Shoodley Cherichel v. Eric H. Holder, Jr. ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3736
___________
Shoodley Lee Cherichel, *
*
Petitioner, *
* Petition for Review from the
v. * Board of Immigration Appeals.
*
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
___________
Submitted: October 21, 2009
Filed: January 12, 2010
___________
Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Shoodley Cherichel, a native and citizen of Haiti, petitions for review of a
decision of the Board of Immigration Appeals (BIA) denying his application for
deferral of removal under the Convention Against Torture (CAT) and ordering him
removed to Haiti. Cherichel argues that the BIA erred in applying a more onerous
definition of specific intent under the CAT than was used by the Immigration Judge
(IJ). For the following reasons, we deny the petition.
I.
A. Factual Background
Shoodley Cherichel was born in Haiti on November 23, 1979. Although he
does not remember coming to the United States, it appears that he entered the United
States without inspection sometime between 1982 and 1984. Since that time,
Cherichel has never returned to Haiti. He does not speak Creole, Haiti’s official
language, and understands very little Creole when it is spoken to him. His mother,
Meprisena Themistol, is a naturalized U.S. citizen, and he believes his siblings are
also U.S. citizens. To his knowledge, Cherichel has no family members currently
living in Haiti.
On April 18, 2000, Cherichel pled guilty to possession of marijuana in a
Kentucky state court. On January 13, 2005, he was convicted in a Minnesota state
court of criminal vehicular homicide and criminal vehicular operation resulting in
substantial bodily harm, for which he received and served a 48-month sentence. The
Immigration and Naturalization Service (INS)1 served Cherichel with a Notice to
Appear (NTA) on September 3, 2002. The NTA charged that Cherichel was subject
to removal for being an alien present in the United States without being admitted or
paroled, in violation of section 212(a)(6)(A)(i) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1182(a)(6)(A)(i). Removal proceedings commenced on November
1, 2002. In 2005, DHS also charged Cherichel with removability under INA §
212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), as being an alien who has been
1
The INS was abolished and its functions assumed by the Department of
Homeland Security (DHS) on March 1, 2003.
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convicted of violating a law relating to a controlled substance, based on his Kentucky
conviction.2
B. Immigration Judge’s Decision
Between January 23, 2003, and March 19, 2007, Cherichel had various removal
hearings before Immigration Judge Kristin Olmanson.3 Cherichel asserted three
arguments before the IJ: (1) that he should be granted asylum under INA § 208, 8
U.S.C. §1158; (2) that he was eligible for withholding of removal under INA §
241(b)(3), 8 U.S.C. §1231; and (3) that his removal should be deferred under Article
3 of the CAT. At his final hearing on March 19, 2007, Cherichel testified that he was
afraid to return to Haiti because he has no family there, and that he feared persecution
in Haiti based on his “American” physical characteristics and English-speaking
ability. Additionally, Cherichel submitted extensive evidence concerning country and
prison conditions in Haiti.
In an opinion dated May 3, 2007, the IJ found Cherichel removable on two of
the three grounds charged. Specifically, the IJ found that Cherichel was not eligible
for asylum under INA § 208 because he failed to file for asylum within one year of
his arrival or within a reasonable period of time after reaching the age of 18, see INA
§ 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), and that he was not eligible for withholding
2
DHS also charged that Cherichel was removable under INA §
212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), as being an alien who has been
convicted of a crime involving moral turpitude, based on his Minnesota conviction.
Both the IJ and the BIA declined to rule on removability on this ground as the other
two grounds were sufficient bases for removal.
3
Cherichel’s immigration hearings were continued a number of times during the
pendency of his appeal on his Minnesota convictions. Those convictions were upheld
by the Minnesota Court of Appeals. See State v. Cherichel, No. A05-738, 2006 WL
2529561 (Minn. Ct. App. Sept. 5, 2006) (unpublished).
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of removal because his Minnesota convictions constituted particularly serious crimes
under the INA, see INA § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii). However,
the IJ granted Cherichel’s application for deferral of removal under the CAT, finding
that he had met his burden of proving that, as a criminal deportee, it is more likely
than not that he would be tortured if removed to Haiti.4
First, the IJ noted that Cherichel provided extensive evidence—42 reports and
articles—documenting country conditions in Haiti and the deplorable conditions in
Haitian prisons and police stations where uncharged detainees are often held. This
included a lack of basic hygiene, lack of food and water, a large number of
malnourished prisoners, and severe overcrowding in cells with no toilet or sink.
Second, the IJ noted that in the previous five years, prison conditions in Haiti had not
improved, but in fact had worsened. Third, criminal deportees who had not broken
any Haitian laws were held by authorities despite a 2006 Haitian court ruling
prohibiting such detention. Fourth, unless a family member was able to claim
responsibility for them, criminal deportees could be detained indefinitely. Fifth, the
IJ noted that Cherichel had been in the United States for 25 years and could be
identified in Haiti as an “American” because of his physical appearance, mannerisms,
and inability to speak Creole. Based on this evidence, the IJ found that it was more
likely than not that Cherichel would be tortured if removed to Haiti, and therefore
granted Cherichel’s application for deferral of removal.
C. BIA Decisions
The BIA granted DHS’s appeal from the IJ’s decision, vacated the grant of
deferral under the CAT, and ordered Cherichel removed to Haiti. In re Shoodley Lee
Cherichel, File No. A95 204 110 (BIA Sept. 14, 2007). The BIA held that the IJ erred
4
In doing so, the IJ distinguished the BIA’s decision in In re J-E-, 23 I. & N.
Dec. 291 (BIA 2002), overruled on other grounds by Azanor v. Ashcroft, 364 F.3d
1013 (9th Cir. 2004). See infra Part II.B.
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in finding that Cherichel had met his burden of establishing CAT relief. Specifically,
although it found no clear error in the IJ’s findings regarding abysmal prison
conditions in Haiti, the BIA held that those conditions do not “rise[] to the level of
torture [because] the record does not reflect that Haitian authorities specifically intend
to inflict severe physical or mental pain or suffering to criminal deportees such as
[Cherichel].” Id. at 3 (quotation omitted). The BIA also held that “the circumstances
presented here are not significantly distinct from those we considered in [In re J-E-,
23 I. & N. Dec. 291 (BIA 2002), overruled on other grounds by Azanor v. Ashcroft,
364 F.3d 1013 (9th Cir. 2004)].” Id. at 4.
Cherichel appealed the BIA’s decision to this court. In lieu of issuing a formal
opinion, we granted the government’s motion to remand the case back to the BIA “for
reconsideration in light of its scope of review.”5 Cherichel v. Mukasey, No. 07-3313,
slip op. at 1 (8th Cir. Mar. 26, 2008). On remand, the BIA again ordered Cherichel
removed to Haiti. In re Shoodley Lee Cherichel, File No. A95 204 110 (BIA Oct. 29,
2008). After holding that no additional fact-finding was required, the BIA reviewed
de novo the IJ’s findings regarding eligibility for relief under the CAT. Id. at 1-2.
The BIA held that none of the facts found by the IJ, including those that differentiated
Cherichel from the petitioner in In re J-E-, “show[ed] that Haitian authorities, in their
treatment of criminal deportees, specifically intend to inflict torture.” Id. at 2.
Therefore, the BIA held that Cherichel had failed to meet his burden of proof under
the CAT and ordered him removed to Haiti.
5
On remand, the BIA “specifically address[ed] the issue of whether Haitian
authorities did not specifically intend to inflict severe physical or mental pain or
suffering to criminal deportees . . . in light of the factfindings made by the
immigration judge.” In re Shoodley Lee Cherichel, File No. A95 204 110, at 1 (BIA
Oct. 29, 2008) (quotation omitted).
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II.
Cherichel appeals, arguing that the BIA applied an incorrect definition of
specific intent to the CAT’s intent requirement. In deciding the correct legal
definition to apply, we first review the history and codification of the CAT, as well
as how the CAT and its implementing regulations have been subsequently interpreted.
A. History of the CAT
The ratification history of the CAT and its subsequent enactment into domestic
law have been thoroughly examined. See Auguste v. Ridge, 395 F.3d 123,129-34 (3d
Cir. 2005); In re J-E-, 23 I. & N. Dec. at 294-99; see generally J. Herman Burgers &
Hans Danelius, The United Nations Convention Against Torture: A Handbook on the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1988). While we see no need to repeat that examination here, some
discussion of the history of the CAT is necessary to our analysis.
The CAT was adopted by the United Nations General Assembly on December
10, 1984.6 See Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465
U.N.T.S. 85. It has as its stated purpose “to make more effective the struggle against
torture and other cruel, inhuman or degrading treatment or punishment throughout the
world.” Id. pmbl. To accomplish this goal, Article 2 of the CAT requires “[e]ach
State Party [to] take effective legislative, administrative, judicial or other measures to
prevent such acts of torture in any territory under its jurisdiction.” Id. Art. 2(1).
Additionally, Article 3 provides that “[n]o State Party shall expel, return (‘refouler’)
6
The CAT built on previous international agreements seeking to expand human
rights and curtail the use of torture around the world, including the Universal
Declaration of Human Rights of 1948 and the Geneva Conventions of 1949. See
Burgers & Danelius, supra, at 5-30.
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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 as:
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 a third person information or a confession, punishing him for an
act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, whether 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. It does not include pain or suffering arising only from, inherent
in or incident to lawful sanctions.
Id. Art. 1(1).
President Reagan signed the CAT on April 18, 1988, and sent it to the Senate
for advice and consent on May 20, 1988. Id. at iii. Importantly, President Reagan
(and later President George H.W. Bush) proposed, and the Senate eventually adopted,
a number of reservations, understandings, and declarations pertaining to the CAT, two
of which are relevant to this case. First, with respect to the definition of torture under
Article 1, President Bush proposed 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, 36 (1990). Second, President Bush
proposed that “[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.’” Id. at 16.
Although the CAT had been signed by the President and ratified by the Senate,
it was not self-executing, “which means there is no direct right of action for violation
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of the treaty, only for violation of any domestic law implementing the treaty.”
Raffington v. Cangemi, 399 F.3d 900, 903 (8th Cir. 2005); see also Auguste, 395 F.3d
at 132 n.7 (citing cases). Congress implemented the CAT with the passage of the
Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub. L. No.
105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (codified as note to 8
U.S.C. § 1231).7
The first section of FARRA states that “[i]t shall be the policy of the United
States not to expel, extradite, or otherwise effect the involuntary return of any person
to a country in which there are substantial grounds for believing the person would be
in danger of being subjected to torture.” Id. To achieve this goal, FARRA 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 (DOJ) promulgated regulations
setting forth the procedures under which a person could seek relief under the CAT.
See Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478 (Feb.
19, 1999) (codified at 8 C.F.R. §§ 208.16(c)-.18(a) (2004)). Section 208.18(a) defines
the terms to be used in applying the United States’ obligations under the CAT, which
“incorporate the definition of torture contained in Article 1 of the [CAT], subject to
the reservations, understandings, declarations, and provisos contained in the United
7
As the Third Circuit has repeatedly noted, because there is no direct right of
action for violation of the CAT, only for violation of FARRA, Cherichel’s claim is
technically a FARRA claim. See Pierre v. Att’y Gen., 528 F.3d 180, 186 n.5 (3d Cir.
2008) (en banc); Auguste v. Ridge, 395 F.3d 123,133 n.7 (3d Cir. 2005); Ogbudimkpa
v. Ashcroft, 342 F.3d 207, 221 n.24 (3d Cir. 2003). However, because the pertinent
provisions of FARRA and the CAT are substantively identical, this distinction is
inconsequential, and we will continue to refer to Cherichel’s claim as a CAT claim.
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States Senate resolution of ratification of the Convention.” 8 C.F.R. § 208.18(a).
Instead of enumerating acts that could constitute torture, § 208.18(a) combines the
Senate’s understandings with Article 1 of the CAT to formulate a basic, general
definition of torture:
(1) Torture is defined as 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.
(2) Torture is an extreme form of cruel and inhuman treatment and does
not include lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.
(3) Torture does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions. . . .
(5) In 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 pain and suffering is not torture.
...
(7) Acquiescence of a public official requires that the public official,
prior to the activity constituting torture, have awareness of such activity
and thereafter breach his or her legal responsibility to intervene to
prevent such activity.
Id. (emphasis added). The regulations also import the “more likely than not” standard
for proving torture that was contained in both the President’s and Senate’s
understandings of the CAT. See 8 C.F.R. § 208.16(c)(2). Once a petitioner has met
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this standard, withholding of removal or deferral of removal is mandatory.8 8 C.F.R.
§§ 208.16(c)(4), 208.17(a).
Thus, all three important documents—the United States’ understandings of the
CAT, the law giving the CAT domestic effect, and the regulations implementing that
effect in the immigration context—incorporate the understandings of the President and
the Senate that, in order to constitute torture, an act must be specifically intended to
inflict severe pain or suffering.
B. In re J-E-
In 2002, the BIA considered the issue of whether “indefinite detention, inhuman
prison conditions, and police mistreatment . . . constitute torturous acts” under the
CAT. In re J-E-, 23 I. & N. Dec. at 292. There, a native and citizen of Haiti who had
resided in the United States for approximately ten years and had been convicted of the
sale of cocaine in Florida, was ordered removed to Haiti. Id. at 292-93. At his
removal hearing, the petitioner introduced evidence showing that if he were removed
to Haiti, he would be detained under deplorable conditions.9 Id. at 293. Those
conditions included “prison facilities [that] are overcrowded and inadequate[,]” where
prisoners, many of whom are malnourished, “are deprived of adequate food, water,
medical care, sanitation, and exercise.” Id. At the conclusion of the hearing, the IJ
nevertheless found the petitioner ineligible for CAT relief. Id.
8
Although eligibility for withholding of removal and deferral of removal under
the CAT are addressed in different sections of the regulations, the “more likely than
not” standard is used for each. See 8 C.F.R. §§ 208.16(c)(4) (withholding of
removal), 208.17(a) (deferral of removal).
9
This evidence included the Department of State’s 2001 Background Note on
Haiti, five newspaper articles addressing Haitian prison conditions, “a set of
photographs of malnourished, dying Haitian inmates,” and a letter from a Department
of State official. In re J-E-, 23 I. & N. Dec. at 293.
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On appeal, the BIA began its analysis with an examination of the ratification
history of the CAT and its implementing regulations. Id. at 294-99. After noting that
the regulatory definition of torture in 8 C.F.R. § 201.18(a) governed its decision, the
BIA summarized that definition to develop a test for CAT claims: “For an act to
constitute torture it must be: (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 . . . ; and (5) not
arising from lawful sanctions.” Id. at 297. In discussing the level of intent required,
the BIA noted that “an act that results in unanticipated or unintended severity of pain
or suffering does not constitute torture.” Id. at 298.
The BIA then turned to the question of whether any of the specific state actions
alleged by the petitioner—indefinite detention, inhuman prison conditions, and police
mistreatment—constituted torture within the meaning of the regulations. Id. at 299.
Examining first the petitioner’s claim that he would be indefinitely detained by
Haitian authorities, the BIA found it “undisputed that the respondent will be subject
to detention of an indeterminate length on his return to Haiti.” Id. This detention of
criminal deportees is designed by the Haitian government as a deterrent, “to prevent
the ‘bandits’ from increasing the level of insecurity and crime in the country.” Id. at
300 (quotation omitted). As such, the BIA found that the detention of criminal
deportees did not constitute torture, because it is “a lawful enforcement sanction
designed . . . to protect the populace from criminal acts committed by Haitians who
are forced to return to the country after having been convicted of crimes abroad.” Id.
Turning next to the petitioner’s claim that indefinite detention, coupled with
inhuman prison conditions, amounted to torture, the BIA noted that an “act must be
specifically intended to inflict severe pain or suffering” in order to constitute torture.
Id. The BIA found this to be a “specific intent” requirement, not a “general intent”
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requirement. Id. at 300-01. Citing the legal definition of specific intent,10 the BIA
found that Haitian authorities did not have the specific intent to inflict severe pain or
suffering when they imprisoned criminal deportees in harsh conditions because “there
is no evidence that they are intentionally and deliberately creating and maintaining
such prison conditions in order to inflict torture.” Id. at 301. Instead, the harsh
conditions “are the result of budgetary and management problems as well as the
country’s severe economic difficulties.” Id. As such, the detention of criminal
deportees did not amount to torture, despite the fact that “Haitian authorities are
intentionally detaining criminal deportees knowing that the detention facilities are
substandard.” Id.
Finally, in addressing the petitioner’s claim that physical mistreatment by
Haitian authorities would amount to torture,11 the BIA held that the evidence showed
only “isolated instances of mistreatment in Haitian prisons that rise to the level of
torture.” Id. at 302. This was insufficient to meet the petitioner’s burden of proof of
showing that it was more likely than not that he would be tortured. Id. at 303. Based
on the foregoing findings, the BIA dismissed the appeal. Id. at 304.
10
“‘Specific 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. at 301 (alteration in original) (quoting Black’s
Law Dictionary 813-14 (7th ed. 1999)).
11
There was little doubt that the petitioner would be physically mistreated in
some way if returned to Haiti. See id. at 301-02. The only question was whether that
mistreatment would rise to the level of torture. See id. at 302 (“Instances of police
brutality do not necessarily rise to the level of torture, whereas deliberate vicious acts
such as burning with cigarettes, choking, hooding, kalot marassa [severe boxing of the
ears], and electric shock may constitute acts of torture.”).
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III.
Cherichel argues that the BIA erred as a matter of law by applying the incorrect
definition of specific intent to the CAT’s intent requirement. According to Cherichel,
the CAT’s intent requirement is satisfied if severe physical or mental pain or suffering
is merely the foreseeable consequence of a deliberate act. Cherichel argues that this
“foreseeability” standard was adopted by the IJ and is consistent with Eighth Circuit
caselaw. He also argues that the more onerous “specific intent” standard applied by
the BIA causes the United States to hold the Haitian government to a lower standard
than the United States holds its own interrogators. Finally, Cherichel contends that
even under the more onerous specific intent standard adopted by the BIA, he is
entitled to CAT relief because it is more likely than not that he will be tortured if
returned to Haiti. We address these arguments seriatim.
A. Standard of Review
Because Cherichel was ordered removed based in part on his Kentucky
conviction for possession of marijuana, his removal implicates 8 U.S.C. §
1252(a)(2)(C), which purports to eliminate from appellate jurisdiction “any final order
of removal against an alien who is removable by reason of having committed a
criminal offense” involving controlled substances or crimes of moral turpitude.
Section 1252(a)(2)(D), however, restores appellate jurisdiction to review such removal
orders but limits review to “constitutional claims or questions of law.” 8 U.S.C. §
1252(a)(2)(D). Because defining the correct legal standard of specific intent to apply
to the CAT’s intent requirement is a question of law, we retain jurisdiction over
Cherichel’s appeal pursuant to 8 U.S.C. §1252(a)(2)(D) .
“‘We review questions of law de novo and accord substantial deference to the
BIA’s interpretation of immigration law and agency regulations.’” Kim v. Holder,
560 F.3d 833, 836 (8th Cir.), cert. denied 130 S. Ct. 393 (2009) (quoting Arellano-
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Garcia v. Gonzales, 429 F.3d 1183, 1185 (8th Cir. 2005)). Thus, because the
regulations implementing the CAT are immigration regulations within the purview of
the BIA, the BIA’s interpretation of those regulations should generally be accorded
substantial deference. See Malonga v. Mukasey, 546 F.3d 546, 553 (8th Cir. 2008);
see also Pierre v. Gonzales, 502 F.3d 109, 116 (2d Cir. 2007) (“As to the CAT
regulations: where the BIA interprets a regulation promulgated by the Attorney
General under the INA, we afford substantial deference to the BIA’s interpretation,
unless it is plainly erroneous or inconsistent with the regulation, or inconsistent with
the agency’s previous interpretation.” (quotations omitted)). This deference “may be
qualified to the extent that [the BIA’s] reading of the regulation . . . is a reading of
terms that have application outside the context of immigration.” Pierre, 502 F.3d at
114.12 Factual determinations made by the IJ are outside the scope of our review
“unless any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
B. Precedent
The specific issue before the court concerns the degree of intent Cherichel’s
future captors must have in order for Cherichel to be able to obtain CAT relief. In In
re J-E-, the BIA held that, in the context of criminal deportees being return to Haiti,
petitioners must prove that Haitian authorities specifically intend to torture; that is,
that they “intentionally and deliberately creat[e] and maintain[] [abysmal] prison
conditions in order to inflict” severe physical or mental pain or suffering. 23 I. & N.
12
Cherichel argues that, because the CAT’s definition of torture is interpreted
and administered by multiple federal agencies, the BIA’s definition of specific intent
under the CAT is not entitled to any deference at all. We see no need to be drawn into
a debate about how specific intent is defined by other agencies or in other contexts,
or to articulate the precise level of deference to be shown the BIA in this case. As will
be discussed below, we believe that the standard clearly expressed in the ratification
history of the CAT compels the resolution of this case.
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Dec. at 300-01. This decision has commanded deference from several circuits. See,
e.g., Elien v. Ashcroft, 364 F.3d 392, 398-99 (1st Cir. 2004); Pierre, 502 F.3d at 119
(Second Circuit); Pierre v. Att’y Gen., 528 F.3d 180, 189 (3d Cir. 2008) (en banc);
Auguste, 395 F.3d at 153 (Third Circuit); Villegas v. Mukasey, 523 F.3d 984, 988 (9th
Cir. 2008); Cadet v. Bulger, 377 F.3d 1173, 1190, 1193, 1195 (11th Cir. 2004).
Indeed, “[n]o federal circuit court considering the case of a Haitian criminal deportee
has declined to follow In re J-E-[.]” Pierre, 502 F.3d at 117; see also Villegas, 523
F.3d at 988 (“Every other circuit to consider the question has concluded that ‘torture’
under the CAT requires specific intent to inflict harm.”).13
In its thorough opinion in Auguste, the Third Circuit rejected a Haitian
national’s argument that indefinite detention under deplorable conditions amounted
to torture. 395 F.3d at 152-54. Relying on the CAT’s ratification history, the court
found that the CAT contained a specific intent requirement, and that this requirement
was carried into domestic law by the CAT’s implementing regulations. Id. at 142.
The court went on to affirm the BIA’s adoption of a definition of specific intent that
was “in accord with [the term’s] ordinary meaning in American law.” Id. at 145. The
court noted that the Supreme Court has held that, in order to act with specific intent,
an actor “must expressly intend to achieve the forbidden act.” Id. (citing Carter v.
United States, 530 U.S. 255, 269 (2000)). In the context of the CAT, this means a
prospective torturer must have “the intent to commit the [torturous] act as well as the
intent to achieve the consequences of the act, namely the infliction of the severe pain
and suffering.” Id. at 145-46. A showing that severe pain and suffering is
13
Although the Pierre court noted that “there are wrinkles in the Third Circuit,”
502 F.3d at 117 & n.3 (citing Lavira v. Att’y Gen. of the U.S., 478 F.3d 158 (3d Cir.
2007)), those “wrinkles” have since been resolved in favor of the BIA’s position. See
Pierre, 528 F.3d at 190 (“Moreover, to the extent that Lavira suggests that mere
knowledge is sufficient for a showing of specific intent, we overrule that
suggestion.”).
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foreseeable, but not intended, was held to be insufficient to establish specific intent.
Id. at 146.
This formulation of the CAT’s specific intent requirement was affirmed en banc
by the Third Circuit in Pierre. 528 F.3d at 189. There, the petitioner did not dispute
that the CAT contained a specific intent requirement. Id. Rather, the petitioner
argued that the requirement was “satisfied by a showing that the Haitian officials have
knowledge that severe pain or suffering is the practically certain outcome of his
imprisonment.” Id. The court disagreed, and affirmed the Auguste court’s definition
of specific intent as including “the intent to commit the act as well as the intent to
achieve the consequences of the act.” Id. (quoting Auguste, 395 F.3d at 145-46). The
court elaborated:
Specific intent requires not simply the general intent to accomplish an act
with no particular end in mind, but the additional deliberate and
conscious purpose of accomplishing a specific and prohibited result.
Mere knowledge that a result is substantially certain to follow from one’s
actions is not sufficient to form the specific intent to torture. Knowledge
that pain and suffering will be the certain outcome of conduct may be
sufficient for a finding of general intent but it is not enough for a finding
of specific intent.
Id.
Similarly, the Second Circuit has rejected an argument that “Haiti’s indefinite
detention of criminal deportees amounts to torture in light of the prevailing prison
conditions,” Pierre, 502 F.3d at 116, holding that the CAT’s specific intent
requirement “incorporates a criminal specific intent standard,” id. at 118. This
standard “requires that the actor intend the actual consequences of his conduct (as
distinguished from the act that causes these consequences).” Id. The court declined
to hold that specific intent can be established through “willful blindness” or
“deliberate indifference,” noting that those “concepts, which may bear on knowledge
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to the extent they establish conscious avoidance, [cannot] without more demonstrate
specific intent.” Id. In distinguishing the CAT’s specific intent requirement from a
general intent requirement, the court noted that “[t]he President and Senate knew full
well that they were construing a treaty designed to stop criminal conduct. We cannot
ignore the word ‘specifically’ in the ratification understanding and the regulations, and
we decline to give it a counter-intuitive spin.” Id. (footnote omitted).
C. Analysis
Our own analysis begins with the language of the CAT itself. Article 1 defines
torture as “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person” for a proscribed purpose. Art. 1(1), S. Treaty Doc.
No. 100-20 (emphasis added). The understandings of this definition, articulated by
both the President and the Senate, make clear that the “intentionally inflicted”
requirement means “an act must be specifically intended to inflict severe physical or
mental pain or suffering” to qualify as torture. S. Exec. Rep. No. 101-30, at 9, 36
(emphasis added). “Thus, we are presented with a situation where both the President
and the Senate, the two institutions of the federal government with constitutional roles
in the treaty-making process, agreed during the ratification stage that their
understanding of the definition of torture contained in Article 1 of the [CAT] included
a specific intent requirement.” Auguste, 395 F.3d at 142. These understandings were
carried into the domestic realm through FARRA and 8 C.F.R. § 208.18(a), which
incorporate the CAT’s definition of torture subject to the reservations, understandings,
declarations, and provisos contained in the United States Senate resolution of
ratification of the Convention. See FARRA § 2242; 8 C.F.R. § 208.18(a). Given such
clear evidence, we find it beyond dispute that the CAT and its implementing
regulations include a specific intent requirement. See also Restatement (Third) of the
Foreign Relations Law of the United States § 314 cmt. d (1987) (“A treaty that is
ratified or acceded to by the United States with a statement of understanding becomes
effective in domestic law . . . subject to that understanding.”).
-17-
We next turn to the substantive question of what this specific intent requirement
means in the CAT context, and whether the BIA erred in defining specific intent with
reference to its ordinary meaning in American law. Cherichel acknowledges that the
CAT contains a specific intent requirement, but argues that it is satisfied if severe
physical or mental pain or suffering is the foreseeable consequence of a deliberate act.
Specific intent is a term of art in American jurisprudence, well known to
practitioners and law students alike. See Auguste, 395 F.3d at 145; United States v.
Sawyer, 239 F.3d 31, 40 n.7 (1st Cir. 2001). Although the term is not always defined
or applied consistently, see Joshua Dressler, Understanding Criminal Law § 10.06 (4th
ed. 2006); 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e) (2d ed. 2003),
under its usual definition, specific intent is “[t]he intent to accomplish the precise
criminal act that one is later charged with,” Black’s Law Dictionary 882 (9th ed.
2009). This definition is used throughout criminal law. See, e.g., Carter, 530 U.S. at
269 (noting that specific intent requires an intent to achieve the prohibited act); Vacco
v. Quill, 521 U.S. 793, 802-03 (1997) (“[T]he law distinguishes actions taken
‘because of’ a given end from actions taken ‘in spite of’ their unintended but foreseen
consequences.” (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)));
United States v. Bartlett, 856 F.2d 1071, 1078 n.9 (8th Cir. 1988) (quoting jury
instructions that “[t]o establish specific intent the Government must prove that the
Defendant knowingly did an act which the law forbids, purposefully intending to
violate the law”); 21 Am. Jur. 2d Criminal Law § 119 (2008) (providing that specific
intent “requires not simply the general intent to do the immediate act with no
particular . . . 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”). This definition has been adopted by
every circuit to address the issue of specific intent in the context of Haitian criminal
deportees seeking CAT relief. See Villegas, 523 F.3d at 988.
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In contrast, general intent is “intent to perform an act even though the actor
does not desire the consequences that result[,]” and often “takes the form of
recklessness . . . or negligence.” Black’s Law Dictionary, supra, at 882; see also
LaFave, supra, § 5.2(e), at 355 (“[G]eneral intent is only the intention to make the
bodily movement which constitutes the act which the crime requires.” (quotation
omitted)); 21 Am. Jur. 2d Criminal Law § 118. The two forms of intent are often
contrasted against one another. For example, the Supreme Court has noted that
“‘purpose’ corresponds loosely with the common-law concept of specific intent, while
‘knowledge’ corresponds loosely with the concept of general intent.” United States
v. Bailey, 444 U.S. 394, 405 (1980). The Carter Court used an example to help
distinguish between general and specific intent:
[A] person entered a bank and took money from a teller at gunpoint, but
deliberately failed to make a quick getaway from the bank in the hope of
being arrested so that he would be returned to prison and treated for
alcoholism. Though this defendant knowingly engaged in the acts of
using force and taking money (satisfying “general intent”), he did not
intend permanently to deprive the bank of its possession of the money
(failing to satisfy “specific intent”).
Carter, 530 U.S. at 268 (citing United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir.
1980)).
It is this definition of specific intent—where the actor must intend both the
prohibited act and its prohibited consequences—that the BIA properly applied both
in this case and in In re J-E-. Specific intent is a term of art with a well-known, oft-
applied legal definition. The D.C. Circuit has eloquently noted that “[w]here
Congress borrows a term of art in which is accumulated the legal tradition and
meaning of centuries of practice, it presumably knows and adopts the meaning its uses
conveys to the judicial mind, and in such a case, in the absence of a contrary direction,
its use may be taken as satisfaction with widely accepted definitions and not a
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departure from them.” United States v. Bailey, 585 F.2d 1087, 1124 (D.C. Cir. 1978),
rev’d on other grounds, 444 U.S. 394 (1980) (citing Morissette v. United States, 342
U.S. 246 (1952)); see also Refling v. Burnet, 47 F.2d 859, 861 (8th Cir. 1931)
(“‘Where words have acquired a well-understood meaning by judicial interpretation,
it is to be presumed that they are used in that sense in a subsequent statute, unless the
contrary clearly appears.’” (quoting United States v. Trans-Missouri Freight Ass’n,
58 F. 58, 67 (8th Cir. 1893))). We believe the same principle applies when
interpreting regulations that incorporate the understandings of both the President and
the Senate.
Therefore, we hold that the phrase “specifically intended” contains a specific
intent standard, as that standard is used in American criminal law. This means that a
petitioner may not obtain relief under the CAT unless he can show that his prospective
torturer has the goal or intent of inflicting severe physical or mental pain or suffering
upon him.14 We reject the argument that a showing that pain or suffering is practically
certain to occur can establish specific intent; that is not the law. As the Pierre court
noted: “We cannot ignore the word ‘specifically’ in the ratification understanding and
the regulations, and we decline to give it a counter-intuitive spin.” 502 F.3d at 118.
We also cannot ignore the phrase “specifically intended” in the CAT’s implementing
regulations, and we give it its ordinary meaning in American law.
14
We are quick to note, however, that the element of specific intent is separate
and distinguishable from the element of state acquiescence. The definition of torture
in 8 C.F.R. § 208.18(a) makes clear that it is the torturer who must posses the specific
intent to inflict severe physical or mental pain or suffering, not necessarily the state
actor. Thus, where a private actor specifically intends to inflict such pain or suffering,
a showing that “a government official is aware of the persecutor’s conduct and intent
and acquiesces in violation of the official’s duty to intervene” can be sufficient to
constitute torture under the CAT. Pierre, 502 F.3d at 118 (citing Khouzam v.
Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004)); see also 8 C.F.R. § 208.18(a)(7).
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Our reading of the plain language of the CAT and its implementing regulations
is not based on, but is confirmed by, the BIA’s interpretation in In re J-E-. See Pierre,
502 F.3d at 119 (“The deference we owe to the BIA’s analysis in In re J-E- simply
confirms the understanding we derive from plain meaning.”). In In re J-E-, the BIA
engaged in the same analysis in which we have engaged here and simply applied the
traditional meaning of “specific intent” to the CAT context. See 23 I. & N. Dec. at
301. Because we derive our holding from the plain language of the regulations, we
express no opinion on Cherichel’s argument that the BIA’s interpretation of specific
intent is not entitled to deference.15
Cherichel relies heavily upon our decision in Habtemicael v. Ashcroft, 370 F.3d
774 (8th Cir. 2004), for the proposition that, in the CAT context, the specific intent
element is satisfied by a showing that severe physical or mental pain or suffering is
the foreseeable consequence of a deliberate act. In Habtemicael, an Ethiopian national
who had been conscripted for service in the Eritrean liberation movement sought
asylum, withholding of removal, and protection under the CAT. Id. at 777.
Habtemicael’s CAT claim was based on his fear that if returned to Eritrea, “the
government would persecute or torture him because of his ideological opposition to
the [Eritrean People’s Liberation Front], his escape [from an EPLF camp] in 1986
[during which two EPLF soldiers were killed], and his failure to make the payments
required for expatriates to have an Eritrean identity card.” Id. at 778. Following a
hearing, the IJ found that any punishment Habtemicael received if returned to Eritrea,
15
However, a number of courts have deferred to the BIA’s interpretation of
specific intent when examining the CAT and its implementing regulations. See, e.g.,
Pierre, 502 F.3d at 116 (noting that, because the CAT’s implementing regulations
were drawn by the DOJ pursuant to FARRA and incorporate the Senate’s
understandings, “this circumstance bespeaks more deference, not less: deference to
the Senate’s ratification understanding, deference to the framing of the regulations,
and deference to an agency’s interpretation of the regulations”); see also Auguste, 395
F.3d at 144-45 (discussing the amount of deference owed to “the BIA’s interpretation
of the specific intent standard”).
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including the death penalty, would be incidental to lawful sanctions and thus not
torture under the CAT because “a government has authority to punish and even
execute individuals who avoid conscription or desert military forces during wartime.”
Id. at 779. The BIA affirmed without opinion, and Habtemicael appealed. Id.
On appeal, we reversed the IJ’s ruling on Habtemicael’s CAT claim and
“remand[ed] for further findings as to whether Habtemicael is more likely than not to
suffer torture within the meaning of the Convention if returned to Eritrea.” Id. at 783.
We based this reversal on the IJ’s failure to make “findings as to whether the EPLF
had the status of a recognized government when Habtemicael was forced into its
service.” Id. at 781. If it did not, “then Habtemicael as a citizen of Ethiopia may have
acted lawfully in escaping and defending himself against recapture,” and “[t]he
sanction of death might therefore be a violation of the [CAT].” Id. We then briefly
discussed what Habtemicael would have to prove on remand before the IJ and stated
that the “intent requirement [of the CAT] is satisfied if prolonged mental pain or
suffering either is purposefully inflicted or is the foreseeable consequence of a
deliberate act.” Id. at 782 (emphasis added) (citing Zubeda v. Ashcroft, 333 F.3d 463,
473 (3d Cir. 2003)).16
Unsurprisingly, Cherichel seizes on this statement, arguing that in the Eighth
Circuit—in contrast to every other circuit that has examined the issue—the CAT’s
specific intent requirement is satisfied by a showing that severe pain or suffering is
merely foreseeable or “practically certain to follow from the actor’s conduct, whatever
his desire may be as to the result.” (Pet’r Br. 11 (emphasis omitted).) We recognize
16
In Zubeda v. Ashcroft, the BIA had denied the petition of a citizen of the
Democratic Republic of Congo requesting asylum, withholding of deportation, and
relief under Article 3 of the CAT. 333 F.3d 463, 465-66 (3d Cir. 2003). In vacating
the BIA’s decision and remanding to the IJ, the court stated that “[a]lthough the
regulations require that severe pain or suffering be ‘intentionally inflicted,’ we do not
interpret this as a ‘specific intent’ requirement.” Id. at 473 (internal citation omitted).
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that the language in Habtemicael is in conflict with our holding here that the CAT’s
specific intent standard can only be satisfied by proving that a persecutor has the goal
or intent of inflicting severe physical or mental pain or suffering. However, we
believe this portion of the Habtemicael decision to be dicta, and we decline to follow
it. See Passmore v. Astrue, 533 F.3d 658, 661 (8th Cir. 2008) (noting that the court
need not follow dicta, defined as “a judicial comment made while delivering a judicial
opinion, but one that is unnecessary to the decision in the case and therefore not
precedential” (quotation omitted)).
Our decision in Habtemicael was based on the IJ’s failure to address the factual
question of whether the EPLF had sovereign authority in 1986 such that any
punishment that Habtemicael might receive upon returning to Eritrea would be a
lawful sanction. See 370 F.3d at 781 (“The immigration judge made no findings as
to whether the EPLF had the status of a recognized government when Habtemicael
was forced into its service in Barentu or whether it had the authority to impress an
Ethiopian citizen into military service against the Ethiopian government.”). Such
factual issues are not for this court to resolve. Id. (“[T]he extent of [the EPLF’s]
authority in 1985 and 1986 is a question for the immigration judge in the first
instance, as is any legal consequence.”). Thus, we remanded the case to the IJ for
further fact-finding. Id. at 783. Our discussion of what Habtemicael would have to
prove on remand was unnecessary to our resolution of the case, and no other panel of
this court, or any other court, has relied upon it. Thus, we hold that the portion of
Habtemicael discussing specific intent is dicta, and therefore not entitled to
precedential effect. See Passmore, 533 F.3d at 661.
Additionally, we note that the language in Zubeda, upon which the Habtemicael
court relied, has since been held to be dicta as well. See Auguste, 395 F.3d at 148
(“[W]e believe that the quoted passage of Zubeda, upon which Auguste relies, is
dicta.”); see also Pierre, 528 F.3d at 187 (acknowledging same). A similar fate has
befallen Lavira v. Attorney General, 478 F.3d 158 (3d Cir. 2007). In Lavira, the court
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stated that it could not “rule out that intent can be proven through evidence of willful
blindness.” Id. at 171. The Third Circuit, sitting en banc, has since overruled this
interpretation of specific intent. See Pierre, 528 F.3d at 190 (“[T]o the extent that
Lavira suggests that mere knowledge is sufficient for a showing of specific intent, we
overrule that suggestion.”).
Cherichel also relies upon a 2004 memorandum by the DOJ’s Office of Legal
Counsel (OLC) to support his argument that specific intent can be established by mere
foreseeability. See Mem. from Daniel Levin, Acting Assistant Att’y Gen., to James
B. Comey, Deputy Att’y Gen. (Dec. 20, 2004), available at
http://www.justice.gov/olc/18usc23402340a2.htm [hereinafter 2004 OLC
Memorandum]. The memorandum analyzes the legal standards applicable under 18
U.S.C. §§ 2340-2340A, which fulfill the United States’ obligation under the CAT by
criminalizing torture, defined as “an act committed by a person acting under the color
of law specifically intended to inflict severe physical or mental pain or suffering.” 18
U.S.C. § 2340(1). The memorandum addresses several issues, including the meaning
of the terms “severe,” “severe physical pain or suffering,” and “severe mental pain or
suffering.” 2004 OLC Memorandum. Its final section discusses the meaning of
“specifically intended,” as used in the definition of torture in § 2340(1). Id. After
noting inconsistencies in the way courts have interpreted general and specific intent,
the memorandum finds that it is “not . . . useful to try to define the precise meaning
of ‘specific intent’ in section 2340.” Id. Citing “the President’s directive that the
United States not engage in torture,” the memorandum suggests that “it would not be
appropriate to rely on parsing the specific intent element of the statute to approve as
lawful conduct that might otherwise amount to torture.” Id. The memorandum
specifically declines to reiterate the standard of specific intent previously articulated
by the OLC, namely that the “infliction of severe pain or suffering be the defendant’s
‘precise objective.’” Id. n.27.
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 Cherichel argues that because the OLC suggests that, in the domestic context,
specific intent can be proven by showing that severe pain or suffering was the
foreseeable consequence of a deliberate act, we must apply a similar definition in the
immigration context. By failing to do so, Cherichel claims that “the United States is
holding its own interrogators to a higher standard than it holds the Haitian government
in its treatment of criminal deportees.” (Petr.’s Br. 19.)
Without expressing an opinion as to the amount of weight or deference due the
2004 OLC Memorandum,17 we decline to adopt its reasoning. Our holding—that the
CAT’s specific intent element cannot be satisfied by a showing that severe physical
or mental pain or suffering is merely foreseeable—is based on the plain language of
the CAT, the understandings of the CAT expressed by the President and the Senate,
and the language of the CAT’s implementing regulations. That the OLC interprets the
CAT’s language differently, while perhaps relevant to our analysis, is certainly not
determinative.
In sum, we reject the argument that the CAT’s specific intent element can be
satisfied by a showing that severe physical or mental pain or suffering is merely the
foreseeable consequence of a deliberate action. We hold that the definition of torture
under the CAT and its implementing regulations contains a specific intent element,
which is satisfied only by a showing that a persecutor specifically intends to inflict
17
We note, however, that while OLC opinions are generally binding on the
Executive branch, see Public Citizen v. Burke, 655 F. Supp. 318, 321-22 (D.D.C.
1987), the courts are not bound by them, see id.
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severe pain or suffering upon his victim.18 This was the definition properly applied
by the BIA in this case.
IV.
Having determined that the BIA applied the correct legal definition of specific
intent, we must affirm the BIA’s decision. Because Cherichel was ordered removed
as having committed a drug offense, our jurisdiction is limited to constitutional issues
and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D). Factual determinations lie
outside our scope of review and, to the extent that Cherichel argues that the BIA
incorrectly held that he failed to prove specific intent under the standard announced
today, we lack the jurisdiction to reweigh the evidence before the BIA. See 8 U.S.C.
§ 1252(a)(2)(D); see also Lovan v. Holder, 574 F.3d 990, 998 (8th Cir. 2009) (holding
that a challenge to the BIA’s factual determinations is beyond our jurisdiction);
Mocevic v. Mukasey, 529 F.3d 814, 817 (8th Cir. 2008) (per curiam) (declining to
review petitioner’s claims for asylum, withholding of removal, and CAT relief
because the petition amounted to “nothing more than a challenge to the IJ’s
discretionary and fact-finding exercises cloaked as a question of law”) (quotations
omitted). Because Cherichel failed to prove that Haitian authorities have the specific
intent to inflict severe pain or suffering when imprisoning criminal deportees, he
cannot prove that it is more likely than not that he will be tortured if returned to Haiti.
Nothing in our holding today is meant to minimize the deplorable, often
inhuman conditions that exist in many Haitian prisons and police stations. The
18
We note that we are not holding that deplorable prison conditions can never
constitute torture or that an alien can never receive CAT protection based solely on
evidence of such conditions. Where a petitioner can prove that authorities place
prisoners in deplorable conditions with the specific intent to inflict severe physical or
mental pain or suffering, such actions can rise to the level of torture if the other
requirements of the CAT are satisfied.
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evidence adduced by Cherichel before the IJ shows that Haitian prisoners and criminal
deportees are held in squalid, overcrowded cells without adequate food, water,
sanitation, exercise, or medical treatment. “[D]etainees and other prisoners face a
brutal existence, experiencing pain and suffering on a daily basis.” Auguste, 395 F.3d
at 154. We sympathize with Cherichel and others who must face such terrible
conditions. However, we are bound to apply the definition of torture in the CAT and
its implementing regulations. These conditions, although deplorable, do not rise to
the level of torture in this case because Cherichel failed to establish that Haitian
authorities have the specific intent to inflict severe physical or mental pain or
suffering. As such, the conditions cannot form a basis for CAT relief.
For the foregoing reasons, we deny the petition for review.
______________________________
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