Wilerms Oxygene v. Eric Holder, Jr.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: A025-454-289. [999758750]. [14-2380, 15-1099]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2380
WILERMS OXYGENE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 15-1099
WILERMS OXYGENE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Argued:
December 8, 2015
Decided:
Before MOTZ, KING, and KEENAN, Circuit Judges.
February 22, 2016
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Petitions for review denied in part and dismissed in part by
published opinion. Judge Motz wrote the opinion, in which Judge
King and Judge Keenan joined.
ARGUED: Tamara L. Jezic, YACUB LAW OFFICES, Woodbridge,
Virginia, for Petitioner.
Jeffery R. Leist, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON
BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Ernesto H. Molina, Jr., Assistant
Director, Gladys M. Steffens Guzman, Trial Attorney, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
2
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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”)
proceedings.
and
For
subsequent
the
reasons
motion
that
to
reopen
follow,
the
his
removal
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.
violence
family
included
home
while
occasions
Oxygene
when
and
death
others
squads
were
fired
inside
This
on
the
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
Government”)
commenced
that
he
of
removal
was
§ 1227(a)(2)
felonies
Homeland
and
Security
proceedings
removable
(2012)
firearm
under
due
to
(“DHS”
against
various
his
offenses,
removal under the CAT.
3
or
“the
him.
subsections
convictions
but
Oxygene
applied
of
for
for
conceded
8
U.S.C.
aggravated
deferral
of
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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.
and
his
sister
testified
that
they
had
no
remaining
Oxygene
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
periods of time.”
center
sentences
overseas
.
.
.
for
indefinite
The 2013 country report describes “detention
overcrowding”
as
“severe,”
explaining
that
“[i]n
some
prisons detainees slept in shifts due to lack of space” and that
4
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“[s]ome prisons had no beds for detainees, and some cells had no
access to sunlight.”
access
to
treated
Prisoners and detainees generally had no
drinking
water,
and
approximately
seventy
percent “suffered from a lack of basic hygiene, malnutrition,
poor
quality
result,
health
report
the
care,
and
concludes
water-borne
that
illness.”
malaria,
As
a
drug-resistant
tuberculosis, and other infectious diseases present a “serious
problem.”
laws
The 2013 country report also states that, despite
prohibiting
such
practices,
on
several
occasions
police
“allegedly beat or otherwise abused detainees and suspects,” and
“corrections
officers
use[d]
physical
punishment
and
psychological abuse to mistreat prisoners.”
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
A
2013
arrival.
of
press
criminal
release
deportees
by
the
immediately
human
rights
upon
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
Oxygene’s claim for CAT relief.
5
his
sister
when
evaluating
The IJ found “no doubt that
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conditions
in
Haiti
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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.”
higher
risk
He also noted that Oxygene “could be at a
than
normal
of
disease,
given
his
diagnosis
of
latent tuberculosis.”
Finally, the IJ recognized that “[t]he
record
indicates
evidence
even
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
the
CAT.
This
constitute
torture
under
explained,
because
Oxygene
[Haitian]
authorities
offered
intentionally
deportees in order to inflict torture.”
“no
and
was
necessarily
so,
evidence
the
that
deliberately
IJ
the
detain
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.
6
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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
depression impacted his CAT claim.
order
and
denied
the
remand
this
decision,
disorder
and
The BIA affirmed the removal
motion
concerning the recent diagnoses.
reconsider
stress
for
lack
of
evidence
Oxygene then moved the BIA to
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
constitutional
him
CAT
claims.
relief
See
8
7
to
questions
U.S.C.
§
of
law
and
1252(a)(2)(C),
(D)
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(2012); Saintha v. Mukasey, 516 F.3d 243, 248 (4th Cir. 2008).
Congress has similarly limited our review of the order denying
his
motion
to
reopen
his
removal
proceedings.
See
§ 1252(a)(2)(C), (D); Larngar v. Holder, 562 F.3d 71, 75 (1st
Cir. 2009).
we
must
whether
Given this limitation, as a “threshold question,”
analyze
it
each
presents
a
argument
legal
Oxygene
or
raises only a factual dispute.
raises
constitutional
to
determine
question,
or
Saintha, 516 F.3d at 248-252.
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.
jurisdiction
See 8
U.S.C.
This is a question of law over which we retain
despite
§
Oxygene’s
aggravated
1252(a)(2)(D);
1002, 1009 (8th Cir. 2010).
Cherichel
felony
v.
conviction.
Holder,
591
F.3d
Oxygene argues in the alternative
that, even if In re J-E- correctly states the intent requirement
for CAT claims, the IJ and BIA erred in their application of
that requirement to his case.
At bottom, Oxygene contends that
substantial evidence does not support the IJ and BIA decisions
to deny him CAT relief.
We ordinarily can “review[] decisions
to deny CAT relief for substantial evidence.”
Suarez-Valenzuela
v. Holder, 714 F.3d 241, 245 (4th Cir. 2013).
But when an
applicant for CAT relief has committed an aggravated felony,
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§ 1252(a)(2)(C) eliminates appellate review for sufficiency of
evidence.
See Saintha, 516 F.3d at 249-50.
Consequently, we
lack jurisdiction to consider his alternative argument. 1
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,
discretion in denying relief.
the
BIA
abused
its
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
removal.
likely
This
than
not
Oxygene
constitutes
a
would
suffer
torture
quintessentially
determination over which we lack jurisdiction.
upon
factual
See Hernandez-
Nolasco v. Lynch, 807 F.3d 95, 99 (4th Cir. 2015).
1
Oxygene also raises a related claim of legal error in this
alternative argument.
According to Oxygene, the IJ and BIA
committed
legal
error
by
“ignor[ing]
unrebutted,
legally
significant
evidence”
and
failing
to
offer
a
“reasoned
explanation” for their rulings. Pet. Br. at 25. This argument
fails. In fact, the IJ carefully considered Oxygene’s testimony
and documentary evidence, including facts that potentially
distinguished his case from In re J-E-, before concluding that
In re J-E- compelled him to deny the application. And the BIA’s
opinion affirming the IJ’s decision adequately explains why the
IJ’s decision was correct.
9
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Accordingly,
we
turn
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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 maintains that In re J-E- does not state
the correct legal standard.
He contends that the intent to
detain, coupled with knowledge to a near certainty that severe
pain and suffering will result, qualifies as specific intent to
torture under the CAT.
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
10
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or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty
Doc. No. 100-20 (1988).
treaty,
the
United
As a signatory to this multinational
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
inflicted on a person.”
Upon
signing
the
or
mental,
is
intentionally
Id. art. 1.1 (emphasis added).
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.
11
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Congress
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enacted
the
Pg: 12 of 23
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 8 U.S.C. § 1231 (2012)).
define
torture.
Instead,
it
FARRA itself does not
directs
“the
heads
of
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 Convention.”
Id.
Pursuant to FARRA, the
Department of Justice promulgated regulations governing claims
for
CAT
relief.
See
Regulations
Concerning
the
Convention
Against Torture, 64 Fed. Reg. 8478-01 (Feb. 19, 1999) (codified
at 8 C.F.R. §§ 208.16-208.18 (2016)).
These regulations adopt the specific intent interpretation
of the definition of torture, echoing the understanding of the
President and Senate.
act
by
mental,
which
is
severe
The regulations define torture as “any
pain
intentionally
§ 208.18(a)(1)
(2016).
or
suffering,
inflicted
A
separate
on
a
whether
person.”
subsection
physical
8
provides
or
C.F.R.
that,
“[i]n order to constitute torture, an act must be specifically
intended to inflict severe physical or mental pain or suffering.
An act that results in unanticipated or unintended severity of
12
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pain
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and
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suffering
is
not
Pg: 13 of 23
torture.”
Id.
§
208.18(a)(5)
(emphasis added).
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
suffering.
intent.
specifically
But
Nor
presents:
at
did
no
any
intended
point
entity
did
to
cause
any
entity
address
the
severe
define
question
pain
and
specific
this
case
whether an actor must actually desire to cause severe
pain and suffering for his actions to constitute torture under
the CAT.
banc
That task fell to the BIA, which in 2002 issued its en
decision
in
In
evaluating CAT claims.
re
J-E-,
announcing
the
standard
See 23 I. & N. Dec. at 296-99.
for
Thus, In
re J-E- articulated a five prong test in defining torture under
the CAT:
(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
13
conditions
constitutes
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torture.
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See id. at 303-04.
Pg: 14 of 23
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.”
so
holding,
the
BIA
rejected
the
Id. at 300.
applicant’s
argument
In
that
Haiti’s detention of deportees with knowledge of the substandard
conditions
they
will
face
in
and
of
itself
satisfied
specific intent requirement for torture under the CAT.
held
that
“[a]lthough
detaining
criminal
Haitian
authorities
deportees
knowing
are
that
the
The BIA
intentionally
the
detention
facilities are substandard,” the applicant needed to show that
officials
were
“intentionally
and
deliberately
creating
and
maintaining such prison conditions in order to inflict torture”
to secure relief under the CAT.
In
re
J-E-
relied
on
Id. at 301.
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
recklessness or negligence.”
alteration omitted).
commonly
takes
the
form
of
Id. (internal quotation marks and
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
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criminal
Filed: 02/22/2016
deportees.
Id.
Pg: 15 of 23
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.
2
The BIA in In re J-E- also held that the CAT claim failed
under the test’s third prong, finding no evidence that Haitian
officials inflicted severe pain and suffering on detainees for a
proscribed purpose.
See id. at 300.
The IJ in Oxygene’s case
made a similar finding.
In his petition for review, Oxygene
makes a passing challenge to In re J-E-‘s proscribed purpose
holding, but fails to develop any arguments with respect to it.
As a result, Oxygene has waived this argument.
See Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009).
Even if preserved and meritorious, Oxygene’s argument
concerning the purpose prong would not save his petition. This
is so because, as we explain in Part IV, Oxygene’s challenge to
the intent prong fails, providing an independent ground on which
to deny his petition for review.
15
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Haiti’s
Filed: 02/22/2016
detention
of
Pg: 16 of 23
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
under the CAT.
disease
severe
enough
to
constitute
torture
The BIA in In re J-E- rejected that argument.
The BIA concluded that, in light of the prevailing meaning of
“specific
intent,”
officials
“are
a
claimant
intentionally
needed
and
to
show
deliberately
that
Haitian
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.
CAT
and
This constitutes one possible interpretation of the
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
16
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(1980).
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Pg: 17 of 23
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.
BIA’s
nineteen
asserts here.
But
the
board
members
Indeed, in In re J-E-, six of the
agreed
with
the
view
See 23 I. & N. Dec. at 304-318.
majority
of
the
BIA
in
In
re
J-E-
interpreted
§ 208.18(a)(5) as expressly foreclosing this argument.
review
the
Oxygene
BIA’s
legal
appropriate deference.
conclusions
de
novo,
we
While we
afford
them
See Turkson v. Holder, 667 F.3d 523, 527
(4th Cir. 2012); see also INS v. Aguirre-Aguirre, 526 U.S. 415,
424 (1999). 3
Such deference is well deserved here.
Although the
conclusion reached by the BIA in In re J-E- is not the only
plausible interpretation of the CAT, this interpretation accords
with the prevailing meaning of specific intent and reflects the
3
Despite consensus among our sister circuits that courts
owe deference to In re J-E-, they have not agreed on the
appropriate degree of deference due to the BIA. Compare Auguste
v. Ridge, 395 F.3d 123, 144-45 (3d Cir. 2005) (applying Chevron
deference to uphold the BIA’s interpretation as reasonable),
with Pierre v. Gonzales, 502 F.3d 109, 116-17 (2d Cir. 2007)
(affording the BIA “substantial deference” and citing cases
applying the standard from Auer).
We need not wade into the
debate over the proper degree of deference, for it makes no
difference in this case.
The BIA’s interpretation is not
plainly erroneous nor inconsistent with the regulation under
Auer, nor is it unreasonable under Chevron.
17
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likely wish
Filed: 02/22/2016
of
the
Pg: 18 of 23
President
and
Senate
to
incorporate
that
meaning into the CAT regulations.
Courts
routinely
describe
the
requisite
mens
rea
for
specific intent crimes as akin to purpose or desire, rather than
mere
knowledge.
intent
The
“corresponds
Supreme
loosely”
Court
with
has
noted
“purpose,”
that
specific
whereas
general
intent “corresponds loosely” with “knowledge.”
Bailey, 444 U.S.
at
when
405.
possesses
occur.
(“[A]
This
distinction
knowledge
to
a
holds
near
true
even
certainty
that
the
actor
something
will
See, e.g., 21 Am. Jur. 2d Criminal Law § 119 (2015)
specific-intent
crime
requires
not
simply
the
general
intent to do the immediate act with no particular, clear, or
undifferentiated end in mind, but the additional deliberate and
conscious purpose or design of accomplishing a very specific and
more
remote
result;
mere
knowledge
that
a
result
is
substantially certain to follow from one’s actions is not the
same as the specific intent or desire to achieve that result.”)
(emphasis added).
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
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instruction
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that
it
is
Pg: 19 of 23
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 § 208.18(a) would preclude such an inquiry. 4
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 208.18(a)(5) incorporates the
4
None of the cases Oxygene cites suggest that the BIA
rendered an unreasonable interpretation of § 208.18(a) in In re
J-E-. At most, those cases illustrate the occasional difficulty
courts have in applying the common-law concept of specific
intent to particular facts or statutes.
Even in United States
v. Neiswender, 590 F.2d 1269, 1274 (4th Cir. 1979), where we
held that knowledge of foreseeable consequences satisfied the
intent element of a obstruction of justice conviction, the jury
instruction we approved merely charged the jury to “find an
intent to obstruct justice,” noting that “[i]t is ordinarily
reasonable to infer that a person intends the natural and
probable consequences of acts knowingly done or undertaken.”
Id. (emphasis added). While we recognized that some courts had
characterized obstruction of justice as a “specific intent”
crime, we saw “no need to undertake an extended excursion into
the subtleties of specific intent,” and did not define the term.
Id. at 1273.
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instruction of the President and the Senate to require “specific
intent”
--
a
more
stringent
standard
“intent” from Article 1 of the CAT.
than
the
unqualified
The position of the BIA in
In re J-E- accords with this instruction.
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,
traditionally
at
referred
common-law
to
the
“certain
term
narrow
“specific
classes
intent”
of
crimes”
where “heightened culpability has been thought to merit special
attention.”
Bailey,
444
U.S.
at
405.
It
was
entirely
reasonable for the BIA to conclude that the President and Senate
wished to incorporate into the CAT regulations a more exacting
intent standard that excludes mere knowledge when they chose a
term traditionally associated with heightened intent.
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 (2d Cir.); Auguste, 395
F.3d at 144 (3d Cir.); Cadet v. Bulger, 377 F.3d 1173, 1185-86
(11th Cir. 2004); Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st
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Cir. 2004).
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Pg: 21 of 23
But see Cherichel, 591 F.3d at 1014 (8th Cir.)
(affirming denial of CAT relief based on the court’s own reading
of the CAT and § 208.18(a) and taking no position on whether the
BIA’s interpretation in In re J-E- is entitled to deference). 5
We
note
that,
in
many
cases,
In
significant hurdle for CAT applicants.
re
J-E-
will
pose
no
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.
such claimants.
Rather, In re J-E- leaves the window open to
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
5
The fact that the BIA relied on a legal dictionary in its
analysis, and that specific intent derives its meaning from
criminal law, does not negate the deference due to the BIA.
While the BIA may not have particular expertise in the
construction of criminal laws, it is expert at construing
ambiguous immigration regulations like § 208.18(a).
For that
same reason, Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005),
offers Oxygene no assistance.
In Soliman we declined to defer
to the BIA’s interpretation of a Virginia criminal statute. See
419 F.3d at 281.
Soliman thus involved a very different
question than the deference due the BIA when interpreting not a
state statute but an immigration regulation promulgated by the
federal government.
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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.
removal
hearing,
the
petitioner
in
For example, at his
Ridore
v.
Holder
offered
testimony from an expert witness as to the intent of Haitian
officials in their detention of criminal deportees.
F.3d 907, 910, 916-17 (9th Cir. 2012).
See 696
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
institutions
to
“maintain
[could]
proper
only
be
medical
facilities
attributable
to
in
those
[Haitian
officials’] willingness to use the jails to harm the inmates so
that they will never be a threat to the population again.”
at 913.
Accordingly, the IJ granted CAT relief.
6
Id.
Id. at 912-14.
Some commentators have asserted that after In re J-E- the
BIA has categorically denied CAT claims based on prison
conditions in Haiti.
See, e.g., Renee C. Redman, Defining
“Torture”: The Collateral Effect on Immigration Law of the
Attorney
General’s
Narrow
Interpretation
of
“Specifically
Intended” When Applied to United States Interrogators, 62 N.Y.U.
Ann. Surv. Am. L. 465, 482 (2007).
To the extent that
individual IJs or BIA members interpret In re J-E- as a
categorical impediment to CAT relief, they misread that
precedent.
In its treatment of specific intent under the CAT,
the BIA in In re J-E- merely held that the record facts in that
case did not support an inference that the Haitian officials
desired the pain and suffering of its detainees. See 23 I. & N.
Dec. at 300-01.
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The BIA reversed.
was
“nothing
government
Id. at 914.
illogical”
intends
to
in
Pg: 23 of 23
But the Ninth Circuit held there
the
put
those
IJ’s
findings
prisoners
at
“inferring
risk
of
the
cruel,
abusive treatment that would qualify as ‘severe suffering’ or
‘torture.’”
Id. at 917.
petition for review.
For that reason, the court granted the
Id. at 917, 919.
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.
review
of
that
order.
Accordingly, we deny his petition for
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
23
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