Pierre v. Gonzales, No. 05-3260 (2d Cir. 2007)

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05-3260-ag Pierre v. Gonzales 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 (Argued: November 27, 2006 Decided: September 11, 2007) Docket No. 05-3260-ag - - - - - - - - - - - - - - - - - - - -X FRANCK PIERRE, Petitioner, - v.ALBERTO R. GONZALES, Attorney General of the United States; WILLIAM CLEARY, Acting Field Director Deportation and Removal, Buffalo District, Bureau of Immigration and Customs Enforcement, United States Department of Homeland Security, Respondents. - - - - - - - - - - - - - - - - - - - -X Before: JACOBS, Chief Judge, WALKER, and RAGGI, Circuit Judges. Petition for review of a final decision and order of 35 the Board of Immigration Appeals affirming an immigration 36 judge s denial of an application for withholding of removal 37 under the Convention Against Torture. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Petition denied. MARK T. KENMORE, Buffalo, NY, for Petitioner.1 GAIL Y. MITCHELL, Assistant United States Attorney, for Terrance P. Flynn, United States Attorney for the Western District of New York, Buffalo, NY, for Respondent. DENNIS JACOBS, Chief Judge: Petitioner Franck Pierre, a native of Haiti, appeals 15 from the June 15, 2004 final decision and order of the Board 16 of Immigration Appeals ( BIA ) which affirmed the January 17 20, 2004 decision of immigration judge ( IJ ) John B. Reid 18 denying Pierre s application for withholding of removal and 19 relief under the Convention Against Torture ( CAT ). 20 Pierre asserts that he has shown a sufficient 21 likelihood that he will be tortured if he is deported to 22 Haiti, because all Haitians who are deported from the United 23 States (and other countries) for criminal conduct are 24 imprisoned indefinitely, and because prison conditions 25 prevailing in Haiti amount to torture. 1 He challenges the Subsequent to oral argument, petitioner s counsel withdrew; having afforded the petitioner an opportunity to obtain new counsel and/or file supplemental briefing, and having received no such briefing, we decide the case on the original briefs and oral argument. 2 1 BIA s decision in In re J-E-, 23 I. & N. Dec. 291 (B.I.A. 2 2002) (en banc), which held that a Haitian petitioner faced 3 with this detention is not entitled to CAT relief. 4 contends that his case is distinguishable from In re J-E- 5 because his medical conditions will be inadequately treated 6 in the Haitian prisons. 7 He also We deny the petition, and defer to the BIA s 8 interpretation of the definition of torture under the CAT 9 regulations. The failure to maintain standards of diet, 10 hygiene, and living space in prison does not constitute 11 torture under the CAT unless the deficits are sufficiently 12 extreme and are inflicted by government actors (or by others 13 with government acquiescence) intentionally rather than as a 14 result of poverty, neglect, or incompetence. 15 the agency s conclusion that, based on the record evidence, 16 Pierre s diabetes does not remove his case from the ambit of 17 In re J-E-. We also affirm 18 19 20 BACKGROUND Pierre was born in Haiti in 1962, and was admitted to 21 the United States in 1967. In August of 1997, Pierre was 22 convicted of criminal possession of a firearm; in September 3 1 1999, he was convicted of grand larceny. 2 crime, he was sentenced to a period of 18 to 36 months 3 incarceration. 4 For the latter In 2000, the INS charged that Pierre was subject to 5 removal under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien 6 convicted of an aggravated felony, see 8 U.S.C. § 7 1101(a)(43)(G) (defining aggravated felony to include a 8 theft offense . . . for which the term of imprisonment [is] 9 at least one year ), and under 8 U.S.C. § 1227(a)(2)(C) as 10 an alien convicted of a firearms offense. 11 removability, but applied for withholding of removal and CAT 12 relief. 13 concerning the conditions in Haiti, as well as his own 14 testimony and that of his sister--a doctor--concerning 15 Pierre s diabetes. 16 Pierre conceded Before the IJ, he presented documentary evidence The record concerning country conditions in this case 17 is substantially similar to the record in In re J-E- (and 18 its progeny), and can be summarized as follows. 19 At one time, Haitian government policy had been to 20 briefly detain any Haitian deported for having committed 21 crimes in another country; release was ordinarily secured 22 within a week. In re J-E-, 23 I. & N. Dec. at 300. 4 In 1 2000, Haiti began to hold such deportees with no timetable 2 for their release. 3 Department country report (written in 2001), this policy was 4 instituted to prevent the bandits from increasing the 5 level of insecurity and crime in the country. 6 Bureau of Democracy, Human Rights, and Labor, U.S. Dep t of 7 State, Haiti: Country Reports on Human Rights Practices-- 8 2000 (Feb. 23, 2001), available at 9 http://www.state.gov/g/drl/rls/hrrpt/2000/wha/795.htm ( the 10 According to a 2000 U.S. State Id. (quoting 2000 Country Report )). 11 Conditions in Haitian prisons are awful. [P]rison 12 facilities are overcrowded and inadequate. . . . 13 [P]risoners are deprived of adequate food, water, medical 14 care, sanitation, and exercise. 15 malnourished. 16 health care results in elevated morbidity and mortality. 17 Id. 18 are in short supply, and prisoners receive one meal a day 19 unless their diet is supplemented by nearby family. 20 prison authorities, working with the Red Cross, have 21 attempted to improve conditions in the country s prisons. 22 Id. at 301. Id. at 293. Many prisoners are A lack of basic hygiene and According to the 2000 Country Report, food and medicine 5 Haitian 1 The State Department reports that deliberate 2 mistreatment of those arrested or detained by police in 3 Haiti is pervasive in all parts of the country, commonly 4 involves [b]eating with fists, sticks, and belts, and 5 sometimes involves burning with cigarettes, choking, 6 hooding, and kalot marassa (severe boxing of the ears, which 7 can result in eardrum damage). 8 Country Report). 9 Id. (quoting the 2000 At a January 7, 2004 hearing, Pierre s sister testified 10 that her brother suffered from type two diabetes and from 11 hypertension, though she herself (an emergency room 12 physician with a pediatric specialty) had never treated him. 13 According to her testimony, without his diabetes medications 14 and a proper diet, Pierre s blood sugar levels would become 15 unstable and acute dehydration could induce diabetic coma-- 16 or even death. 17 hypertension, if left untreated, could bring on a stroke. 18 Pierre himself testified as to the circumstances She also testified that Pierre s 19 surrounding his criminal convictions and his connections 20 with Haiti. 21 he got married; his wife lives there with her family. 22 the date of the 2004 hearing, he was corresponding with her Pierre s last visit to Haiti was in 1998, when 6 As of 1 by mail. He also testified that his aunt and uncle spend 2 part of the year in Haiti and maintain a residence there. 3 In a January 20, 2004 decision, the IJ denied Pierre 4 withholding of removal and CAT relief. As to the CAT, (1) 5 the IJ incorporated into his findings by reference the 6 conclusion in In re J-E- that there is no evidence that 7 Haitian authorities are detaining criminal deportees with 8 the specific intent to inflict severe physical or mental 9 pain or suffering ; and (2) the IJ found (a) that Pierre s 10 medications would be available in Haiti, (b) that his 11 relatives in Haiti could supply him with medication, and (c) 12 that he would neither be prevented from taking the 13 medication nor be denied a fairly prompt release when his 14 family took action. 15 Pierre appealed to the BIA both the denial of 16 withholding of removal and the denial of CAT relief. 17 BIA denied Pierre s appeal on June 15, 2004, declining to 18 revisit In re J-E- and holding that because Pierre had 19 failed to show that the substandard prison conditions in 20 Haiti amounted to torture, or that his family would be 21 prevented from giving him medication, he was not entitled to 7 The 1 relief under the CAT. 2 2 habeas petition in the Western District of New York; 3 pursuant to provisions of the REAL ID Act of 2005, Pub. L. 4 No. 109-13, 119 Stat. 231, § 106(c) (2005), the habeas 5 petition was transferred to this Court as a petition for 6 relief from a ruling of the BIA. On July 15, 2004, Pierre filed a 7 8 9 10 DISCUSSION 11 I 12 At issue in this case is a CAT regulation which 2 The IJ evidently assumed--without analysis--that In re J-E- applied not only to the CAT but also to withholding of removal under 8 U.S.C. § 1231(b)(3); the BIA affirmed without an explanation of whether (or why) it adopted this assumption . But Pierre s brief to this Court addresses only the denial of CAT relief, and therefore Pierre has abandoned any challenge to the denial of withholding of removal under § 1231(b)(3). See Fen Yong Chen v. Bureau of Citizenship & Immigration Servs., 470 F.3d 509, 515 n.4 (2d Cir. 2006); Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005). So we express no opinion on the matter. We also express no view on the IJ s conclusion that Haitian criminal deportees constitute a particular social group under the INA. See Toussaint v. Att y Gen. of the U.S., 455 F.3d 409, 418 (3d Cir. 2006) (rejecting argument that Haitians who commit crimes in the United States constitute a particular social group); Elien v. Ashcroft, 364 F.3d 392, 397 (1st Cir. 2004) (same). 8 1 provides that [i]n order to constitute torture, an act must 2 be specifically intended to inflict severe physical or 3 mental pain or suffering. 4 J-E- construed the phrase specifically intended to require 5 a showing of specific intent. 6 specific intent requirement of In re J-E- is an 7 impermissible reading of the CAT and of the implementing 8 regulations, and therefore is not entitled to deference. 9 The CAT (according to Pierre) requires only general intent-- 8 C.F.R. § 208.18(a)(5). In re Pierre argues that the 10 that is, the intent to commit an act that foreseeably 11 results in severe pain or suffering. 12 Because Pierre is a criminal alien, this Court s review 13 is limited to constitutional claims and questions of law. 14 See 8 U.S.C. § 1252(a)(2)(C)-(D). 15 the IJ s factual findings are themselves based on 16 constitutional or legal error--thus raising constitutional 17 claims or questions of law --[the Court] does not review the 18 factual findings made by the IJ. 19 Dep t of Justice, 471 F.3d 315, 329 n.7 (2d Cir. 2006) 20 (citing Joaquin-Porras v. Gonzales, 435 F.3d 172, 178-80 (2d 21 Cir. 2006)). 22 legal principles to undisputed facts. Except in cases where Xiao Ji Chen v. U.S. We review de novo the BIA s application of 9 See Wangchuck v. 1 Dep t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). 2 But the BIA s interpretations of immigration regulations are 3 reviewed with substantial deference. 4 Joaquin-Porras, 435 F.3d at 178). 5 Id. (quoting The question as to the meaning of torture is 6 presented to us now in the procedural and statutory context 7 of immigration. 8 demonstrates) the wording of the immigration regulations we 9 read is carefully drawn to implement the wording of the CAT 10 itself--subject to the express understandings of the Senate 11 when it ratified--and that the CAT is not solely or 12 predominantly concerned with immigration and refoulement. 3 13 The CAT binds its signatories to prevent torture within 14 their own borders. 15 United States has potential bearing on the obligations of 16 the United States, domestically and abroad, in contexts that 17 transcend our immigration laws. But we bear in mind that (as this opinion Any definition of torture adopted by the 3 These considerations bear Refoulement, as defined by the United Nations Educational, Scientific and Cultural Organization, is the expulsion of persons who have the right to be recognised as refugees, whether to their country of origin or to another country in which they could be subjected to persecution. See UNESCO Migration Glossary, available at http://portal.unesco.org/shs/en/ev.php-URL_ID=4145&URL_DO=DO _TOPIC&URL_SECTION=201.html (last visited July 25, 2007). 10 1 upon our deference to the BIA s construction of the term 2 torture. 3 branches, which guide the nation s efforts to achieve (and 4 define) domestic compliance and to coordinate with other 5 countries in eradicating torture worldwide. 6 Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999) 7 ( Respect is ordinarily due the reasonable views of the 8 Executive Branch concerning the meaning of an international 9 treaty. ). Great deference is owed to the political See El Al Isr. The deference owed to the BIA may be qualified 10 to the extent that its reading of the regulation (which 11 mirrors the wording of the CAT and the Senate s 12 understanding of it) is a reading of terms that have 13 application outside the context of immigration. 14 15 16 II 17 A 18 The CAT, to which the United States is a signatory, 19 includes a provision that [n]o State Party shall expel, 20 return ( refouler ) or extradite a person to another State 21 where there are substantial grounds for believing that he 22 would be in danger of being subjected to torture. 11 United 1 Nations Convention Against Torture and Other Cruel, Inhuman 2 or Degrading Treatment or Punishment, opened for signature 3 Dec. 10, 1984, art. III, S. Treaty Doc. No. 100-20 (1988), 4 1465 U.N.T.S. 85, 114, available at 5 http://www.unhchr.ch/html/menu3/b/h_cat39.htm. 6 7 Torture is defined by the CAT and the immigration regulations as: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 8 C.F.R. § 208.18(a)(1); see also CAT art. 1. 23 not include pain or suffering arising only from, inherent in 24 or incidental to lawful sanctions. 25 208.18(a)(3); CAT art. 1. 26 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. Torture does 8 C.F.R. § The CAT is not self-executing; by its own force, it 27 confers no judicially enforceable right on individuals. 28 Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003). 29 To implement the CAT, Congress amended the immigration laws 12 See 1 with the Foreign Affairs Reform and Restructuring Act of 2 1998 ( FARRA ), 4 which announced the policy of the United 3 States not to expel, extradite, or otherwise effect the 4 involuntary return of any person to a country in which there 5 are substantial grounds for believing the person would be in 6 danger of being subjected to torture. 7 Div. G, tit. XXII, § 2242(a), 112 Stat. 2681, 2681-822 8 (codified at 8 U.S.C. § 1231 note); see Auguste v. Ridge, 9 395 F.3d 123, 132-33 (3d Cir. 2005). Pub. L. No. 105-277, FARRA directed the 10 appropriate agency (the Department of Justice) to issue 11 implementing regulations, and specified that the regulations 12 should define torture as the term is defined in the treaty 13 subject to any reservations, understandings, declarations, 14 and provisos contained in the United States Senate 15 resolution of ratification of the Convention. 16 2242(b), (f)(2) (codified at 8 U.S.C. § 1231 note), quoted 17 in 8 C.F.R. § 208.18(a); see Auguste, 395 F.3d at 133. 18 definition of torture under domestic immigration law, and 4 FARRA § The The CAT took some time to be implemented. President Ronald Reagan signed the CAT on April 18, 1988, but the United States did not ratify the convention until October 21, 1994, see Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8478 (Feb. 19, 1999), and FARRA followed in 1998. 13 1 the scope of an individual s entitlement to CAT relief, is 2 therefore governed by the text of the CAT subject to the 3 terms of the Senate ratification resolution. 4 The Senate ratification resolution included the 5 following understanding: [T]he United States understands 6 that, in order to constitute torture, an act must be 7 specifically intended to inflict severe physical or mental 8 pain or suffering . . . . 9 S17,491 (1990); see also Convention against Torture, 136 Cong. Rec. S17,486-01, 10 Declarations and Reservations, available at 11 http://www.ohchr.org/english/countries/ratification/9.htm 12 (last visited July 25, 2007). 13 wording of this understanding: 14 torture, an act must be specifically intended to inflict 15 severe physical or mental pain or suffering. 16 208.18(a)(5). 17 explain, is that an act is not torture if it results in 18 unanticipated or unintended severity of pain and suffering. 19 Id. 20 The FARRA regulations use the In order to constitute 8 C.F.R. § One ramification of this, as the regulations The text of the CAT itself recognizes that there are 21 other acts of cruel, inhuman or degrading treatment or 22 punishment which do not amount to torture. 14 CAT art. 16. 1 The regulations also draw this distinction: 2 extreme form of cruel and inhuman treatment and does not 3 include lesser forms of cruel, inhuman or degrading 4 treatment or punishment that do not amount to torture. 5 C.F.R. § 208.18(a)(2). 6 Torture is an 8 The acts of private individuals may constitute torture 7 under the CAT only if there is government acquiescence. 8 See CAT art. 1. The Senate s resolution indicates: 9 10 11 12 13 14 15 16 136 Cong. Rec. S17,486-01, S17,491-92; see Khouzam v. 17 Ashcroft, 361 F.3d 161, 170-71 (2d Cir. 2004) (discussing 18 the U.S. government s decision to revise its original 19 understandings to make it clear that both actual knowledge 20 and willful blindness fall within the definition of the 21 term acquiescence (quoting S. Exec. Rep. 101-30, at 9 22 (1990))). 23 understanding. 24 [T]he United States understands that the term acquiescence requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity. The regulations incorporate the text of this See 8 C.F.R. § 208.18(a)(7). The CAT forbids deportation if there are substantial 25 grounds to believe that the deportee will suffer torture at 26 home; the Senate Ratification Resolution links this standard 15 1 to the more likely than not standard used by immigration 2 courts for persecution-based withholding of removal claims: 3 4 5 6 7 8 9 10 [T]he 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. 136 Cong. Rec. S17,486-01, S17,492. 11 regulations place the burden of proof . . . on the 12 applicant for withholding of removal . . . to establish that 13 it is more likely than not that he or she would be tortured 14 if removed to the proposed country of removal, 8 C.F.R. § 15 208.16(c)(2), and mandate withholding or deferral of removal 16 where the applicant meets this burden, 8 C.F.R. § 17 208.16(c)(4); see Mu Xiang Lin v. U.S. Dep t of Justice, 432 18 F.3d 156, 159 (2d Cir. 2005). Accordingly, the 19 20 21 B The issue in this case is whether Haiti s indefinite 22 detention of criminal deportees amounts to torture in light 23 of the prevailing prison conditions. 24 question in the negative in In re J-E-, 23 I. & N. Dec. 291 25 (B.I.A. 2002) (en banc), and the BIA here affirmed the IJ s 26 denial of relief because Pierre s medical condition does not 16 The BIA answered this 1 2 distinguish his case from In re J-E-. In re J-E- held (1) that detaining criminal deportees 3 in the prison conditions prevailing in Haiti does not 4 constitute torture because the prison conditions are not 5 created or maintained with a specific intent to cause severe 6 pain and suffering, but are instead the result of budgetary 7 and management problems as well as the country s severe 8 economic difficulties, id. at 301; and (2) that indefinite 9 detention does not amount to torture because it is a lawful 10 sanction, id. at 300. 11 examples of isolated acts constituting torture in Haitian 12 prisons, but concluded that the applicant there presented 13 insufficient evidence to show it was more likely than not 14 that he would be singled out for such treatment. 15 303-04. 16 The BIA conceded that there are Id. at Pierre argues that the specific intent standard of In 17 re J-E- is an impermissible narrowing of the CAT, and is 18 therefore not entitled to deference. 19 regulations at issue were drawn by the DOJ pursuant to a 20 mandate in FARRA to craft regulations that implement the 21 exact wording of the Senate s expressed understanding of a 22 treaty. However, the On general principles, this circumstance bespeaks 17 1 more deference, not less: deference to the Senate s 2 ratification understanding, deference to the framing of the 3 regulations, and deference to an agency s interpretation of 4 the regulations. 5 [r]espect is ordinarily due the reasonable views of the 6 Executive Branch. 7 205, 216 (2d Cir. 2004) (second alteration in original) 8 (quoting El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 9 U.S. 155, 168 (1999)); see also Sumitomo Shoji Am., Inc. v. [I]n construing treaty language, Tachiona v. United States, 386 F.3d 10 Avagliano, 457 U.S. 176, 184-85 (1982) ( Although not 11 conclusive, the meaning attributed to treaty provisions by 12 the Government agencies charged with their negotiation and 13 enforcement is entitled to great weight. ). 14 regulations: where the BIA interprets a regulation 15 promulgated by the Attorney General under the INA, we afford 16 substantial deference to the BIA s interpretation, unless 17 it is plainly erroneous or inconsistent with the regulation, 18 or inconsistent with the agency s previous interpretation. 19 Zhen Nan Lin v. U.S. Dep t of Justice, 459 F.3d 255, 262 (2d 20 Cir. 2006) (citations omitted). As to the CAT 21 Deference to the BIA s interpretation of the CAT is 22 particularly important when (as here) claims similar to 18 1 [the petitioner s] have been advanced by many petitioners 2 before this and other courts, and the issue raises 3 complicated public policy and foreign policy questions. 4 Jian Hui Shao v. BIA, 465 F.3d 497, 502 (2d Cir. 2006) 5 (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) 6 ( [J]udicial deference to the Executive Branch is especially 7 appropriate in the immigration context where officials 8 exercise especially sensitive political functions that 9 implicate questions of foreign relations. )). 10 C 11 12 The BIA s decision in In re J-E- has commanded 13 deference from several federal courts. See, e.g., Theagene 14 v. Gonzales, 411 F.3d 1107, 1113 (9th Cir. 2005); Auguste, 15 395 F.3d at 153; Cadet v. Bulger, 377 F.3d 1173, 1193 (11th 16 Cir. 2004); Elien v. Ashcroft, 364 F.3d 392, 399 (1st Cir. 17 2004); Thelemaque v. Ashcroft, 363 F. Supp. 2d 198, 211 (D. 18 Conn. 2005). 19 of a Haitian criminal deportee has declined to follow In re 20 J-E-, though there are wrinkles in the Third Circuit. 3 No federal circuit court considering the case 3 In Lavira v. Att y Gen. of the U.S., 478 F.3d 158 (3d Cir. 2007), the Third Circuit remanded such a case, but not because it rejected the validity of In re J-E-. Rather, the 19 1 In the case of a Congolese petitioner, the Third 2 Circuit distinguished In re J-E- on the basis that the 3 petitioner s CAT claim was based on far more than evidence 4 of substandard prison conditions. 5 333 F.3d 463 (3d Cir. 2003). 4 6 that the wording of the CAT regulations stopped short of 7 requiring specific intent. 8 was discounted as dicta in a later Third Circuit case that 9 decided the very issue before this Court--and followed In re See Zubeda v. Ashcroft, The Zubeda panel also opined But this discussion in Zubeda 10 J-E-. See Auguste, 395 F.3d at 147-48. Of course, we are 11 free nevertheless to adopt Zubeda s analysis as persuasive, 12 but we are unpersuaded for the following reasons. 13 Zubeda concluded that (under the statute and Third Circuit held that the agency had failed to properly consider whether the petitioner s individual circumstances made his case distinguishable from In re J-E-. 4 The Zubeda panel noted that the BIA had ignored record evidence, [r]educing Zubeda s claim to an attack on . . . inhumane prison conditions . . . [which] totally ignores the fact that this record is replete with reports from government agencies and human rights organizations that detail what appear to be country wide, systematic incidents of gang rape, mutilation, and mass murder [in the Democratic Republic of the Congo]. 333 F.3d at 477. 20 1 regulations) torture does not entail a specific intent to 2 inflict severe pain or suffering. 5 3 that severe pain and suffering must be specifically 4 intended to constitute torture; but to justify its 5 conclusion that one can specifically intend without 6 specific intent, the panel focused on the regulations 7 statement that an act that results in unanticipated or 8 unintended severity of pain and suffering is not torture. 9 Zubeda, 333 F.3d at 473-74 (quoting 8 C.F.R. § The panel acknowledged 10 208.18(a)(5)). 11 portion of section 208.18(a)(5) differently to draw a 12 distinction between a severity of pain or suffering that is 13 intended (torture) and a severity of pain or suffering that 14 is unintentional or unanticipated (not torture), rather than 15 a distinction between what is foreseeable and what is not. 16 The proviso in section 208.18(a)(5) that an act must be 17 specifically intended to inflict severe physical or mental 18 pain or suffering bespeaks specific intent, the Zubeda 5 As a matter of plain language, we read that This runs counter to the ordinary understanding of the word torture ; but the Zubeda panel considered the issue in a context--rape--that presents special difficulties if (though only if) one thinks that the intent of a rapist is satisfaction that does not depend on the pain inflicted on the victim. 21 1 2 dicta notwithstanding. Zubeda discounted specific intent on another ground: 3 that the CAT regulations define torture to include threats 4 of physical harm that result in severe mental suffering, 5 regardless of whether the persecutor actually intends to 6 carry out the threat. 7 proves little; when a credible threat of physical torture 8 causes extreme mental pain or suffering, the specific intent 9 requirement is altogether satisfied by the specific intent Zubeda, 333 F.3d at 474. But this 10 to cause the mental pain or suffering; the persecutor s 11 intent (specific or not) to follow through on the threat to 12 inflict physical torture does not matter if the making of 13 the credible threat amounts to the torture in itself. 14 C.F.R. § 208.18(a)(4) (defining types of severe mental pain 15 and suffering that can rise to the level of torture with or 16 without any physical torture). 17 See 8 It is also important that the concept of specific intent 18 not be conflated with the concept of state acquiescence. 19 Because the CAT reaches torture committed by or acquiesced in 20 by government actors, it is not always necessary that the 21 specific intent required by section 208.18(a)(5) be formed by 22 the government itself. A private actor s behavior can 22 1 constitute torture under the CAT without a government s 2 specific intent to inflict it if a government official is 3 aware of the persecutor s conduct and intent and acquiesces 4 in violation of the official s duty to intervene. 5 Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) ( In 6 terms of state action, torture requires only that government 7 officials know of or remain willfully blind to an act and 8 thereafter breach their legal responsibility to prevent it. 9 (emphasis added)). 10 11 See But in that scenario, there is specific intent--the intent of the private actor. Some courts have contemplated the possibility that in 12 particular cases, a government s willful blindness or 13 deliberate indifference to suffering might suffice to show 14 that the suffering is specifically intended. 15 Lavira v. Att y Gen. of the U.S., 478 F.3d 158, 171 (3d Cir. 16 2007) ( Our criminal law jurisprudence . . . bolsters the 17 view that a finding of specific intent could be based on 18 deliberate ignorance or willful blindness. ); Thelemaque, 363 19 F. Supp. 2d at 215 ( [A] mechanical application of the 20 specific intent requirement might yield results at odds with 21 . . . CAT and . . . concepts such as deliberate indifference, 22 reckless disregard or willful blindness might well suffice in 23 See, e.g., 1 certain circumstances . . . . ). 2 concepts, which may bear on knowledge to the extent they 3 establish conscious avoidance, can without more demonstrate 4 specific intent, which requires that the actor intend the 5 actual consequences of his conduct (as distinguished from the 6 act that causes these consequences). 6 7 We do not see how these In sum, the phrase specifically intended incorporates 8 a criminal specific intent standard, notwithstanding the 9 difficulties that might arise in applying that standard to 10 evidence of country conditions in order to predict the 11 likelihood of future events in individual cases. 12 President and Senate knew full well that they were construing 13 a treaty designed to stop criminal conduct. 7 The We cannot 6 That said, nothing in this opinion prevents the agency from drawing the inference, should the agency choose to do so, that a particular course of action is taken with specific intent to inflict severe pain and suffering if it is found on the record evidence that the actor is aware of a virtual certainty that such pain and suffering will result. 7 The federal criminal statute--like the CAT regulations--requires that the infliction of severe pain and suffering be specifically intended. 18 U.S.C. § 2340(1). As other courts have noted, the George H.W. Bush administration, which proposed the understandings that the Senate adopted by resolution in 1990, clearly interpreted the understanding to require specific intent: [T]he package now contains a revised understanding to the definition of torture, which . . . maintains our position that specific intent is required for torture. Thelemaque, 24 1 ignore the word specifically in the ratification 2 understanding and the regulations, and we decline to give it 3 a counter-intuitive spin. 4 167, 174 (2001) (citing principle that a statute ought, 5 upon the whole, to be so construed that, if it can be 6 prevented, no clause, sentence, or word shall be superfluous, 7 void, or insignificant (quoting Market Co. v. Hoffman, 101 8 U.S. 112, 115 (1879))). 9 analysis in In re J-E- simply confirms the understanding we See Duncan v. Walker, 533 U.S. The deference we owe to the BIA s 10 derive from plain meaning. The BIA s reading of 8 C.F.R. § 11 208.18(a)(5), to which we defer, raises no insurmountable 12 obstacle to CAT relief, because there is no requirement that 13 a CAT claimant provide direct proof of [the] persecutors 14 motives. 15 The CAT regulations, like the asylum regulations, make[] 16 motive critical, so a CAT claimant must provide some 17 evidence of specific intent, direct or circumstantial. 18 Id. 19 subtle, elusive, or easy to misconstrue, and the torturer s INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). But torture as commonly understood and practiced is not 363 F. Supp. 2d at 207 (emphasis added) (omission in original) (quoting S. Exec. Rep. No. 101-30, app. A at 35 (1990)). 25 1 intentions are rarely if ever obscure.8 2 D 3 4 Pierre appears to argue that even if the United States s 5 ratification understanding reflects a definition of torture 6 that entails a specific intent to inflict severe pain and 7 suffering, it should yield to the broader language of the CAT 8 itself as interpreted under principles of international law. 9 Because the CAT is not a self-executing treaty, Mu-Xing 10 Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003), Pierre 11 has no judicially enforceable right directly arising from the 12 CAT as interpreted by its signatory nations: his claims arise 13 under United States law implementing the treaty. 14 v. S. Peru Copper Corp., 414 F.3d 233, 257 n.34 (2d Cir. 15 2003) (noting that non-self-executing treaties require 8 See Flores An act is only torture under the CAT if it is motivated by some illicit purpose such as obtaining . . . information or a confession, punishing . . ., or intimidating or coercing . . ., or for any reason based on discrimination of any kind . . . . 8 C.F.R. § 208.18(a)(1); see Auguste, 395 F.3d at 151. Evidence showing an illicit purpose may easily overlap with evidence showing a specific intent to inflict severe pain or suffering. The issue of specific intent is isolated in this case only because imprisonment is by its nature designed to punish, but ordinarily does not trigger severe pain or suffering as contemplated by the CAT. 26 1 implementing action in order to be suitable for judicial 2 application, while self-executing treaties immediately create 3 judicially enforceable rights). 4 subordinate to customary international law or necessarily 5 subordinate to treaty-based international law and, in fact, 6 may conflict with both. 7 56, 91 (2d Cir. 2003). 8 domestic courts in derogation of previous treaties and 9 customary international law. United States law is not United States v. Yousef, 327 F.3d An act of Congress will govern in See Oliva v. U.S. Dep t of 10 Justice, 433 F.3d 229, 236 (2d Cir. 2005) (noting that clear 11 congressional action trumps customary international law in 12 the immigration context as elswhere); Empresa Cubana Del 13 Tabaco v. Culbro Corp., 399 F.3d 462, 481 (2d Cir. 2005) 14 ( [L]egislative acts trump treaty-made international law when 15 those acts are passed subsequent to ratification of the 16 treaty and clearly contradict treaty obligations. (internal 17 quotation marks omitted)); Mu-Xing Wang, 320 F.3d at 142 18 n.18; Guzman v. Tippy, 130 F.3d 64, 66 (2d Cir. 1997) (per 19 curiam). 20 In that light, international law does not assist the 21 analysis. It is plain that in FARRA, Congress commanded the 22 immigration agencies to promulgate regulations that give full 27 1 effect to all of the Senate s reservations and 2 understandings, including the understanding that in order to 3 constitute torture, an act must be specifically intended to 4 inflict severe pain and suffering. 5 140 ( [I]n our opinion, FARRA codified the Senate s 6 understandings into domestic law. ). 7 understandings, the Senate implicitly recognized that the 8 treaty wording would benefit from clarification. 9 understandings are the indispensable premise for the See Auguste, 395 F.3d at By announcing its Those 10 implementation of the CAT as domestic law. 11 bound by them, and we defer to the agency s reasonable 12 interpretation of them: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The agency is [The petitioner] invites this Court to inquire into the meaning of Article 1 of the [CAT], its drafting history, and the interpretation of Article 1 by various international tribunals. . . . We, however, see no reason to be drawn into a debate about the appropriate interpretation . . . , or what the prevailing international understanding of the intent standard required under Article 1 of the [CAT] is. . . . [W]e believe that we must apply the standard clearly stated in the ratification record of the United States. Id. As we stated earlier, the CAT is not solely concerned 27 with immigration and refoulement; the same language that 28 governs the BIA s review of deportation orders guides the 28 1 political branches in their decisions about whether our 2 country and other signatories are in compliance with a 3 multilateral treaty. 4 adopt different meanings of the same word in the same treaty; 5 and it is imprudent for a court to fix on a special or 6 unnatural meaning in litigation when the political branches 7 are evidently disposed otherwise. It is unseemly for a government to 8 9 E 10 Pierre also challenges the ruling in In re J-E- that 11 Haiti s policy of indefinite detention is a lawful 12 sanction. 13 include pain or suffering arising only from, inherent in or 14 incidental to lawful sanctions. ). 15 BIA that the regulations validly promulgated pursuant to 16 FARRA clearly require a showing of specific intent to inflict 17 severe pain and suffering, we need not decide the question of 18 lawful sanction. See 8 C.F.R. § 208.18(a)(3) ( Torture does not Because we agree with the 19 Nevertheless, a close reading of In re J-E- shows that 20 while the BIA decided that the detention policy in itself 21 was a lawful sanction, 23 I. & N. Dec. at 300, it did not 29 1 decide whether conditions of confinement, lawfully imposed, 9 2 are categorically lawful sanctions that therefore cannot 3 amount to torture. 4 conditions did not constitute torture, the BIA relied on the 5 lack of specific intent, not on the lawful sanctions 6 provision. 7 already narrowly construed In re J-E- on this point. 8 Khouzam, 361 F.3d at 169-70 ( It would totally eviscerate the 9 CAT to hold that once someone is accused of a crime it is a In holding that the Haitian prison Id. at 300-01. In any case, this Court has See 10 legal impossibility for any abuse inflicted on that person to 11 constitute torture. . . . 12 proposition, we would have to disapprove of it . . . . ). 13 Moreover, one United States understanding of the CAT reflects 14 Senate concern that the lawful sanctions language may be 15 too expansive. 16 ( [T]he United States understands that a State Party could 17 not through its domestic sanctions defeat the object and 18 purpose of the Convention to prohibit torture. ); Kyaw Zwar 19 Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006) ( In accord with 20 the Senate s understanding, even torture sanctioned by the If J-E- actually stood for this See 136 Cong. Rec. S17,486-01, S17,491 9 We do not address the legality of Haiti s detention policy under Haitian law. 30 1 alien s country of origin for his criminal conduct will 2 sometimes establish entitlement to relief. ). 3 Prison is always an ordeal. Barbaric prison conditions 4 might constitute torture if they cause severe pain or 5 suffering and if circumstances indicate that the intent of 6 the authorities in causing the severity of pain and suffering 7 (over and above the discomforts incident to confinement in 8 that time and place) is to illicitly discriminate, punish, 9 coerce confessions, intimidate, or the like--just as live 10 burial would be torture even if somewhere it were the lawful 11 sanction for an offense. 12 Although we do not follow In re J-E- on the issue of 13 lawful sanction, we defer to In re J-E- s interpretation of 8 14 C.F.R. § 208.18(a)(5): 15 diet, hygiene, and living space in prison does not constitute 16 torture under the CAT unless the deficits are sufficiently 17 extreme and are inflicted intentionally rather than as a 18 result of poverty, neglect, or incompetence. The failure to maintain standards of 19 20 21 22 III The IJ and the BIA concluded that the medical evidence 31 1 Pierre adduced did not command a result different from that 2 in In re J-E-. 3 decision. 4 There is no reason to disturb the agency s Because Pierre is a criminal alien, we have no 5 jurisdiction to review the agency s factual findings. 6 See supra Section I. 7 finding process was premised on legal error, we cannot 8 question its findings about prevailing conditions in Haiti or 9 the likelihood that specific events will occur when Pierre is Therefore, unless the agency s fact- It is beyond our power to revisit the 10 returned to Haiti. 11 conclusion in In re J-E---and the IJ s opinion--that prison 12 conditions in Haiti chiefly result from economic conditions 13 in that country and not from the intent on the part of the 14 authorities to worsen the suffering of inmates or detainees. 15 We also cannot question the IJ s finding that Pierre will 16 likely have access to medicine through his family and will 17 likely be released in a timely fashion. 18 review, de novo, the agency s application of the definition 19 of torture to its factual findings about what is likely to 20 happen. 21 22 As we have held: However, we do Assuming the validity of the factual findings underlying In re J-E-, that decision reaches the 32 1 correct conclusion as to whether deportees indefinite 2 detainment constitutes torture. 3 government does apparently wish to intimidate criminal 4 deportees by imprisoning them in whatever prisons are 5 available, the agency found that neither the government nor 6 its agents have any specific intent to cause severe suffering 7 through harsh conditions as an additional means of 8 intimidation--the poor conditions result chiefly from the 9 economic situation in Haiti. 10 11 Even though Haiti s Therefore, imprisonment in Haiti without more is not torture. As to Pierre s attempt to distinguish his case from In 12 re J-E- on the basis of his medical condition, the IJ 13 appeared to opine in passing that as to the issue of specific 14 intent, Pierre s condition was irrelevant. 15 the extent this suggests that a petitioner s individual 16 circumstances are per se irrelevant under In re J-E- and can 17 have no bearing on the likelihood that the petitioner would 18 be subjected to torture. 19 States s understandings of the CAT, even suffering of the 20 utmost severity cannot constitute torture unless it is 21 specifically intended, and this principle undercuts the 22 importance of evidence that a particular petitioner s We disagree to It is true that, given the United 33 1 suffering in prison will be more severe or more foreseeable 2 than others ; but it does not render such evidence 3 irrelevant. 4 that a petitioner cannot present evidence that the severe 5 suffering to which the petitioner is likely to be subjected 6 is motivated by some actor s specific intent--that is, some 7 intent not present in In re J-E-.10 8 acknowledged, acts of abuse committed by prison guards are Nothing in In re J-E- or in our opinion dictates 10 As In re J-E- In Lavira v. Attorney General of the United States, a panel of the Third Circuit remanded the case of an HIVpositive Haitian criminal alien because both the IJ and the BIA summarily relied on In re J-E- and failed to focus[] on the specifics of [the petitioner s] situation in denying his CAT claim. 478 F.3d 158, 171 (3d Cir. 2007). The Lavira panel purported to further hold that Lavira had a nonfrivolous and legally available argument that the extremely high likelihood of an HIV-positive petitioner s death in Haitian prison meant that any Haitian official who detained such a petitioner would exhibit willful blindness to the likelihood of death; the panel reasoned that this would adequately show specific intent. Notwithstanding assertions to the contrary in Lavira, this proposition seems to us inconsistent with the Third Circuit s holding in Auguste that [t]he mere fact that the Haitian authorities have knowledge that severe pain and suffering may result by placing detainees in these conditions does not support a finding that the Haitian authorities intend to inflict severe pain and suffering. 395 F.3d at 153-54. How can willful blindness towards a fact be legally significant if actual knowledge of it is not? To the extent the two cases are in tension, Auguste is the more persuasive precedent, though it is hard to contest Lavira s chief holding: IJs should carefully consider evidence that individual petitioners put forth to distinguish their cases from In re J-E-. That is what the IJ did here. 34 1 not infrequent in Haiti, and it might be that petitioners 2 with certain histories, characteristics, or medical 3 conditions are more likely to be targeted not only with these 4 individual acts but also with particularly harsh conditions 5 of confinement. 6 this to be the case as to diabetics or as to him 7 individually. 8 9 But Pierre adduced no evidence suggesting Even though the IJ arguably overstated the impact of In re J-E- on the relevance of Pierre s medical condition, the 10 record indicates that the IJ carefully considered Pierre s 11 evidence and entered individualized findings that adequately 12 support the conclusion that, notwithstanding Pierre s medical 13 condition, Pierre has not adduced the evidence that he will 14 likely be subjected to torture. 15 basis, and so do we. The BIA affirmed on that 16 17 18 CONCLUSION For the foregoing reasons, the petition is denied. 35

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