Wilerms Oxygene v. Loretta Lynch , 813 F.3d 541 ( 2016 )

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: February 22, 2016
Before MOTZ, KING, and KEENAN, Circuit Judges.
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
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 8 U.S.C.
§ 1227(a)(2) (2012) due to his convictions for aggravated
felonies and firearm offenses, but applied for deferral of
removal under the CAT.
3
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
4
“[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
“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 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
5
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.
6
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 8 U.S.C. § 1252(a)(2)(C), (D)
7
(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). Given this limitation, as a “threshold question,”
we must analyze each argument Oxygene raises to determine
whether it presents a legal or constitutional question, or
raises only a factual dispute. 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. This is a question of law over which we retain
jurisdiction despite Oxygene’s aggravated felony conviction.
See 8 U.S.C. § 1252(a)(2)(D); Cherichel v. Holder, 591 F.3d
1002, 1009 (8th Cir. 2010). 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,
8
§ 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, 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).
1Oxygene 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
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 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
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.
11
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 8 U.S.C. § 1231 (2012)). FARRA itself does not
define torture. Instead, it 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. The regulations define torture as “any
act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person.” 8 C.F.R.
§ 208.18(a)(1) (2016). A separate subsection provides 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
pain and suffering is not 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 specifically intended to cause severe pain and
suffering. But at no point did any entity define specific
intent. Nor did any entity address the question this case
presents: whether an actor must actually desire to cause severe
pain and suffering for his actions to constitute torture under
the CAT. That task fell to the BIA, which in 2002 issued its en
banc decision in In re J-E-, announcing the standard for
evaluating CAT claims. See 23 I. & N. Dec. at 296-99. 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 conditions constitutes
13
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
conditions they will face in and of itself satisfied the
specific intent requirement for torture under the CAT. The BIA
held that “[a]lthough Haitian authorities are intentionally
detaining criminal deportees knowing that 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. Id. at 301.
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
14
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.
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
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
16
(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. 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
§ 208.18(a)(5) as expressly foreclosing this argument. While we
review the BIA’s legal conclusions de novo, we afford them
appropriate deference. 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
likely wish of the 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. The Supreme Court has noted that specific
intent “corresponds loosely” with “purpose,” whereas general
intent “corresponds loosely” with “knowledge.” Bailey, 444 U.S.
at 405. This distinction holds true even when the actor
possesses knowledge to a near certainty that something will
occur. See, e.g., 21 Am. Jur. 2d Criminal Law § 119 (2015)
(“[A] 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
18
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 § 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.
19
instruction of the President and the Senate to require “specific
intent” -- a more stringent standard than the unqualified
“intent” from Article 1 of the CAT. 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, 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. 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
20
Cir. 2004). 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 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
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.
21
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.
at 913. Accordingly, the IJ granted CAT relief. Id. at 912-14.
6
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.
22
The BIA reversed. Id. at 914. But the Ninth Circuit held there
was “nothing illogical” in the IJ’s findings “inferring the
government intends to put those prisoners at risk of cruel,
abusive treatment that would qualify as ‘severe suffering’ or
‘torture.’” Id. at 917. For that reason, the court granted the
petition for review. 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. 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
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