Case Information
Matter of R-A-F-, Respondent Decided by Attorney General February 26, 2020 U.S. Department of Justice Office of the Attorney General (1) The Board of Immigration Appeals should consider de novo the application of law to
the facts of this case, including whether the deprivations that the respondent would be likely to encounter upon removal to Mexico would constitute “torture” within the meaning of the Department of Justice regulations imрlementing the 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 (entered into force for United States Nov. 20, 1994).
(2) To constitute “torture” under these regulations, an act must, among other things, “be
specifically intended to inflict severe physical or mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5). “‘[T]orture’ does not cover ‘negligent acts’ or harm stemming from a lack of resources.” Matter of J-R-G-P- , 27 I&N Dec. 482, 484 (BIA 2018) (citing , 23 I&N Dec. 291, 299, 301 (BIA 2002)). (3) To constitute “torture,” an act must also be motivated by “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 discriminatiоn of any kind.” 8 C.F.R. § 1208.18(a)(1).
BEFORE THE ATTORNEY GENERAL Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2019), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. With the case thus referred, I hereby vacate the Board’s decision and remand this case for review by a three-member panel.
The Department of Homeland Security (“DHS”) seeks to remove the respondent to Mexico, but the respondent contends that upon his return, he would be sent to a Mexican mental health care facility whose poor conditions rise to the level of “torture.” The respondent therefore seeks deferral of removal under regulations implementing the 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 (entered into force for United States Nov. 20, 1994) (“CAT”). See 8 C.F.R. § 1208.17(a) (2019). Because the respondent was convicted of the attempted sexual abuse of a child, he is not eligible for asylum or withholding of removal, section 208(b)(2)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(2)(A)(ii) (2018); 8 C.F.R. § 1208.16(d)(2)–(3) (2019), but he may qualify for deferral of removal, 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a).
To so qualify, “[t]he burden of proof is on [the respondent] to establish that it is more likely than not that he or she would be tortured if removed tо the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). In Matter of R-A-F- , the Board dismissed an appeal by DHS of the immigration judge’s decision granting the respondent’s application for deferral of removal. The Board concluded that “we discern no clear error in the Immigration Judge’s determination that the respondent established that it is more likely than not that he will be tortured by or at the instigation of or with the consent or acquiescence (including willful blindness) of a public official or other person acting in an official capacity in Mexico.” , slip op. at 2.
The Board’s deсision was contrary to the law. Although the Board
reviews an immigration judge’s factual findings for clear error, it reviews de
novo “questions of law, discretion, and judgment and all other issues in
appeals,” including the application of law to fact. 8 C.F.R. § 1003.1(d)(3)(i),
(ii);
see also
Board of Immigration Appeals: Procedural Reforms to Improve
Case Management, 67 Fed. Reg. 54878, 54888–89 (Aug. 26, 2002) (“[T]he
Board members will retain their ‘independent judgment and discretion,’
subject to the applicable governing standards, regarding the review of pure
questions of law and the application of the standard of law to those faсts.”);
Cruz-Quintanilla v. Whitaker
,
On remand, therefore, the Board should consider de novo whether the deprivations that the immigration judge found the respondent likely to experience upon return to Mexico would rise to the level of torture under the governing CAT regulations and the relevant precedents. In doing so, the Board should keep in mind that, to constitute torture, “an act must be specifically intended to inflict severe physical or mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5) (2019) (emphasis added). The Board has previously recognized, in applying the specific intent requirement to another case in which the respondent claimed that the poor conditions in Mexican mental health facilities would constitute torture, that “‘torture’ does not cover ‘negligent acts’ or harm stemming from a lack of resources.” Matter of J-R-G-P- , 27 I&N Dec. 482, 484 (BIA 2018) (citing , 23 I&N Dec. 291, 299, 301 (BIA 2002)). It is not enough to show that “thе substandard conditions in mental health facilities, pretrial detention, and prisons in Mexico are the result of neglect, lack of resources, or insufficient training and education,” partiсularly where the government is making “efforts to improve those conditions.” Id. at 487.
The courts of appeals have affirmed this interpretation of the CAT
regulations. In
Villegas v. Mukasey
, 523 F.3d 984 (9th Cir. 2008), for
instance, the Ninth Circuit considеred whether the “terrible squalor” of a
Mexican mental health facility would amount to “torture.”
Id.
at 989. The
court concluded that, even though the reported conditions were “deplorable,”
they did not evince the kind of specific intent to cause pain and suffering that
was required to establish torture. ;
see also, e.g. Oxygene v. Lynch
F.3d 541, 548 (4th Cir. 2016) (“
In re J-E-
requires a CAT claimant to
demonstrate that the state actor who mistreаts him desires to cause his severe
pain and suffering, and is not merely negligent nor reckless as to the risk. . . .
[T]his interpretation accords with the prevailing meaning of specific intent
and reflects the likely wish of the President and Senate to incorporate that
meaning into the CAT regulations.”);
Auguste v. Ridge
,
The Board should further address the remaining elemеnts of the legal definition of torture, again considering de novo whether the facts as found by the immigration judge are sufficient to establish each element. Among other things, the respondent must show that the Mexican health workers who are alleged to engage in torture would do so “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). The respondent must also establish that the Mexican health workers would be motivated by “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.” Absent these determinations, a claim for protection from removal under the CAT must fail.
The Board on remand thus should reviеw the respondent’s claim consistent with the requirements of the CAT regulations and the governing precedent. See Matter of J-R-G-P- , 27 I&N Dec. at 487.
Notes
[1] This case arises out of the United States Court of Appeals for the Tenth Circuit, which
similarly recognizes that the Board reviews de novo the application of law to a given set
of facts.
See, e.g.
,
Xue v. Lynch
,