Lead Opinion
OPINION OF THE COURT
We ordered rehearing en banc in this case to determine the level of intent required, under the Convention Against Torture (the “CAT”),
I.
Pierre, a Haitian citizen, first entered the United States in 1986 and was granted permanent legal resident status on December 1, 1990. On October 14, 1992, Pierre broke into the home of his ex-girlfriend and stabbed her repeatedly with a meat cleaver. When a neighbor interrupted the attack after hearing the victim’s cries, Pierre drank a container full of battery acid, in an attempt to commit suicide. His suicide attempt was unsuccessful, however, and due to his ingestion of the battery acid, Pierre suffers from a condition called esophageal dysphagia, limiting him to a liquid diet administered through a feeding tube. According to Pierre, the feeding tube must be replaced on a monthly basis and he requires daily medical care.
Following a trial by jury, Pierre was convicted of various crimes for his attack on his ex-girlfriend, including attempted murder, and was subsequently sentenced to 20 years imprisonment with a mandatory minimum of 10 years without parole. After he had served his 10-year minimum, the former Immigration and Naturalization Service filed a Notice to Appear charging Pierre with being deportable under INA § 237(a)(2)(A)(iii), for having been convicted of an aggravated felony.
According to the 2006 State Department Country Report for Haiti (the “Country Report”), Haiti detains its citizens deported by reason of prior convictions in a foreign country. These detentions sometimes last several months and the Haitian government justifies its detention policy on the grounds of public safety. The Country Report indicates that the prisons are overcrowded, poorly maintainеd, unsanitary, and rodent infested. Prisoners suffer from malnutrition, inadequate health care, and a lack of basic hygiene.
At a hearing before the Immigration Judge (“IJ”), Pierre conceded that he was subject to removal for his conviction,
The IJ found that Pierre was seeking relief for humanitarian reasons based on his medical needs. The IJ concluded that under the interpretation of the CAT in Auguste v. Ridge,
Subsequent to the initial briefing in this case, we decided Lavira v. Attorney General,
II.
In this matter, Pierre petitions for review of the final order of removal by the BIA. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the basis for removal is Pierre’s conviction for an aggravated felony, our jurisdiction is limited under the REAL ID Act to “constitutional claims or questions of law.” Id. § 1252(a)(2)(C)-(D).
Where, as here, the BIA affirms an IJ’s decision without opinion, we review the IJ’s decision as the final agency determination. Berishaj v. Ashcroft,
III.
The CAT was designed to acknowledge the obligation of nations under the United Nations Charter to “promote universal respect for, and obsеrvance of, human rights and fundamental freedoms.” See Preamble to Convention, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. It was adopted by the United Nations General Assembly on December 10, 1984, and entered into force on June 26, 1987, to “make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world.” Id. Since opening for signature in December 1984, 145 countries have signed and/or become parties to the CAT. See Office of the High Commissioner for Human Rights Page on the Status of the CAT (visited May 21, 2008) (http://www2.ohchr.org/ english/bodies/ratification/9.htm).
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*185 third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any rеason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Art. 1(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (emphasis added). The CAT then commands that: “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 CAT on April 18,1988, in accordance with the power granted to the President in Article II, Section 2 of the United States Constitution, and reserved the United States’ right “to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necеssary.” See Auguste,
In October 1990, the Senate adopted a resolution of advice and consent that incorporated the understandings and declaration discussed above. See 136 Cong. Rec. S 17486-01, S 17491-92 (Oct. 27, 1990) (“Senate Resolution”). Next, as required by Article 26 of the CAT, President Clinton deposited the instrument of ratification with the United Nations on October 21, 1994, and the CAT became enforceable in the United States 30 days later.
Because the CAT did not self-execute, it needed to be “implemented by legislation before [giving] rise to a private cause of action.” . Ogbudimkpa v. Ashcroft,
The first section of FARRA, § 2242(a), annоunces that “[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture,” thereby adopting the obligation in Article 3 of the CAT. See id. Next, § 2242(b) directed “the appropriate agencies” to “prescribe regulations to implement the obligations of the United States under Article 3 of [the CAT], subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of [the CAT].” Id.
In accordance with § 2242(b) of FAR-RA, the Department of Justice (“DOJ”) promulgated regulations setting forth the procedures by which individuals could seek relief under the CAT. See 64 Fed.Reg. 8478 (Feb. 19, 1999), codified at 8 C.F.R. §§ 208.16(c), .17, & .18(a) (2004). In § 208.18(a), the DOJ provided a definition of torture, incorporating “the definition of torture contained in Article 1 of [the CAT], subject to the rеservations, understandings, declarations, and provisos contained in the [Senate] resolution of ratification of the Convention.” Section 208.18(a)(1) provides a definition of torture which mirrors Article 1 of the CAT. In addition, the DOJ included six additional provisions, one of which is relevant to this case: “In order to constitute torture, an act must be specifi-catty 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.” Id. § 208.18(a)(5) (emphasis added). If a petitioner is able to show that it is “more likely than not” that he or she will be tortured, deferral of removal is mandatory. Id. § 208.17(a).
IV.
This Circuit has previously addressed whether Haiti’s policy of indefinitely imprisoning deportees who have been convicted in other countries violates the CAT. We review that history now.
Before we ever addressed this issue, in 2002, the BIA considered whether indefinite detention, inhuman prison conditions, and рolice mistreatment constitute torture under 8 C.F.R. § 208.18(a). Matter of JE-, 23 I. & N. Dec. 291 (B.I.A.2002). Relying on the understanding contained in the Senate Resolution, the BIA determined that in order to obtain relief under the CAT, a petitioner must show that the alleged torturous acts by the government will be “specifically intended to inflict severe physical or mental pain or suffering.” Id. at 298. Considering Haiti’s policy of indefinitely detaining deportees who have been convicted of crimes abroad, the BIA found 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.” Id. at 300. Rather, the BIA concluded that the “Haitian prison conditions are the result of budgetary and management problems as well as the country’s severe economic difficulties.” Id. at 301. Thus, the BIA concluded that the Haitian
Subsequently, in Zubeda v. Ashcroft,
The following year, in Auguste, we considered the CAT claim of a Haitian citizen who had been imprisoned in the United States. In Auguste, the petitioner “claim[ed] that he w[ould] be indefinitely detained upon his arrival in Haiti in prisons that are notorious for their brutal and deplorable conditions.”
Next, in Auguste we reviewed, with Chevron deference, the BIA’s decision that specific intent should be interpreted with reference to its ordinary meaning in American criminal law and we determined that the BIA did not err in this determination. Citing to Carter v. United States,
Thus, where Auguste complained of the conditions in the Haitian prison but not his particular vulnerability to them, we determined that the BIA did not err by concluding that the Haitian authorities would lack
In our most recent case to address whether the deportation of a Haitian ex-convict constitutes torture under the CAT, Lavira, we granted the petition of an HIV positive, “above-the-knee amputee with a lifelong political affiliation with exiled former President Jean-Bertrand Aristide.”
We also stated in Lavira, in dicta, that we could not “rule out” that specific intent could be proven through “evidence of willful blindness.” Id. As discussed below, we now rule out that possibility.
After Lavira was decided, the Second Circuit decided Pierre v. Gonzales,
V.
The specific issue on appeal concerns what degree of intent Pierre must establish in order to obtain relief under the CAT. To inform our analysis, we consider first the definition of torture in 8
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.
Id. Here, Pierre will not be imprisoned 1) to obtain information or a confession from him, 2) to punish him for an act he committed or is suspected of having committed, 3) to intimidate or coerce him or someone else, or 4) for any discriminatory reason. Rather, Pierre will be imprisoned because the Haitian government has a blanket policy of imprisoning ex-convicts who are deported to Haiti in order to reduce crime. The lack of medical care and likely pain that Pierre will experience is an unfortunate but unintended consequence of the poor conditions in the Haitian prisons, which exist because of Haiti’s extreme poverty. We find that this unintended consequence is not the type of proscribed purpose contemplated by the CAT. To the extent Lavira suggests that the intentional infliction of severe pain need not be to accomplish one of the proscribed purposes, Lavira is overruled.
Given the ratification history of the CAT, we conclude that the CAT requires a showing of specific intent before the court can make a finding that a petitioner will be tortured. In this vein, we note that Pierre does not dispute that the CAT includes a specific intent requirement. Rather, Pierre argues that the specific intent requirement can be satisfied by a showing that the Haitian officials have knowledge that severe pain or suffering is the practically certain outcome of his imprisonment. We disagree that proof of knowledge on the part of government officials that severe pain or suffering will be the practically certain result of Pierre’s detention satisfies the specific intent requirement in the CAT. Rather, we are persuaded by the discussion in Auguste that the specific intent requirement, included in the ratification history of the CAT, requires a petitioner to show that his prospective torturer will have the motive or purpose to cause him pain or suffering. As in Auguste, we hold that “for an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act.” Auguste,
As we discussed in Auguste, the BIA’s decision in Matter of J-E- that specific intent means “the intent to accomplish the precise criminal act that one is later charged with” is entitled to Chevron deference. Id. at 144. Applying that deference, we concluded in Auguste that the BIA had not erred. Id. at 145. Fleshing out the definition of specific intеnt as it is used within American criminal law, Au-guste relied on Carter v. United States,
In addition, the Supreme Court discussed the concept of specific intent in United States v. Bailey,
In our view, a petitioner cannot obtain relief under the CAT unless he can show that his prospective torturer will have the goal or purpose of inflicting severe pain or suffering.
Finally, we reject Lavira’s discussion of willful blindness. Willful blindness can be used to establish knowledge but it does not satisfy the specific intent requirement in the CAT. See United States v. Wasserson,
VI.
In conclusion, we will deny Pierre’s petition. As the courts in Matter of J-E- and
Notes
. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, implemented in the United States by the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, Div. G, Tit. XXII, § 2242, 112 Stat. 2681, 2681-761, 2681-822 (codified as a note to 8 U.S.C. § 1231).
. At his initial hearing, where he appeared pro se, he testified that he “d[id]n’t have any problem going back” to Haiti. (App. 41.)
. The government does not dispute that Haitian prison officials would not be able to provide Pierre with his liquid diet and regular medical attention while he remains in detention. It is not clear from the record how long Pierre would remain imprisoned once returned to Haiti.
. Article 26 of the Convention states, in pertinent part: "Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.” See Art. 26, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
. As discussed in Auguste v. Ridge,
. Matter of J-E-, 23 I. & N. Dec. 291, 297 (B.I.A.2002) also announced a lest for determining if an act constitutes torture. Citing to 8 C.F.R. § 208.18(a), the BIA announced that the act "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."
. Judge Rendell proposes a hypothetical in her concurrence which, she asserts, would not fit the majority’s definition of specific intent. She posits that, under our definition, it would not be torture for a jailer to use electric shock tactics to solicit information where the "purpose in interrogating” is to obtain information, not to cause pain and suffering. However, people commonly have dual purposes. In her hypothetical, the rеason a jailer uses torture tactics is the jailer’s belief that the pain caused will induce the prisoner to reveal information. Thus, under the hypothetical, the jailer would have a purpose of inflicting serious pain and suffering, satisfying the specific intent requirement, in addition to a purpose of obtaining information.
. Nothing herein prevents the government from granting discretionary relief to Pierre in the form of deferred action. Though we are bound to the specific intent requirement contained in the CAT, the government is not.
Concurrence Opinion
concurring, joined by
The majority is correct that a finding of torture requires an examination of purpose. The examination occurs, however, not in connection with “specific intent,” but, rather, in connection with the element of “illicit purpose.” The majority conflates the two by deciding that specific intent to inflict severe pain and suffering only exists if the actor’s purpose is tо inflict pain. In doing so, it has obscured the meaning of specific intent and its proper contours as developed in the criminal law jurisprudence.
The definition of torture in CAT and its implementing regulations contains an intent element and a purpose element. See 8 C.F.R. § 208.18(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----”). In Matter of J-E-, the BIA summarized the test under 8 C.F.R. § 208.18(a) as requiring that the act 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.
23 I. & N. Dec. 291, 297 (B.I.A.2002). The BIA’s decision in Matter of J-E- also introduced the concept of using the criminal law to interpret the term “specifically intend” in implementing regulations. Id. at 301 (citing the definition of specific intent in Black’s Law Dictionary).
Our Court subsequently looked to the criminal law for guidance in both Auguste v. Ridge,
The majority equates “intentionally inflicted” under CAT, which requires specific intent, to “pain for pain’s sake.” This goes beyond the meaning of intentional infliction under J-E-. The specific intent aspect does not speak to, or require a finding as to, the purpose; the illicit purpose element does. As discussed below, “pain for pain’s sake” would be an illicit purpose.
Specific intent, as it has been developed through the criminal caselaw and treatises, is no more than intent to do the prohibited act with knowledge or desire that it will cause a certain result. Tison v. Arizona,
The source of the majority’s requirement of “purposeful pain” is, therefore, somewhat curious. It is regrettable that an errant sentence in a different context in United States v. Bailey, suggesting that “[i]n a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intеnt,” veered from the historical meaning.
The issue before us has been the subject of recent commentary that is timely and persuasive. In an August 1, 2002 memo to the White House Counsel, Jay Bybee, Assistant Attorney General, set forth an interpretation of “specific intent” that is similar to that espoused by the majority. There, he stated that “knowledge alone that a particular result is certain to occur does not constitute specific intent.” Id. at 182-83. It concluded that “even if a defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.” Id. at 183. This is the interpretation that was relied upon in defense of the abuse at Abu Ghraib and the torture of prisoners during interrogations at facilities in Iraq and Afghanistan.
However, this interpretation of “specific intent” has since been soundly repudiated by the very office that promulgated it. See Justice Department Dec. 30, 2004 Memo on U.S. Torture Policy for Deputy Attorney General James B. Comey (“2004 Memo”). The 2004 Memo explained that:
In the August 2002 Memorandum, this Office concluded that the specific intent element of the statute required that infliction of severe pain or suffering be the defendant’s “precise objective” and that it was not enough that the defendant act with knowledge that such pain “was reasonably likely to result from his actions” (or even that that result “is certain to occur”). Id. at 182-83. We do not reiterate that test here.
Id. at n. 27.
The Memo then went on to state:
It is well recognized that the term “specific intent” is ambiguous and that the courts do not use it consistently. See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e), at 355 & n. 79 (2d ed.2003). “Specific intent” is most commonly understood, however, “to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.” Id. at 354; see also Carter v. United States,530 U.S. 255 , 268,120 S.Ct. 2159 ,147 L.Ed.2d 203 (2000) (explaining that general intent, as opposed to specific intent, requires “that the defendant possessed knowledge [only] with respect to the actus reus of the crime”). As one respected treatise explains:
With crimes which require that the defendant intentionally cause a specific result, what is meant by an “intention” to cause that result? Although the theorists have not always been in agreement ..., the traditional view is that a person who acts ... intends a result of his act ... under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.
1 LaFave, Substantive Criminal Law, § 5.2(a), at 341 (footnote omitted).
As noted, the cases are inconsistent. Some suggest that only a conscious desire to produce the proscribed result constitutes specific intent; others suggest that even reasonable foreseeability suffices. In United States v. Bailey,444 U.S. 394 ,100 S.Ct. 624 , 62*194 L.Ed.2d 575 (1980), for example, the Court suggested that, at least “[i]n a general sense,” id. at 405,100 S.Ct. 624 , “specific intent” requires that one consciously desire the result. Id. at 403-05,100 S.Ct. 624 . The Court compared the common law’s mens rea concepts of specific intent and general intent to the Model Penal Code’s mens rea concepts of acting purposefully and acting knowingly. Id. at 404-05,100 S.Ct. 624 . “[A] person who causes a particular result is said to act purposefully,” wrote the Court, “if ‘he consciously desires that result, whatever the likelihood of that result happening from his conduct.’ ” Id. at 404,100 S.Ct. 624 (internal quotation marks omitted). A person “is said to act knowingly,” in contrast, “if he is aware ‘that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.’ ” Id. (internal quotation marks omitted). The Court then stated: “In a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent.” Id. at 405,100 S.Ct. 624 .
In contrast, cases such as United States v. Neiswender,590 F.2d 1269 (4th Cir.1979), suggest that to prove specific intent it is enough that the defendant simply have “knowledge or notice” that his act “would have likely resulted in” the proscribed outcome. Id. at 1273. “Notice,” the court held, “is provided by the reasonable foreseeability of the natural and probable consequences of one’s acts.” Id.
We do not believe it is useful to try to define the precise meaning of “specific intent” in section 2340. In light of the President’s directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture. Some observations, however, are appropriate. It is clear that the specific intent element of section 2340 would be met if a defendant performed an act and “consciously desire[d]” that act to inflict severe physical or mental pain or suffering. 1 LaFave, Substantive Criminal Law § 5.2(a), at 341. Conversely, if an individual acted in good faith, and only after reasonable investigation establishing that his conduct would not inflict severe physical or mental pain or suffering, it appears unlikely that he would have the specific intent necessary to violate sections 2340-2340A. Such an individual could be said neither consciously to desire the proscribed result, see, e.g., Bailey,444 U.S. at 405 ,100 S.Ct. 624 , nor to have “knowledge or notice” that his act “would likely have resulted in” the proscribed outcome, Neiswender, 590 F.2d
Two final points on the issue of specific intent: First, specific intent must be distinguished from motive. There is no exception under the statute permitting torture to be used for a “good reason.” Thus, a defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute. See Cheek v. United States,498 U.S. 192 , 200-01,111 S.Ct. 604 ,112 L.Ed.2d 617 (1991). Second, specific intent to take a given action can be found even if the defendant will take the action only conditionally. Cf., e.g., Holloway v. United States, 526*195 U.S. 1, 11,119 S.Ct. 966 ,143 L.Ed.2d 1 (1999) (“[A] defendant may not negate a proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose.”). See also id. at 10-11 & nn. 9-12,119 S.Ct. 966 ; Model Penal Code § 2.02(6). Thus, for example, the fact that a victim might have avoided being tortured by cooperаting with the perpetrator would not make permissible actions otherwise constituting torture under the statute. Presumably that has frequently been the case with torture, but that fact does not make the practice of torture any less abhorrent or unlawful.
Id. at 16-17 (emphases added). Thus, the 2004 memorandum both affirmatively stated that the specific intent element is not tied to a purpose or “precise objective” to inflict severe pain and suffering, and suggested that knowledge of “reasonably likely” results could come within the definition of specific intent.
Consistent with this, the specific intent requirement in CAT’s implementing regulations excludes “unanticipated” or “unintended” severity of pain and suffering. 8 C.F.R. § 208.18(a)(5). Again, I cannot emphasize enough, the mental element is knowledge or desire that pain and suffering will result. This is different from the underlying purpose of the act. The distinction is subtle, but important. We should hold that if severe pain and suffering is desired or known to result from the actor’s conduct, the specific intent element is fulfilled.
Under CAT, “illicit purposes” include, but are not limited to, “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”; exempted from CAT is “pain or suffering arising only from, inherent in or incidental to lawful sanctions,” defined to “include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty,” but to exclude those “sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.” 8 C.F.R. §§ 208.18(a)(1) & (3). This list sets forth examples and is not exhaustive. (As a matter of statutory interpretation, the term “such ... as” does not designate a clоsed list). It is this “purpose” element that will require a finding as to the actor’s motive. Pain for pain’s sake would clearly be an illicit purpose — but is just one of a number of possible proscribed motives. Each element — specific intent and purpose, respectively — is analytically separate.
By conflating purpose with specific intent, the majority has excluded from the definition of torture those acts that we all
A military official in Haiti desires information from a detained, suspected terrorist. His purpose in interrogating the detainee is to solicit information. In the course of the interrogation, he begins to use coercive tactics. The official’s only purpose and conscious desire is to receive information. He is indifferent as to whether his tactics (electric shock) cause severe pain and suffering; indeed, he had hoped that the detainee would give him information without the infliction of pain and suffering. The shock treatment is administered and does cause severe pain and suffering.
Is this not torture? Under the majority’s interpretation, it is not. Although obtaining information is an illicit purpose satisfying that prong of CAT’s implementing regulations, the official’s conduct will not meet the standard the majority has set for the specific intent requirement; his purpose is to obtain information, not to inflict severe pain and suffering. By contrast, an interpretation that adopts the criminal law definition of specific intent and encompasses knowledge or desire that severe pain and suffering will occur includes the above hypothetical in the definition of torture under CAT.
Although I disagree with majority’s interpretation of specific intent and its resulting conflation of the specific intent and illicit purpose elements under the CAT statute, I concur in the result. In this case, the petitioner simply failed to adduce adequate evidence before the IJ from which we can conclude that there will be intentional infliction of pain — i.e., with knowledge or desire on the part of the prison officials. In this way, the present case is distinguishable from Lavira. Here, the allegations made before the IJ were not substantiated with proof of either intent or proscribed purpose and were, at most, akin to a generalized challenge to prison conditions rejected in Auguste. I therefore concur in the result reached by the majority, but disagree with its conclusion that the “intentional infliction” element of torture requires a finding that the actor’s purpose is to cause severe pain and suffering.
. At common law, specific intent crimes included burglary, false pretenses, embezzlement, attempt, solicitation, and conspiracy. See Black’s Law Dictionary 825 (8th ed.2004). They required intent in the form of knowledge or desire that the result will occur-not “purpose.” General intent, according to Black’s Law Dictionary, requires “the intent to perform an act even though the actor does not desire the consequences that result.” Id. It “usually takes the form of recklessness.” Id. It is readily agreed that general intent crimes at common law, such as manslaughter, require no more than a reckless state of mind.
. To the extent that the majority fears that such a holding would open the floodgates to CAT petitioners from places such as Haiti where the petitioner will likely be subjected to deplorable conditions, there remains an evi-dentiary burden of showing that would-be torturers in such places know of or desire the resulting infliction of severe pain and suffering. Furthermore, CAT's other requirements must also be met, such that a deportation to a country with sub-par medical treatment will not constitute torture because, among оther things, there needs to be official action in a custodial situation that subjects the petitioner to inevitable pain and suffering. See 8 C.F.R. § 208.18(a)(6) (requiring that an act of torture be performed by or at the acquiescence of a public official and directed against a victim in the torturer’s custody or physical control).
. I also agree that our discussion of willful blindness in Lavira was dicta, referring as we did only to the possibility that it would suffice to fulfill the "intent” prong. I conclude that while "willful blindness” may permit a jury to conclude that someone was aware of, for example, the illegal nature of an enterprise, its application to satisfy the scienter requirement for torture is a different matter which we need not now explore. I disagree with the majority's reason for rejecting "willful blindness” as a way to prove the specific intent element in the torture context, however, because it is based on its misconception that it is "purpose,” not knowledge of a certain result, that must be demonstrated.