Elianaise Mervil v. Loretta E. Lynch , 813 F.3d 1108 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1324
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Elianaise Mervil
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, United States Attorney General
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 8, 2016
Filed: February 19, 2016
[Published]
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Before SHEPHERD, BEAM, and KELLY, Circuit Judges.
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PER CURIAM.
Petitioner Elianaise Mervil is a citizen of Haiti. She entered the United States
in 1981, and adjusted her status to lawful permanent residency in 1988. In 1997,
Mervil was convicted of conspiracy to possess with intent to distribute and
distribution of cocaine base and cocaine hydrochloride. After Mervil completed her
sentence for this offense, the Department of Homeland Security initiated removal
proceedings against her, charging her with being removable under 8 U.S.C.
§ 1227(a)(2)(B) for having been convicted of a controlled substances offense and
under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated
felony. Mervil conceded the charges, and applied for relief under the Convention
Against Torture (CAT). Mervil asserted that her status as a criminal deportee from
the United States, and her prior affiliation with and desertion from the Haitian army,
would lead to her arrest and imprisonment in deplorable conditions if she were
returned to Haiti. Both the Immigration Judge (IJ) and the Board of Immigration
Appeals (BIA) denied Mervil’s application for relief, finding that she had not
established that she would suffer torture if returned to Haiti.
We have jurisdiction to review the BIA’s denial of Mervil’s application for
CAT relief insofar as her appeal raises a constitutional claim or a question of law.
Cherichel v. Holder, 591 F.3d 1002, 1009 (8th Cir. 2010). To be entitled to relief
under CAT, a person must show “that it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
“Torture” is defined as “any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person [for certain purposes] 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.” 8 C.F.R. §
1208.18(a)(1). Under this definition, an act is not torture unless “a persecutor
specifically intends to inflict severe pain or suffering upon his victim.” Cherichel, 591
F.3d at 1016–17. In other words, “torture” as defined by the applicable regulations
does not encompass severe pain or suffering that is merely the “foreseeable
consequence of a deliberate action.” Id. at 1016.
Here, the BIA found that Mervil did not establish that she would be subjected
to torture if returned to Haiti, because she failed to show that any Haitian official
would specifically intend to inflict severe pain or suffering on her. Mervil urges
reconsideration of our decision in Cherichel, arguing that the specific intent to inflict
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pain or suffering is not required for an act to constitute torture. Mervil alternatively
urges that her case is factually distinct from Cherichel, but the distinctions she urges
are personal circumstances that do not appear to bear on whether any person acting
in an official capacity would have specific intent to torture her. See Cherichel, 591
F.3d at 1004, 1017; see also 8 U.S.C. § 1252(a)(2)(C) (except as to constitutional
claims or questions of law, we do not have jurisdiction to review final orders of
removal pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) or 1227(a)(2)(B)). Cherichel is
binding precedent within this circuit, which we have no authority to reconsider or
overrule. Drake v. Scott, 812 F.2d 395, 400 (8th Cir.) modified on reh’g on other
grounds, 823 F.2d 239 (8th Cir. 1987) (“One panel of this Court is not at liberty to
disregard a precedent handed down by another panel. Only the Court en banc can take
such action.”). The BIA applied the correct legal standard in determining whether
Mervil had established that she would more likely than not be tortured if removed to
Haiti, and concluded that she had not.
Accordingly, we conclude that the BIA did not err in denying Mervil’s
application for CAT relief, and deny Mervil’s petition for review.
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