Pierre v. Atty Gen USA

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

6-9-2008

Pierre v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 06-2496

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-2496

PAUL PIERRE,

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

________________________

On Petition for Review from

the Board of Immigration Appeals

BIA No: A93-021-438

Immigration Judge: Daniel A. Meisner

________________________

Argued En Banc: February 26, 2008

Before: SCIRICA, Chief Judge, SLOVITER, McKEE,

RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER,

CHAGARES, JORDAN, HARDIMAN, and GARTH, Circuit

Judges.

(Filed: June 9, 2008 )

Rebecca Sharpless (Argued)

Florida International University

Clinical Program, College of Law

University Park

Miami, FL 33199

Attorney for Petitioner

Steven A. Morley (Argued)

Thomas M. Griffin

Morley, Surin & Griffin

325 Chestnut Street, Suite 1305-P

Philadelphia, PA 19106

Amicus Curiae for the Court

Thomas H. Dupree, Jr. (Argued)

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

David E. Dauenheimer

Richard M. Evans

Susan K. Houser

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

OPINION OF THE COURT

FUENTES, Circuit Judge, joined by SCIRICA, SLOVITER,

BARRY, SMITH, FISHER, CHAGARES, JORDAN,

HARDIMAN, and GARTH, Circuit Judges.

We ordered rehearing en banc in this case to determine the

level of intent required, under the Convention Against Torture (the

2

“CAT”),1 for an applicant to show that he is more likely than not to

be tortured if sent to the proposed country of removal. Paul Pierre,

who is restricted to a liquid-only diet because of a self-imposed

injury to his esophagus, appeals the decision of the Board of

Immigration Appeals (“BIA”) denying him CAT relief, claiming

that as an ex-convict he will be imprisoned upon his deportation to

Haiti, will not be provided with the necessary medical care and diet

he requires, and will likely die as a result. He contends that the

prison officials’ knowledge that it is practically certain that he will

suffer severe pain if imprisoned in Haiti is sufficient for a finding

of specific intent to torture under the CAT. The government, on

the other hand, argues that the jailer’s knowledge that an action

might cause severe pain and suffering is not sufficient for a finding

of specific intent. We conclude that Pierre is not entitled to relief

under the CAT because he is unable to sustain his burden of proof

to show that, by imprisoning him, the Haitian authorities have the

specific intent to torture him. Accordingly, we will deny his

petition.

I.

Pierre, a Haitian citizen, first entered the United States in

1986 and was granted permanent legal resident status on December

1, 1990. On October 14, 1992, Pierre broke into the home of his

ex-girlfriend and stabbed her repeatedly with a meat cleaver.

When a neighbor interrupted the attack after hearing the victim’s

cries, Pierre drank a container full of battery acid, in an attempt to

commit suicide. His suicide attempt was unsuccessful, however,

and due to his ingestion of the battery acid, Pierre suffers from a

condition called esophageal dysphagia, limiting him to a liquid diet

administered through a feeding tube. According to Pierre, the

1

United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,

S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, implemented in

the United States by the Foreign Affairs Reform and

Restructuring Act of 1998, Pub. L. No. 105-277, Div. G, Tit.

XXII, § 2242, 112 Stat. 2681, 2681-761, 2681-822 (codified as a

note to 8 U.S.C. § 1231).

3

feeding tube must be replaced on a monthly basis and he requires

daily medical care.

Following a trial by jury, Pierre was convicted of various

crimes for his attack on his ex-girlfriend, including attempted

murder, and was subsequently sentenced to 20 years imprisonment

with a mandatory minimum of 10 years without parole. After he

had served his 10-year minimum, the former Immigration and

Naturalization Service filed a Notice to Appear charging Pierre

with being deportable under INA § 237(a)(2)(A)(iii), for having

been convicted of an aggravated felony.

According to the 2006 State Department Country Report for

Haiti (the “Country Report”), Haiti detains its citizens deported by

reason of prior convictions in a foreign country. These detentions

sometimes last several months and the Haitian government justifies

its detention policy on the grounds of public safety. The Country

Report indicates that the prisons are overcrowded, poorly

maintained, unsanitary, and rodent infested. Prisoners suffer from

malnutrition, inadequate health care, and a lack of basic hygiene.

At a hearing before the Immigration Judge (“IJ”), Pierre

conceded that he was subject to removal for his conviction,2 but

applied for relief under the CAT, asserting that he would not

survive in the Haitian prison for more than two or three weeks. In

his written CAT application, he explained that he feared that if he

was returned to Haiti he would “die for lack of medical care” while

in prison because of the Haitian detention policy. (App. 122.)

Pierre described the “expected failure of Haitian authorities . . . to

provide [him with] adequate medical attention” as “t[a]ntamount

to . . . torture.” (App. 123.)3 He did not attribute this expected

2

At his initial hearing, where he appeared pro se, he testified

that he “d[id]n’t have any problem going back” to Haiti. (App.

41.)

3

The government does not dispute that Haitian prison officials

would not be able to provide Pierre with his liquid diet and

regular medical attention while he remains in detention. It is not

clear from the record how long Pierre would remain imprisoned

4

failure to any ill will on behalf of the Haitian authorities. Rather,

Pierre claimed that “Haiti does not have the means . . . to care for

[his] medical condition.” (App. 123.) He appealed to the IJ to

make a legal “exception” in his case, “notwithstanding any

statutory bar to relief, . . . for humanitarian reasons.” (App. 127.)

The IJ found that Pierre was seeking relief for humanitarian

reasons based on his medical needs. The IJ concluded that under

the interpretation of the CAT in Auguste v. Ridge, 395 F.3d 123

(3d Cir. 2005), he did not have discretion to grant humanitarian

relief. Accordingly, the IJ denied Pierre’s application for deferral

of removal. A single member of the BIA affirmed the IJ’s decision

without opinion. Pierre appealed the BIA’s decision to this court.

Subsequent to the initial briefing in this case, we decided

Lavira v. Attorney General, 478 F.3d 158 (3d Cir. 2007). In

Lavira, a panel of our court granted a CAT claim based on

evidence that severe pain was the “only plausible consequence” of

a petitioner’s imprisonment in a Haitian prison. Id. at 170. In that

case, the panel stated that a jailer’s “willful blindness” or

“deliberate indifference” might be enough to satisfy the specific

intent requirement of the CAT. Id. at 171. The original panel in

this case asked for supplemental letter briefs on the impact of

Lavira on Pierre’s case. After receiving the letter briefs and

hearing oral argument, we voted to hear the case en banc to resolve

any conflict between Auguste and Lavira.

II.

In this matter, Pierre petitions for review of the final order

of removal by the BIA. We have jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(1). Because the basis for removal is Pierre’s conviction

for an aggravated felony, our jurisdiction is limited under the

REAL ID Act to “constitutional claims or questions of law.” Id. §

1252(a)(2)(C)-(D).

Where, as here, the BIA affirms an IJ’s decision without

once returned to Haiti.

5

opinion, we review the IJ’s decision as the final agency

determination. Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.

2004). We will review the IJ’s legal determinations de novo,

subject to the principles of deference articulated in Chevron v.

Natural Resources Defense Council, 467 U.S. 837, 844 (1984).

See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.

2007); Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). Under

the REAL ID Act, factual or discretionary determinations are

outside of our scope of review. Sukwanputra v. Gonzales, 434

F.3d 627, 634 (3d Cir. 2006).

III.

The CAT was designed to acknowledge the obligation of

nations under the United Nations Charter to “promote universal

respect for, and observance of, human rights and fundamental

freedoms.” See Preamble to Convention, S. Treaty Doc. No.

100-20, 1465 U.N.T.S. 85. It was adopted by the United Nations

General Assembly on December 10, 1984, and entered into force

on June 26, 1987, to “make more effective the struggle against

torture and other cruel, inhuman or degrading treatment or

punishment throughout the world.” Id. Since opening for

signature in December 1984, 145 countries have signed and/or

become parties to the CAT. See Office of the High Commissioner

for Human Rights Page on the Status of the CAT (visited May 21,

2008) (http://www2.ohchr.org/english/bodies/ratification/9.htm).

Article 1 of the CAT defines torture as:

[A]ny 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, 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. It does

not include pain or suffering arising only from,

6

inherent in or incidental to lawful sanctions.

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

added). The CAT then commands that: “No State Party shall

expel, return (‘refouler’) or extradite a person to another State

where there are substantial grounds for believing that he would be

in danger of being subjected to torture.” Art. 3(1), S. Treaty Doc.

No. 100-20, 1465 U.N.T.S. 85.

President Reagan signed the CAT on April 18, 1988, in

accordance with the power granted to the President in Article II,

Section 2 of the United States Constitution, and reserved the

United States’ right “to communicate, upon ratification, such

reservations, interpretive understandings, or declarations as are

deemed necessary.” See Auguste, 395 F.3d at 130 (citation

omitted). President Reagan then transmitted the CAT to the Senate

for advice and consent on May 20, 1988, proposing a list of

reservations, understandings, and declarations, which were revised

and resubmitted by President George H. W. Bush in January 1990.

See Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, S. Exec. Rep. 101-30, at 2, 7-

8 (1990). Included in this list, was an understanding that “in order

to constitute torture, an act must be specifically intended to inflict

severe physical or mental pain or suffering.” Id. at 9, 36. In

addition, President Bush included an understanding that the CAT

prohibition on returning a person to a country “where there are

substantial grounds for believing that he would be in danger of

being subjected to torture,” Art. 3(1), S. Treaty Doc. No. 100-20,

1465 U.N.T.S. 85, would be interpreted to mean “if it is more

likely than not that he would be tortured.” See S. Exec. Rep.

101-30, at 10, 16, 36. President Bush also included a declaration

that the CAT is not self-executing, to clarify that implementation

of the CAT would be through separate legislation. See id. at 12,

37.

In October 1990, the Senate adopted a resolution of advice

and consent that incorporated the understandings and declaration

discussed above. See 136 Cong. Rec. S17486-01, S17491-92 (Oct.

27, 1990) (“Senate Resolution”). Next, as required by Article 26

of the CAT, President Clinton deposited the instrument of

7

ratification with the United Nations on October 21, 1994, and the

CAT became enforceable in the United States 30 days later.4 See

Regulations Concerning the Convention Against Torture, 64 Fed.

Reg. 8478, 8478 (Feb. 19, 1999). President Clinton included the

reservations, understandings, and declarations from the Senate

Resolution in the instrument of ratification. See 1830 U.N.T.S.

320, 320-22 (1994).

Because the CAT did not self-execute, it needed to be

“implemented by legislation before [giving] rise to a private cause

of action.” Ogbudimkpa v. Ashcroft, 342 F.3d 207, 218 (3d Cir.

2003) (quoting Mannington Mills, Inc. v. Congoleum Corp., 595

F.2d 1287, 1298 (3d Cir. 1979)); see also Auguste, 395 F.3d at 133

n.7. Accordingly, in 1998, Congress passed legislation to

implement the United States’ obligations under the CAT: the

Foreign Affairs Reform and Restructuring Act (“FARRA”). See

Pub. L. No. 105-227, Div. G, Tit. XXII, § 2242, 112 Stat. 2681,

2681-761, 2681-822 (codified as a note to 8 U.S.C. § 1231).5

The first section of FARRA, § 2242(a), announces 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,” thereby adopting

the obligation in Article 3 of the CAT. See id. Next, § 2242(b)

directed “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 CAT].” Id.

4

Article 26 of the Convention states, in pertinent part:

“Accession shall be effected by the deposit of an instrument of

accession with the Secretary-General of the United Nations.”

See Art. 26, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.

5

As discussed in Auguste v. Ridge, 395 F.3d 123, 133 n.7 (3d

Cir. 2005), technically Pierre’s claim is a FARRA claim, but we

will use the convention adopted in this circuit and refer to it as a

CAT claim.

8

In accordance with § 2242(b) of FARRA, the Department

of Justice (“DOJ”) promulgated regulations setting forth the

procedures by which individuals could seek relief under the CAT.

See 64 Fed. Reg. 8478 (Feb. 19, 1999), codified at 8 C.F.R. §§

208.16(c), .17, & .18(a) (2004). In § 208.18(a), the DOJ provided

a definition of torture, incorporating “the definition of torture

contained in Article 1 of [the CAT], subject to the reservations,

understandings, declarations, and provisos contained in the

[Senate] resolution of ratification of the Convention.” Section

208.18(a)(1) provides a definition of torture which mirrors Article

1 of the CAT. In addition, the DOJ included six additional

provisions, one of which is relevant to this case: “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.” Id. § 208.18(a)(5) (emphasis added). If a petitioner is

able to show that it is “more likely than not” that he or she will be

tortured, deferral of removal is mandatory. Id. § 208.17(a).

IV.

This Circuit has previously addressed whether Haiti’s policy

of indefinitely imprisoning deportees who have been convicted in

other countries violates the CAT. We review that history now.

Before we ever addressed this issue, in 2002, the BIA

considered whether indefinite detention, inhuman prison

conditions, and police mistreatment constitute torture under 8

C.F.R. § 208.18(a). Matter of J-E-, 23 I. & N. Dec. 291 (B.I.A.

2002). Relying on the understanding contained in the Senate

Resolution, the BIA determined that in order to obtain relief under

the CAT, a petitioner must show that the alleged torturous acts by

the government will be “specifically intended to inflict severe

physical or mental pain or suffering.” Id. at 298. Considering

Haiti’s policy of indefinitely detaining deportees who have been

convicted of crimes abroad, the BIA found that “there is no

evidence that Haitian authorities are detaining criminal deportees

with the specific intent to inflict severe physical or mental pain or

suffering.” Id. at 300. Rather, the BIA concluded that the “Haitian

prison conditions are the result of budgetary and management

9

problems as well as the country’s severe economic difficulties.”

Id. at 301. Thus, the BIA concluded that the Haitian detention

policy did not constitute torture for purposes of the CAT.6

Subsequently, in Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir.

2003), our Court considered the CAT claim of an immigrant

ordered removed to the Democratic Republic of the Congo

(“DNC”). In the context of Zubeda’s claim, we stated that the

“intentionally inflicted” language in the regulations did not impose

a “specific intent” requirement, but simply “exclude[d] severe pain

or suffering that is the unintended consequence of an intentional

act.” Id. at 473. However, the decision in Zubeda did not turn on

whether there is a specific intent requirement in the CAT; instead,

the court remanded the case primarily for a clarification of the IJ’s

basis for determining that Zubeda would be detained upon her

return to the DNC.

The following year, in Auguste, we considered the CAT

claim of a Haitian citizen who had been imprisoned in the United

States. In Auguste, the petitioner “claim[ed] that he w[ould] be

indefinitely detained upon his arrival in Haiti in prisons that are

notorious for their brutal and deplorable conditions.” 395 F.3d at

128. We found the language from Zubeda discussed above to be

dicta, and followed Matter of J-E-, holding that Auguste was

unable to show the specific intent to torture required for relief

under the CAT. We determined that the definition of torture under

the CAT included a specific intent requirement as the court was

obligated to “apply the standard clearly stated in the ratification

6

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

announced a test for determining if an act constitutes torture.

Citing to 8 C.F.R. § 208.18(a), the BIA announced that the act

“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.”

10

record.” Id. at 140. We rejected Auguste’s argument that the

specific intent requirement could not be incorporated into United

States law because it was inconsistent with the accepted

international interpretation of the CAT. We clarified that “[a]

treaty that is ratified . . . with a statement of understanding becomes

effective in the domestic law subject to that understanding.” Id. at

142 (quoting Restatement (Third) of the Foreign Relations Law of

the United States § 314, cmt. d (2004)). Both the President and the

Senate indicated their understanding that Article 1 of the CAT

contains a specific intent requirement and that understanding has

domestic legal effect.

Next, in Auguste we reviewed, with Chevron deference, the

BIA’s decision that specific intent should be interpreted with

reference to its ordinary meaning in American criminal law and we

determined that the BIA did not err in this determination. Citing

to Carter v. United States, 530 U.S. 255, 269 (2000), we held that,

in order to act with specific intent, an individual “must expressly

intend to achieve the forbidden act.” Id. at 145. More specifically,

we found that “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.” Id. at 145-46. Where

the “severe pain and suffering” is merely a “foreseeable

consequence” of the act, “the specific intent standard would not be

satisfied.” Id. at 146.

Thus, where Auguste complained of the conditions in the

Haitian prison but not his particular vulnerability to them, we

determined that the BIA did not err by concluding that the Haitian

authorities would lack the requisite specific intent to inflict severe

pain and suffering on Auguste, as the prison conditions were the

result of “Haiti’s economic and social ills,” and did not derive from

any intent to torture detainees. Id. at 153. Nevertheless, we

cautioned that there is no “per se rule that brutal and deplorable

prison conditions can never constitute torture. . . . [I]f 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.” Id. at

154.

11

In our most recent case to address whether the deportation

of a Haitian ex-convict constitutes torture under the CAT, Lavira,

we granted the petition of an HIV positive, “above-the-knee

amputee with a lifelong political affiliation with exiled former

President Jean-Bertrand Aristide.” 478 F.3d at 159. Lavira

interpreted Auguste as prohibiting relief “where the petitioner

relied only on the general conditions of the Haitian detention

facility.” Id. at 167. In contrast, Lavira’s condition “set him apart

from the petitioner in Matter of J-E- [and] the general population

incarcerated at the facility.” Id. at 168. We held that Lavira had a

valid claim because he presented evidence that showed that he

would be targeted, such as being singled out by the guards because

of his HIV-positive status. Noting that “demonstrating proof of

intent is necessarily an inferential endeavor,” we concluded that

“Auguste demands no more.” Id. at 171.

We also stated in Lavira, in dicta, that we could not “rule

out” that specific intent could be proven through “evidence of

willful blindness.” Id. As discussed below, we now rule out that

possibility.

After Lavira was decided, the Second Circuit decided Pierre

v. Gonzales, 502 F.3d 109 (2d Cir. 2007). There, the government

sought to remove Franck Pierre, a Haitian citizen, because of his

aggravated felony and firearms convictions. Pierre sought relief

under the CAT, presenting evidence regarding Haiti’s prison

conditions and detention policies, and his diabetes, which could

lead to his death if he went without medication and a proper diet.

The IJ denied him relief, concluding that there was no evidence

that the Haitian authorities would detain him with the specific

intent to inflict severe pain and that his relatives would be able to

provide him with his medications while he was in detention. The

BIA affirmed and Pierre sought review from the Second Circuit.

The Second Circuit denied his petition, concluding that the CAT

has a specific intent requirement and that Pierre failed to meet that

standard. Calling Lavira a “wrinkle[],” the Second Circuit took

issue with our language in Lavira that suggests that a government

official’s “willful blindness” or “deliberate indifference,” which

bear on the official’s knowledge, could suffice to fulfill the specific

12

intent requirement, which requires an official to “intend the actual

consequences of his conduct.” Id. at 118. In the specific case

before it, the Second Circuit found that the petitioner’s diabetic

condition did not “remove his case from the ambit of In re J-E-”

and, accordingly, denied his petition. Id. at 111. In order to obtain

relief based on individual circumstances, the petitioner would need

to be able to show that “petitioners with certain histories,

characteristics, or medical conditions are more likely to be

targeted.” Id. at 122.

V.

The specific issue on appeal concerns what degree of intent

Pierre must establish in order to obtain relief under the CAT. To

inform our analysis, we consider first the definition of torture in 8

C.F.R. § 208.18(a)(1). The regulation provides that an act is

torture only if it 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.

Id. Here, Pierre will not be imprisoned 1) to obtain information or

a confession from him, 2) to punish him for an act he committed or

is suspected of having committed, 3) to intimidate or coerce him or

someone else, or 4) for any discriminatory reason. Rather, Pierre

will be imprisoned because the Haitian government has a blanket

policy of imprisoning ex-convicts who are deported to Haiti in

order to reduce crime. The lack of medical care and likely pain that

Pierre will experience is an unfortunate but unintended

consequence of the poor conditions in the Haitian prisons, which

exist because of Haiti’s extreme poverty. We find that this

13

unintended consequence is not the type of proscribed purpose

contemplated by the CAT. To the extent Lavira suggests that the

intentional infliction of severe pain need not be to accomplish one

of the proscribed purposes, Lavira is overruled.

Given the ratification history of the CAT, we conclude that

the CAT requires a showing of specific intent before the court can

make a finding that a petitioner will be tortured. In this vein, we

note that Pierre does not dispute that the CAT includes a specific

intent requirement. Rather, Pierre argues that the specific intent

requirement can be satisfied by a showing that the Haitian officials

have knowledge that severe pain or suffering is the practically

certain outcome of his imprisonment. We disagree that proof of

knowledge on the part of government officials that severe pain or

suffering will be the practically certain result of Pierre’s detention

satisfies the specific intent requirement in the CAT. Rather, we are

persuaded by the discussion in Auguste that the specific intent

requirement, included in the ratification history of the CAT,

requires a petitioner to show that his prospective torturer will have

the motive or purpose to cause him pain or suffering. As in

Auguste, we hold that “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.” Auguste, 395

F.3d at 145-46. 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.

As we discussed in Auguste, the BIA’s decision in Matter

of J-E- that specific intent means “the intent to accomplish the

precise criminal act that one is later charged with” is entitled to

Chevron deference. Id. at 144. Applying that deference, we

concluded in Auguste that the BIA had not erred. Id. at 145.

Fleshing out the definition of specific intent as it is used within

American criminal law, Auguste relied on Carter v. United States,

14

530 U.S. at 269, in which the Supreme Court discussed the

difference between specific intent and general intent. In Carter, the

Supreme Court explained that an actor who knowingly commits an

act but does not intend the illegal outcome of that act, can only be

held liable for a general, not specific, intent crime.

In addition, the Supreme Court discussed the concept of

specific intent in United States v. Bailey, 444 U.S. 394, 405 (1980),

finding that “‘purpose’ corresponds loosely with the common-law

concept of specific intent, while ‘knowledge’ corresponds loosely

with the concept of general intent.” This formulation of specific

intent is found repeatedly in United States law. See, e.g., 31 U.S.C.

§ 3729(b) (knowledge is sufficient for liability under the False

Claims Act, and “no proof of specific intent to defraud is

required”); Babbitt v. Sweet Home Chapter of Cmtys. for a Great

Oregon, 515 U.S. 687, 697 n.9 (1995) (Congress’s amendment to

a criminal statute outlawing certain activities related to endangered

species, in which “willfully” was replaced by “knowingly,” was

done in order “to make criminal violations of the act a general

rather than a specific intent crime”) (quoting H.R. Conf. Rep. No.

95-1804, p. 26 (1978)); Callahan v. A.E.V., Inc., 182 F.3d 237, 261

n.15 (3d Cir. 1999) (stating that “[a]lthough harm to the plaintiffs

may have been a probable ultimate consequence of the defendants’

actions, we do not think they specifically intended to cause such

harm”); United States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995)

(holding that “a specific intent crime is one in which the defendant

acts not only with knowledge of what he is doing, but does so with

the objective of completing some unlawful act”).

In our view, a petitioner cannot obtain relief under the CAT

unless he can show that his prospective torturer will have the goal

or purpose of inflicting severe pain or suffering.7 Under this

7

Judge Rendell proposes a hypothetical in her concurrence

which, she asserts, would not fit the majority’s definition of

specific intent. She posits that, under our definition, it would not

be torture for a jailer to use electric shock tactics to solicit

information where the “purpose in interrogating” is to obtain

information, not to cause pain and suffering. However, people

15

standard, Pierre has failed to qualify for relief under the CAT

because he has failed to show that Haitian officials will have the

purpose of inflicting severe pain or suffering by placing him in

detention upon his removal from the United States.

Finally, we reject Lavira’s discussion of willful blindness.

Willful blindness can be used to establish knowledge but it does

not satisfy the specific intent requirement in the CAT. See United

States v. Wasserson, 418 F.3d 225, 237 (3d Cir. 2005) (stating that

evidence of willful blindness satisfies the mental state of

knowledge). Moreover, to the extent that Lavira suggests that mere

knowledge is sufficient for a showing of specific intent, we

overrule that suggestion. In sum, because we have rejected the

knowledge standard discussed in Lavira, and because Lavira

contained no discussion of the illicit purpose requirement in the

CAT, Lavira’s CAT analysis is overruled.

VI.

In conclusion, we will deny Pierre’s petition. As the courts

in Matter of J-E- and Auguste found, there is no evidence that

Haitian authorities imprison ex-convicts upon their deportation to

Haiti in order to cause them severe pain or suffering. Rather, the

conditions prevalent in the Haitian prison are due to “Haiti’s

economic and social ills.” Auguste, 395 F.3d at 153. As Pierre is

unable to show that the Haitian authorities specifically intend to

cause him severe pain or suffering, he cannot fulfill the specific

intent requirement of the CAT.8

commonly have dual purposes. In her hypothetical, the reason a

jailer uses torture tactics is the jailer’s belief that the pain caused

will induce the prisoner to reveal information. Thus, under the

hypothetical, the jailer would have a purpose of inflicting serious

pain and suffering, satisfying the specific intent requirement, in

addition to a purpose of obtaining information.

8

Nothing herein prevents the government from granting

discretionary relief to Pierre in the form of deferred action.

Though we are bound to the specific intent requirement

contained in the CAT, the government is not.

16

RENDELL, Circuit Judge, concurring, joined by McKEE and

AMBRO, Circuit Judges.

The majority is correct that a finding of torture requires an

examination of purpose. The examination occurs, however, not in

connection with “specific intent,” but, rather, in connection with

the element of “illicit purpose.” The majority conflates the two by

deciding that specific intent to inflict severe pain and suffering

only exists if the actor’s purpose is to inflict pain. In doing so, it

has obscured the meaning of specific intent and its proper contours

as developed in the criminal law jurisprudence.

The definition of torture in CAT and its implementing

regulations contains an intent element and a purpose element. See

8 C.F.R. § 208.18(a)(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 . . . .”). In

Matter of J-E-, the BIA summarized the test under 8 C.F.R. §

208.18(a) as requiring that the act 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.

23 I. & N. Dec. 291, 297 (B.I.A. 2002). The BIA’s decision in

Matter of J-E- also introduced the concept of using the criminal

law to interpret the term “specifically intend” in CAT’s

implementing regulations. Id. at 301 (citing the definition of

specific intent in Black’s Law Dictionary).

17

Our Court subsequently looked to the criminal law for

guidance in both Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005),

and Lavira v. Attorney General, 478 F.3d 158 (3d Cir. 2007). In

Auguste, we concluded that the BIA had correctly defined the

specific intent requirement by reference to domestic criminal law

as “the intent to accomplish the precise criminal act that one is

later charged with while general intent commonly takes the form

of recklessness.” 395 F.3d at 145. We did not require that a

would-be torturer have the purpose to inflict severe pain and

suffering, but, rather, simply concluded that mere recklessness was

insufficient to satisfy CAT’s “specific intent” requirement. Id. at

146. In Lavira, we similarly resorted to criminal law for guidance,

and concluded that the specific intent requirement was satisfied by

evidence that, given the petitioner’s “obvious vulnerability and its

nearly inevitable consequences” and the expert report submitted

regarding the treatment of HIV/AIDS patients, he would be

singled out and targeted by prison guards. 478 F.3d at 169-71. By

contrast to Auguste, the petitioner in Lavira alleged that “[s]evere

pain is not ‘a’ possible consequence that ‘may result from placing

Lavira in the facility, it is the only possible consequence given

what Haitian officials know about Lavira and about their own

facility.” Id. at 170. We held that he, therefore, had properly

demonstrated specific intent, in the form of the prison official’s

knowledge that severe pain and suffering would certainly result.

Neither case hinted at a need for a purpose to inflict pain, nor have

specific intent crimes historically included purpose as an element.9

Today, disregarding the weight of criminal authority, the majority

adds this requirement.

9

At common law, specific intent crimes included burglary, false

pretenses, embezzlement, attempt, solicitation, and conspiracy.

See Black’s Law Dictionary 825 (8th ed. 2004). They required

intent in the form of knowledge or desire that the result will

occur–not “purpose.” General intent, according to Black’s Law

Dictionary, requires “the intent to perform an act even though

the actor does not desire the consequences that result.” Id. It

“usually takes the form of recklessness.” Id. It is readily agreed

that general intent crimes at common law, such as manslaughter,

require no more than a reckless state of mind.

18

The majority equates “intentionally inflicted” under CAT,

which requires specific intent, to “pain for pain’s sake.” This goes

beyond the meaning of intentional infliction under J-E-. The

specific intent aspect does not speak to, or require a finding as to,

the purpose; the illicit purpose element does. As discussed below,

“pain for pain’s sake” would be an illicit purpose.

Specific intent, as it has been developed through the

criminal caselaw and treatises, is no more than intent to do the

prohibited act with knowledge or desire that it will cause a certain

result. Tison v. Arizona, 481 U.S. 137, 150 (1987); United States

v. Gypsum Co., 438 U.S. 422, 445 (1978); 1 Wayne R. LaFave,

Substantive Criminal Law § 5.2(e), at 354 (2d ed. 2003); see also

Carter v. United States, 530 U.S. 255, 268 (2000) (explaining that

general intent, as opposed to specific intent, requires “that the

defendant possessed knowledge [only] with respect to the actus

reus of the crime”).

The source of the majority’s requirement of “purposeful

pain” is, therefore, somewhat curious. It is regrettable that an

errant sentence in a different context in United States v. Bailey,

suggesting that “[i]n a general sense, ‘purpose’ corresponds

loosely with the common-law concept of specific intent,” veered

from the historical meaning. 444 U.S. 394, 403 (1980). The

sentence is at best incomplete and misleading and certainly cannot

be relied upon to establish that “specific intent” must mean

“purpose.” If, as the government urges, Bailey does establish that

specific intent can only be proven where an individual acted with

the purpose of causing a particular consequence, it would also

mean that, since 1980, all prosecutions for specific intent crimes

either proved the defendant’s purpose as to consequences (and did

not rely on knowledge of the certainty of consequences) or resulted

in acquittals based on Bailey. We know this is not the case. Our

own jury instructions continue to define “intentionally”–the term

used in the CAT regulations–and “with intent” to mean: “Either

that (1) it was [defendant’s] conscious desire or purpose . . . to

cause a certain result, or that (2) [defendant] knew that (he)(she)

. . . would be practically certain to cause that result.” Third Circuit

Jury Instructions § 5.03 (Sept. 2006). This is the proper definition

of specific intent. Furthermore, Bailey purported only to

19

summarize the state of the law, not to overrule precedent

interpreting the common law term. Indeed, the term “loosely”

used by the Bailey Court indicates that specific intent, in fact, has

meanings other than purpose. As a common law term, it retains its

traditional meaning–that urged by petitioner.

The issue before us has been the subject of recent

commentary that is timely and persuasive. In an August 1, 2002

memo to the White House Counsel, Jay Bybee, Assistant Attorney

General, set forth an interpretation of “specific intent” that is

similar to that espoused by the majority. There, he stated that

“knowledge alone that a particular result is certain to occur does

not constitute specific intent.” Id. at 3-4. It concluded that “even

if a defendant knows that severe pain will result from his actions,

if causing such harm is not his objective, he lacks the requisite

specific intent even though the defendant did not act in good

faith.” Id. at 4. This is the interpretation that was relied upon in

defense of the abuse at Abu Ghraib and the torture of prisoners

during interrogations at facilities in Iraq and Afghanistan.

However, this interpretation of “specific intent” has since

been soundly repudiated by the very office that promulgated it.

See Justice Department Dec. 30, 2004 Memo on U.S. Torture

Policy for Deputy Attorney General James B. Comey (“2004

Memo”). The 2004 Memo explained that:

In the August 2002 Memorandum, this

Office concluded that the specific intent

element of the statute required that

infliction of severe pain or suffering be

the defendant's “precise objective” and

that it was not enough that the defendant

act with knowledge that such pain “was

reasonably likely to result from his

actions” (or even that that result “is

certain to occur”). Id. at 3-4. We do not

reiterate that test here.

Id. at n.27.

20

The Memo then went on to state:

It is well recognized that the term “specific

intent” is ambiguous and that the courts do

not use it consistently. See 1 Wayne R.

LaFave, Substantive Criminal Law §

5.2(e), at 355 & n.79 (2d ed. 2003).

“Specific intent” is most commonly

understood, however, “to designate a

special mental element which is required

above and beyond any mental state

required with respect to the actus reus of

the crime.” Id. at 354; see also Carter v.

United States, 530 U.S. 255, 268 (2000)

(explaining that general intent, as opposed

to specific intent, requires “that the

defendant possessed knowledge [only]

with respect to the actus reus of the

crime”). As one respected treatise

explains:

With crimes which require that

the defendant intentionally

cause a specific result, what is

meant by an “intention” to

cause that result? Although the

theorists have not always been

in agreement . . . , the

traditional view is that a person

who acts . . . intends a result of

his act . . . under two quite

different circumstances: (1)

when he consciously desires

that result, whatever the

likelihood of that result

happening from his conduct;

and (2) when he knows that that

result is practically certain to

follow from his conduct,

whatever his desire may be as to

21

that result.

1 LaFave, Substantive Criminal Law, §

5.2(a), at 341 (footnote omitted).

As noted, the cases are inconsistent.

Some suggest that only a conscious desire

to produce the proscribed result

constitutes specific intent; others suggest

that even reasonable foreseeability

suffices. In United States v. Bailey, 444

U.S. 394 (1980), for example, the Court

suggested that, at least “[i]n a general

sense,” id. at 405, “specific intent”

requires that one consciously desire the

result. Id. at 403-05. The Court

compared the common law’s mens rea

concepts of specific intent and general

intent to the Model Penal Code’s mens

rea concepts of acting purposefully and

acting knowingly. Id. at 404-05. “[A]

person who causes a particular result is

said to act purposefully,” wrote the Court,

“if ‘he consciously desires that result,

whatever the likelihood of that result

happening from his conduct.’” Id. at 404

(internal quotation marks omitted). A

person “is said to act knowingly,” in

contrast, “if he is aware ‘that that result is

practically certain to follow from his

conduct, whatever his desire may be as to

that result.’” Id. (internal quotation

marks omitted). The Court then stated:

“In a general sense, ‘purpose’

c o rresp o n d s lo o sely w i t h t h e

common-law concept of specific intent,

while ‘knowledge’ corresponds loosely

with the concept of general intent.” Id. at

405.

22

In contrast, cases such as United States v.

Neiswender, 590 F.2d 1269 (4th Cir.

1979), suggest that to prove specific

intent it is enough that the defendant

simply have “knowledge or notice” that

his act “would have likely resulted in” the

proscribed outcome. Id. at 1273.

“Notice,” the court held, “is provided by

the reasonable foreseeability of the

natural and probable consequences of

one’s acts.” Id.

We do not believe it is useful to try to

define the precise meaning of “specific

intent” in section 2340. In light of the

President’s directive that the United

States not engage in torture, 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. Some

observations, however, are appropriate.

It is clear that the specific intent

element of section 2340 would be met if

a defendant performed an act and

“consciously desire[d]” that act to

inflict severe physical or mental pain or

suffering. 1 LaFave, Substantive

Criminal Law § 5.2(a), at 341.

Conversely, if an individual acted in

good faith, and only after reasonable

investigation establishing that his

conduct would not inflict severe

physical or mental pain or suffering, it

appears unlikely that he would have

the specific intent necessary to violate

sections 2340-2340A. Such an

individual could be said neither

consciously to desire the proscribed

result, see, e.g., Bailey, 444 U.S. at 405,

23

nor to have “knowledge or notice” that

his act “would likely have resulted in”

the proscribed outcome, Neiswender,

590 F.2d at 1273.

Two final points on the issue of specific

intent: First, specific intent must be

distinguished from motive. There is no

exception under the statute permitting

torture to be used for a “good reason.”

Thus, a defendant’s motive (to protect

national security, for example) is not

relevant to the question whether he has

acted with the requisite specific intent

under the statute. See Cheek v. United

States, 498 U.S. 192, 200-01 (1991).

Second, specific intent to take a given

action can be found even if the defendant

will take the action only conditionally.

Cf., e.g., Holloway v. United States, 526

U.S. 1, 11 (1999) (“[A] defendant may

not negate a proscribed intent by

requiring the victim to comply with a

condition the defendant has no right to

impose.”). See also id. at 10-11 & nn.

9-12; Model Penal Code § 2.02(6). Thus,

for example, the fact that a victim might

have avoided being tortured by

cooperating with the perpetrator would

not make permissible actions otherwise

constituting torture under the statute.

Presumably that has frequently been the

case with torture, but that fact does not

make the practice of torture any less

abhorrent or unlawful.

Id. at 16-17 (emphases added). Thus, the 2004 memorandum both

affirmatively stated that the specific intent element is not tied to a

purpose or ‘precise objective’ to inflict severe pain and suffering,

and suggested that knowledge of ‘reasonably likely’ results could

24

come within the definition of specific intent.

Consistent with this, the specific intent requirement in

CAT’s implementing regulations excludes “unanticipated” or

“unintended” severity of pain and suffering. 8 C.F.R. §

208.18(a)(5). Again, I cannot emphasize enough, the mental

element is knowledge or desire that pain and suffering will result.

This is different from the underlying purpose of the act. The

distinction is subtle, but important. We should hold that if severe

pain and suffering is desired or known to result from the actor’s

conduct, the specific intent element is fulfilled.10 Only then does

the inquiry turn to the “purpose” element under CAT, as set forth

in J-E-.

Under CAT, “illicit purposes” include, but are not limited

to, “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”;

exempted from CAT is “pain or suffering arising only from,

inherent in or incidental to lawful sanctions,” defined to “include

judicially imposed sanctions and other enforcement actions

authorized by law, including the death penalty,” but to exclude

10

To the extent that the majority fears that such a holding would

open the floodgates to CAT petitioners from places such as Haiti

where the petitioner will likely be subjected to deplorable

conditions, there remains an evidentiary burden of showing that

would-be torturers in such places know of or desire the resulting

infliction of severe pain and suffering. Furthermore, CAT’s

other requirements must also be met, such that a deportation to a

country with sub-par medical treatment will not constitute

torture because, among other things, there needs to be official

action in a custodial situation that subjects the petitioner to

inevitable pain and suffering. See 8 C.F.R. § 208.18(a)(6)

(requiring that an act of torture be performed by or at the

acquiescence of a public official and directed against a victim in

the torturer’s custody or physical control).

25

those “sanctions that defeat the object and purpose of the

Convention Against Torture to prohibit torture.” 8 C.F.R. §§

208.18(a)(1) & (3). This list sets forth examples and is not

exhaustive. (As a matter of statutory interpretation, the term “such

. . . as” does not designate a closed list). It is this “purpose”

element that will require a finding as to the actor’s motive. Pain

for pain’s sake would clearly be an illicit purpose–but is just one

of a number of possible proscribed motives. Each

element–specific intent and purpose, respectively–is analytically

separate.

By conflating purpose with specific intent, the majority has

excluded from the definition of torture those acts that we all would

agree constitute torture. Imagine the following situation:

A military official in Haiti desires

information from a detained, suspected

terrorist. His purpose in interrogating the

detainee is to solicit information. In the

course of the interrogation, he begins to

use coercive tactics. The official’s only

purpose and conscious desire is to receive

information. He is indifferent as to

whether his tactics (electric shock) cause

severe pain and suffering; indeed, he had

hoped that the detainee would give him

information without the infliction of pain

and suffering. The shock treatment is

administered and does cause severe pain

and suffering.

Is this not torture? Under the majority’s interpretation, it is not.

Although obtaining information is an illicit purpose satisfying that

prong of CAT’s implementing regulations, the official’s conduct

will not meet the standard the majority has set for the specific

intent requirement; his purpose is to obtain information, not to

inflict severe pain and suffering. By contrast, an interpretation that

adopts the criminal law definition of specific intent and

encompasses knowledge or desire that severe pain and suffering

will occur includes the above hypothetical in the definition of

26

torture under CAT.

Although I disagree with majority’s interpretation of

specific intent and its resulting conflation of the specific intent and

illicit purpose elements under the CAT statute, I concur in the

result. In this case, the petitioner simply failed to adduce adequate

evidence before the IJ from which we can conclude that there will

be intentional infliction of pain–i.e., with knowledge or desire on

the part of the prison officials. In this way, the present case is

distinguishable from Lavira. Here, the allegations made before the

IJ were not substantiated with proof of either intent or proscribed

purpose and were, at most, akin to a generalized challenge to

prison conditions rejected in Auguste. I therefore concur in the

result reached by the majority, but disagree with its conclusion that

the “intentional infliction” element of torture requires a finding

that the actor’s purpose is to cause severe pain and suffering.11

11

I also agree that our discussion of willful blindness in Lavira

was dicta, referring as we did only to the possibility that it would

suffice to fulfill the “intent” prong. I conclude that while

“willful blindness” may permit a jury to conclude that someone

was aware of, for example, the illegal nature of an enterprise, its

application to satisfy the scienter requirement for torture is a

different matter which we need not now explore. I disagree with

the majority’s reason for rejecting “willful blindness” as a way

to prove the specific intent element in the torture context,

however, because it is based on its misconception that it is

“purpose,” not knowledge of a certain result, that must be

demonstrated.

27