Pierre v. Gonzales

05-3260-ag
Pierre v. Gonzales

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term, 2006
5
6
7 (Argued: November 27, 2006 Decided: September 11, 2007)
8
9 Docket No. 05-3260-ag
10
11 - - - - - - - - - - - - - - - - - - - -X
12
13 FRANCK PIERRE,
14
15 Petitioner,
16
17 - v.-
18
19 ALBERTO R. GONZALES, Attorney General
20 of the United States; WILLIAM CLEARY,
21 Acting Field Director Deportation and
22 Removal, Buffalo District, Bureau of
23 Immigration and Customs Enforcement,
24 United States Department of Homeland
25 Security,
26
27 Respondents.
28
29 - - - - - - - - - - - - - - - - - - - -X
30

31 Before: JACOBS, Chief Judge, WALKER, and RAGGI,
32 Circuit Judges.
33
34 Petition for review of a final decision and order of

35 the Board of Immigration Appeals affirming an immigration

36 judge’s denial of an application for withholding of removal

37 under the Convention Against Torture.
1 Petition denied.

2 MARK T. KENMORE, Buffalo, NY,
3 for Petitioner.1
4
5 GAIL Y. MITCHELL, Assistant
6 United States Attorney, for
7 Terrance P. Flynn, United States
8 Attorney for the Western
9 District of New York, Buffalo,
10 NY, for Respondent.
11
12 DENNIS JACOBS, Chief Judge:
13
14 Petitioner Franck Pierre, a native of Haiti, appeals

15 from the June 15, 2004 final decision and order of the Board

16 of Immigration Appeals (“BIA”) which affirmed the January

17 20, 2004 decision of immigration judge (“IJ”) John B. Reid

18 denying Pierre’s application for withholding of removal and

19 relief under the Convention Against Torture (“CAT”).

20 Pierre asserts that he has shown a sufficient

21 likelihood that he will be tortured if he is deported to

22 Haiti, because all Haitians who are deported from the United

23 States (and other countries) for criminal conduct are

24 imprisoned indefinitely, and because prison conditions

25 prevailing in Haiti amount to torture. He challenges the

1
Subsequent to oral argument, petitioner’s counsel
withdrew; having afforded the petitioner an opportunity to
obtain new counsel and/or file supplemental briefing, and
having received no such briefing, we decide the case on the
original briefs and oral argument.
2
1 BIA’s decision in In re J-E-, 23 I. & N. Dec. 291 (B.I.A.

2 2002) (en banc), which held that a Haitian petitioner faced

3 with this detention is not entitled to CAT relief. He also

4 contends that his case is distinguishable from In re J-E-

5 because his medical conditions will be inadequately treated

6 in the Haitian prisons.

7 We deny the petition, and defer to the BIA’s

8 interpretation of the definition of torture under the CAT

9 regulations. The failure to maintain standards of diet,

10 hygiene, and living space in prison does not constitute

11 torture under the CAT unless the deficits are sufficiently

12 extreme and are inflicted by government actors (or by others

13 with government acquiescence) intentionally rather than as a

14 result of poverty, neglect, or incompetence. We also affirm

15 the agency’s conclusion that, based on the record evidence,

16 Pierre’s diabetes does not remove his case from the ambit of

17 In re J-E-.

18

19 BACKGROUND

20 Pierre was born in Haiti in 1962, and was admitted to

21 the United States in 1967. In August of 1997, Pierre was

22 convicted of criminal possession of a firearm; in September

3
1 1999, he was convicted of grand larceny. For the latter

2 crime, he was sentenced to a period of 18 to 36 months’

3 incarceration.

4 In 2000, the INS charged that Pierre was subject to

5 removal under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien

6 convicted of an aggravated felony, see 8 U.S.C. §

7 1101(a)(43)(G) (defining aggravated felony to include “a

8 theft offense . . . for which the term of imprisonment [is]

9 at least one year”), and under 8 U.S.C. § 1227(a)(2)(C) as

10 an alien convicted of a firearms offense. Pierre conceded

11 removability, but applied for withholding of removal and CAT

12 relief. Before the IJ, he presented documentary evidence

13 concerning the conditions in Haiti, as well as his own

14 testimony and that of his sister--a doctor--concerning

15 Pierre’s diabetes.

16 The record concerning country conditions in this case

17 is substantially similar to the record in In re J-E- (and

18 its progeny), and can be summarized as follows.

19 At one time, Haitian government policy had been to

20 briefly detain any Haitian deported for having committed

21 crimes in another country; release was ordinarily secured

22 within a week. In re J-E-, 23 I. & N. Dec. at 300. In

4
1 2000, Haiti began to hold such deportees with no timetable

2 for their release. According to a 2000 U.S. State

3 Department country report (written in 2001), this policy was

4 instituted to “prevent the ‘bandits’ from increasing the

5 level of insecurity and crime in the country.” Id. (quoting

6 Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of

7 State, Haiti: Country Reports on Human Rights Practices--

8 2000 (Feb. 23, 2001), available at

9 http://www.state.gov/g/drl/rls/hrrpt/2000/wha/795.htm (“the

10 2000 Country Report”)).

11 Conditions in Haitian prisons are awful. “[P]rison

12 facilities are overcrowded and inadequate. . . .

13 [P]risoners are deprived of adequate food, water, medical

14 care, sanitation, and exercise. Many prisoners are

15 malnourished.” Id. at 293. A lack of basic hygiene and

16 health care results in elevated morbidity and mortality.

17 Id. According to the 2000 Country Report, food and medicine

18 are in short supply, and prisoners receive one meal a day

19 unless their diet is supplemented by nearby family. Haitian

20 prison authorities, working with the Red Cross, have

21 attempted to improve conditions in the country’s prisons.

22 Id. at 301.

5
1 The State Department reports that deliberate

2 mistreatment of those arrested or detained by police in

3 Haiti is “pervasive in all parts of the country,” commonly

4 involves “[b]eating with fists, sticks, and belts,” and

5 sometimes involves “burning with cigarettes, choking,

6 hooding, and kalot marassa (severe boxing of the ears, which

7 can result in eardrum damage).” Id. (quoting the 2000

8 Country Report).

9 At a January 7, 2004 hearing, Pierre’s sister testified

10 that her brother suffered from type two diabetes and from

11 hypertension, though she herself (an emergency room

12 physician with a pediatric specialty) had never treated him.

13 According to her testimony, without his diabetes medications

14 and a proper diet, Pierre’s blood sugar levels would become

15 unstable and acute dehydration could induce diabetic coma--

16 or even death. She also testified that Pierre’s

17 hypertension, if left untreated, could bring on a stroke.

18 Pierre himself testified as to the circumstances

19 surrounding his criminal convictions and his connections

20 with Haiti. Pierre’s last visit to Haiti was in 1998, when

21 he got married; his wife lives there with her family. As of

22 the date of the 2004 hearing, he was corresponding with her

6
1 by mail. He also testified that his aunt and uncle spend

2 part of the year in Haiti and maintain a residence there.

3 In a January 20, 2004 decision, the IJ denied Pierre

4 withholding of removal and CAT relief. As to the CAT, (1)

5 the IJ incorporated into his findings by reference the

6 conclusion in In re J-E- that “there is no evidence that

7 Haitian authorities are detaining criminal deportees with

8 the specific intent to inflict severe physical or mental

9 pain or suffering”; and (2) the IJ found (a) that Pierre’s

10 medications would be available in Haiti, (b) that his

11 relatives in Haiti could supply him with medication, and (c)

12 that he would neither be prevented from taking the

13 medication nor be denied a fairly prompt release when his

14 family took action.

15 Pierre appealed to the BIA both the denial of

16 withholding of removal and the denial of CAT relief. The

17 BIA denied Pierre’s appeal on June 15, 2004, declining to

18 revisit In re J-E- and holding that because Pierre had

19 failed to show that the substandard prison conditions in

20 Haiti amounted to torture, or that his family would be

21 prevented from giving him medication, he was not entitled to

7
1 relief under the CAT. 2 On July 15, 2004, Pierre filed a

2 habeas petition in the Western District of New York;

3 pursuant to provisions of the REAL ID Act of 2005, Pub. L.

4 No. 109-13, 119 Stat. 231, § 106(c) (2005), the habeas

5 petition was transferred to this Court as a petition for

6 relief from a ruling of the BIA.

7

8

9

10 DISCUSSION

11 I

12 At issue in this case is a CAT regulation which

2
The IJ evidently assumed--without analysis--that In
re J-E- applied not only to the CAT but also to withholding
of removal under 8 U.S.C. § 1231(b)(3); the BIA affirmed
without an explanation of whether (or why) it adopted this
assumption . But Pierre’s brief to this Court addresses only
the denial of CAT relief, and therefore Pierre has abandoned
any challenge to the denial of withholding of removal under
§ 1231(b)(3). See Fen Yong Chen v. Bureau of Citizenship &
Immigration Servs., 470 F.3d 509, 515 n.4 (2d Cir. 2006);
Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.
2005). So we express no opinion on the matter. We also
express no view on the IJ’s conclusion that Haitian criminal
deportees constitute a “particular social group” under the
INA. See Toussaint v. Att’y Gen. of the U.S., 455 F.3d 409,
418 (3d Cir. 2006) (rejecting argument that Haitians who
commit crimes in the United States constitute a particular
social group); Elien v. Ashcroft, 364 F.3d 392, 397 (1st
Cir. 2004) (same).
8
1 provides that “[i]n order to constitute torture, an act must

2 be specifically intended to inflict severe physical or

3 mental pain or suffering.” 8 C.F.R. § 208.18(a)(5). In re

4 J-E- construed the phrase “specifically intended” to require

5 a showing of specific intent. Pierre argues that the

6 specific intent requirement of In re J-E- is an

7 impermissible reading of the CAT and of the implementing

8 regulations, and therefore is not entitled to deference.

9 The CAT (according to Pierre) requires only general intent--

10 that is, the intent to commit an act that foreseeably

11 results in severe pain or suffering.

12 Because Pierre is a criminal alien, this Court’s review

13 is limited to constitutional claims and questions of law.

14 See 8 U.S.C. § 1252(a)(2)(C)-(D). “Except in cases where

15 the IJ’s factual findings are themselves based on

16 constitutional or legal error--thus raising ‘constitutional

17 claims or questions of law’--[the Court] does not review the

18 factual findings made by the IJ.” Xiao Ji Chen v. U.S.

19 Dep’t of Justice, 471 F.3d 315, 329 n.7 (2d Cir. 2006)

20 (citing Joaquin-Porras v. Gonzales, 435 F.3d 172, 178-80 (2d

21 Cir. 2006)). We review de novo the BIA’s application of

22 legal principles to undisputed facts. See Wangchuck v.

9
1 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).

2 But the BIA’s interpretations of immigration regulations are

3 reviewed with “‘substantial deference.’” Id. (quoting

4 Joaquin-Porras, 435 F.3d at 178).

5 The question as to the meaning of “torture” is

6 presented to us now in the procedural and statutory context

7 of immigration. But we bear in mind that (as this opinion

8 demonstrates) the wording of the immigration regulations we

9 read is carefully drawn to implement the wording of the CAT

10 itself--subject to the express understandings of the Senate

11 when it ratified--and that the CAT is not solely or

12 predominantly concerned with immigration and refoulement. 3

13 The CAT binds its signatories to prevent torture within

14 their own borders. Any definition of torture adopted by the

15 United States has potential bearing on the obligations of

16 the United States, domestically and abroad, in contexts that

17 transcend our immigration laws. These considerations bear

3
“Refoulement,” as defined by the United Nations
Educational, Scientific and Cultural Organization, is “the
expulsion of persons who have the right to be recognised as
refugees,” whether to their country of origin or to another
country in which they could be subjected to persecution.
See UNESCO Migration Glossary, available at
http://portal.unesco.org/shs/en/ev.php-URL_ID=4145&URL_DO=DO
_TOPIC&URL_SECTION=201.html (last visited July 25, 2007).
10
1 upon our deference to the BIA’s construction of the term

2 “torture.” Great deference is owed to the political

3 branches, which guide the nation’s efforts to achieve (and

4 define) domestic compliance and to coordinate with other

5 countries in eradicating torture worldwide. See El Al Isr.

6 Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999)

7 (“Respect is ordinarily due the reasonable views of the

8 Executive Branch concerning the meaning of an international

9 treaty.”). The deference owed to the BIA may be qualified

10 to the extent that its reading of the regulation (which

11 mirrors the wording of the CAT and the Senate’s

12 understanding of it) is a reading of terms that have

13 application outside the context of immigration.

14

15

16 II

17 A

18 The CAT, to which the United States is a signatory,

19 includes a provision that “[n]o State Party shall expel,

20 return (‘refouler’) or extradite a person to another State

21 where there are substantial grounds for believing that he

22 would be in danger of being subjected to torture.” United

11
1 Nations Convention Against Torture and Other Cruel, Inhuman

2 or Degrading Treatment or Punishment, opened for signature

3 Dec. 10, 1984, art. III, S. Treaty Doc. No. 100-20 (1988),

4 1465 U.N.T.S. 85, 114, available at

5 http://www.unhchr.ch/html/menu3/b/h_cat39.htm.

6 Torture is defined by the CAT and the immigration

7 regulations as:

8 any act by which severe pain or suffering, whether
9 physical or mental, is intentionally inflicted on
10 a person for such purposes as obtaining from him
11 or her or a third person information or a
12 confession, punishing him or her for an act he or
13 she or a third person has committed or is
14 suspected of having committed, or intimidating or
15 coercing him or her or a third person, or for any
16 reason based on discrimination of any kind, when
17 such pain or suffering is inflicted by or at the
18 instigation of or with the consent or acquiescence
19 of a public official or other person acting in an
20 official capacity.
21
22 8 C.F.R. § 208.18(a)(1); see also CAT art. 1. Torture “does

23 not include pain or suffering arising only from, inherent in

24 or incidental to lawful sanctions.” 8 C.F.R. §

25 208.18(a)(3); CAT art. 1.

26 The CAT is not self-executing; by its own force, it

27 confers no judicially enforceable right on individuals. See

28 Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003).

29 To implement the CAT, Congress amended the immigration laws

12
1 with the Foreign Affairs Reform and Restructuring Act of

2 1998 (“FARRA”), 4 which announced the policy of the United

3 States “not to expel, extradite, or otherwise effect the

4 involuntary return of any person to a country in which there

5 are substantial grounds for believing the person would be in

6 danger of being subjected to torture.” Pub. L. No. 105-277,

7 Div. G, tit. XXII, § 2242(a), 112 Stat. 2681, 2681-822

8 (codified at 8 U.S.C. § 1231 note); see Auguste v. Ridge,

9 395 F.3d 123, 132-33 (3d Cir. 2005). FARRA directed the

10 appropriate agency (the Department of Justice) to issue

11 implementing regulations, and specified that the regulations

12 should define torture as the term is defined in the treaty

13 “subject to any reservations, understandings, declarations,

14 and provisos contained in the United States Senate

15 resolution of ratification of the Convention.” FARRA §

16 2242(b), (f)(2) (codified at 8 U.S.C. § 1231 note), quoted

17 in 8 C.F.R. § 208.18(a); see Auguste, 395 F.3d at 133. The

18 definition of torture under domestic immigration law, and

4
The CAT took some time to be implemented. President
Ronald Reagan signed the CAT on April 18, 1988, but the
United States did not ratify the convention until October
21, 1994, see Regulations Concerning the Convention Against
Torture, 64 Fed. Reg. 8478, 8478 (Feb. 19, 1999), and FARRA
followed in 1998.

13
1 the scope of an individual’s entitlement to CAT relief, is

2 therefore governed by the text of the CAT subject to the

3 terms of the Senate ratification resolution.

4 The Senate ratification resolution included the

5 following understanding: “[T]he United States understands

6 that, in order to constitute torture, an act must be

7 specifically intended to inflict severe physical or mental

8 pain or suffering . . . .” 136 Cong. Rec. S17,486-01,

9 S17,491 (1990); see also Convention against Torture,

10 Declarations and Reservations, available at

11 http://www.ohchr.org/english/countries/ratification/9.htm

12 (last visited July 25, 2007). The FARRA regulations use the

13 wording of this understanding: “In order to constitute

14 torture, an act must be specifically intended to inflict

15 severe physical or mental pain or suffering.” 8 C.F.R. §

16 208.18(a)(5). One ramification of this, as the regulations

17 explain, is that an act is not torture if it “results in

18 unanticipated or unintended severity of pain and suffering.”

19 Id.

20 The text of the CAT itself recognizes that there are

21 “other acts of cruel, inhuman or degrading treatment or

22 punishment which do not amount to torture.” CAT art. 16.

14
1 The regulations also draw this distinction: “Torture is an

2 extreme form of cruel and inhuman treatment and does not

3 include lesser forms of cruel, inhuman or degrading

4 treatment or punishment that do not amount to torture.” 8

5 C.F.R. § 208.18(a)(2).

6 The acts of private individuals may constitute torture

7 under the CAT only if there is government “acquiescence.”

8 See CAT art. 1. The Senate’s resolution indicates:

9 [T]he United States understands that the term
10 “acquiescence” requires that the public official,
11 prior to the activity constituting torture, have
12 awareness of such activity and thereafter breach
13 his legal responsibility to intervene to prevent
14 such activity.
15
16 136 Cong. Rec. S17,486-01, S17,491-92; see Khouzam v.

17 Ashcroft, 361 F.3d 161, 170-71 (2d Cir. 2004) (discussing

18 the U.S. government’s decision to revise its original

19 understandings “to make it clear that both actual knowledge

20 and ‘willful blindness’ fall within the definition of the

21 term ‘acquiescence’” (quoting S. Exec. Rep. 101-30, at 9

22 (1990))). The regulations incorporate the text of this

23 understanding. See 8 C.F.R. § 208.18(a)(7).

24 The CAT forbids deportation if there are “substantial

25 grounds” to believe that the deportee will suffer torture at

26 home; the Senate Ratification Resolution links this standard

15
1 to the “more likely than not” standard used by immigration

2 courts for persecution-based withholding of removal claims:

3 [T]he United States understands the phrase, “where
4 there are substantial grounds for believing that
5 he would be in danger of being subjected to
6 torture,” as used in Article 3 of the Convention,
7 to mean “if it is more likely than not that he
8 would be tortured.”
9
10 136 Cong. Rec. S17,486-01, S17,492. Accordingly, the

11 regulations place the “burden of proof . . . on the

12 applicant for withholding of removal . . . to establish that

13 it is more likely than not that he or she would be tortured

14 if removed to the proposed country of removal,” 8 C.F.R. §

15 208.16(c)(2), and mandate withholding or deferral of removal

16 where the applicant meets this burden, 8 C.F.R. §

17 208.16(c)(4); see Mu Xiang Lin v. U.S. Dep’t of Justice, 432

18 F.3d 156, 159 (2d Cir. 2005).

19

20 B

21 The issue in this case is whether Haiti’s indefinite

22 detention of criminal deportees amounts to torture in light

23 of the prevailing prison conditions. The BIA answered this

24 question in the negative in In re J-E-, 23 I. & N. Dec. 291

25 (B.I.A. 2002) (en banc), and the BIA here affirmed the IJ’s

26 denial of relief because Pierre’s medical condition does not

16
1 distinguish his case from In re J-E-.

2 In re J-E- held (1) that detaining criminal deportees

3 in the prison conditions prevailing in Haiti does not

4 constitute torture because the prison conditions are not

5 created or maintained with a specific intent to cause severe

6 pain and suffering, but are instead “the result of budgetary

7 and management problems as well as the country’s severe

8 economic difficulties,” id. at 301; and (2) that indefinite

9 detention does not amount to torture because it is a lawful

10 sanction, id. at 300. The BIA conceded that there are

11 examples of “isolated acts” constituting torture in Haitian

12 prisons, but concluded that the applicant there presented

13 insufficient evidence to show it was more likely than not

14 that he would be singled out for such treatment. Id. at

15 303-04.

16 Pierre argues that the specific intent standard of In

17 re J-E- is an impermissible narrowing of the CAT, and is

18 therefore not entitled to deference. However, the

19 regulations at issue were drawn by the DOJ pursuant to a

20 mandate in FARRA to craft regulations that implement the

21 exact wording of the Senate’s expressed understanding of a

22 treaty. On general principles, this circumstance bespeaks

17
1 more deference, not less: deference to the Senate’s

2 ratification understanding, deference to the framing of the

3 regulations, and deference to an agency’s interpretation of

4 the regulations. “[I]n construing treaty language,

5 ‘[r]espect is ordinarily due the reasonable views of the

6 Executive Branch.’” Tachiona v. United States, 386 F.3d

7 205, 216 (2d Cir. 2004) (second alteration in original)

8 (quoting El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525

9 U.S. 155, 168 (1999)); see also Sumitomo Shoji Am., Inc. v.

10 Avagliano, 457 U.S. 176, 184-85 (1982) (“Although not

11 conclusive, the meaning attributed to treaty provisions by

12 the Government agencies charged with their negotiation and

13 enforcement is entitled to great weight.”). As to the CAT

14 regulations: where the BIA interprets “a regulation

15 promulgated by the Attorney General under the INA, we afford

16 ‘substantial deference’ to the BIA’s interpretation, unless

17 it is plainly erroneous or inconsistent with the regulation,

18 or inconsistent with the agency’s previous interpretation.”

19 Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 262 (2d

20 Cir. 2006) (citations omitted).

21 Deference to the BIA’s interpretation of the CAT is

22 particularly important when (as here) “claims similar to

18
1 [the petitioner’s] have been advanced by many petitioners

2 before this and other courts,” and the issue “raises

3 complicated public policy and foreign policy questions.”

4 Jian Hui Shao v. BIA, 465 F.3d 497, 502 (2d Cir. 2006)

5 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)

6 (“[J]udicial deference to the Executive Branch is especially

7 appropriate in the immigration context where officials

8 exercise especially sensitive political functions that

9 implicate questions of foreign relations.”)).

10

11 C

12 The BIA’s decision in In re J-E- has commanded

13 deference from several federal courts. See, e.g., Theagene

14 v. Gonzales, 411 F.3d 1107, 1113 (9th Cir. 2005); Auguste,

15 395 F.3d at 153; Cadet v. Bulger, 377 F.3d 1173, 1193 (11th

16 Cir. 2004); Elien v. Ashcroft, 364 F.3d 392, 399 (1st Cir.

17 2004); Thelemaque v. Ashcroft, 363 F. Supp. 2d 198, 211 (D.

18 Conn. 2005). No federal circuit court considering the case

19 of a Haitian criminal deportee has declined to follow In re

20 J-E-, though there are wrinkles in the Third Circuit. 3

3
In Lavira v. Att’y Gen. of the U.S., 478 F.3d 158 (3d
Cir. 2007), the Third Circuit remanded such a case, but not
because it rejected the validity of In re J-E-. Rather, the
19
1 In the case of a Congolese petitioner, the Third

2 Circuit distinguished In re J-E- on the basis that the

3 petitioner’s CAT claim was based on far more than evidence

4 of substandard prison conditions. See Zubeda v. Ashcroft,

5 333 F.3d 463 (3d Cir. 2003). 4 The Zubeda panel also opined

6 that the wording of the CAT regulations stopped short of

7 requiring specific intent. But this discussion in Zubeda

8 was discounted as dicta in a later Third Circuit case that

9 decided the very issue before this Court--and followed In re

10 J-E-. See Auguste, 395 F.3d at 147-48. Of course, we are

11 free nevertheless to adopt Zubeda’s analysis as persuasive,

12 but we are unpersuaded for the following reasons.

13 Zubeda concluded that (under the statute and

Third Circuit held that the agency had failed to properly
consider whether the petitioner’s individual circumstances
made his case distinguishable from In re J-E-.
4
The Zubeda panel noted that the BIA had ignored
record evidence,

[r]educing Zubeda’s claim to an attack on . . .
inhumane prison conditions . . . [which] totally
ignores the fact that this record is replete with
reports from government agencies and human rights
organizations that detail what appear to be
country wide, systematic incidents of gang rape,
mutilation, and mass murder [in the Democratic
Republic of the Congo].

333 F.3d at 477.
20
1 regulations) torture does not entail a specific intent to

2 inflict severe pain or suffering. 5 The panel acknowledged

3 that severe pain and suffering must be “specifically

4 intended” to constitute torture; but to justify its

5 conclusion that one can “specifically intend” without

6 specific intent, the panel focused on the regulations’

7 statement that an “‘act that results in unanticipated or

8 unintended severity of pain and suffering is not torture.’”

9 Zubeda, 333 F.3d at 473-74 (quoting 8 C.F.R. §

10 208.18(a)(5)). As a matter of plain language, we read that

11 portion of section 208.18(a)(5) differently to draw a

12 distinction between a severity of pain or suffering that is

13 intended (torture) and a severity of pain or suffering that

14 is unintentional or unanticipated (not torture), rather than

15 a distinction between what is foreseeable and what is not.

16 The proviso in section 208.18(a)(5) that an act must be

17 “specifically intended to inflict severe physical or mental

18 pain or suffering” bespeaks specific intent, the Zubeda

5
This runs counter to the ordinary understanding of
the word “torture”; but the Zubeda panel considered the
issue in a context--rape--that presents special difficulties
if (though only if) one thinks that the intent of a rapist
is satisfaction that does not depend on the pain inflicted
on the victim.

21
1 dicta notwithstanding.

2 Zubeda discounted specific intent on another ground:

3 that the CAT regulations define torture to include threats

4 of physical harm that result in severe mental suffering,

5 regardless of whether the persecutor actually intends to

6 carry out the threat. Zubeda, 333 F.3d at 474. But this

7 proves little; when a credible threat of physical torture

8 causes extreme mental pain or suffering, the specific intent

9 requirement is altogether satisfied by the specific intent

10 to cause the mental pain or suffering; the persecutor’s

11 intent (specific or not) to follow through on the threat to

12 inflict physical torture does not matter if the making of

13 the credible threat amounts to the torture in itself. See 8

14 C.F.R. § 208.18(a)(4) (defining types of severe mental pain

15 and suffering that can rise to the level of torture with or

16 without any physical torture).

17 It is also important that the concept of specific intent

18 not be conflated with the concept of state acquiescence.

19 Because the CAT reaches torture committed by or acquiesced in

20 by government actors, it is not always necessary that the

21 specific intent required by section 208.18(a)(5) be formed by

22 the government itself. A private actor’s behavior can

22
1 constitute torture under the CAT without a government’s

2 specific intent to inflict it if a government official is

3 aware of the persecutor’s conduct and intent and acquiesces

4 in violation of the official’s duty to intervene. See

5 Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (“In

6 terms of state action, torture requires only that government

7 officials know of or remain willfully blind to an act and

8 thereafter breach their legal responsibility to prevent it.”

9 (emphasis added)). But in that scenario, there is specific

10 intent--the intent of the private actor.

11 Some courts have contemplated the possibility that in

12 particular cases, a government’s “willful blindness” or

13 “deliberate indifference” to suffering might suffice to show

14 that the suffering is “specifically intended.” See, e.g.,

15 Lavira v. Att’y Gen. of the U.S., 478 F.3d 158, 171 (3d Cir.

16 2007) (“Our criminal law jurisprudence . . . bolsters the

17 view that a finding of specific intent could be based on

18 deliberate ignorance or willful blindness.”); Thelemaque, 363

19 F. Supp. 2d at 215 (“[A] mechanical application of the

20 specific intent requirement might yield results at odds with

21 . . . CAT and . . . concepts such as deliberate indifference,

22 reckless disregard or willful blindness might well suffice in

23
1 certain circumstances . . . .”). We do not see how these

2 concepts, which may bear on knowledge to the extent they

3 establish conscious avoidance, can without more demonstrate

4 specific intent, which requires that the actor intend the

5 actual consequences of his conduct (as distinguished from the

6 act that causes these consequences). 6

7 In sum, the phrase “specifically intended” incorporates

8 a criminal specific intent standard, notwithstanding the

9 difficulties that might arise in applying that standard to

10 evidence of country conditions in order to predict the

11 likelihood of future events in individual cases. The

12 President and Senate knew full well that they were construing

13 a treaty designed to stop criminal conduct. 7 We cannot

6
That said, nothing in this opinion prevents the
agency from drawing the inference, should the agency choose
to do so, that a particular course of action is taken with
specific intent to inflict severe pain and suffering if it
is found on the record evidence that the actor is aware of a
virtual certainty that such pain and suffering will result.
7
The federal criminal statute--like the CAT
regulations--requires that the infliction of severe pain and
suffering be “specifically intended.” 18 U.S.C. § 2340(1).
As other courts have noted, the George H.W. Bush
administration, which proposed the understandings that the
Senate adopted by resolution in 1990, clearly interpreted
the understanding to require specific intent: “‘[T]he
package now contains a revised understanding to the
definition of torture, which . . . maintains our position
that specific intent is required for torture.’” Thelemaque,
24
1 ignore the word “specifically” in the ratification

2 understanding and the regulations, and we decline to give it

3 a counter-intuitive spin. See Duncan v. Walker, 533 U.S.

4 167, 174 (2001) (citing principle that “‘a statute ought,

5 upon the whole, to be so construed that, if it can be

6 prevented, no clause, sentence, or word shall be superfluous,

7 void, or insignificant’” (quoting Market Co. v. Hoffman, 101

8 U.S. 112, 115 (1879))). The deference we owe to the BIA’s

9 analysis in In re J-E- simply confirms the understanding we

10 derive from plain meaning. The BIA’s reading of 8 C.F.R. §

11 208.18(a)(5), to which we defer, raises no insurmountable

12 obstacle to CAT relief, because there is no requirement that

13 a CAT claimant “provide direct proof of [the] persecutors’

14 motives.” INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).

15 The CAT regulations, like the asylum regulations, “make[]

16 motive critical,” so a CAT claimant must “provide some

17 evidence” of specific intent, “direct or circumstantial.”

18 Id. But torture as commonly understood and practiced is not

19 subtle, elusive, or easy to misconstrue, and the torturer’s

363 F. Supp. 2d at 207 (emphasis added) (omission in
original) (quoting S. Exec. Rep. No. 101-30, app. A at 35
(1990)).
25
1 intentions are rarely if ever obscure.8

2

3 D

4 Pierre appears to argue that even if the United States’s

5 ratification understanding reflects a definition of torture

6 that entails a specific intent to inflict severe pain and

7 suffering, it should yield to the broader language of the CAT

8 itself as interpreted under principles of international law.

9 Because the CAT is not a self-executing treaty, Mu-Xing

10 Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003), Pierre

11 has no judicially enforceable right directly arising from the

12 CAT as interpreted by its signatory nations: his claims arise

13 under United States law implementing the treaty. See Flores

14 v. S. Peru Copper Corp., 414 F.3d 233, 257 n.34 (2d Cir.

15 2003) (noting that non-self-executing treaties require

8
An act is only torture under the CAT if it is
motivated by some illicit purpose such as “obtaining . . .
information or a confession, punishing . . ., or
intimidating or coercing . . ., or for any reason based on
discrimination of any kind . . . .” 8 C.F.R. §
208.18(a)(1); see Auguste, 395 F.3d at 151. Evidence
showing an illicit purpose may easily overlap with evidence
showing a specific intent to inflict severe pain or
suffering. The issue of specific intent is isolated in this
case only because imprisonment is by its nature designed to
punish, but ordinarily does not trigger severe pain or
suffering as contemplated by the CAT.
26
1 implementing action in order to be suitable for judicial

2 application, while self-executing treaties immediately create

3 judicially enforceable rights). “United States law is not

4 subordinate to customary international law or necessarily

5 subordinate to treaty-based international law and, in fact,

6 may conflict with both.” United States v. Yousef, 327 F.3d

7 56, 91 (2d Cir. 2003). An act of Congress will govern in

8 domestic courts in derogation of previous treaties and

9 customary international law. See Oliva v. U.S. Dep’t of

10 Justice, 433 F.3d 229, 236 (2d Cir. 2005) (noting that clear

11 congressional action trumps customary international law in

12 the immigration context as elswhere); Empresa Cubana Del

13 Tabaco v. Culbro Corp., 399 F.3d 462, 481 (2d Cir. 2005)

14 (“[L]egislative acts trump treaty-made international law when

15 those acts are passed subsequent to ratification of the

16 treaty and clearly contradict treaty obligations.” (internal

17 quotation marks omitted)); Mu-Xing Wang, 320 F.3d at 142

18 n.18; Guzman v. Tippy, 130 F.3d 64, 66 (2d Cir. 1997) (per

19 curiam).

20 In that light, international law does not assist the

21 analysis. It is plain that in FARRA, Congress commanded the

22 immigration agencies to promulgate regulations that give full

27
1 effect to all of the Senate’s reservations and

2 understandings, including the understanding that in order to

3 constitute torture, an act must be specifically intended to

4 inflict severe pain and suffering. See Auguste, 395 F.3d at

5 140 (“[I]n our opinion, FARRA codified the Senate’s

6 understandings into domestic law.”). By announcing its

7 understandings, the Senate implicitly recognized that the

8 treaty wording would benefit from clarification. Those

9 understandings are the indispensable premise for the

10 implementation of the CAT as domestic law. The agency is

11 bound by them, and we defer to the agency’s reasonable

12 interpretation of them:

13 [The petitioner] invites this Court to inquire into
14 the meaning of Article 1 of the [CAT], its drafting
15 history, and the interpretation of Article 1 by
16 various international tribunals. . . . We,
17 however, see no reason to be drawn into a debate
18 about the appropriate interpretation . . . , or
19 what the prevailing international understanding of
20 the intent standard required under Article 1 of the
21 [CAT] is. . . . [W]e believe that we must apply
22 the standard clearly stated in the ratification
23 record of the United States.
24
25 Id.

26 As we stated earlier, the CAT is not solely concerned

27 with immigration and refoulement; the same language that

28 governs the BIA’s review of deportation orders guides the

28
1 political branches in their decisions about whether our

2 country and other signatories are in compliance with a

3 multilateral treaty. It is unseemly for a government to

4 adopt different meanings of the same word in the same treaty;

5 and it is imprudent for a court to fix on a special or

6 unnatural meaning in litigation when the political branches

7 are evidently disposed otherwise.

8

9 E

10 Pierre also challenges the ruling in In re J-E- that

11 Haiti’s policy of indefinite detention is a “lawful

12 sanction.” See 8 C.F.R. § 208.18(a)(3) (“Torture does not

13 include pain or suffering arising only from, inherent in or

14 incidental to lawful sanctions.”). Because we agree with the

15 BIA that the regulations validly promulgated pursuant to

16 FARRA clearly require a showing of specific intent to inflict

17 severe pain and suffering, we need not decide the question of

18 lawful sanction.

19 Nevertheless, a close reading of In re J-E- shows that

20 while the BIA decided that the “detention policy in itself”

21 was a “lawful sanction,” 23 I. & N. Dec. at 300, it did not

29
1 decide whether conditions of confinement, lawfully imposed, 9

2 are categorically “lawful sanctions” that therefore cannot

3 amount to torture. In holding that the Haitian prison

4 conditions did not constitute torture, the BIA relied on the

5 lack of specific intent, not on the “lawful sanctions”

6 provision. Id. at 300-01. In any case, this Court has

7 already narrowly construed In re J-E- on this point. See

8 Khouzam, 361 F.3d at 169-70 (“It would totally eviscerate the

9 CAT to hold that once someone is accused of a crime it is a

10 legal impossibility for any abuse inflicted on that person to

11 constitute torture. . . . If J-E- actually stood for this

12 proposition, we would have to disapprove of it . . . .”).

13 Moreover, one United States understanding of the CAT reflects

14 Senate concern that the “lawful sanctions” language may be

15 too expansive. See 136 Cong. Rec. S17,486-01, S17,491

16 (“[T]he United States understands that a State Party could

17 not through its domestic sanctions defeat the object and

18 purpose of the Convention to prohibit torture.”); Kyaw Zwar

19 Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (“In accord with

20 the Senate’s understanding, even torture sanctioned by the

9
We do not address the legality of Haiti’s detention
policy under Haitian law.
30
1 alien’s country of origin for his criminal conduct will

2 sometimes establish entitlement to relief.”).

3 Prison is always an ordeal. Barbaric prison conditions

4 might constitute torture if they cause severe pain or

5 suffering and if circumstances indicate that the intent of

6 the authorities in causing the severity of pain and suffering

7 (over and above the discomforts incident to confinement in

8 that time and place) is to illicitly discriminate, punish,

9 coerce confessions, intimidate, or the like--just as live

10 burial would be torture even if somewhere it were the lawful

11 sanction for an offense.

12 Although we do not follow In re J-E- on the issue of

13 lawful sanction, we defer to In re J-E-’s interpretation of 8

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

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

16 torture under the CAT unless the deficits are sufficiently

17 extreme and are inflicted intentionally rather than as a

18 result of poverty, neglect, or incompetence.

19

20

21 III

22 The IJ and the BIA concluded that the medical evidence

31
1 Pierre adduced did not command a result different from that

2 in In re J-E-. There is no reason to disturb the agency’s

3 decision.

4 Because Pierre is a criminal alien, we have no

5 jurisdiction to review the agency’s factual findings.

6 See supra Section I. Therefore, unless the agency’s fact-

7 finding process was premised on legal error, we cannot

8 question its findings about prevailing conditions in Haiti or

9 the likelihood that specific events will occur when Pierre is

10 returned to Haiti. It is beyond our power to revisit the

11 conclusion in In re J-E---and the IJ’s opinion--that prison

12 conditions in Haiti chiefly result from economic conditions

13 in that country and not from the intent on the part of the

14 authorities to worsen the suffering of inmates or detainees.

15 We also cannot question the IJ’s finding that Pierre will

16 likely have access to medicine through his family and will

17 likely be released in a timely fashion. However, we do

18 review, de novo, the agency’s application of the definition

19 of torture to its factual findings about what is likely to

20 happen.

21 As we have held: Assuming the validity of the factual

22 findings underlying In re J-E-, that decision reaches the

32
1 correct conclusion as to whether deportees’ indefinite

2 detainment constitutes torture. Even though Haiti’s

3 government does apparently wish to intimidate criminal

4 deportees by imprisoning them in whatever prisons are

5 available, the agency found that neither the government nor

6 its agents have any specific intent to cause severe suffering

7 through harsh conditions as an additional means of

8 intimidation--the poor conditions result chiefly from the

9 economic situation in Haiti. Therefore, imprisonment in

10 Haiti without more is not torture.

11 As to Pierre’s attempt to distinguish his case from In

12 re J-E- on the basis of his medical condition, the IJ

13 appeared to opine in passing that as to the issue of specific

14 intent, Pierre’s condition was irrelevant. We disagree to

15 the extent this suggests that a petitioner’s individual

16 circumstances are per se irrelevant under In re J-E- and can

17 have no bearing on the likelihood that the petitioner would

18 be subjected to torture. It is true that, given the United

19 States’s understandings of the CAT, even suffering of the

20 utmost severity cannot constitute torture unless it is

21 specifically intended, and this principle undercuts the

22 importance of evidence that a particular petitioner’s

33
1 suffering in prison will be more severe or more foreseeable

2 than others’; but it does not render such evidence

3 irrelevant. Nothing in In re J-E- or in our opinion dictates

4 that a petitioner cannot present evidence that the severe

5 suffering to which the petitioner is likely to be subjected

6 is motivated by some actor’s specific intent--that is, some

7 intent not present in In re J-E-.10 As In re J-E-

8 acknowledged, acts of abuse committed by prison guards are

10
In Lavira v. Attorney General of the United States,
a panel of the Third Circuit remanded the case of an HIV-
positive Haitian criminal alien because both the IJ and the
BIA summarily relied on In re J-E- and failed to “focus[] on
the specifics of [the petitioner’s] situation in denying his
CAT claim.” 478 F.3d 158, 171 (3d Cir. 2007). The Lavira
panel purported to further hold that Lavira had a “non-
frivolous and legally available” argument that the extremely
high likelihood of an HIV-positive petitioner’s death in
Haitian prison meant that any Haitian official who detained
such a petitioner would exhibit “willful blindness” to the
likelihood of death; the panel reasoned that this would
adequately show specific intent. Notwithstanding assertions
to the contrary in Lavira, this proposition seems to us
inconsistent with the Third Circuit’s holding in Auguste
that “[t]he mere fact that the Haitian authorities have
knowledge that severe pain and suffering may result by
placing detainees in these conditions does not support a
finding that the Haitian authorities intend to inflict
severe pain and suffering.” 395 F.3d at 153-54. How can
willful blindness towards a fact be legally significant if
actual knowledge of it is not? To the extent the two cases
are in tension, Auguste is the more persuasive precedent,
though it is hard to contest Lavira’s chief holding: IJs
should carefully consider evidence that individual
petitioners put forth to distinguish their cases from In re
J-E-. That is what the IJ did here.
34
1 not infrequent in Haiti, and it might be that petitioners

2 with certain histories, characteristics, or medical

3 conditions are more likely to be targeted not only with these

4 individual acts but also with particularly harsh conditions

5 of confinement. But Pierre adduced no evidence suggesting

6 this to be the case as to diabetics or as to him

7 individually.

8 Even though the IJ arguably overstated the impact of In

9 re J-E- on the relevance of Pierre’s medical condition, the

10 record indicates that the IJ carefully considered Pierre’s

11 evidence and entered individualized findings that adequately

12 support the conclusion that, notwithstanding Pierre’s medical

13 condition, Pierre has not adduced the evidence that he will

14 likely be subjected to torture. The BIA affirmed on that

15 basis, and so do we.

16

17 CONCLUSION

18 For the foregoing reasons, the petition is denied.

35