Napoleon Bonaparte AUGUSTE, Appellant v. Thomas RIDGE, Secretary, United States Department of Homeland Security; John Ashcroft, Attorney General of the United States; Michael Garcia, Assistant Secretary, Bureau of Immigration and Customs Enforcement (BICE); Anthony S. Tangeman, Director of Detention and Removal, BICE; John Carbone, Detention and Removal Field Office Director—New Jersey, BICE; Michael T. Abode, Warden, Middlesex County Adult Corrections Center.
No. 04-1739
United States Court of Appeals, Third Circuit
Argued Nov. 1, 2004. Jan. 20, 2005.
395 F.3d 123
Before ALITO, FUENTES, and BECKER, Circuit Judges.
Christopher J. Christie, United States Attorney, District of New Jersey, Stuart A. Minkowitz (Argued), Assistant United States Attorney, District of New Jersey, Newark, Robert D. McCallum, Jr., Assistant Attorney General, Margaret Perry, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, for Appellees.
OPINION OF THE COURT
FUENTES, Circuit Judge.
Napoleon Bonaparte Auguste appeals from the District Court‘s denial of his petition for writ of habeas corpus seeking relief under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT” or “Convention“). Auguste, who is facing removal to Haiti, claims that he will be indefinitely detained upon his arrival in Haiti in prisons that are notorious for their brutal and deplorable conditions that have been compared to those existing on slave ships. There is no doubt that the prison conditions that Auguste and others like him may face upon their removal to Haiti are indeed miserable and inhuman. However, because we hold that in order to constitute torture, an act must be inflicted with the specific intent to cause severe physical or mental pain and suffering, the standard the President and Senate understood as applying when the United States ratified the CAT, we find that Auguste is not entitled to relief. Accordingly, we will affirm the decision of the District Court.
I. Background
Auguste, a twenty-seven year old male, is a native and citizen of Haiti who was admitted to the United States as a lawful permanent resident on December 8, 1987. His entire family lives in the United States. On April 4, 2003, Auguste was convicted of Attempted Criminal Sale of a Controlled Substance (cocaine) in the third degree in Queens County, New York, and sentenced to ten months imprisonment.
On July 3, 2003, the Department of Homeland Security, Bureau of Immigration and Customs Enforcement, issued a notice to appear charging Auguste with removal on two grounds: (1) as an alien who has been convicted of a controlled substance violation pursuant to
A. Conditions in Haitian Prisons
Since at least 2000, it has been the policy of the Haitian government to detain deported Haitians, who have incurred a criminal record while residing in the United States and who have already served their sentences, in preventive detention. The policy appears to have been motivated by the belief that criminal deportees pose a threat of recidivist criminal behavior after their return to Haiti. The length of the detention can vary, lasting in many instances upwards of several months. Auguste contends that release often depends on the family members of the deportees petitioning the Haitian Ministry of Interior for release and their ability to pay anywhere between $1,000 to $20,000.
Documentary evidence submitted by Auguste in support of his CAT claim describes the brutal and harsh conditions that exist in the Haitian prison system. We recount briefly some of these conditions. The prison population is held in cells that are so tiny and overcrowded that prisoners must sleep sitting or standing up, and in which temperatures can reach as high as 105 degrees Fahrenheit during the day. Many of the cells lack basic furniture, such as chairs, mattresses, washbasins or toilets, and are full of vermin, including roaches, rats, mice and lizards. Prisoners are occasionally permitted out of their cells for a duration of about five minutes every two to three days. Because cells lack basic sanitation facilities, prisoners are provided with buckets or plastic bags in which to urinate and defecate; the bags are often not collected for days and spill onto the floor, leaving the floors covered with urine and feces. There are also indications that prison authorities provide little or no food or water, and malnutrition and starvation is a continuous problem. Nor is medical treatment provided to prisoners, who suffer from a host of diseases including tuberculosis, HIV/AIDS, and Beri-Beri, a life-threatening disease caused by malnutrition. At least one source provided by Auguste likened the conditions in Haiti‘s prisons to a “scene reminiscent of a slave ship.”
There are also reports of beatings of prisoners by guards. State Department reports on conditions in Haiti in 2001 and 2002 discussed police mistreatment of prisoners and noted that there were isolated allegations of torture by electric shock, as well as instances in which inmates were burned with cigarettes, choked, or were severely boxed on the ears, causing ear damage. The authorities’ record of disciplining police misconduct was, however, inconsistent.
The Department of State reported that Haiti remains a “very poor” country, and that the prison system operates at or near the same budget level as in 1995. Despite attempts at increasing the budgetary allocation for prisons, political instability in Haiti was expected to cause a continuation of budgetary freezes.
B. The Convention Against Torture
Auguste seeks protection under Article 3 of the Convention. See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
The CAT was adopted by the United Nations General Assembly on December 10, 1984, with the stated purpose to “make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world.” See Preamble to Convention, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. The CAT represented a continuing process in the codification of an international legal norm condemning the practice of torture by public officials, a norm first recognized in several prior multilateral agreements.1 As the preamble to the CAT recognizes, it is the obligation of nations under the United Nations Charter to “promote universal respect for, and observance of, human rights and fundamental freedoms.” See Preamble to Convention, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. Since opening for signature in December 1984, over 130 countries have signed and/or become parties to the Convention.2
Article 1 of the CAT defines torture as:
[A]ny 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, whether such pain or suffering is inflicting by or at the instigation of or within 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 incident to lawful sanctions.
Art. 1(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. In turn, Article 3 of the CAT states: “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.” Art. 3(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
President Reagan signed the Convention on April 18, 1988, with the following reservation: “The Government of the United States of America reserves the right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary.” See Ogbudimkpa v. Ashcroft, 342 F.3d 207, 211 (3d Cir. 2003); see also Declarations
In response to congressional and public concern regarding several of the proposed conditions, in January 1990 President George H.W. Bush submitted a revised and reduced list of proposed conditions. See id. at 2, 7-8; see also Ogbudimkpa, 342 F.3d at 212 n. 11. Of the proposed conditions, President Bush submitted several understandings, two of which are directly relevant to this case. First, with respect to Article 1 of the CAT, the President proposed the understanding that the “United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.” See S. Exec. Rep. 101-30, at 9, 36.3 This first understanding closely tracked a similar understanding initially submitted by President Reagan in 1988, which stated that the United States “understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.” See S. Exec. Rep. 101-30, at 15.4 Second, with respect to Article 3 of the CAT, President Bush submitted an understanding, previously submitted by President Reagan, that the United States “understands the phrase ‘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, to mean ‘if it is more likely than not that he would be tortured.‘” See S. Exec. Rep. 101-30, at 16, 36.5
Finally, pursuant to Article 26 of the Convention,6 President Clinton deposited the instrument of ratification with the United Nations on October 21, 1994. See Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8478 (Feb. 19, 1999); see also Status of the [Convention] (visited Nov. 24, 2004) (http://www.un.org/documents/ga/docs/53/plenary/a53-253.htm). Notably, the President included the Senate understandings in the instrument of ratification. See 1830 U.N.T.S. 320, 321, 322 (1994); Declarations and Reservations made upon Ratification, Accession, or Succession (visited Nov. 24, 2004) (http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty14.asp).
Because the resolution of advice and consent specified that the CAT was not self-executing, Congress proceeded to pass legislation in order to implement the United States’ obligations under the Convention in 1998 with the Foreign Affairs Reform and Restructuring Act (“FARRA“).7 See Pub.L. No. 105-227, Div. G., Title XXII, § 2242, 112 Stat. 2681, 2681-822, codified as note to
In accordance with § 2242(b) of FARRA, the Department of Justice, of which the Immigration and Naturalization Service (“INS“) at that time was a division, promulgated regulations setting forth the procedures by which individuals could seek relief pursuant to the CAT. See 64 Fed. Reg. 8478 (Feb. 19, 1999), codified at
(a)(1) 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.
(a)(2) 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.
(a)(3) Torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions....
(a)(5). In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture.
In addition to clarifying the definition of torture that is to apply in the domestic context, the Department of Justice also promulgated regulations specifying the elements and burden of proof for a CAT claim. Section 208.16(c)(2), which tracks the understanding proposed by the President and adopted by the Senate in its
C. The Immigration Judge‘s Decision
On November 12, 2003, an immigration judge (“IJ“) issued an oral decision finding Auguste ineligible for deferral of removal under the CAT. The IJ began by noting that Auguste had conceded that he had never been tortured in the past in Haiti, and that his application was based on the likelihood that he would be detained upon arrival and subject to harsh prison conditions. (J.A. 43.) In denying Auguste‘s claim for CAT relief, the IJ found that the matter was governed by the Board of Immigration Appeals’ (“BIA“) decision in Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002), a 13-5 decision interpreting the elements of a claim for relief under the CAT.
In Matter of J-E- the BIA considered the same issue raised by Auguste: whether Haiti‘s indefinite detention of criminal deportees, the deplorable prison conditions in Haiti, and the physical abuse of prisoners constitute “torture” as that term is defined under the Convention and the implementing regulations. Id. at 292. The BIA emphasized that the Convention itself expressly differentiates between “torture” and “other acts of cruel, inhuman or degrading treatment or punishment.” Id. at 295.10 Only those acts that constitute torture under Article 1 trigger the requirement that an individual‘s return to the removal country be suspended. Id. In exploring the difference between “torture” and “other acts of cruel, inhuman or degrading treatment or punishment,” the BIA noted that “the act [of torture] 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.” Id. at 297 (citing 8 C.F.R. §§ 208.18(a)(1), (2)).
With reference to the regulations implementing the CAT, the BIA summarized a five-part test for determining whether an act rises to the level of torture:
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.
Matter of J-E-, 23 I. & N. Dec. at 297. As to the second element, that of intent, the BIA explained that the “act must be specifically intended to inflict severe physical or mental pain or suffering. This specific intent requirement is taken directly from the understanding contained in the Senate ratification resolution.... Thus, an act that results in unanticipated or unintended severity of pain or suffering does not constitute torture.” Id. at 298 (citation omitted). The BIA went on to define “specific intent” with reference to its common legal definition: “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.” Id. at 301 (quoting Black‘s Law Dictionary 813–14 (7th ed. 1999)).
In light of the requirements of
Second, with regards to the inhuman prison conditions in Haiti, even when coupled with the possibility of indefinite detention, the BIA again concluded that this did not constitute torture. In particular, the BIA noted that there was “no evidence that they are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture.” Id. at 301 (citing
Finally, the BIA considered whether police mistreatment of prisoners constituted torture. The BIA noted that there had been reports of isolated instances of police mistreatment, some of which could rise to the level of torture. See id. at 302. In particular, the BIA noted that while certain “[i]nstances of police brutality do not necessarily rise to the level of torture ... deliberate vicious acts such as burning with cigarettes, choking, hooding, kalot marassa [severe boxing of the ears, which can result in eardrum damage], and electric shock may constitute acts of torture.” Id. Although the alien in Matter of J-E- had shown that acts of torture have occurred in Haitian prisons, the BIA concluded that he had failed to satisfy the requisite burden of proof, i.e., that it was more likely than not that he would be tortured if returned to Haiti. See id. at 304.11 The alien had made no claim of past torture, and the basis of his CAT claim was premised on the possibility that he would be subject to police mistreatment when detained in a Haitian prison. Accordingly, the BIA concluded that the alien had failed to establish that the severe yet isolated instances of mistreatment were “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.” Id. at 304. In other words, the alien‘s evidence had failed to show that he as an individual in a Haitian prison was more likely than not to suffer “torture,” as defined by the CAT, as opposed to “other acts of cruel, inhuman or degrading punishment or treatment.” Id.12
Returning to the present matter, the IJ found Auguste‘s CAT claim to be virtually indistinguishable from the matter presented in Matter of J-E-, noting that counsel “for [Auguste] is not claiming here today that the situation in Haiti is somehow different from the situation that confronted the [alien] in [Matter of J-E-].” (J.A. 46.) Accordingly, the IJ denied Auguste‘s request for deferral of removal. Auguste appealed the IJ‘s decision to the BIA, which, on February 27, 2004, affirmed the IJ‘s decision without an opinion. Accordingly, the IJ‘s decision is the final agency determination for purposes of our review. See Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc).
D. Auguste‘s Habeas Petition
On March 9, 2004, in the District of New Jersey, Auguste filed a Verified Pe-
The District Court began by noting that the conditions which Auguste would be subjected to in Haiti “can objectively be described as horrifying prison conditions which are inflicted upon anyone unfortunate enough to find themselves in custody in Haiti.” (J.A. 14.) Nonetheless, the District Court denied Auguste‘s habeas petition on the merits, finding that the BIA in Matter of J-E- properly interpreted the intent requirement of
This timely appeal followed.
II. JURISDICTION AND SCOPE OF REVIEW
As an alien convicted of an aggravated felony/drug trafficking crime and removable on such grounds, Auguste is statutorily barred from filing a petition for direct review from the BIA‘s decision to a court of appeals challenging his ineligibility for relief under the CAT. See
The scope of review of an alien‘s habeas petition is far narrower than that typically available to an alien who has filed a direct petition for review to a court of appeals. On direct petitions for review, we review factual findings made by an immigration judge or the BIA under the
Keeping in mind the narrow scope of our habeas review, we now turn to consider Auguste‘s appeal.
III. ANALYSIS
In his appeal from the denial of his habeas petition, Auguste raises three arguments. First, Auguste contends that the BIA erred as a matter of law in Matter of J-E-, upon which the IJ relied in denying Auguste‘s application, in construing the definition of torture in
We address each argument in turn.
A. The Standard of Intent Required for CAT Relief
1.
The issue that we must resolve then is what the controlling standard for relief under the Convention is in the domestic context. Is it, as Auguste contends, the standard of intent that he believes is the prevailing requirement under international legal interpretations of the Convention? Or is it, as the Government contends, the specific intent standard which the Department of Justice adopted in the Convention‘s implementing regulations issued pursuant to FARRA, and interpreted by the BIA in Matter of J-E-? We approach this matter mindful of the sensitive considerations that are raised in Auguste‘s habeas petition. Auguste is asking this Court in effect to declare the administrative regulations implementing the United States’ obligations under the Convention, and implicitly the understandings which accompanied the United States’ ratification, to be inconsistent with the Convention.
2.
In FARRA, Congress directed the appropriate agencies to implement the United States’ obligations under the CAT “subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the [CAT].” § 2242(b), codified at
Auguste, however, contends that the United States’ understanding regarding specific intent was without effect and could not be enacted into domestic law as part of FARRA. In particular, Auguste argues that because the understanding regarding specific intent was in conflict with the accepted international interpretation of the Convention as he believes it to be, it could not modify the United States’ obligations under the Convention. Auguste appears to rely in part on Article 19 of the Vienna Convention on the Law of the Treaties, which states that reservations to a treaty ratification are prohibited where they are “incompatible with the object and purpose of the treaty.” See Vienna Convention on the Law of Treaties, May 23, 1969, art. 19, 1155 U.N.T.S. 331.15 Au-
The issue of whether and in what circumstances courts should give effect to reservations, declarations and understandings to treaties is a hotly contested area of academic debate. See Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L.Rev. 399, 401-02 (2000). To date, several courts have enforced reservations, understandings, or declarations, but we are not aware of any court that has considered their validity in any detail.17 However, we believe that resolution of this issue in this case is fairly straightforward.
We begin by noting that the Constitution vests the President and the U.S. Senate with the responsibility of making treaties, stating that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” See
As we recounted at some length above in Part I.B, the specific intent standard was the standard accepted by both the President and the Senate during the ratification process. Both Presidents Reagan and Bush submitted nearly identical understandings containing the language stating that for an act to constitute torture, it must be specifically intended to inflict severe pain and suffering. See S. Exec. Rep. 101-30, at 9, 15. The Senate adopted the language of President Bush‘s understanding in its resolution of ratification. See Senate Resolution, supra, II.1(a). Moreover, when the President deposited the instrument of ratification with the United Nations, he did so with the relevant understanding relating to the specific intent requirement. See 1830 U.N.T.S. 320, 321; Declarations and Reservations made upon Ratification, Accession, or Succession (visited Nov. 24, 2004) (http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty14.asp).
Thus, we are presented with a situation where both the President and the Senate, the two institutions of the federal government with constitutional roles in the treaty-making process, agreed during the ratification stage that their understanding of the definition of torture contained in Article 1 of the Convention included a specific intent requirement. In our view, this is enough to require that the understanding accompanying the United States’ ratification of the Convention be given domestic legal effect, regardless of any contention that the understanding may be invalid under international norms governing the formation of treaties or the terms of the Convention itself. We think it so plain a proposition that the United States may attach an understanding interpreting the meaning of a treaty provision as part of the ratification process that, where as here there is clear consensus among the President and Senate on that meaning, a court is obliged to give that understanding effect.
We find support for this position in the Restatement (Third) of the Foreign Relations Law of the United States, a persuasive authority. Section 314(2) of the Restatement states: “When the Senate gives its advice and consent to a treaty on the basis of a particular understanding of its meaning, the President, if he makes the treaty, must do so on the basis of the Senate‘s understanding.” See Restatement (Third) of the Foreign Relations Law of the United States § 314 (2004). Comment d to § 314 further states: “A treaty that is ratified or acceded to by the United States with a statement of understanding becomes effective in domestic law subject to that understanding.” See § 314 cmt. d. Thus, we hold that, for purposes of domestic law, the understanding proposed by the President and adopted by the Senate in its resolution of ratification are the binding standard to be applied in domestic law.
In so holding, we should be clear what this case is not about. We are not presented with a situation where the President and the Senate took contradictory positions on the meaning of a treaty provision during the ratification process. Nor
Thus, because we find that the governing standards to be applied in the domestic context are those in the understanding that accompanied the United States’ ratification of the treaty, and which were later incorporated in FARRA‘s implementing legislation, we believe that Auguste‘s claim that a specific intent standard is in conflict with what he perceives to be the prevailing international consensus misses the point. Generally, it is true that courts should interpret treaties so as to give a “meaning consistent with the shared expectations of the contracting parties.” See Air France v. Saks, 470 U.S. 392, 399, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985); see also MacNamara v. Korean Air Lines, 863 F.2d 1135, 1143 (3d Cir. 1988) (noting that “our role in treaty interpretation is limited to ascertaining and enforcing the intent of the treaty parties“). Moreover, it is well-established that when construing international agreements, courts will often look to the drafting history of the agreement, as well as the intent of the other signatory parties, as Auguste now proposes. See Stuart, 489 U.S. at 366-69, 109 S.Ct. 1183; see also El Al Israel Airlines, Ltd., 525 U.S. at 167, 119 S.Ct. 662 (“Because a treaty ratified by the United States is not only the law of this land ... but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history (travaux preparatoires) and the postratification understanding of the contracting parties.“) (citations omitted). However, we believe that where the President and the Senate express a shared consensus on the meaning of a treaty as part of the ratification process, that meaning is to govern in the domestic context.20
3.
Based on the ratification record, there is no doubt that the applicable stan-
Our resolution of whether the BIA‘s interpretation of the specific intent standard in
Auguste‘s contention that the introduction of criminal law concepts into the standard for relief under the Convention was in error because the Convention is not about criminal prosecution, but rather about protecting the victims of torture, is besides the point. The specific intent standard is a term of art that is well known in American jurisprudence. The Supreme Court has explained that in order for an individual to have acted with specific intent, he must expressly intend to achieve the forbidden act. See Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). In contrast, the more relaxed general intent standard typically only requires that a defendant “possessed knowledge with respect to the actus reus of the crime.” Carter, 530 U.S at 268, 120 S.Ct. 2159.23
Thus, in the context of the Convention, for an act to constitute torture, there must be a showing that the actor had the intent
Nonetheless, despite what we think is the clear import of the use of the phrase “specifically intended” in
There has been some confusion about the [BIA‘s] reading of the specific-intent requirement. At one point in [Matter of J-E-] the majority stated that, “[a]lthough 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.” 23 I. & N. Dec. at 301. However, when read in light of the majority‘s other statements describing the intent requirement quoted above, it is clear that this was not a heightened strict-intent standard.
Nonetheless, one of the dissenting Board members [in Matter of J-E-] accused the [BIA] of imposing a requirement that an alien “pro[ve] ... an intent to accomplish a precise criminal act” and “the torture‘s [sic] specific intent to torture [the victim].” See Matter of J-E- at 315 (Rosenberg, L., dissenting). This is not what the majority concluded, given a full reading of its decision and the excerpts quoted above. Appellee‘s Br. at 40. Not surprisingly, Auguste seizes on this statement, and argues that it merits reversal in this matter, stating that he finds “it difficult to believe that the [BIA] did not require a heightened specific-intent requirement” in Matter of J-E-. Appellant‘s Reply Br. at 15.
We see the source of the Government‘s concern. Standing alone, the problematic statement in Matter of J-E-, which the Government now disavows, could be read to impose a “heightened strict intent” or a “specific intent plus” standard. The statement can be broken down as follows: the Haitian authorities (1) intend the act of detaining deportees (“Haitian authorities are intentionally detaining criminal deportees knowing that the detention facilities are substandard“) but (2) lack an intent to inflict severe pain and suffering (“there is no evidence that they are intentionally and deliberately creating and maintaining such prison conditions“) and (3) lack an intent to inflict torture (“in order to inflict torture“). As the Government suggests, we think this last element goes too far and is not required under the specific intent standard. Section 208.18(a)(5) only requires that the act be specifically intended to inflict severe pain and suffering, not that the actor intended to commit torture. The two are distinct and separate inquiries.
However, we disagree with Auguste that this single troubling statement in Matter of J-E- renders the entire decision of the BIA in error. The statement should not be read out of context, and the rest of the opinion clearly indicates that the BIA appropriately understood
4.
We must resolve one final issue before turning to the appropriate burden of proof. Auguste contends that this Court previously held in Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003), that a showing of specific intent is not required under the Convention or its implementing regulations. In Zubeda, an alien successfully obtained relief from an order of removal under the Convention on the grounds that she would likely be subject to rape upon her return to the Democratic Republic of Congo (“DRC“). Zubeda introduced evidence tending to show that her family had been persecuted in the DRC, that members of her family had been brutally murdered, and that she had been gang-raped by soldiers. However, the BIA reversed, finding that the record did not support the immigration judge‘s finding that Zubeda would likely be detained if returned to the DRC, or that she would be targeted for harm by the soldiers of the Congolese government. In addition, the BIA likened the case to Matter of J-E-, noting that reported isolated instances of mistreatment that may rise to the level of torture do not establish that the alien herself was more likely than not to be tortured.
Zubeda filed a petition for review to this Court, and we reversed. In particular, we were troubled by the cursory nature of the BIA‘s opinion and noted that the BIA “completely ignore[d] the basis of the Immigration Judge‘s decision.” Zubeda, 333 F.3d at 475. For instance, we took issue with the BIA‘s assertion that the record did not support a finding that Zubeda would be likely detained upon her return to the DRC when the record clearly supported a contrary conclusion, a fact which the IJ had taken administrative notice of. Id. In addition, we held that the BIA erred when it relied on the IJ‘s adverse credibility finding, made in the context of Zubeda‘s asylum and withholding of deportation claims, to discredit her application for relief under the Convention. Id. at 476. We noted that because Zubeda‘s CAT claim was analytically separate from her other claims for relief, the BIA was required to provide a further explanation before relying on the IJ‘s adverse credibility finding. Id. Finally, we found the BIA‘s application of Matter of J-E- to Zubeda‘s CAT claim to be wholly unconvincing, noting that “[r]educing Zubeda‘s claim to an attack on the kind of inhumane prison conditions that formed the basis of the [BIA‘s] decision in Matter of J-E- totally ignores the fact that the record is replete with reports that detail what appear to be systematic incidents of gang rape, mutilation, and mass murder.” Id. at 477.
Although the regulations [
8 C.F.R. § 208.18 ] require that severe pain or suffering be “intentionally inflicted,” we do not interpret this as a specific intent requirement.... The intent requirement [under§ 208.18(a)(5) ] therefore distinguishes between suffering that is the accidental result of an intended act, and suffering that is purposefully inflicted or the foreseeable consequence of deliberate conduct. However, this is not the same as requiring a specific intent to inflict suffering.
Id. at 473 (emphasis added). We proceeded to note that “requiring an alien to establish the specific intent of his/her persecutors could impose insurmountable obstacles to affording the very protections the community of nations sought to guarantee under the [Convention].” Id. at 474 (citation omitted).
We recognize that this portion of Zubeda is in tension with our holding in this case, that based on the ratification record of the CAT, the appropriate standard to be applied in the domestic context is the specific intent standard. However, we believe that the quoted passage of Zubeda, upon which Auguste relies, is dicta. The basis of our holding in Zubeda was limited to the defects in the BIA‘s reversal of the IJ‘s ruling that Zubeda was entitled to relief under the CAT. In fact, the INS agreed that, in light of these defects, “the most appropriate resolution [was] to remand to the Immigration Judge for clarification and additional evidence.” Id. at 465. Our discussion of the specific intent standard in
B. The Burden of Proof Required to Prove a Claim for Relief under the CAT
Auguste argues that the BIA erroneously set the burden of proof in
We begin by noting that on several prior occasions, we have applied the “more likely than not” standard in evaluating claims for relief under the Convention. See, e.g., Berishaj v. Ashcroft, 378 F.3d 314, 332 (3d Cir. 2004); Wang v. Ashcroft, 368 F.3d 347, 348 (3d Cir. 2004); Mulanga, 349 F.3d at 132 (quotations omitted). Our prior uses of the “more likely than not” standard constitute precedent in this matter, and we are bound to apply the standard contained in
Nor do we see any error in our prior decisions in this regard because it is plain that the “more likely than not” standard is the correct standard to be applied for CAT claims. The “more likely than not” standard has its origins in identical understandings submitted by Presidents Reagan and Bush with regards to Article 3 of the Convention, and adopted by the Senate in its resolution of ratification, stating that the “United States understands the phrase ‘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, to mean ‘if it is more likely than not that he would be tortured.‘” See Senate Resolution, supra, II.2. This standard was then codified into domestic law through § 2242(b) of FARRA, which directed the relevant agencies to adopt regulations implementing the United States’ obligations under the Convention “subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.” See
C. Whether Auguste is Entitled to Relief on his Habeas Petition
1.
Auguste argues that, even if the BIA adopted the correct intent and burden of proof standards in the implementing regulations, he is nonetheless entitled to relief under the CAT. Auguste contends that he will be subject to indefinite detention upon his return to Haiti, that the conditions in Haitian prisons are deplorable, and that the Haitian authorities are not only aware that their imprisonment policy causes severe pain and suffering, but purposely place deportees in the deplorable conditions in order to punish and intimidate them.
We review de novo the District Court‘s denial of Auguste‘s habeas petition. See De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002). However, because our evaluation of the merits of Auguste‘s habeas claim involves a review of the IJ‘s decision, which in turn relied on
2.
Before considering the merits of Auguste‘s habeas petition, we address an issue related to the scope of our habeas review. As we noted above, our review is limited to errors of law, such as the application of law to undisputed facts or adjudicated facts, but does not include review of administrative fact findings. Thus, as an initial matter, we must identify what the undisputed facts are in this matter, and what administrative fact findings were made by the IJ.
The IJ found the factual situation presented by Auguste‘s application for deferral of removal to be indistinguishable from the matter presented in Matter of J-E-. The IJ‘s oral decision states:
Counsel for the respondent is not claiming here today that the situation in Haiti is somehow different from the situation that confronted the respondent in [Matter of J-E-] and that the Board had to consider in Matter of J-E-. So, we are dealing with essentially the same fact pattern, the respondent like the respondent in [Matter of J-E-] is a person from Haiti on the brink of deportation back to that country for criminal reasons, and the prison conditions are fundamentally the same today as they were just a year ago in Haiti, and so the claim is in this Court‘s view virtually the identical claim that was before the Board in Matter of J-E- both as a legal issue and in terms of the facts of the case.
(J.A. 46-47.) Thus, on habeas review, we are limited to the administrative factual findings of the IJ, which are essentially those that the BIA addressed in Matter of J-E-. In addition, the IJ found that, with regards to Auguste‘s predicament in particular, there was no evidence (nor was there any submitted) that Auguste‘s situation differed in any way from the alien in Matter of J-E-, or that he had faced torture in Haiti in the past. The District Court, in considering Auguste‘s habeas petition, does not appear to have made any independent findings of fact in this matter and instead relied on the facts presented in Matter of J-E-. Thus, at a minimum, the administrative facts in this matter are the same as those in the factual record the BIA considered in Matter of J-E-.25
The Government, however, contends that Auguste has introduced evidence in his habeas petition that conflicts with the factual findings made by the BIA in Matter of J-E-, and that this constitutes an attack on fact findings inappropriate on habeas review. The specific facts in dispute include a statement by a Haitian government official that acknowledges that
3.
“An applicant for relief on the merits under [Article 3] of the [Convention] bears the burden of establishing ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.‘” See Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002) (quoting
For an act to constitute torture under the Convention and the implementing regulations, it must be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) not arising from lawful sanctions. See Matter of J-E-, 23 I. & N. Dec. at 297 (citing
We can discern at least three separate circumstances which Auguste contends constitute torture within the meaning of the Convention. First, Auguste contends that the indefinite detention of criminal deportees constitutes torture. Second, Auguste contends that the detention, coupled with the harsh and deplorable prison conditions, constitutes torture. Finally,
a. Indefinite Detention
As we discussed above in Part I.A, the government of Haiti uses a preventive detention policy for criminal deportees. The State Department‘s 2000 Country Report on Human Rights Practices in Haiti, which was submitted to the District Court as an exhibit to Auguste‘s habeas petition, states:
In the past, when the authorities received Haitian citizens deported from other countries for having committed crimes, they were generally processed in 1 week and then released. Since March 2000, criminal deportees who already have served sentences outside the country are kept in “preventive detention,” with no fixed timetable for their eventual release. According to police officials, the deportees are held in order to prevent an increase in insecurity and to convince them that they would not want to risk committing crime because of prison conditions. The average period of preventive detention for these persons has decreased to approximately 1 month, compared to several months in 2000. 2000 Country Report.
The BIA found in Matter of J-E- as a factual matter that the Haitian government uses the detention procedure “to prevent the bandits from increasing the level of insecurity and crime in the country” and as a “warning and deterrent not to commit crimes in Haiti.” Matter of J-E-, 23 I. & N. Dec. at 300 (internal citations and quotations omitted). The BIA also found that the detention policy “in itself appears to be a lawful 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.” Id. Accordingly, the BIA concluded that the detention policy constituted a lawful sanction within the meaning of
Auguste, however, contends that the detention policy, whatever its deterrent purposes, is unlawful under Haiti‘s Constitution and criminal code and violates the international human rights law prohibition against indefinite and arbitrary imprisonment. Auguste, in effect, contends that whether a state policy is a lawful sanction within the meaning of
However, we note that in Matter of J-E-, the BIA made an alternative ruling why the policy of indefinite detention does not constitute torture, specifically that “there is no evidence that Haitian authorities are detaining criminal deportees with the specific intent to inflict severe physical or mental pain or suffering.” 23 I. & N. Dec. at 300. As will be shown in the next section, we agree with that conclusion. Thus, even if we were to find that the detention policy was not a lawful sanction, we would conclude that the Haitian authorities lacked the requisite intent for a find-
b. Prison Conditions
Auguste contends that his detention in harsh and brutal prison conditions constitutes torture. We briefly described these conditions above in Part I.A, and there is no doubt that these conditions are objectively deplorable. In Matter of J-E-, the BIA found from the record that the Haitian prison conditions were “the result of budgetary and management problems as well as the country‘s severe economic difficulties.” Matter of J-E-, 23 I. & N. Dec. at 301. In addition, the BIA found that “although lacking in resources and effective management, the Haitian Government is attempting to improve its prison systems,” and 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.” Id. (citations omitted). However, the BIA found that placing detainees in these prison conditions did not constitute torture because there was no evidence that the Haitian authorities had the specific intent to create or maintain these conditions so as to inflict severe pain or suffering on the detainees. Id. The District Court, relying on Matter of J-E-, agreed, concluding that “we have circumstances here where we have simply the allegation of general prison conditions in Haiti. So it does not appear to me that [Auguste] has made any showing that his pain and suffering or physical or mental injury would be intentionally inflicted.” (J.A. 15.)
Auguste, however, challenges the conclusion of the District Court and the BIA in Matter of J-E- that the Haitian authorities do not have the requisite specific intent under
Keeping in mind the appropriate deference we must give to the BIA in the interpretation of its own regulations, we do not think the BIA acted outside of its authority or contrary to law in Matter of J-E- in concluding that the Haitian authorities lack the requisite specific intent to inflict severe pain and suffering on Auguste, or others like him, within the meaning of
In effect, Auguste is complaining about the general state of affairs that exists in Haitian prisons. The brutal conditions are faced by all prisoners and are not suffered in a unique way by any particular detainee or inmate. We think it goes without saying that detainees and other prisoners face a brutal existence, experiencing pain and suffering on a daily basis. The conditions that we have described are among the worst we have ever addressed. But, the pain and suffering that the prisoners experience in Haiti cannot be said to be inflicted with a specific intent by the Haitian government within the meaning of
In so holding, we caution that we are not adopting a per se rule that brutal and deplorable prison conditions can never constitute torture. To the contrary, if there is evidence that authorities are placing an individual in such conditions with the intent to inflict severe pain and suffering on that individual, such an act may rise to the level of torture should the other requirements of the Convention be met. Perhaps, as evidence is further developed on conditions in Haiti, the BIA may arrive at a different conclusion in the future. But, the situation that we are presented with, and the evidence that we must consider, do not support a finding that Auguste will face torture under the only definition that is relevant for our purposes—the definition contained in the Convention and the implementing regulations.
c. Physical Abuse
Finally, Auguste points to reports of physical beatings of prisoners by prison guards as evidence that he faces torture upon his removal to Haiti. In Matter of J-E-, the BIA noted that the reports of prisoner abuse have ranged from the beating with fists, sticks and belts to burning with cigarettes, choking, hooding, and kalot marassa. 23 I. & N. Dec. at 302. In Matter of J-E-, the BIA concluded that, although such acts may rise to the level of torture, the alien there had failed to meet his burden of proof that he would be more likely than not subject to torture. Id. at 302-03. In particular, the BIA noted that there were no claims by the alien of past torture. Id. at 303. Moreover, although there were reported instances of beatings of prisoners, the alien had failed to show that the beatings were “so pervasive as to establish a probability that a person detained in a Haitian prison will be subject to torture.” Id. at 304. The situation here is no different. Auguste has not alleged any past torture, nor has he offered any evidence tending to show that he faces an increased likelihood of torture anymore than the alien in Matter of J-E-.
IV. CONCLUSION
The conditions that Auguste will likely face in Haiti‘s prisons, like those awaiting many other criminal deportees, are harsh and deplorable. However, in ratifying the
UNITED STATES of America
v.
Douglas B. LEUSCHEN, Appellant.
No. 04-1142.
United States Court of Appeals,
Third Circuit.
Argued Dec. 14, 2004.
Jan. 21, 2005.
Christine A. Sanner (Argued), Bonnie R. Schlueter, Office of United States Attorney, Pittsburgh, for Appellant.
Karen S. Gerlach (Argued), Office of Federal Public Defender, Pittsburgh, for Appellee.
Notes
See S. Exec. Rep. 101-30, at 10.Article 3 forbids a State Party from forcibly returning a person to a country where there are “substantial grounds for believing that he would be in danger of being subjected to torture.” Under U.S. immigration law, the United States can not deport an individual if “it is more likely than not that the alien would be subject to persecution.” INS v. Stevic, 467 U.S. 407, 104 S. Ct. 2489, 81 L. Ed. 2d 321 (1984). U.S. immigration law also provides that asylum may be granted to an alien who is unwilling to return to his home country “because of persecution or a well-founded fear of persecution.” INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987). The administration‘s proposed understanding adopts the more stringent Stevic standard because the administration regards the nonrefoulement prohibition of article 3 as analogous to mandatory withholding of deportation. Therefore, article 3 would apply when it is “more likely than not” that the individual would be tortured upon return.
any act, directed against an individual in the offender‘s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind.
Matter of J-E-, 23 I. & N. Dec. at 303 (citingall 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.
Carter, 530 U.S. at 268, 120 S.Ct. 2159 (citing United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir. 1980)).[A] person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying “general intent“), he did not intend permanently to deprive the bank of its possession of the money (failing to satisfy “specific intent“).