Lavira v. Atty Gen USA

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

2-26-2007

Lavira v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-3334

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 05-3334

MAURICE LAVIRA,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

BIA No. A72-550-331

Immigration Judge: Grace Sease

Argued on September 28, 2006

Before: RENDELL, ROTH, AND GIBSON*, Circuit Judges,

(Filed February 26, 2007)

Valerie A. Burch [ARGUED]

Pennsylvania Immigration Resource Center

50 Mount Zion Road

York, PA 17402

Counsel for Petitioner

Maurice Lavira

Ethan B. Kanter

James E. Grimes

William C. Minick [ARGUED]

United States Department of Justice

Office of Immigration Litigation

P. O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

Attorney General of the United States

____________________

* Honorable John R. Gibson, Judge of the United States

Court of Appeals for the Eighth Circuit, sitting by

designation.

2

OPINION OF THE COURT

RENDELL, Circuit Judge.

Maurice Lavira is an above-the-knee amputee with a

lifelong political affiliation with exiled former President

Jean-Bertrand Aristide of Haiti. He is also HIV positive. Lavira

has been in the United States since 1993. He petitions for

review of the decision of the Immigration Judge (“IJ”), affirmed

by the Board of Immigration Appeals (“BIA”), that his

conviction for purchasing a $10 bag of drugs for an undercover

agent was a “particularly serious crime” under the terms of the

Immigration and Nationality Act (“INA”). In addition, Lavira

claims that the IJ failed to recognize the basis for his claim

under the United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”), as implemented by the Foreign Affairs Reform and

Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G,

Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified

as Note to 8 U.S.C. § 1231), and the Department of Justice’s

corresponding regulations at 8 C.F.R. §§ 208.16-208.18. Lavira

argues that his removal to Haiti would violate the CAT in that

placing him in the inhumane conditions of the Haiti detention

center (an airless, disease-ridden facility that this Court has

likened to a “slave ship,” Auguste v. Ridge, 395 F.3d 123, 129

3

(3d Cir. 2005)) would more likely than not subject him to severe

pain and suffering, and that he would be singled out for abuse

and mistreatment by the guards given, among other

characteristics, his HIV status.1 We will remand to the agency

for further proceedings.

I. Factual and Procedural History

Born in Haiti on January 1, 1970, Lavira had his leg and

ear cut off in a car accident.2 Lavira lost fingers in Haiti while

repairing a truck. Lavira had little contact with his mother

growing up and when he was 16 his father was killed. He found

refuge at a church in Port-au-Prince where Jean-Bertrand

Aristide preached. Aristide permitted Lavira to stay at the

church, and Lavira did so for two years until the church was

1

If the IJ committed legal error in concluding that his drug

offense was a “particularly serious crime,” Lavira would then be

eligible for withholding of removal. Whether or not he succeeds

on that claim, Lavira may be eligible for deferral of removal if

he prevails on his second claim, namely, that the IJ erred as a

matter of law in denying his Convention Against Torture (CAT)

claim.

2

While Lavira contends that he lost his leg and ear when

“anti-Aristide thugs attacked him with a machete for supporting

the exiled President of Haiti,” Appellant's brief “does not

dispute the facts found by the IJ, nor does it rely upon

information found unreliable by the IJ.”

4

burned down by Aristide opponents. Lavira was an open

Aristide supporter in 1990 when Aristide ran for and won

election as President of Haiti. At roughly the same time as

Aristide was ousted from Haiti in a military coup, Lavira left

Haiti for the United States on a boat and was picked up by the

U.S. Marines. The then-INS detained him for more than a year,

then released him “for humanitarian reasons,” according to

Lavira.

Believing that he had been granted permanent asylum,

Lavira sought no new immigration status after being released.

He became depressed and by 1996 was homeless and a drug

addict. In 1998, Lavira pled guilty to a charge of Attempted

Criminal Sale of a Controlled Substance in the Third Degree,

N.Y.P.L. § 110/220.39, as a result of his having accepted $10

from an undercover officer in order to obtain crack cocaine for

the officer.3 In July 2003, Lavira was taken into custody by the

Department of Homeland Security (“DHS”).

In November 2003, the IJ ordered that Lavira be removed

to Haiti in light of his drug conviction. Unable to write or speak

3

Lavira also pled guilty in 2002 to a charge of Criminal

Facilitation in the Fourth Degree, N.Y.P.L. § 115.00. Lavira

had purchased three small baggies of crack cocaine from an

undercover officer. Lavira served roughly 18 months in New

York state prisons for these offenses. The record is clear,

however, that the only conviction used as a basis for deporting

Lavira was the attempted sale conviction. A.R. 952.

5

English, Lavira appealed pro se to the BIA. The BIA sustained

the appeal and remanded the case to the IJ, finding that Lavira’s

opportunity to make claims for withholding of removal under

the INA and the CAT had been improperly limited by the IJ. In

the remand order, the BIA instructed the IJ to consider the

circumstances surrounding Lavira’s drug trafficking crime in

order to determine whether Lavira had in fact been convicted of

a “particularly serious crime.” The remand also ordered that

Lavira be permitted to “flesh out” his fear of returning to Haiti,

as the opportunity to do so at the removal hearing was limited.

Appx. 31.

Thereafter venue was changed to the York Immigration

Court in Pennsylvania, and Lavira received free counsel

pursuant to 8 C.F.R. § 292.1(a)(2). He applied for withholding

of removal to Haiti under 8 U.S.C. § 1231(b)(3), withholding of

removal under the CAT, 8 C.F.R. § 208.16, and deferral of

removal to Haiti under the CAT, 8 C.F.R. § 208.17. After

several hearings over the course of six months, the IJ denied all

of Lavira’s claims, concluding that Lavira had committed a

particularly serious crime and that he was not eligible for

deferral of removal to Haiti because he had leveled only a

generalized attack on the conditions of the Haitian facility.

6

A. “Particularly Serious Crime”

Individuals seeking to obtain withholding of removal

may not do so if they are deemed by the Attorney General to

have committed a particularly serious crime. 8 U.S.C.

§ 1231(b)(3)(ii) (person not removable if the Attorney General

decides that “the alien, having been convicted by a final

judgment of a particularly serious crime is a danger to the

community of the United States”). The statute gives guidance

as to the meaning of this term:

For purposes of clause (ii), an alien who has been

convicted of an aggravated felony (or felonies) for

which the alien has been sentenced to an

aggregate term of imprisonment of at least 5 years

shall be considered to have committed a

particularly serious crime. The previous sentence

shall not preclude the Attorney General from

determining that, notwithstanding the length of

sentence imposed, an alien has been convicted of

a particularly serious crime.

8 U.S.C. § 1231(b)(3)(iv).

Although Lavira committed a drug trafficking offense, a

crime that he concedes is an aggravated felony, he did not

receive a sentence in excess of five years. Thus, it was left up

to the Attorney General to determine whether the crime was a

7

“particularly serious crime.” We have jurisdiction to decide

whether the Attorney General’s determination is correct. Alaka

v. Gonzales, 456 F.3d 88, 104 (3d Cir. 2006) (“We thus have

jurisdiction over whether the IJ misapplied the law in

determining whether Alaka’s bank fraud conviction was

‘particularly serious.’”).4

Under Matter of Y-L-, 23 I. & N. Dec. 270 (BIA 2002),

the BIA opined that the presumption is that a drug trafficking

crime is a “particularly serious crime.” That presumption can be

overcome, however, if the offense is a drug trafficking crime but

nevertheless “fall[s] short of that standard.” Matter of Y-L-, 23

I. & N. at 276-77. The BIA in that case described the proper

analysis:

I might be well within my discretion to conclude

that all drug trafficking offenses are per se

‘particularly serious crimes’ under the INA. I do

not consider it necessary, however, to exclude

entirely the possibility of the very rare case where

an alien may be able to demonstrate extraordinary

and compelling circumstances that justify treating

a particular drug trafficking crime as falling short

of that standard. While this opinion does not

4

Respondent initially claimed that the Attorney General’s

determination was unreviewable, but rescinded that argument by

letter in light of Alaka.

8

afford the occasion to define the precise

boundaries of what those unusual circumstances

would be, they would need to include, at a

minimum: (1) a very small quantity of controlled

substance; (2) a very modest amount of money

paid for the drugs in the offending transaction;

(3) merely peripheral involvement by the alien in

the criminal activity, transaction, or conspiracy;

(4) the absence of any violence or threat of

violence, implicit or otherwise, associated with

the offense; (5) the absence of any organized

crime or terrorist organization involvement, direct

or indirect, in relation to the offending activity;

and (6) the absence of any adverse or harmful

effect of the activity or transaction on juveniles.

Only if all of these criteria were demonstrated by

an alien would it be appropriate to consider

whether other, more unusual circumstances (e.g.,

the prospective distribution was solely for social

purposes, rather than for profit) might justify

departure from the default interpretation that drug

trafficking felonies are ‘particularly serious

crimes.’ I emphasize here that such commonplace

circumstances as cooperation with law

enforcement authorities, limited criminal

histories, downward departures at sentencing, and

post-arrest (let alone post-conviction) claims of

9

contrition or innocence do not justify such a

deviation.

Id.5

In a hearing that took place several weeks before the IJ

rendered her ultimate decision on the particularly serious crime

question, the IJ indicated that she understood that Matter of Y-L-

set forth the correct standard. At the same time, however, she

appeared to misconceive the facts of Lavira’s case, asking

Lavira’s counsel, “How do you overcome the fact that he has

been convicted of three drug trafficking crimes?” A.R. 187.

Lavira was in fact convicted of two crimes and Matter of Y-L-

confines the “particularly serious crime” inquiry to the facts

underlying the crime upon which removal is predicated, here

just one offense. Moreover, the number of drug trafficking

crimes does not appear as a relevant consideration when the

inquiry under Matter of Y-L- is whether the crime for which he

is being deported is a minor drug offense and thus not a

particularly serious crime.

At the last hearing the IJ rendered an oral decision,

ultimately determining that withholding was unavailable. She

5

In a later portion of the opinion, the BIA declared that it

found that “a drug ‘courier’ plays more than a sufficiently active

part in a distribution conspiracy to render his conviction a

‘particularly serious crime.’” Matter of Y-L-, 23 I. & N. at 278.

10

stated her reasoning: “[n]ot only because he has been convicted

of an aggravated felony, but because he has been convicted of

a drug trafficking offense. Which is presumptively and [sic]

particularly serious crime. No evidence has been submitted to

this Court that would allow the Court to find that departure from

this interpretation would be warranted or permissible.” Appx.

16-17. This language is the entirety of the IJ’s decision on this

point; the IJ did not allude to the facts of the crime,

notwithstanding the BIA’s directive that she was to do so on

remand. Nor did the IJ refer to Y-L- or engage in any reasoning.

B. Convention Against Torture Claim

Lavira’s CAT challenge to the Haitian facility was by no

means the first of its kind. In fact, our previous cases have made

us all too aware of the deplorable conditions in the Haitian

prisons. See, e.g., Auguste, 395 F.3d at 129. What makes

Lavira’s claim distinguishable from past attacks, however, is his

physical condition and the record evidence in this case.

When Lavira’s application for withholding and deferral

was first brought before the IJ on remand, he had not yet tested

positive for HIV. The torture claim was thus initially based on

Lavira’s fear that would be tortured while detained in the

Haitian facility by prison guards who would target the

wheelchair-bound Aristide supporter.

11

During the proceedings that occurred in the weeks

leading up to the IJ’s oral decision, and prior to learning that

Lavira was HIV positive, the IJ evinced concern about sending

Lavira to Haiti’s notorious facility (Haiti’s National

Penitentiary) in light of his amputee status. She distinguished

Lavira’s case from that of the typical person who is sent to the

facility and she distinguished Lavira’s challenge from a

generalized attack on the facility conditions. She also

questioned the Government intently on this point: “How do you

deal with the fact of somebody who has the physical

condition–the physical disabilities and injuries that the

respondent has? And the conditions of the Haitian prisons?”

Tr. Oct. 26, 2004 Hr’g at 77. The IJ discussed the horrific

conditions the BIA had considered in a previous case, Matter of

J-E- and stated that those conditions “were present in the Matter

of J-E-, but J-E-, if I recall correctly, was not confined to a

wheel chair, appeared to have two legs and appeared to be

ambulatory.” Id.

Unsatisfied with the Government’s answers, the IJ then

held the case over for several weeks in order to take additional

evidence as to what would happen to Lavira if he were sent to

the facility. She instructed Lavira’s attorney to gather

“objective evidence on the treatment of some body [sic] in Mr.

Lavira’s physical condition and health conditions would be

treated in the prisons in Haiti.” Id. at 78. The Government

attorney offered to do the same. The IJ then specifically stated

two key facts she would expect to have before her at the next

12

hearing: “what kind of treatment does somebody, such as Mr.

Lavira require to have because of his medical situation” and “is

that kind of treatment available in a detention setting in Haiti .

. . . [Y]ou might also want to focus a little bit [of] attention on

what are the consequences to him should he not have that kind

of treatment.” Id. at 80.

While attorneys for the Government and for Lavira were

assembling the additional information, Lavira tested positive for

HIV. Based on this diagnosis, counsel for Lavira submitted to

the IJ as part of the record a doctor’s report describing Lavira’s

medical needs and an affidavit by Michelle Karshan, an expert

on mistreatment in Haiti’s prisons. The extensive expert report

detailed the conditions of both Lavira and the prisons and

opined that in light of Lavira’s medical condition his health

would dramatically deteriorate upon incarceration, and that he

would lose 30 pounds in a matter of weeks (Lavira is of average

height and weight). The report detailed the pain and suffering

that would be inflicted on Lavira, both by the guards who would

single out the HIV-positive prisoner and by the lethal

combination of slave-ship conditions and the prisoner’s

infection with the virus that causes an incurable auto-immune

disease.

At the final hearing on February 8, 2005, the IJ first noted

that the Government’s attorney had indicated that he would

request that DHS exercise its discretion and defer removal in

13

light of Lavira’s condition.6 The IJ then rendered her decision.

In her oral decision, the IJ made no mention of the

Government’s previously stated intention to recommend

discretionary deferral, nor did the IJ mention the Karshan report

or the doctor’s report. Despite the IJ’s earlier concern about

Lavira’s condition, the BIA’s instruction that he be permitted to

flesh out his CAT claim, and the record evidence of the unique

pain and suffering that awaited Lavira in Haiti, the IJ’s decision

failed to mention Lavira’s HIV status or address the specific

problems he would face. The IJ denied the CAT claim in the

following sentences:

[T]he Third Circuit in Auguste v. Ridge, looked at

the general prison conditions in Haiti and found

that for an act to constitute torture, it must be

intentionally inflicted with the specific intent to

cause. There is no specific intent and the Third

Circuit found the deplorable and a [sic] poor

prison conditions that exist in Haiti are not the

result of specific intent to cause torture, but rather

a result of the general climate in Haiti, the lack of

6

Questioned by our panel on this point at oral argument,

counsel for Lavira stated that the Government had agreed to

pursue discretionary deferral only if Lavira waived his right to

appeal the IJ’s decision. Electing not to rest her client’s fate on

the Government’s promise to seek deferral, Lavira’s counsel

perfected the appeal.

14

funding. And it is a general state of affairs. All

prisoners who are detained in Haiti, are subject to

the same deplorable conditions. The respondent

would not be singled out. To be sure the

respondent does have certain disabilities, but

there is no evidence that has been submitted other

than evidence relating to the general overall

deplorable conditions that could lead this Court

to conclude that the respondent would be placed

or detained upon his return to Haiti with an intent

to inflict severe pain or suffering.

Appx. 19 (emphasis added).

The BIA affirmed the IJ’s decision in a streamlined order

by a single judge, and Lavira timely appealed.

II. DISCUSSION

A. Standard of Review

The BIA adopted the opinion of the IJ, and as such we

review the IJ’s decision. See Chen Yun Gao v. Ashcroft, 299

F.3d 266, 271 (3d Cir. 2002) (“When the BIA does not render

its own opinion . . . and either defers or adopts the opinion of the

IJ, a Court of Appeals must then review the decision of the IJ.”).

Under Alaka v. Gonzales, 456 F.3d 88 (3d Cir. 2006), we review

de novo the question of whether Lavira’s drug conviction is a

15

particularly serious crime. Id. at 104 (“We thus have

jurisdiction over whether the IJ misapplied the law in

determining whether Alaka’s bank fraud conviction was

‘particularly serious.’”). With respect to the CAT claim, we

have jurisdiction to review an order denying a CAT claim under

8 U.S.C. § 1252(a)(2)(C) and 8 U.S.C. § 1252(a)(2)(D), and we

review de novo constitutional claims and questions of law

(including the application of law to fact), while “factual or

discretionary determinations . . . fall outside the jurisdiction of

the court of appeals entertaining a petition for review.”

Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).

In addition, a decisionmaker such as the IJ “must actually

consider the evidence and argument that a party presents.”

Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal

quotations omitted). An IJ decision that flatly ignores the

grounds presented by the petitioner fails to furnish the Court of

Appeals with the basis for its particular decision, and as such

any meaningful review is not possible. Accordingly, remand is

appropriate in such circumstances because under INS v. Ventura,

537 U.S. 12 (2002), “a reviewing court is powerless to decide in

the first instance issues that an agency does not reach.” Konan

v. Att’y Gen. of the United States, 432 F.3d 497, 501 (3d Cir.

2005).

16

B. Particularly Serious Crime

We first address the question of whether the IJ committed

legal error by finding that Lavira’s drug conviction was a

“particularly serious crime” disqualifying him from withholding

of removal under 8 U.S.C. § 1231(b)(3) and the CAT. As noted

above, Lavira’s case had been before an IJ once before and on

appeal the BIA reversed the IJ and remanded the case,

instructing the IJ to consider the circumstances surrounding

Lavira’s drug trafficking crime and to determine whether Lavira

had in fact been convicted of a “particularly serious crime” as

defined by the statute. We can find no indication in the record

that the circumstances of Lavira’ s offense were indeed

considered by the IJ on remand in her ruling regarding the

nature of the crime.

Lavira testified that the conviction for attempting the sale

of a controlled substance resulted from his accepting $10 from

an undercover police officer in order to obtain crack cocaine for

the officer. Lavira never purchased the drugs; it is not clear

from the record whether that is because he was arrested or

whether he simply failed to make the purchase. The facts of this

offense appear to place him squarely within the exception

carved out by the six-part test in Matter of Y-L-. The

Government argues that Lavira was like the “courier” in Matter

of Y-L-, and therefore the crime should be deemed particularly

serious. However, Lavira’s case bears no resemblance to the

petitioner who was denied relief in Matter of Y-L-. There was

17

no distribution conspiracy at all in Lavira’s case, to say nothing

of one approaching the scope and sophistication of the

conspiracy in Matter of Y-L-. The courier deemed to have

committed a particularly serious crime in Matter of Y-L-

confessed to “participation in a conspiracy to produce cocaine

in Puerto Rico and transport it in multi-kilogram quantities for

subsequent distribution in New York. . . . [A]ny scheme

designed to transport cocaine in such large quantities necessarily

exposed numerous individuals to physical harm.” Matter of Y-L,

23 I. & N. Dec. at 278 (emphasis in original). During the

hearings, the IJ correctly recognized Matter of Y-L- as the

relevant precedent, though she did not mention the six-part test

that would have possibly excepted Lavira’s crime from being

considered “particularly serious.” We question, therefore,

whether the IJ ever actually applied Matter of Y-L- to the facts

of Lavira’s conviction for attempted sale or analyzed the six

relevant factors.

As noted above, at the hearing during which the IJ issued

her opinion and denied Lavira’s “particularly serious crime”

claim, the IJ focused on the fact that he had several drug

trafficking convictions. A.R. 187. She asked Lavira’s counsel,

“How do you overcome the fact that he has been convicted of

three drug trafficking crimes?”, a question that is both factually

incorrect and irrelevant to the issue of whether the crime for

which Lavira is being deported is particularly serious under 8

U.S.C. § 1231(b)(3). The IJ stated correctly that Lavira’s drug

trafficking offense is presumptively a particularly serious crime,

18

but inexplicably declared that “[n]o evidence has been submitted

to this Court that would allow the Court to find that departure

from this interpretation would be warranted or permissible.”

Appx. 16-17. That statement is quite simply at odds with the

undisputed facts of Lavira’s case when viewed through the lens

of the six-part test in Matter of Y-L-. Furthermore, the BIA had

specifically remanded the case to the IJ for further consideration

of Lavira’s particular circumstances.

“While the IJ ‘is not required to write an exegesis on

every contention,’ he must show ‘that [he] has reviewed the

record and grasped the movant’s claims.” Korytnyuk v.

Ashcroft, 396 F.3d 272, 294 (3d Cir. 2005) (quoting Sevoian v.

Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002)). Here, the

declaration that “[n]o evidence has been submitted to this Court

that would allow the Court to find that” the crime was not

particularly serious collides with the record evidence as to the

nature of the crime and the unique facts in Lavira’s favor. The

IJ never referred to the facts of the crime, and made only a

conclusory statement. The IJ has the duty of correctly

apprehending the basis of a petitioner’s claim–especially where,

as here, the BIA so instructed. Here that appears not to have

happened.

We are thus left with the firm impression that the IJ

“missed the mark” in disposing of Lavira’s challenge to the

“particularly serious crime” designation. Konan v. Att’y Gen. of

the United States, 432 F.3d 497, 501 (3d Cir. 2005). In Konan

19

we concluded that the BIA’s findings “miss[ed] the mark”

because they appeared to ignore the factual basis of the

applicant’s claim. Similarly, here either the IJ failed to consider

the factual basis, or if the IJ did do so, we cannot discern her

reasoning in doing so. Accordingly, the IJ’s decision must be

remanded once again so that we have a basis for reviewing the

IJ’s legal conclusion. Vente v. Gonzales, 415 F.3d 296, 302-03

(3d Cir. 2005) (“[I]f the BIA fails to address one of an

applicant’s stated grounds for relief, the case must be remanded

for the BIA to consider the claim.”).

C. Convention Against Torture

We next take up the question of whether the IJ committed

legal error by denying Lavira’s CAT claim regarding the

conditions in Haiti’s prisons, taking into account his unique

physical condition. For CAT claims, the “burden of proof is on

the applicant for withholding of removal . . . to establish that it

is more likely than not that he or she would be tortured if

removed to the proposed country of removal. The testimony of

the applicant, if credible, may be sufficient to sustain the burden

of proof without corroboration.” 8 C.F.R. § 208.16(c)(2).

Factors in determining whether or not torture is likely to occur

include evidence of past torture inflicted upon the applicant; the

ability to relocate within the country to a place where torture

will not occur; evidence of gross, flagrant, or mass violations of

human rights; and other relevant information regarding

conditions in the country of removal. 8 C.F.R. § 1208.16(c)(3).

20

Article I of 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

within the consent or acquiescence of a public

official or other person acting in an official

capacity.

Art. 1(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.

The BIA has distilled the regulations implementing the

CAT as follows:

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 who has custody or physical control of the

victim; and (5) not arising from lawful sanctions.

21

Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA 2002).

We have clear precedent that guides our analysis of this

issue as it pertains specifically to the prisons in Haiti. In our

recent, comprehensive opinion in Auguste v. Ridge, 395 F.3d

123 (3d Cir. 2005), we embraced the five-part test referenced in

Matter of J-E-, applying it in the context of a CAT challenge to

Haiti’s detention facility. There we held that the overall

conditions of the facility did not constitute torture. Specifically,

in Auguste we interpreted torture under the CAT7 and its

implementing regulations to include only the intentional

infliction of severe pain or suffering upon a person, and found

that where the petitioner relied only on the general conditions of

the Haitian detention facility, he could not qualify for relief

under the CAT.

In Auguste we concluded that the conditions in the

facility, while “objectively deplorable,” Auguste, 395 F.3d at

153, did not constitute torture. We described those conditions

in the following terms:

The prison population is held in cells that are so

tiny and overcrowded that prisoners must sleep

7

As in Auguste, “we continue to use . . . the colloquial

reference to a ‘CAT claim’ rather than a ‘FARRA claim.’”

Auguste, 395 F.3d at 133 n.7.

22

sitting or standing up, and in which temperatures

can reach as high as 105 degrees Fahrenheit

during the day. Many of the cells lack basic

furniture, such as chairs, mattresses, washbasins

or toilets, and are full of vermin, including

roaches, rats, mice and lizards. Prisoners are

occasionally permitted out of their cells for a

duration of about five minutes every two to three

days. Because cells lack basic sanitation facilities,

prisoners are provided with buckets or plastic

bags in which to urinate and defecate; the bags are

often not collected for days and spill onto the

floor, leaving the floors covered with urine and

feces. There are also indications that prison

authorities provide little or no food or water, and

malnutrition and starvation is a continuous

problem. Nor is medical treatment provided to

prisoners, who suffer from a host of diseases

including tuberculosis, HIV/AIDS, and Beri-Beri,

a life-threatening disease caused by malnutrition.

At least one source provided by Auguste likened

the conditions in Haiti's prisons to a “scene

reminiscent of a slave ship.”

Auguste, 395 F.3d at 129.

The record also contained reports of beatings of prisoners

by guards. State Department reports on conditions in Haiti in

23

2001 and 2002 discussed police mistreatment of prisoners and

noted that there were isolated allegations of torture by electric

shock, as well as instances in which inmates were burned with

cigarettes, choked, or were severely boxed on the ears, causing

ear damage. The authorities’ track record in disciplining police

misconduct was inconsistent at best. Auguste, 395 F.3d at 129.

Nevertheless, the deplorable condition of the facility alone did

not constitute torture.

As we wrote:

[I]n the context of the Convention, for an act to

constitute torture, there must be a showing that

the actor had the intent to commit the act as well

as the intent to achieve the consequences of the

act, namely the infliction of the severe pain and

suffering. In contrast, if the actor intended the act

but did not intend the consequences of the act,

i.e., the infliction of the severe pain and suffering,

although such pain and suffering may have been

a foreseeable consequence, the specific intent

standard would not be satisfied.

Auguste, 395 F.3d at 145-46.

We found that the severe pain that detainees experienced

was not specifically intended–rather, it “result[s] from Haiti’s

economic and social ills, not from any intent to inflict severe

24

pain and suffering on detainees by, for instance, creating or

maintaining the deplorable prison conditions.” Id. at 153. In

our holding, we engaged in an extended exegesis of the

ratification of the CAT and the drafting of the implementing

regulations, see Auguste, 395 F.3d at 138-48. We firmly

established specific intent as the appropriate standard and

distinguished as dictum the language in Zubeda v. Ashcroft, 333

F.3d 463 (3d Cir. 2002) that “requiring an alien to establish the

specific intent of his/her persecutors could impose

insurmountable obstacles to affording the very protections the

community of nations sought to guarantee under the Convention

Against Torture.” Id. at 474. In Auguste, we explained that the

“basis of our holding in Zubeda was limited to the defects in the

BIA’s reversal of the IJ's ruling that Zubeda was entitled to

relief under the CAT. . . . Our discussion of the specific intent

standard in 8 C.F.R. § 208.18(a)(5) was not necessary to our

finding of the defects in the BIA’s opinion.” Auguste, 395 F.3d

at 148.

In doing so, we gave our blessing to the interpretation the

BIA had adopted in Matter of J-E-, 23 I. & N. Dec. 291 (BIA

2002), which involved Haiti and the CAT. In Matter of J-E-, the

petitioner challenged his removal to Haiti and its detention

facility, arguing that his indefinite detention in the facility’s

awful conditions as well as the predictable mistreatment by the

guards constituted torture under the CAT. The Board in Matter

of J-E- found that relief under the CAT required a specific intent

to inflict severe pain or suffering, an interpretation that

25

“defin[ed] that term as it is ordinarily used in American criminal

law,” Auguste, 395 F.3d at 145, and in Auguste we approved of

that reading. Id. at 145-46. The culpable mental states that

would be sufficient to find in favor of the claimant were

therefore necessarily limited. Applying this standard of intent

to the facts of the case, Auguste held that the deplorable

conditions in the Haitian facility did not constitute torture under

the CAT.

It is important to understand how we reached that

conclusion in Auguste in order to analyze properly the IJ’s

decision in Lavira’s case. The original IJ in Auguste found the

facts indistinguishable from those presented in the BIA decision

in Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002), and focused

much of its attention on that case. We followed the same

approach in Auguste, making Matter of J-E- the focus of our

discussion of the CAT issues, as “the administrative facts in this

matter are the same as those in the factual record the BIA

considered in Matter of J-E-.” Auguste, 395 F.3d at 150.

There was nothing about Auguste’s physical or mental

condition which set him apart from the petitioner in Matter of

J-E- or the general population incarcerated at the facility, a fact

which was noted by Auguste’s IJ, the district court which heard

his habeas claim, as well as our Court. See Auguste, 395 F.3d

at 136 (“[T]he IJ found Auguste’s CAT claim to be virtually

indistinguishable from the matter presented in Matter of J-E-

. . . . .”); id. at 137 (“‘[W]e have circumstances here where we

26

have simply the allegation of general prison conditions in

Haiti.’” (quoting unpublished District Court decision)); id.

(“‘[T]here must be some sort of underlying intentional direction

of pain and suffering against a particular petitioner, more so than

simply complaining of the general state of affairs that constitute

conditions of confinement in a place, even as unpleasant as

Haiti.’” (quoting unpublished District Court decision); see also

id. at 154 (“In effect, Auguste is complaining about the general

state of affairs that exists in Haitian prisons. The brutal

conditions are faced by all prisoners and are not suffered in a

unique way by any particular detainee or inmate.”) (emphasis

added); id. (“Auguste has not . . . offered any evidence tending

to show that he faces an increased likelihood of torture anymore

than the alien in Matter of J-E-.”) (emphasis added).

Thus, Auguste’s claim failed because he was understood

to be presenting a generalized claim against the Haitian facility

no different from that presented in Matter of J-E-. The poor

prison conditions did not constitute torture because they were

not specifically directed by officials towards him or intended by

officials to cause severe pain or suffering. Auguste did not

possess any characteristics or qualities unique to his situation

which would permit a different analysis or result. Auguste, 395

F.3d at 145-46. The fact that severe pain and suffering was a

possibility in the facility was not enough to merit a finding that

it was more likely than not that there would be an intent on the

part of the guards or the officials who placed Auguste in the

27

facility to inflict severe pain upon him. The “mere fact that the

Haitian authorities have knowledge that severe pain and

suffering may result by placing detainees in these conditions

does not support a finding that the Haitian authorities intend to

inflict severe pain and suffering.” Id. at 153-54.

In Auguste we included a caveat: “we caution that we are

not adopting a per se rule that brutal and deplorable prison

conditions can never constitute torture. To the contrary, if there

is evidence that authorities are placing an individual in such

conditions with the intent to inflict severe pain and suffering on

that individual, such an act may rise to the level of torture

should the other requirements of the Convention be met.” Id. at

154.8 Following Auguste, where we have found the claims

presented to be no different from Auguste’s, we have rejected

petitioners’ CAT claims. See, e.g., Francois v. Gonzales, 448

F.3d 645, 652 (3d Cir. 2006) (“Francois’ claim is factually

indistinguishable from the one we rejected in Auguste.

Accordingly, we hold that Francois is not eligible for relief

under the CAT.”).

8

Nor did Auguste hold that under the CAT detainees had to

demonstrate an intent to torture. A showing of an intent to

inflict severe pain and suffering was what the Convention

required. See Auguste, 395 F.3d at 146 (“Section 208.18(a)(5)

only requires that the act be specifically intended to inflict

severe pain and suffering, not that the actor intended to commit

torture. The two are distinct and separate inquiries.”).

28

Lavira argued before the IJ, the BIA, and this Court that

his case is distinguishable from Auguste, and fits the situation

described in the caveat quoted above, in two principal ways.

First, he argues that it is likely that he will be singled out by the

prison guards due to his HIV status, his status as an above-the-

knee amputee, and his pro-Aristide political affiliation. Second,

he argues that he is uniquely vulnerable to the horrid conditions

at Haiti’s detention facility due to being HIV positive, and that

to place him knowingly in the disease-infested Haitian facility

is to intentionally subject him to severe pain and suffering, even

death. Lavira urges that his obvious vulnerability and its nearly

inevitable consequences, supported by the opinions of a doctor

and an expert on Haiti’s facility, satisfy the requirement that the

harm that awaits him is specifically intended.

The IJ addressed the issue of Lavira’s CAT claim in the

most general of terms, almost cryptically ignoring the specific

facts at hand in the record: “[I]t is a general state of affairs. All

prisoners who are detained in Haiti, are subject to the same

deplorable conditions. The respondent would not be singled out.

To be sure the respondent does have certain disabilities, but

there is no evidence that has been submitted other than evidence

relating to the general overall deplorable conditions that could

lead this Court to conclude that the respondent would be placed

or detained upon his return to Haiti with an intent to inflict

severe pain or suffering.” Appx. 19.

29

It cannot be questioned that the undisputed facts Lavira

presented in support of his claim are not merely an attack on the

“general state of affairs.” Lavira’s CAT claim details how

guards will treat this HIV-positive prisoner, and addresses the

specific act of placing someone with his medical conditions in

a disease-infested facility. The facts supporting Lavira’s claim

are “evidence tending to show that he faces an increased

likelihood of torture” compared to the alien in Matter of J-E-,

evidence which we said in Auguste could be the foundation of

a CAT claim. Auguste, 395 F.3d at 123.

Contrary to the description provided by the IJ, the facts

of Lavira’s condition stand out distinctly as facts “other than

evidence relating to the general overall deplorable conditions.”

Aside from the fact that Lavira is an above-the-knee amputee

and thus more likely to have difficulty in defending himself

against guards or other prisoners within the facility (even if

provided a wheelchair), the dire consequences that await Lavira

are undeniable. There is no dispute he has the virus that causes

an incurable auto-immune disease. There is no dispute that

medical care is wholly inadequate if not completely absent in

the facility. There is no dispute that the conditions are rife with

disease and comparable to a “slave ship.” Severe pain is not “a”

possible consequence that “may result” from placing Lavira in

the facility, it is the only plausible consequence given what

Haitian officials know about Lavira and about their own

30

facility.9 Indeed, Lavira has specifically alleged the type of

claim Auguste explicitly permits, a claim that “that authorities

are placing an individual in such conditions with the intent to

inflict severe pain and suffering on that individual.” Id. at 154.

Notably, at least one IJ has upheld a CAT claim on grounds

similar to Lavira’s.10 In that case, the IJ correctly distinguished

Matter of J-E- and finding that “the [HIV-positive] respondent’s

likely inability to obtain medication, in combination with the

prison conditions in Haiti, may result in a more likely than not

possibility that she will be tortured.”11

9

Cf. Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (“[T]he

denial of medical care [to prisoners] is cruel and unusual

because, in the worst case, it can result in physical torture

. . . .”); Cronin v. Islamic Republic of Iran, 238 F. Supp. 2d 222

(D.D.C. 2002) (finding torture under the Foreign Sovereign

Immunities Act where plaintiff was abducted from a Beirut

hospital while awaiting treatment for small bowel obstruction,

beaten and held without treatment for three days in a cell,

brought by his captors before a local doctor–who did not

provide treatment–after his condition worsened dramatically,

and then returned to his cell where he was again beaten and

deprived of medical care).

10

See Matter of J-F-, (BIA 2005) (unpublished) (Appx. 55-57)

(issued post-Auguste). An affidavit by Michelle Karshan was

part of the record before the IJ in Matter of J-F-.

11

Id.

31

The Karshan expert report clearly stated that Lavira

would have little or no chance of obtaining food and water,

given his physical condition and the aggressive behavior

required of detainees in order to obtain nourishment. The report

also detailed how Lavira as an HIV-infected detainee would not

receive any meaningful medical treatment because the Haitian

system does not have antiretroviral drugs for HIV patients.

These and other factors led the expert to conclude that Lavira

would face the exceptionally dire prospect of losing 30 pounds

soon after being incarcerated, and that death would follow

shortly after.

We cannot help but conclude that Auguste demands no

more than has been shown here. This is so because of the

factual record, but also because of two unique aspects of the law

regarding proof of intent. The first is that demonstrating proof

of intent is necessarily an inferential endeavor in nearly every

case; we must draw conclusions about actors’ mental states from

the conduct of those actors. In the CAT setting, those inferences

are based on reports of the current activity in the proposed

country of removal and predictions about what result will befall

an individual after removal. Such an inquiry is different from

the normal method of discerning or imputing intent–usually

done in hindsight, after conduct has occurred. But in this

setting, the IJ must make predictions about future states of mind.

The CAT’s implementing regulations recognize these concerns,

urging IJs and courts to rely on the type of information normally

used to determine intent. See 8 C.F.R. § 1208.16(c)(3) (listing

32

evidence of past torture inflicted upon the applicant and

evidence of gross, flagrant, or mass violations of human rights

as factors for determining whether or not torture is likely to

occur). And IJs are obligated to consider “all evidence relevant

to the possibility of future torture.” 8 C.F.R. § 1208.16(c)(3).

As such, IJs must be careful not to apply a standard of proof

higher than Auguste requires,12 or the facts permit, given the

predictive and thus necessarily speculative inquiry into intent.

Second, we cannot rule out the generally accepted

principle that intent can be proven through evidence of willful

blindness. At least one CAT case interpreting Auguste has

posited that certain mental states, such as willful blindness, may

permit a finding of specific intent. See Thelemaque v. Ashcroft,

363 F. Supp. 2d 198, 215 (D. Conn. 2005) (“The Court

recognizes that a mechanical application of the specific intent

requirement might yield results at odds with the language and

intent of CAT and that concepts such as deliberate indifference,

reckless disregard or willful blindness might well suffice in

certain circumstances to satisfy the specific intent requirement

of the Convention.”). While in Auguste we noted that mere

recklessness was insufficient for a finding of specific intent

under the CAT, Lavira is not relying on simple recklessness

with respect to his condition. See Auguste, 395 F.3d at 145

(approving of Matter of J-E-’s determination that recklessness

is a state of general intent). Our criminal law jurisprudence,

12

See n.8 supra.

33

which we relied on in Auguste, see Auguste, 395 F.3d at 145,

bolsters the view that a finding of specific intent could be based

on deliberate ignorance or willful blindness. See, e.g, United

States v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985) (“[A]

judge’s version of the ‘deliberate ignorance’ instruction must

make clear that the defendant himself was subjectively aware of

the high probability of the fact in question, and not merely that

a reasonable man would have been aware of the probability.”).

Neither the IJ nor the BIA focused on the specifics of

Lavira’s situation in denying his CAT claim. When the IJ’s

findings are “wholly unsupported by the record and essentially

ignore the actual basis of [the] claim,” the case must be

remanded so the IJ may take a “fresh look . . . one that focuses

on the true underpinnings of that claim.” Vente v. Gonzales, 415

F.3d 296, 302-03 (3d Cir. 2005). This happened here: Lavira

presented an individualized attack on his removal to Haiti, an

attack that was obviously specific to his case in light of the

doctor’s report on his medical condition and the expert report

describing how removal would cause Lavira to lose 30 pounds

in a short time. The IJ deemed Lavira’s petition a general attack

on the Haiti facility, and stated that there was no evidence that

he would be “singled out.” This was not only contradicted by

the record, but by the IJ’s own statements during Lavira’s

hearings. The IJ evinced great concern that Lavira would

experience intense suffering based on his physical condition if

sent to the Haitian facility, and this concern was demonstrated

even before it was known that Lavira was HIV positive. The IJ

34

on her own distinguished Lavira from the petitioner in Matter of

J-E-. After receiving an indication from the Government that it

would seek discretionary deferral, the IJ appears to have done an

about-face and reframed Lavira’s challenge as a generalized

attack, ignoring significant evidence to the contrary without any

explanation whatsoever.

Thus, as we have ruled with respect to the particularly

serious crime determination, we will similarly remand the IJ’s

CAT determination for further proceedings, as we lack the

proper basis to review Lavira’s legal challenge to the IJs

determination. Necessary to our holding is the fact that the

claim pressed by Lavira is non-frivolous and legally available.

V. CONCLUSION

For the reasons stated above, we will GRANT Lavira’s

Petition for Review and REMAND this case so the IJ may

squarely address Lavira’s challenge to the particularly serious

crime designation and his challenge based on the CAT.13 (The

13

Lavira also argues that new evidence of worsening

conditions in Haiti’s prisons has come to light since the time

Auguste was decided. Lavira notes that Auguste was decided in

January of 2005 (argued in November 2004), and states that new

evidence arising after the regime change in Haiti in February

2004 was not considered by the administrative record before that

panel. As our decision decides Lavira’s petition on other

grounds, we do not take up this claim.

35

panel will retain jurisdiction in the event review subsequent to

the Lavira’s administrative proceedings is required.)

______________

36