Wilerms OXYGENE, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent. Wilerms Oxygene, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
Nos. 14-2380, 15-1099.
United States Court of Appeals, Fourth Circuit.
Decided: Feb. 22, 2016.
813 F.3d 541
Before MOTZ, KING, and KEENAN, Circuit Judges.
Argued: Dec. 8, 2015.
Put succinctly, the plain meaning of “adopted” in
In these circumstances, it was contrary to law for the BIA not to recognize the nunc pro tunc order in Ojo‘s case. As a result, the BIA abused its discretion in denying Ojo‘s motion to reopen his removal proceedings.4
IV.
Pursuant to the foregoing, we grant Ojo‘s petition for review and vacate the BIA‘s decision denying Ojo‘s motion to reopen his removal proceedings. We remand to the BIA for such other and further proceedings as may be appropriate.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED
DIANA GRIBBON MOTZ, Circuit Judge:
Wilerms Oxygene petitions for review of orders denying his application for deferral of removal under the Convention Against Torture (“CAT“) and subsequent motion to reopen his removal proceedings. For the reasons that follow, the petition for review is denied in part and dismissed in part.
I.
In 1994, Oxygene, accompanied by his mother and siblings, fled political violence in his native country of Haiti. This violence included occasions when death squads fired on the family home while Oxygene and others were inside the house. Oxygene entered the United States as a refugee; in 1996 the United States granted him lawful permanent resident status.
Five years later, a Virginia court convicted Oxygene of several state crimes, including burglary, grand larceny, robbery, and use of a firearm to commit a felony. In 2011, the Department of Homeland Security (“DHS” or “the Government“) commenced removal proceedings against him. Oxygene conceded that he was removable under various subsections of
At his removal hearing before an Immigration Judge (“IJ“), Oxygene testified to his family‘s past persecution in Haiti and his fear that, if removed, he would face indefinite detention in Haitian prisons. Oxygene also expressed fear that, if detained in Haiti, he would not receive the medical care necessary to prevent his latent tuberculosis from becoming active. Oxygene and his sister testified that they had no remaining family members in Haiti who could provide support in the form of food, medicine, or payment for release from detention.
Oxygene submitted documentary evidence to substantiate his allegations of poor prison conditions in Haiti. The administrative record contains several State Department country reports for Haiti, a report from various non-governmental organizations submitted to the United Nations (“the 2011 NGO report“), and news articles and press releases concerning human rights abuses in the country. Together, these sources paint a bleak picture of what criminal deportees like Oxygene can expect upon removal to Haiti.
According to the State Department country reports, as early as 2000, Haiti began detaining criminal deportees “who [have] already served full sentences overseas . . . for indefinite periods of time.” The 2013 country report describes “detention center overcrowding” as “severe,” explaining that “[i]n some prisons detainees slept in shifts due to lack of space” and that “[s]ome prisons had no beds for detainees, and some cells had no access to sunlight.” Prisoners and detainees generally had no access to treated drinking water, and approximately seventy percent “suffered from a lack of basic hygiene, malnutrition, poor quality health care, and water-borne illness.” As a result, the report concludes that malaria, drug-resistant tuberculosis, and other infectious diseases present a “serious problem.” The 2013 country report also states that, despite laws prohibiting such practices, on several occasions police “allegedly beat or otherwise abused detainees and suspects,” and
The record is unclear as to whether Haiti‘s blanket policy of detaining criminal deportees remains in force. While the 2013 State Department report makes no mention of the policy, the 2011 NGO report indicates that Haitian officials have continued to detain a majority of criminal deportees immediately upon arrival. A 2013 press release by the human rights group Alternative Chance also notes skepticism as to recent claims by the Haitian government that it had abandoned the indefinite detention program.
The IJ carefully considered this documentary evidence and the testimony of Oxygene and his sister when evaluating Oxygene‘s claim for CAT relief. The IJ found “no doubt that prison conditions in Haiti remain deplorable, and that as a criminal deportee [Oxygene] may possibly be held in custody upon his return to Haiti for some unknown period of time in those poor conditions.” He also noted that Oxygene “could be at a higher risk than normal of disease, given his diagnosis of latent tuberculosis.” Finally, the IJ recognized that “[t]he record evidence even indicates that there have been some incidents of mistreatment of Haitian prisoners so severe as to constitute torture.”
Despite these findings, the IJ denied Oxygene‘s application for deferral of removal under the CAT. The IJ found that Oxygene had not demonstrated that it was more likely than not he would suffer torture upon removal to Haiti. The IJ concluded that application of BIA precedent, In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) (en banc), foreclosed Oxygene‘s argument that Haiti‘s detention policy and prison conditions necessarily constitute torture under the CAT. This was so, the IJ explained, because Oxygene offered “no evidence that the [Haitian] authorities intentionally and deliberately detain deportees in order to inflict torture.” Rather, the record only contained evidence of “isolated incidents” of mistreatment by correctional officers that would qualify as torture. Thus, Oxygene failed to meet the more-likely-than-not burden of proof required for relief under the CAT.
Oxygene appealed the IJ‘s removal order to the Board of Immigration Appeals (“BIA“) and at the same time moved the BIA to remand the case for the IJ to consider whether Oxygene‘s recent diagnoses of post-traumatic stress disorder and depression impacted his CAT claim. The BIA affirmed the removal order and denied the remand motion for lack of evidence concerning the recent diagnoses. Oxygene then moved the BIA to reconsider this decision, attaching relevant medical evidence and an article on the stigma associated with mental illness in Haiti. The BIA construed this filing as a timely motion to reopen the removal proceedings and denied it, concluding that Oxygene failed to show that the new evidence would change the result of the case.
Oxygene filed two appeals to this court—one challenges the BIA‘s denial of his application for CAT relief, and the other challenges its denial of his motion to reopen the removal proceedings. We have consolidated the two cases.
II.
Oxygene concedes that a Virginia court convicted him of committing an aggravated felony. For this reason, Congress has limited our jurisdiction over his petition for review of the order denying him CAT relief to questions of law and constitutional claims. See
In challenging the order denying his application for CAT relief, Oxygene offers two arguments. First, he maintains that In re J-E-, on which the IJ and BIA relied, incorrectly states the legal test for the intent necessary to establish torture under the CAT. This is a question of law over which we retain jurisdiction despite Oxygene‘s aggravated felony conviction. See
In his challenge to the order denying his motion to reopen his application for CAT relief, Oxygene maintains that, given his recent mental health diagnoses, the BIA abused its discretion in denying relief. According to Oxygene, Haitian officials will likely single him out for torture because of the stigma associated with mental health conditions in Haiti. But the BIA disagreed, finding that that the record evidence, along with his newly proffered evidence, did not demonstrate that it was more likely than not Oxygene would suffer torture upon removal. This constitutes a quintessentially factual determination over which we lack jurisdiction. See Hernandez-Nolasco v. Lynch, 807 F.3d 95, 99 (4th Cir.2015).
Accordingly, we turn now to consider a single issue: whether In re J-E- states the correct legal standard for intent in CAT claims.
III.
The Government maintains that In re J-E- correctly articulates the intent element in the CAT definition of torture. According to the Government, to establish torture meriting CAT relief, Oxygene must demonstrate that Haitian officials specifically intend not only the act of detention, but also the severe pain and suffering that is the near-inevitable result of prolonged detention in Haitian prisons. The Government argues that mere knowledge does not suffice to prove intent. Rather, the alleged torturers must actually desire the consequences of their actions. Oxygene
To resolve this question, we must examine the CAT and its implementing regulations to determine its definition of torture and the resulting treaty obligations of the United States. The United Nations General Assembly adopted the CAT on December 10, 1984. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988). As a signatory to this multinational treaty, the United States agreed not to “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.” Id. art. 3.1. The CAT defines torture, in relevant part, as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.” Id. art. 1.1 (emphasis added).
Upon signing the CAT, the President proposed, and the Senate adopted, a number of reservations, understandings, and declarations. Relevant here is the understanding that “in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.” S. Exec. Rep. 101-30, at 9, 30, 36 (1990) (emphasis added). Such an express understanding reflects the intent of the United States to influence how executive and judicial bodies later interpret the treaty on both the international and domestic level. See Stefan A. Riesenfeld & Frederick M. Abbot, The Scope of U.S. Senate Control over the Conclusion and Operation of Treaties, 67 Chi.-Kent L.Rev. 571, 604 (1991). Thus, by the time of ratification, the intent requirement in the CAT had acquired a “specific intent” gloss in the United States.
Congress enacted the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA“) to implement the CAT. See Pub.L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822 (codified as note to
These regulations adopt the specific intent interpretation of the definition of torture, echoing the understanding of the President and Senate. The regulations define torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”
Thus, every entity responsible for the progress of the CAT from treaty to domestic law of the United States—the President, the Senate, and the Department of Justice—made clear that, in order to qualify as torture under the treaty, an act must be specifically intended to cause severe
(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.
Id. at 297.
Most relevant here, In re J-E- expressly addressed whether the practice of the Haitian government of indefinitely detaining criminal deportees under horrific conditions constitutes torture. See id. at 303-04. The BIA denied J-E-‘s claim for CAT relief, finding it deficient under the test‘s second prong because he offered “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. In so holding, the BIA rejected the applicant‘s argument that Haiti‘s detention of deportees with knowledge of the substandard
In re J-E- relied on the definition in Black‘s Law Dictionary that “[s]pecific intent is defined as the intent to accomplish the precise criminal act that one is later charged with while general intent commonly takes the form of recklessness or negligence.” Id. (internal quotation marks and alteration omitted). On the record before it, the BIA found that “Haitian prison conditions are the result of budgetary and management problems as well as the country‘s severe economic difficulties,” and not part of an intentional effort to punish criminal deportees. Id. Consequently, the BIA denied the applicant‘s claim.2
IV.
With these legal principles in mind, we consider their application to the case at hand.
The BIA explained in In re J-E- that, as usually defined, “specific intent” constitutes “[t]he intent to accomplish the precise criminal act that one is later charged with.” 23 I. & N. Dec. at 301 (quoting Intent, Black‘s Law Dictionary (10th ed.2014)). This contrasts with “general intent,” defined as “[t]he intent to perform an act even though the actor does not desire the consequences that result.” Intent, Black‘s Law Dictionary. Thus, the distinction between specific and general intent rests on the mens rea related to the consequences of a wrongful act.
Haiti‘s detention of criminal deportees under extremely substandard conditions constitutes the challenged wrongful act both here and in In re J-E-. And in both cases, the applicant argues that this detention results in pain and suffering from malnutrition and disease severe enough to constitute torture under the CAT. The BIA in In re J-E- rejected that argument. The BIA concluded that, in light of the prevailing meaning of “specific intent,” a claimant needed to show that Haitian officials “are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture,” and that the record before it did not support such a finding. 23 I. & N. Dec. at 301. Put another way, In re J-E- requires a CAT claimant to demonstrate that the state actor who mistreats him desires to cause his severe pain and suffering, and is not merely negligent nor reckless as to the risk.
Oxygene argues that a claimant should be able to satisfy this requirement by demonstrating that an official acts with knowledge to a near certainty that he will cause severe pain and suffering. This constitutes one possible interpretation of the CAT and its implementing regulations, given the legal presumption that people intend the foreseeable consequences of their actions and given the trivial difference in culpability between one who desires harm and one who acts knowing he will cause harm. See United States v. Bailey, 444 U.S. 394, 404, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). After all, no entity—not the President, not the Senate, not the Department of Justice—defined specific intent as the CAT progressed from treaty to domestic law. And specific intent occupies a notoriously ambiguous space in the criminal law. See, e.g., id. at 403, 100 S.Ct. 624. Indeed, in In re J-E-, six of the BIA‘s nineteen board members agreed with the view Oxygene asserts here. See 23 I. & N. Dec. at 304-318.
But the majority of the BIA in In re J-E- interpreted
Courts routinely describe the requisite mens rea for specific intent crimes as akin to purpose or desire, rather than mere
Of course, the factfinder in a criminal trial may infer an actor‘s desire to bring about a consequence from facts illustrating that he knew precisely what would result from his actions. Thus, judges regularly instruct juries in criminal cases that they may infer intent from knowledge. See, e.g., United States v. Arthur, 544 F.2d 730, 737 (4th Cir.1976) (“An instruction that it is reasonable to infer that a person ordinarily intends the natural and probable consequences of his voluntary acts has generally been held proper.“). But it is the prerogative of the factfinder to make the inferential leap from knowledge to desire. Id. In this way, the factfinder remains free to consider facts suggesting that, despite a defendant‘s knowledge of a likely result, the defendant in fact did not desire a certain consequence. Oxygene‘s proposed interpretation of
Oxygene‘s contrary view ignores the significance of the understanding of the President and Senate at ratification that torture under the treaty required heightened intent. As explained above, the definition of torture in the CAT included an intent requirement. Section
In contrast, Oxygene‘s argument goes a long way toward requiring only general intent for claims under the CAT, reading the explicit understanding of the President and Senate out of the regulation. While the President and Senate never expressly stated that knowledge to a near certainty would not constitute specific intent, at common-law the term “specific intent” traditionally referred to “certain narrow classes of crimes” where “heightened culpability has been thought to merit special attention.” Bailey, 444 U.S. at 405, 100 S.Ct. 624. It was entirely reasonable for the BIA to conclude that the President and Senate wished to incorporate into the CAT
In sum, we join the majority of our sister circuits, who have considered the issue, in deferring to the BIA‘s interpretation of the CAT‘s intent requirement as articulated in In re J-E-. See Villegas v. Mukasey, 523 F.3d 984, 988 (9th Cir.2008); Pierre, 502 F.3d at 116-17; Auguste, 395 F.3d at 144; Cadet v. Bulger, 377 F.3d 1173, 1185-86 (11th Cir.2004); Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st Cir.2004). But see Cherichel, 591 F.3d at 1014 (affirming denial of CAT relief based on the court‘s own reading of the CAT and
We note that, in many cases, In re J-E- will pose no significant hurdle for CAT applicants. For instance, if a CAT claimant proves it is more likely than not he will be abducted and severely beaten upon removal, the specific intent of the torturer to inflict pain and suffering on his victim would be established. Moreover, even for claims premised on Haitian prison conditions in which intent is more difficult to prove, In re J-E- does not prevent an IJ from inferring specific intent if the facts allow. Rather, In re J-E- leaves the window open to such claimants. See Pierre, 502 F.3d at 116, 118 n. 6 (deferring to In re J-E- but noting that nothing in that opinion “prevents the agency from drawing the inference, should the agency choose to do so, that a particular course of action is taken with specific intent to inflict severe pain and suffering“).6
Thus, other CAT applicants have succeeded where Oxygene and the applicant in In re J-E- fell short. For example, at his removal hearing, the petitioner in Ridore v. Holder offered testimony from an expert witness as to the intent of Haitian officials in their detention of criminal deportees. See 696 F.3d 907, 910, 916-17 (9th Cir.2012). Accordingly, the IJ in Ridore assessed a more robust factual record than that in In re J-E- (and here). On that basis, the IJ there found that allowing disease “to run rampant through the prison population” and failing to “maintain proper medical facilities in those institutions [could] only be attributable to [Haitian officials‘] willingness to use the jails to harm the inmates so that they will never be a threat to the population again.” Id.
We call attention to Ridore as an example of how, even when a court defers to the BIA‘s interpretation of specific intent in In re J-E-, a Haitian citizen may be able to obtain CAT relief. Of course, the record in Oxygene‘s case does not contain similar evidence as to Haitian officials’ specific intent to torture, and the IJ and BIA declined to infer such intent.
V.
In conclusion, we reject Oxygene‘s contention that the IJ and BIA committed legal error in following the precedent established in In re J-E- to deny his application for deferral of removal under the CAT. Accordingly, we deny his petition for review of that order. We dismiss for lack of jurisdiction Oxygene‘s petition for review from the order denying his motion to reopen.
DENIED IN PART AND DISMISSED IN PART