts that such indefinite detention, coupled with inhuman
prison conditions, amounts to torture. In order to constitute torture, the act
must be specifically intended to inflict severe pain or suffering. The
12
According to Director Dilday, Haitian deportees are detained in “police holding cells.”
Dilday letter, supra. The State Department Country Reports state that the “National
Penitentiary is the only prison originally constructed for use as a prison; all other prisons are
former police holding cells.” Country Reports, supra, at 2630. While criminal suspects and
convicted criminals are held in “police holding cells,” it is unclear from the reports whether
Haitian deportees are detained with criminals and are subject to these forms of mistreatment.

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ratification documents make it clear that this is a “specific intent”
requirement, not a “general intent” requirement. Senate Report, supra, at 14;
see also Senate Resolution, supra, II.(a)(1). “Specific 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.” Black’s Law Dictionary 813-14 (7th ed. 1999).
Although Haitian authorities are intentionally detaining criminal deportees
knowing that the detention facilities are substandard, there is no evidence that
they are intentionally and deliberately creating and maintaining such prison
conditions in order to inflict torture. See 8 C.F.R. §§ 208.18(a)(1), (5). In
fact, according to an article submitted by the respondent, it was reported that
President Aristide and his wife visited one of the prisons. President Aristide
commuted the sentences of seven women in honor of Women’s Day and
promised to make judicial reform one of his priorities in his 5-year term.
The record establishes that Haitian prison conditions are the result of
budgetary and management problems as well as the country’s severe
economic difficulties. Two thirds of the country’s population live in extreme
poverty. Country Reports, supra, at 2626. According to the Department of
State, even when the prison authorities purchase adequate food, there is no
effective delivery system. Id. at 2630. Individual prison officials come to
the warehouse, traveling by bus or taxi, and carry away as much food as they
can. There is evidence that, although lacking in resources and effective
management, the Haitian Government is attempting to improve its prison
system.
Additionally, the Country Reports state that the Haitian Government
“freely permitted the ICRC [International Committee of the Red Cross], the
Haitian Red Cross, MICAH [International Civilian Mission for Support in
Haiti], and other human rights groups to enter prisons and police stations,
monitor conditions, and assist prisoners with medical care, food, and legal
aid.” Country Reports, supra, at 2630. The ICRC funds and manages its
own programs within the prison system. Id. at 2629. Moreover, as evidenced
by the respondent’s documentary submissions, a reporter and a photographer
from the Miami Herald were recently given access to Haiti’s prisons. For
these reasons, we cannot find that these inexcusable prison conditions
constitute torture within the meaning of the regulatory definition.
Finally, the respondent bases his torture claim on the likelihood that he will
be mistreated by the Haitian authorities while indefinitely detained. The
Country Reports describe incidents of deliberate mistreatment of detainees:
Police mistreatment of suspects at both the time of arrest and during detention remains
pervasive in all parts of the country. Beating with the fists, sticks, and belts is by far the
most common form of abuse. However, international organizations documented other
forms of mistreatment, such as burning with cigarettes, choking, hooding, and kalot marassa
(severe boxing of the ears, which can result in eardrum damage). Those who reported such

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abuse often had visible injuries consistent with the alleged maltreatment. There were also
isolated allegations of torture by electric shock. Mistreatment also takes the form of
withholding medical treatment from injured jail inmates. Police almost never are
prosecuted for the abuse of detainees.

Country Reports, supra, at 2629.
This single paragraph in a 15-page report documents many forms of
mistreatment which can be categorized as either torturous or nontorturous
acts. Instances of police brutality do not necessarily rise to the level of
torture, whereas deliberate vicious acts such as burning with cigarettes,
choking, hooding, kalot marassa, and electric shock may constitute acts of
torture. As noted above, the distinguishing characteristic of torture is the
severity of the pain and suffering inflicted. The record reflects that there are
isolated instances of mistreatment in Haitian prisons that rise to the level of
torture within the meaning of 8 C.F.R. § 208.18(a).

D. Burden of Proof
As a “vigorous supporter of the international fight against torture,” the
United States views any incident of torture as unacceptable. U.S.
Department of State Initial Report of the United States of America to the UN
Committee Against Torture, (Oct. 15, 1999), available at
http://www.state.gov/www/global/human_rights/torture_intro.html. Indeed, in
ratifying the Convention Against Torture, the United States agreed to take
effective measures to prevent acts of torture in any territory under its
jurisdiction. See Convention Against Torture, supra, art. 2. In the context of
these removal proceedings, the United States agreed not to remove an alien
to a country in which it is more likely than not that he or she would be
tortured. See Convention Against Torture, supra, art. 3.
The question before us is whether the respondent has established his
eligibility for protection under Article 3 of the Convention. The respondent
bears the burden of proving that it is more likely than not that he will be
tortured if returned to Haiti. The respondent’s testimony, if credible, may be
sufficient to sustain the burden of proof without corroboration. See 8 C.F.R.
§ 208.16(c)(2).
As noted, the ratification history of the Convention underscores the concept
that the standard of proof for protection under Article 3 is the same as the
standard of proof for withholding of removal under section 241(b)(3) of the
Act. See INS v. Stevic, 467 U.S. 407 (1984). The “more likely than not”
standard of proof has no subjective component, but instead requires the alien
to establish, by objective evidence, that it is more likely than not that he or
she will be subject to torture upon removal. See INS v. Cardoza-Fonseca,
480 U.S. 421, 430 (1987).

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In assessing whether it is more likely than not that an alien would be
tortured in the proposed country of removal, all evidence relevant to the
possibility of future torture shall be considered, including, but not limited to:
(1) evidence of past torture inflicted upon the applicant; (2) evidence that the
applicant could relocate to a part of the country of removal where he or she
is not likely to be tortured; (3) evidence of gross, flagrant, or mass violations
of human rights within the country of removal, where applicable; and (4) other
relevant information regarding conditions in the country of removal. 8 C.F.R.
§ 208.16(c)(3).
The United Nations Committee Against Torture 13 has consistently held that
the existence of a consistent pattern of gross, flagrant, or mass violations of
human rights in a particular country does not, as such, constitute sufficient
grounds for determining that a particular person would be in danger of being
subjected to torture upon his return to that country. Specific grounds must
exist that indicate the individual would be personally at risk. At the same
time, the absence of such human rights violations does not preclude an
individual from establishing eligibility for protection under the Convention.
See Mutombo v. Switzerland, Comm. No. 13/1993, CAT/C/12/D/13/1993
(Apr. 27, 1994); see also Matter of S-V-, supra, at 9.
The respondent has made no claim of past torture. His torture claim is
premised on the mistreatment he would face while detained for an
indeterminate period on returning to Haiti. Neither he nor his father had
personal knowledge of Haitian prison conditions. The respondent’s evidence
consists of five newspaper articles, the Department of State Country Reports,
and a letter from a State Department official. This documentary evidence
contains only two references to police mistreatment, as the Miami Herald
reporter who was given access to the Haitian prisons reported two complaints
of police misconduct. In addition, the Department of State reported only
isolated allegations of misconduct that rise to the level of torture.
The evidence establishes that isolated acts of torture occur in Haitian
detention facilities. However, this evidence is insufficient to establish that it
is more likely than not that the respondent will be subject to torture if he is
removed to Haiti. For example, there is no evidence that deliberately
inflicted acts of torture are pervasive and widespread; that the Haitian
authorities use torture as a matter of policy; or that meaningful international
oversight or intervention is lacking. Additionally, the United States has urged
the Aristide administration to discontinue this detention practice.
13
The United Nations Committee Against Torture is a monitoring body for the
implementation and observance of the Convention Against Torture. Convention Against
Torture, supra, arts. 17-22. The United States recognizes the Committee but does not
recognize its competence to consider cases brought by one state party against another or cases
brought by an individual against a state party. See Senate Resolution, supra, III.(2). We
therefore consider the Committee’s opinions to be advisory only.

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On the basis of this evidence, we 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. See, e.g., Al-Saher v. INS, 268 F.3d 1143 (9th Cir.
2001) (finding an Iraqi national eligible for protection under Article 3 of the
Convention where he established that he was likely to be detained by the Iraqi
authorities, and the record indicated that the security services routinely
tortured detainees and that Iraqi refugees often reported instances of torture).
As we read the State Department Country Reports in their entirety, it is
clear that most of the range of mistreatment described therein falls outside the
scope of Article 1 of the Convention, while fitting squarely within Article 16
of the Convention. Nothing could be clearer from the language of the
Convention, the Senate ratification documents, and the implementing
regulations than that the nonrefoulement obligation of Article 3 does not apply
to most of the abysmal conditions described in the Country Reports. It bears
repeating that although these prison conditions do not rise to the level of
torture, every effort must be made to improve such conditions.
IV. CONCLUSION
As the foregoing discussion demonstrates, the regulations implementing the
Convention Against Torture, drawn directly from the language of the
Convention and the Senate’s resolution of ratification, govern our analysis
and decision regarding Article 3 claims for protection. In applying these
regulatory standards to the evidence before us, we cannot find that the
respondent has established that it is more likely than not that he will be
tortured if he is returned to Haiti. Accordingly, the respondent’s appeal will
be dismissed.
ORDER: The appeal is dismissed.
DISSENTING OPINION: Paul Wickham Schmidt, Board Member, in
which John W. Guendelsberger, Noel Ann Brennan, Cecelia M.
Espenoza, and Juan P. Osuna, Board Members, joined
I respectfully dissent.
The respondent more likely than not will be tortured upon return to Haiti.
Therefore, we should sustain his appeal and grant him deferral of removal
under Article 3 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture” or

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“Convention”), and the implementing regulations. See 8 C.F.R. §§ 208.16-
208.18 (2001).
I. ISSUE
This case involves an important issue of mandatory protection under the
Convention Against Torture, an international instrument to which our country
is a party. The respondent is a removable Haitian national who committed a
crime in the United States. It is undisputed that, as a returning criminal, the
respondent will be detained by the Haitian Government for an indeterminate
period, during which he is likely to be subject to mistreatment at a level that
has been condemned by our Government.
The issue is whether the respondent has shown that it is “more likely than
not” that he will be “tortured” upon return to Haiti. The respondent meets
this standard.

II. DEFINITION OF TORTURE
The regulations define “torture” as follows:
Torture is defined as any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him or her
or a third person information or a confession, punishing him or her for an act he or she or
a third person has committed or is suspected of having committed, or intimidating or
coercing him or her or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is 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.

8 C.F.R. § 208.18(a)(1).
Torture “is an extreme form of cruel and inhuman treatment and does not
include lesser forms of cruel, inhuman or degrading treatment or punishment
that do not amount to torture.” 8 C.F.R. § 208.18(a)(2). We are directed to
consider all relevant evidence including evidence “of gross, flagrant or mass
violations of human rights within the country of removal, where applicable.”
8 C.F.R. § 208.16(c)(3)(iii).
The standard of proof is “more likely than not.” 8 C.F.R. § 208.16(c)(2).
Deferral of removal for those covered by the Convention is mandatory, and
there are no exceptions. 8 C.F.R. § 208.17(a). This means that we are
compelled by law to defer removal of anyone who shows that it is more
likely than not that he or she would be subjected to torture, even if that person
has engaged in serious criminal activity.
The reasoning behind this absolute prohibition is plain: torture is so
abhorrent that it can never be justified, and its application is “outside the
domain of a criminal justice system.” Suresh v. Canada, [2002] S.C.R. 1,
12 (noting that “[t]orture is an instrument of terror and not of justice”). This

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prohibition on torture is a principle that has attained the status of a
peremptory norm in international law. Id. at 13. The corollary of that
principle is that removal of an individual to a country where he or she would
be tortured can never be justified. See 8 C.F.R. § 208.17(a); David
Weissbrodt & Isabel Hortreiter, The Principle of Non-refoulement: Article
3 of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment in Comparison with the Non-
Refoulement Provisions of Other International Human Rights Treaties,
5 Buff. Hum. Rts. L. Rev. 1, 16 (1999) (pointing out that “no exceptional
circumstances justify expelling a person to a country where he or she would
be in danger of being subjected to torture,” and that the drafters of Article 3
of the Convention Against Torture deliberately did not adopt the limitations
on nonrefoulement included in other treaties, such as the “particularly serious
crime” limitation on nonrefoulement included in Article 33(1) of the 1951
Convention Relating to the Status of Refugees).
Therefore, if we conclude that the conditions in Haiti to which the
respondent would be returned constitute torture, and if the respondent
establishes that it is more likely than not that he would be subjected to that
torture, we must defer his removal, despite his serious criminal record.
III. EVIDENCE
The record contains the 2001 Department of State Country Reports.
Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, Haiti
Country Reports on Human Rights Practices - 2000 (Feb. 2001), available
at http://www.state.gov/g/drl/rls/hrrpt/2000/wha/index.htm reprinted in
Committees on Foreign Relations and International Relations, 107th Cong.,
1st Sess., Country Reports on Human Rights Practices for 2000 2625 (Joint
Comm. Print 2001) (“Country Reports”). The report confirms that “many
criminal deportees who already served full sentences overseas are put back
in jail for indefinite periods of time.” This describes the respondent.
The Country Reports further describe how detainees are mistreated:
Police mistreatment of suspects at both the time of arrest and during detention remains
pervasive in all parts of the country. Beating with the fists, sticks, and belts is by far the
most common form of abuse. However, international organizations documented other
forms of mistreatment, such as burning with cigarettes, choking, hooding, and kalot marassa
(severe boxing of the ears, which can result in eardrum damage). Those who reported such
abuse often had visible injuries consistent with the alleged maltreatment. There were also
isolated allegations of torture by electric shock. Mistreatment also takes the form of
withholding medical treatment from injured jail inmates. Police almost never are
prosecuted for the abuse of detainees.

Country Reports, supra, at 2629.
The respondent also submitted a number of newspaper articles describing
the deplorable conditions in Haitian prisons. One article, acknowledged by
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the majority, chronicles widespread official mistreatment and contains
accounts by inmates who were beaten and burned, as well as a response in
which the warden basically admits that inmates are beaten but tries to
minimize the severity of the beatings.
Inmates receive “insufficient calories to sustain life.” “Corruption, not just
malnutrition, is killing inmates,” bluntly states one report. Another article
tells of a returnee from the United States who was dumped in a police
substation detention cell “unfit for human habitation.” She was denied food
and potable water and died after 4 days. Overall, these squalid, inhuman
conditions describe an atmosphere in which unchecked, officially sanctioned
abuse of the type highlighted in the State Department Country Reports is
likely to be the rule, not the exception.
Of particular importance in determining whether the respondent has met his
burden of proof is the apparent blanket policy of the Haitian authorities to
automatically detain all criminal returnees to Haiti. As the majority
concedes, it is undisputed that the respondent will be detained upon his return
to Haiti. According to the State Department, this detention may last many
weeks.
Thus, it appears that the respondent has shown that he falls in the class of
persons who are guaranteed to be subjected to the treatment at issue in this
case. If we conclude that such treatment rises to the level of torture, the
respondent has therefore met his burden of proof.

IV. ANALYSIS
Clearly, the abuse documented in the record is extreme, deliberate, cruel,
and intentionally inflicted to cause severe pain and suffering. It fits squarely
within the regulatory definition of torture. See 8 C.F.R. § 208.18(a)(1).
The majority errs by concluding that because the Haitian authorities do not
have a specific intent to subject returnees to severe physical or mental pain
or suffering, the treatment does not rise to the level of torture. These
authorities have continued the policy of detaining returnees with the full
knowledge, as documented by the State Department and international
organizations, that returnees will be forced to endure horrific prison
conditions as well as starvation, beatings, and other forms of physical abuse.
This is not a case where the authorities merely are being negligent. See J.
Herman Burgers & Hans Danelius, The United Nations Convention Against
Torture 118 (1988) (noting that where the pain or suffering is the result of an
accident or mere negligence, it is not torture). Rather, it is an instance of a
government deliberately continuing a policy that leads directly to torturous
acts.

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The Government of Haiti cannot claim that it does not know what happens
to detainees in its prisons. Therefore, its conduct falls squarely within the
meaning of 8 C.F.R. § 208.18(a)(1).
Beatings with sticks, fists, and belts have no legitimate purpose and
obviously are specifically intended to inflict extreme pain and suffering upon
the victims. Burning with cigarettes, choking, hooding, and kalot marassa are
not accidental occurrences, nor are they the result of lack of resources or
mere mismanagement in a poor country’s prison system. Rather, they are
well-recognized ways in which torturers torment their victims. Electric shock,
in this case, is intentionally applied to cause excruciating pain and prolonged
physical and mental anguish.
The Country Reports do not purport to provide a statistical analysis of the
odds on torture in Haiti. Indeed, given the international condemnation of
torture, there is every incentive for the Haitian Government to conceal or
minimize the evidence of torture occurring in its detention system. It is likely,
therefore, that the Country Reports substantially understate the actual number
of instances and severity of torture.
What is striking, however, is the clearly documented acceptance of extreme
mistreatment amounting to torture as a routine aspect of detention in Haiti.
Even the prison warden freely admits to a reporter that systematic beatings
occur; he merely attempts to minimize the severity of the misconduct for
which he is responsible. This confirms the State Department’s report that
torture by government officials is carried out with impunity.
Few, if any, prospective torture victims will be able to provide “statistical
proof” of a “50.001% chance” of torture. But the information in the Country
Reports shows that torture of detainees in Haiti is routine, widespread,
horrific, and officially tolerated. This satisfies a reasonable, common-sense
application of the “more likely than not” standard for protection under the
Convention.
The Senate Report cited by the majority specifically states that “sustained
systematic beatings” constitute “torture.” Report of the Committee on
Foreign Relations, S. Exec. Rep. No. 30, 101st Cong., 2d Sess. 1, 14 (1990).
I disagree with the majority’s attempt to characterize certain aspects of the
systematic, aggravated abuse documented in the Country Reports—beating
with fists, sticks, and belts—as mere “rough treatment” or “police brutality.”
The majority’s characterization of the Haitian Government’s practice of
detaining returning Haitian citizens as a “lawful sanction” is also unusual.
Such citizens of Haiti committed crimes in the United States, completed their
sentences here, and have committed no apparent crimes in Haiti that would
earn them such “sanctions.” Moreover, their detention has been condemned
by our Government. Furthermore, torture can never be a “lawful sanction.”
See 8 C.F.R. § 208.18(a)(3) (stating that lawful sanctions do not include
sanctions that defeat the object and purpose of the Convention).

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In essence, the majority errs by looking at the various factors that
contribute to the abuse of Haitian returnees in isolation, and not as a whole.
Generally, deplorable prison conditions, by themselves, do not rise to the
level of torture, although they can rise to the level of cruel, inhuman, and
degrading treatment. See Amnesty International, Haiti: Unfinished Business:
justice and liberties at risk, AI Index: AMR 36/01/00, at 9 (Mar. 21, 2000)
(noting that the physical conditions in Haitian prisons give rise to cruel,
inhuman, and degrading instances). 1
In this case, however, we must examine not only the prison conditions, but
also the effect on someone who, while having to endure those deplorable
conditions, has to endure various forms of physical abuse, including beatings,
electric shock, burning with cigarettes, choking, and other forms of
mistreatment, as well as the withholding of food and medical treatment, in an
atmosphere where his abusers act with almost complete impunity. It is only
by looking at this entire picture that we can be faithful to the mandate in the
regulations that we consider “all evidence relevant to the possibility of future
torture.” 8 C.F.R. § 208.16(c)(3).
V. CONCLUSION
The majority concludes that the extreme mistreatment likely to befall this
respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading
treatment.” The majority further concludes that conduct defined as “torture”
occurs in the Haitian detention system, but is not “likely” for this respondent.
In short, the majority goes to great lengths to avoid applying the Convention
Against Torture to this respondent.
We are in the early stages of the very difficult and thankless task of
construing the Convention. Only time will tell whether the majority’s narrow
reading of the torture definition and its highly technical approach to the
standard of proof will be the long-term benchmarks for our country’s
implementation of this international treaty.

1
The majority’s reliance on the European Court’s decision in Ireland v. United Kingdom,
Eur. Ct. H.R. 25 (1978), is of only limited value. While the Court did generally hold that
prison conditions may constitute cruel, inhuman, and degrading treatment, but not torture, the
context of that decision is vastly different from the present case. The European Court was
examining conditions in prisons in the United Kingdom, not Haiti. Moreover, the court was
reviewing the treatment of suspected terrorists whose detention was carried out according to
strict guidelines on how to treat detainees, not a blanket and indiscriminate detention policy as
now exists in Haiti. When those guidelines were violated, guards were prosecuted for abuse
of detainees. In Haiti, there is near total impunity. The State Department notes that
international human rights observers and prison officials admit that there is abuse by guards
against prisoners, but that prisoners are afraid to file official complaints for fear that the abuse
may get worse. Country Reports, supra, at 2630.

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Although I am certainly bound to follow and apply the majority’s
constructions in all future cases, I do not believe that the majority adequately
carries out the language or the purposes of the Convention and the
implementing regulations. Therefore, I fear that we are failing to comply with
our international obligations.
I conclude that the respondent is more likely than not to face officially
sanctioned torture if returned to Haiti. Therefore, I would grant his
application for deferral of removal under the Convention Against Torture and
the implementing regulations. Consequently, I respectfully dissent.
DISSENTING OPINION: Lory Diana Rosenberg, Board Member, in
which Cecelia M. Espenoza, Board Member, joined
“Among the rights universally proclaimed by all nations . . . is the right to
be free of physical torture. Indeed, for purposes of civil liability, the torturer
has become like the pirate and slave trader before him hostis humani generis,
an enemy of all mankind.” Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d
Cir. 1980). Although articulated in the context of a civil action brought under
the Alien Tort Claims Act, 28 U.S.C. § 1350, these same rights—as well as
the right to be free of severe mental pain and suffering—are insured under
Article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture” or
“Convention”), and the implementing regulations by which we are bound. See
8 C.F.R. § 208.17(a) (2001) (stating that “an alien who . . . has been found
under § 208.16(c)(3) to be entitled to protection under the Convention
Against Torture . . . shall be granted deferral of removal”).
Notwithstanding this mandatory prohibition on the return of an alien to
circumstances in which he or she is more likely than not to be tortured, the
majority concludes that the respondent, a potential victim of severe physical
and mental abuse in the Haitian jails, does not qualify for protection. The
majority opinion construes the Senate Reservations that were issued in the
course of ratification of the Convention, and the subsequent regulations
governing our implementation of the provisions of the Convention Against
Torture, to restrict, rather than extend, protection to such potential victims.
I take issue with this approach, which I fear can only lead to a derogation
and not a meaningful implementation of our obligations under the Convention
Against Torture.1 Considering the limitations adopted by the majority in this
1
See Louis Henkin, Foreign Affairs and the United States Constitution 200-02 (2d ed. 1996)
(questioning the policy of attaching reservations, understandings, and declarations to
(continued...)

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case, I find it difficult to conceive of the circumstances in which an
individual might qualify for our protection, as there will always be some basis
for disqualification. It is no secret that Congress was not pleased with being
obligated to extend protection to persons, including those with criminal
convictions, who are barred from eligibility for asylum and withholding of
removal. 2 But the very terms of the Convention that the Senate ratified
require us to protect such individuals from the probability of torture, no
matter how undesirable they may be and “notwithstanding the prior criminal
offenses.” Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 279 (A.G.
2002) (recognizing that “[a]lthough the respondents are statutorily ineligible
for withholding of removal . . . the regulations . . . allow them to obtain a
deferral of removal . . . if they can establish they are ‘entitled to protection’
under the Convention).
Accordingly, I join the dissenting opinion of Board Member Schmidt. I
agree that “[t]he issue is whether the respondent has shown that it is ‘more
likely than not’ that he will be ‘tortured’ upon return to Haiti” and that, based
on the evidence in the record, “[t]he respondent meets this standard.” Matter
of J-E-, 23 I&N Dec. 291, 305 (BIA 2002) (Schmidt, dissenting). I write
separately to address certain aspects of the majority opinion concerning the
legal issues relating to the definition of “torture,” the requirement that the
torturous act be “specifically intended” by the torturer, and the burden of
proof borne by the potential torture victim.
I. ISSUE
I concur with the articulation of the issue offered by Board Member
Schmidt in his dissenting opinion. The question is whether the respondent has
shown that it is more likely than not that he will suffer torture because he is
a convicted criminal who, on return to Haiti, will be placed in a Haitian prison
where prisoners are deprived of adequate food, water, exercise, sanitation,
and medical care and are subjected to pervasive mistreatment, including
beatings, burning, choking, hooding, ear-boxing, and instances of electric
shock.
This case does not present the broader issue—posited by the majority—of
whether “any actions by the Haitian authorities,” including police

1
(...continued)
international treaties).
2
See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div. G,
§ 2242(c), 112 Stat. 2681-761, 2681-822—which provides in pertinent part as follows:
EXCLUSION OF CERTAIN ALIENS.—To the maximum extent consistent with the
obligations of the United States under the Convention . . . the regulations described in
subsection (b) shall exclude from the protection of such regulations aliens described in
section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. § 1231(b)(3)(B)).

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mistreatment, constitute torture. Matter of J-E-, supra, at 292. In addition,
there is no dispute that it is officials of the Haitian Government who are the
perpetrators of the potential torture asserted by the respondent. Contrary to
the majority opinion, the issue is not whether jailing Haitian returnees who
have criminal convictions is a lawful sanction that Haiti may elect to impose.
That may be. Nonetheless, it is the allegedly deliberate torture to which the
respondent is likely to be subjected while jailed that is at issue.
Furthermore, the regulations require that each claim for protection under
the Convention be evaluated on an individual, case-by-case basis. 8 C.F.R.
§ 208.16(c)(3) (2001). Therefore, even if the respondent’s case fails, as an
evidentiary matter, it is not possible to draw broad conclusions concerning the
treatment of all returned Haitians who have been convicted abroad.
II. ELEMENTS OF A CONVENTION AGAINST
TORTURE CLAIM
The United States Court of Appeals for the Eleventh Circuit, in which this
case arises, has recognized that, “[i]n making out a claim under CAT, ‘[t]he
burden of proof is on the applicant . . . to establish that it is more likely than
not that he or she would be tortured if removed to the proposed country of
removal.’” Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001)
(quoting 8 C.F.R. § 208.16(c)(2)). The “more likely than not” standard was
addressed in INS v. Stevic, 467 U.S. 407, 430 (1984), as “a familiar one to
immigration authorities and reviewing courts.”
By its terms, the “more likely than not” standard requires evidence of a
greater than 50% chance that an event will occur. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 431 (1987), in which the Supreme Court
differentiated the “more likely than not” standard from a less stringent
standard, ruling that “[o]ne can certainly have a well-founded fear of an event
happening when there is less than a 50% chance of the occurrence taking
place.” Thus, the “more likely than not” standard requires the proponent to
establish the elements of his claim by a preponderance of the evidence.
The “preponderance of the evidence” standard, applied in most civil cases,
requires a lesser quantum of proof than either the “clear and convincing”
standard or the “beyond a reasonable doubt” standard used in criminal
proceedings. Matter of Patel, 19 I&N Dec. 774, 783 (BIA 1988) (citing
Addington v. Texas, 441 U.S. 418, 425 (1979)). The burden of showing
something by a preponderance of the evidence “simply requires the trier of
fact ‘to believe that the existence of a fact is more probable than its
nonexistence before [he] may find in favor of the party who has the burden
to persuade the [judge] of the fact’s existence.’” In re Winship, 397 U.S.
358, 371-72 (1970) (Harlan, J., concurring) (quoting F. James, Civil
Procedure 250-251 (1965)). “Unlike other standards of proof such as

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reasonable doubt or clear and convincing evidence, the preponderance
standard ‘allows both parties to share the risk of error in roughly equal
fashion’ . . . .” Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 137
(1997) (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 390
(1983)); see also Addington v. Texas, supra, at 423.
Moreover, it is critical to recognize that the protection afforded under the
Convention Against Torture relates to prospective mistreatment that can be
found more likely than not to rise to the level of severe physical or mental
pain and suffering. In assessing whether this standard is met, we do not have
the benefit of an accomplished act to examine. Rather, we must draw
inferences about what may happen in the future and the reasons it may occur.
A. Torture
The first question is: What is torture? “Torture is universally and
unequivocally prohibited in international law.” Karen Musalo, Irreconcilable
Differences? Divorcing Refugee Protections from Human Rights Norms,
15 Mich. J. Int’l L. 1179, 1210 (1994). “[T]he law of nations contains a
‘clear and unambiguous’ prohibition of official torture.” Forti v. Suarez-
Mason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987) (quoting Filartiga v.
Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980); see also Siderman de Blake
v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992) (“The crack of
the whip, the clamp of the thumb screw, the crush of the iron maiden, and, in
these more efficient modern times, the shock of the electric cattle prod are
forms of torture that the international order will not tolerate.”).
Torture has long been abhorred by the American judicial system. In
Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court observed that the
Eighth Amendment to the Constitution reflects “the primary concern of the
drafters . . . to proscribe ‘torture(s)’ and other ‘barbar(ous)’ methods of
punishment.” Id. at 102 (emphasis added) (quoting Granucci, Nor Cruel and
Unusual Punishment Inflicted: The Original Meaning, 57 Calif. L. Rev. 839,
842 (1969)). Over a century ago, the Court recognized that “it is safe to
affirm that punishments of torture . . . and all others in the same line of
unnecessary cruelty, are forbidden by that amendment.” Wilkerson v. Utah,
99 U.S. 130, 136 (1878).
Certainly, it is not the Eighth Amendment, but the definition of “torture”
under the Convention Against Torture that controls our determination. See
8 C.F.R. § 208.18(a) (2001). Undeniably, the Eighth Amendment more
broadly encompasses mistreatment of criminals and suspects that need not
rise to the level of torture as defined in the Convention. See McElligott v.
Foley, 182 F.3d 1248, 1257 (11th Cir. 1999), in which the Eleventh Circuit
found that “[o]ur cases, too, have recognized that prison officials may violate
the Eighth Amendment’s commands by failing to treat an inmate’s pain”

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(citing Brown v. Hughes, 894 F.2d 1533 (11th Cir.1990)). Cases that would
trigger Eighth Amendment protection need only be those that constitute cruel,
inhuman, or degrading treatment or punishment under Article 16 of the
Convention and need not amount to torture under Article 3. Nevertheless, we
cannot ignore the fact that our courts have addressed “torture” in the context
of finding violations of the Eighth Amendment.
The concept of “torture” also has long been invoked in our civil
jurisprudence. In Blanchard v. Morris, 15 Ill. 35 (Ill. 1853), available at
1853 WL 4779, *1, the Illinois Supreme Court recognized that whether or not
a defendant’s recovery of a $700 judgment was excessive depended the
circumstances of the particular case, holding that the “threats, violence and
imprisonment [imposed to make the offender confess] were accompanied by
mental fear, torture and agony of mind.” More recently, in upholding
a downward departure of a prescribed sentence for a criminal act, the
Eleventh Circuit accepted the notion that a parole examiner’s determination
that “both petitioners had endured extremely harsh prison conditions in the
Bahamas, and beatings by guards” was an appropriate basis on which to
downwardly depart from the prescribed sentence. Tramel v. United States
Parole Comm’n, 100 F.3d 129, 131 (11th Cir. 1996) (emphasis added).
Notably, in Tramel, the examiner determined that the “beatings by guards . . .
amounted to torture.” Id.
The line drawn between torture and ill-treatment that is cruel, inhuman, or
degrading is significant. See Evelyn Mary Aswad, Torture by Means of
Rape, 84 Geo. L.J. 1913, 1916 (1996) (“International law explicitly grants
more protections and remedies to torture survivors than to survivors of
ill-treatment.”). Aswad explains:
[I]n the United States, the Torture Victim Protection Act of 1991 (“TVPA”) permits torture
survivors, but not survivors of ill-treatment, of any nationality to bring civil suits for
damages in U.S. courts against the individuals who tortured them. Aliens who are survivors
of torture may also sue both the governments and individuals who tortured them under the
Alien Tort Claims Act of 1789 (“ATCA”).

Aswad, supra, at 1918.3
In general, the authorities have agreed that the distinction between torture
and inhuman, degrading treatment is a matter of degree, based primarily on
the severity of the pain and suffering caused. Deborah E. Anker, Law of
Asylum in the United States 465, 482 (3d ed. 1999) (citing Walter Suntinger,
The Principle of Non-Refoulement: Looking Rather to Geneva than to
Strasbourg?, 49 Austrian J. Pub. Int’l. 203, 212 (1995)). As Professor Anker
points out in her treatise, in 1969 the European Commission of Human Rights
(“European Commission”) articulated the distinction between torture and ill
3
Notably, the definition of “torture” in the TVPA is almost identical to that in the Convention
Against Torture.

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treatment of political prisoners, stating that “[t]orture . . . is generally an
aggravated form of inhuman treatment.” Anker, supra, at 485 (quoting Greek
Case, 1969 Y.B. Eur. Conv. on H.R. 1, 186 (Eur. Comm’n on H.R)). Thus,
torture has been defined as an aggravated form of inhuman treatment
imposed with an illicit purpose. See Aswad, supra, at 1923. Contrary to the
majority’s reliance on Ireland v. United Kingdom as a vehicle for dismissing
the ill-treatment of prisoners as merely inhuman, degrading treatment rather
than torture, Ireland simply distinguished suffering that “‘did not occasion
suffering of the particular intensity and cruelty implied in the word torture.’”
Anker, supra, at 483 (quoting Ireland v. United Kingdom, 25 Eur. Ct. H.R.
(ser. A) ¶ 167 (1978)).
The question remains: What is torture? In Wilson v. Seiter, 501 U.S. 294
(1991), our Supreme Court affirmed that “the denial of medical care is cruel
and unusual because, in the worst case, it can result in physical torture.”
Id. at 308 (emphasis added) (citing Estelle v. Gamble, supra). Yet the
majority decision would categorically deny protection even in the face of
beatings by prison guards that our courts have found, in other contexts, to
amount to torture. The majority would characterize such abuse as “police
brutality” not covered by the Convention. Matter of J-E-, supra, at 302. It
does not take much imagination to see that the restrictive interpretation
proposed by the majority would not only deny protection from severe police
brutality, but would categorically reject the denial of medical care as an
indicator of torture, even where such denial amounted to torture under the
reasoning in Wilson v. Seiter, supra. Such a restrictive definition of torture
is contrary to both international and domestic interpretations of the term. 4
B. Intent
The next question is: What level of intent is required to find that there is
a probability of torture? Under the Convention Against Torture, torture is
distinguished from ill-treatment that is inhumane and degrading by its
deliberate nature as well as its severity. The Senate conditioned its advice
and consent to the Convention on its understanding that “with reference to
Article 1, . . . in order to constitute torture, an act must be specifically
intended to inflict severe physical or mental pain or suffering.” 136 Cong.
Rec. S17,486, S17,491-92 (daily ed. Oct. 27, 1990) (“Senate Resolution”
II.(1)(a)).
All that the Senate understanding indicates is that the torture that might be
imposed must not be accidental, i.e., that it would be “deliberate,” as
described in most authoritative interpretations of the Convention’s terms.
Contrary to what the majority suggests, the regulatory requirement that the
4
See Beharry v. Reno, 183 F. Supp. 2d 584, 599 (E.D.N.Y. 2002) (collecting Supreme Court
cases recognizing the need to harmonize domestic and international law).

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torture be “specifically intended” does not mean that proof of specific intent,
as that term is used in American criminal prosecutions, is required. See
Anker, supra, at 486 (citing J. Hermann Burgers & Hans Danelius, The
Convention Against Torture: A Handbook on the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
41 (1988)); see also Keith Highet, et al., British Commonwealth Case Note,
88 Am. J. Int’l L. 775 , 778-79 (1994) (clarifying that Ireland v. United
Kingdom, supra, put to rest any impression that proof of a specific intent was
required).
The majority’s reading of the regulations functionally converts the Senate
understanding that torture must be specifically intended into a “specific
intent” requirement. I disagree. I can find no basis to conclude that the
Senate understanding was intended to require proof of an intent to accomplish
a precise criminal act, as the majority contends is required. See Matter of
J-E-, supra, at 301 (defining “specific intent”). Rather, the plain language of
the text of 8 C.F.R. § 208.18(a)(5) reflects only that something more than an
accidental consequence is necessary to establish the probability of torture.
Id. (stating plainly that unanticipated or unintended pain and suffering that is
severe enough to constitute torture is not covered). Moreover, 8 C.F.R.
§ 208.18(a)(4) states that a threat of infliction of severe physical pain or
suffering may amount to torture.
Nowhere does the regulation state that the respondent must prove that the
prospective torture he may face will result from the torturer’s specific intent
to torture him. Indeed, it would be difficult, if not impossible, to prove
specific intent in a prospective context. In her article addressing the difficulty
in proving intent in the asylum context, Professor Musalo emphasizes that
“[e]ven under the best of circumstances, the motivation and state of mind of
another individual are difficult to ascertain and even more difficult to prove.”
Musalo, supra, at 1202. She elaborates that “[t]he persecutor can neither be
put on the stand and questioned as to his motivation nor deposed or required
to answer interrogatories” and that “evidence of intent—direct or
circumstantial—is exceedingly difficult to obtain.” Id.
Professor Musalo explains that “[t]he requirement, or lack thereof, of proof
of intent in three distinct areas of law, criminal, tort, and statutory civil rights,
demonstrates judicial flexibility in the accommodation of jurisprudential
objectives.” Id. at 1229. She notes both that proof of intent in criminal cases
has often been modified to protect perceived societal interests, and that tort
law has evolved away from proof of negligence toward absolute or strict
liability. Id. Such considerations are particularly apt in assessing whether it
is more likely than not that severe pain and suffering to which a victim will
be subjected in the future is specifically intended by government officials.

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As Professor Musalo’s article makes clear, it has long been accepted that
“[t]he victim may not know the exact motivation of his or her persecutor, nor,
as the Ninth Circuit remarked, are persecutors ‘likely to provide their victims
with affidavits attesting to their acts of persecution.’” Id. at 1202 (quoting
Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1985)). In
assessing whether it is more likely than not that the respondent will face
torture in a Haitian prison once returned to Haiti, it is necessary to draw
inferences. Matter of S-P-, 21 I&N Dec. 486, 494 (BIA 1996) (citing INS v.
Elias-Zacarias, 502 U.S. 478 (1992)). In such circumstances, the potential
victim cannot be charged with proving specific intent.
In attempting to undermine the evidence of “deliberateness” on the part of
Haitian Government prison authorities, the majority opinion emphasizes the
“legitimate national interest” in protecting citizens from increased criminal
activity. Matter of J-E-, supra, at 300. Without more, the majority seems to
conclude that categorically detaining any individual convicted of a crime in
the United States—whether or not that person has served his or her time, no
matter what the crime and whether or not the offender has been rehabilitated
or reformed—is acceptable as a lawful sanction. Even if such detention
without trial or charges were acceptable under Haiti’s laws, conditions of
detention that are so egregious that they are more likely than not to inflict
severe physical or mental pain and suffering on the respondent violate the
Convention Against Torture.
The infliction of torture cannot be excused by virtue of it being a
consequence of the imposition of ostensibly “lawful sanctions.” “Lawful
sanctions include judicially imposed sanctions and other enforcement actions
authorized by law, . . . but do not include sanctions that defeat the object and
purpose of the Convention Against Torture . . . .” 8 C.F.R. § 208.18(a)(3)
(emphasis added). The record reflects that Haitian authorities have continued
to detain returnees, notwithstanding their awareness of the deplorable
conditions and mistreatment in the prisons that amounts to severe pain and
suffering. Knowing and deliberate detention under such conditions is
sufficient to establish intentionally inflicted torture under the regulations.
C. Individual Circumstances
Lastly, I emphasize that the determination of eligibility under the
Convention relies on a prediction of the likelihood of future torture to which
a respondent may be subjected. The regulations are clear that “all evidence
relevant to the possibility of future torture shall be considered.” 8 C.F.R.
§ 208.16(c)(3). Such evidence includes, but is not limited to, evidence of
past torture inflicted upon the applicant; evidence that the applicant could
relocate to another part of the country of removal; evidence of gross, flagrant,
or mass violations of human rights within the country of removal; and other

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relevant information regarding conditions in the country of removal. Id.; see
also Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001); Mansour v.
INS, 230 F.3d 902, 908 (7th Cir. 2000). Although past circumstances may
be considered, the determination is a prospective one.
It may be that, as a general rule, prison conditions alone will not meet the
definition of torture. However, we must focus on the specific evidence
presented in each case rather than relying on blanket conclusions. In this
case, the certainty that this respondent will be detained in prison and the
evidence of horrific prison conditions in Haiti, combined with the reports of
regular beatings by prison guards, exacerbated further by reports of other
forms of torture, all committed by Haitian Government officials with
impunity, establish that it is more likely than not the respondent will be
tortured if returned to Haiti.
III. CONCLUSION
Accordingly, I dissent from the opinion of the majority. I agree with the
opinion of Board Member Schmidt, which concludes that it is more likely than
not that the respondent would be tortured upon his return to Haiti and
detention in a Haitian jail.

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