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Interim Decision #3466

In re J-E-, Respondent

Decided March 22, 2002

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An alien seeking protection under Article 3 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment must establish that it is more

likely than not that he will be tortured in the country of removal.

(2) Torture within the meaning of the Convention Against Torture and 8 C.F.R. § 208.18(a)

(2001) is an extreme form of cruel and inhuman treatment and does not extend to lesser

forms of cruel, inhuman, or degrading treatment or punishment.

(3) For an act to constitute “torture” it must satisfy each of the following five elements

in the definition of torture set forth at 8 C.F.R. § 208.18(a): (1) the act must cause

severe physical or mental pain or suffering; (2) the act must be intentionally inflicted; (3)

the act must be inflicted for a proscribed purpose; (4) the act must be inflicted 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) the act cannot arise from lawful sanctions.

(4) According to 8 C.F.R. § 208.16(c)(3) (2001), in adjudicating a claim for protection

under Article 3 of the Convention Against Torture, all evidence relevant to the possibility

of future torture must be considered, including, but not limited to: (1) evidence of past

torture inflicted upon the applicant; (2) evidence that the applicant could relocate to a part

of the country of removal where he or she is not likely to be tortured; (3) evidence of gross,

flagrant, or mass violations of human rights within the country of removal, where

applicable; and (4) other relevant information regarding conditions in the country of

removal.

(5) The indefinite detention of criminal deportees by Haitian authorities does not constitute

torture within the meaning of 8 C.F.R. § 208.18(a) where there is no evidence that the

authorities intentionally and deliberately detain deportees in order to inflict torture.

(6) Substandard prison conditions in Haiti do not constitute torture within the meaning of

8 C.F.R. § 208.18(a) where there is no evidence that the authorities intentionally create and

maintain such conditions in order to inflict torture.

(7) Evidence of the occurrence in Haitian prisons of isolated instances of mistreatment that

may rise to the level of torture as defined in the Convention Against Torture is insufficient

to establish that it is more likely than not that the respondent will be tortured if returned to

Haiti.

FOR RESPONDENT: Andrean Eaton, Esquire, Naples, Florida

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: John W. Seaman,

Assistant District Counsel

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BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;

HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, GRANT, MOSCATO,

MILLER, OHLSON, HESS, and PAULEY, Board Members. Dissenting

Opinions: SCHMIDT, Board Member, joined by GUENDELSBERGER,

BRENNAN, ESPENOZA, and OSUNA, Board Members; ROSENBERG, Board

Member, joined by ESPENOZA, Board Member.

GRANT, Board Member:

In a decision dated July 2, 2001, an Immigration Judge found the

respondent removable as an alien convicted of a controlled substance

violation and as an alien present in the United States without being admitted

or paroled. The Immigration Judge denied the respondent’s applications for

asylum, withholding of removal under section 241(b)(3) of the Immigration

and Nationality Act, 8 U.S.C. § 1231(b)(3) (2000), and protection under

Article 3 of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, adopted and opened for signature

Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at

197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for

the United States Apr. 18, 1988) (“Convention Against Torture” or

“Convention”). The respondent has appealed from the Immigration Judge’s

decision. The appeal will be dismissed. The respondent’s request for oral

argument is denied, and the request for a fee waiver is granted. See C.F.R.

§§ 3.1(e), 3.8(c) (2001).

I. ISSUE

The issue before us is whether the respondent is eligible for protection

under Article 3 of the Convention Against Torture. To decide this issue, we

must address two questions in particular: first, whether any actions by the

Haitian authorities—indefinite detention, inhuman prison conditions, and

police mistreatment—constitute torturous acts within the definition of torture

at 8 C.F.R. § 208.18(a) (2001); and, if so, whether the respondent has

established that it is more likely than not that he will be tortured if removed

to Haiti. See 8 C.F.R. § 208.16(c) (2001).

II. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Haiti. He entered the United

States without inspection at an unknown time and place.1 On June 22, 2000,

the respondent was convicted of sale of cocaine, a second degree felony

under Florida law.

1

According to the respondent’s Application for Asylum and Withholding of Removal (Form

I-589), he last entered the United States on September 17, 1990.

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At a continued removal hearing on July 2, 2001, the respondent testified

that upon his return to Haiti he will be persecuted and tortured by Haitian

authorities. He related that he left Haiti in 1990, and that his mother was

killed in 1990 and his grandfather in 1995, each as a result of a property

dispute. The respondent’s father, who testified on his son’s behalf, explained

that his family had never had any problems with the Haitian Government, only

property disputes with neighbors. His testimony differed from the

respondent’s regarding his last trip to Haiti.

In further support of his claim, the respondent submitted five recent

newspaper articles addressing Haitian prison conditions, as well as a set of

photographs of malnourished, dying Haitian inmates. He also submitted the

Department of State’s Background Note: Haiti, dated April 2001. Bureau of

Western Hemisphere Affairs, U.S. Dep’t of State, Background Note:

Haiti (Apr. 2001), available at http://www.state.gov/r/pa/bgn/index.htm

(“Background Note”). All of the articles confirm the Department of State’s

assessment of the inhuman prison conditions in Haiti. Only one article,

written by a Miami Herald reporter in 2001, references police mistreatment.

The reporter spoke with two inmates at the Penitentier National prison, who

stated that they had been abused by the authorities. One male inmate had

burn marks on his chest and arm, and one female inmate claimed that the

guard beat her. When confronted with these accusations, the prison warden’s

response was equivocal. He intimated that prisoners are beaten, but not

severely.

The record also contains a letter dated April 12, 2001, to the Immigration

Judge from Mr. William E. Dilday, Director of the Office of Country Reports

and Asylum Affairs at the Department of State’s Bureau of Democracy,

Human Rights and Labor. Mr. Dilday reports that Haitians deported from the

United States on criminal grounds will be detained in Haiti until a commission

determines a release date. The commission does not meet regularly, so

Haitian detainees may be held for weeks in police holding cells before they

are released. According to Haitian authorities, criminal detainees are

temporarily detained to deter criminal activity in Haiti. The State Department

also reports that prison facilities are overcrowded and inadequate. Haitian

prisoners are deprived of adequate food, water, medical care, sanitation, and

exercise. Many prisoners are malnourished. According to prison officials,

in November 2000, 5 of the 10 prison deaths were attributable to

malnutrition. At the conclusion of the respondent’s hearing, the Immigration

Judge found him removable as charged; statutorily ineligible for asylum

because of his aggravated felony conviction; ineligible for withholding of

removal; and ineligible for protection under Article 3 of the Convention

Against Torture because of his failure to establish that it is more likely than

not that he will be tortured if returned to Haiti. Accordingly, he ordered the

respondent deported to Haiti.

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On appeal, the respondent claims that he will be persecuted and tortured

if returned to Haiti because he will be subject to indefinite detention as a

repatriated Haitian convict. 2 The Immigration and Naturalization Service

filed a memorandum adopting the decision of the Immigration Judge and

requesting that his decision be affirmed. For the reasons set forth below, the

appeal will be dismissed.

III. ANALYSIS

A. Convention Against Torture

Article 3 of the Convention Against Torture precludes the United States

from returning an alien to a state where there are substantial grounds for

believing that he would be subjected to torture.3 To ascertain the nature and

extent of the protection afforded by the United States under Article 3, we

must examine the history of the negotiations, ratification, and implementation

of the Convention in the United States.

We begin our analysis by examining the origins of the Convention Against

Torture. In 1977, the United Nations General Assembly requested that the

United Nations Human Rights Commission draft a convention against torture.

For more than 6 years, several nations, including the United States, negotiated

the provisions of the instrument. In March 1984, a draft convention was

accepted by the Commission and was directed to the United Nations General

Assembly. On December 10, 1984, the General Assembly unanimously

adopted the Convention Against Torture, which entered into force on June 26,

1987. See Report of the Committee on Foreign Relations, S. Exec. Rep. No.

30, 101st Cong., 2d Sess. 1, 2 (1990) (“Senate Report”). The purpose of the

Convention is “to make more effective the struggle against torture and other

cruel, inhuman or degrading treatment or punishment throughout the world.”

Convention Against Torture, supra, pmbl.

2

Although the respondent, through counsel, indicated that he would file an additional brief or

statement in support of his appeal, he has failed to provide such a brief or an explanation for

his failure to do so. It is unclear whether the respondent is challenging the denial of his

withholding of removal claim under section 241(b)(3) of the Act. Despite the fact that the

respondent withdrew his request for withholding of removal, the Immigration Judge

adjudicated the claim and denied it for failure to meet the burden of proof. On review, we find

no reason to disturb that portion of the Immigration Judge’s decision.

3

Article 3 of the Convention provides as follows:

1. 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.

2. For the purpose of determining whether there are such grounds, the competent

authorities shall take into account all relevant considerations including, where applicable,

the existence in the State concerned of a consistent pattern of gross, flagrant or mass

violations of human rights.

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The history of the negotiations reveals that a central issue for the drafters

of the Convention Against Torture was whether the definition of “torture”

should include solely acts of torture or also “other acts of cruel, inhuman, and

degrading treatment or punishment.” See Ahcene Boulesbaa, The U.N.

Convention on Torture and the Prospects for Enforcement 5 (1999) (citing

U.N. Doc. E/CN.4/1314 (1978)). The United States took the position that

“torture” is limited to extreme forms of cruel, inhuman, or degrading treatment

or punishment. Id.; see also Senate Report, supra, at 2-3. The definition of

torture ultimately adopted by the General Assembly and set forth in Article

1 of the Convention Against Torture does not include “other acts of cruel,

inhuman or degrading treatment or punishment.”4

Instead, “other acts of cruel, inhuman or degrading treatment or

punishment” are prohibited under Article 16 of the Convention. Article 16.1

obligates Convention signatories to prevent in any territory under their

jurisdiction

other acts of cruel, inhuman or degrading treatment or punishment which do not amount

to torture as defined in article 1, when such acts are committed by or at the instigation of

or with the consent or acquiescence of a public official or other person acting in an official

capacity.

Thus, the Convention Against Torture draws a clear distinction between

torturous acts as defined in Article 1 and acts not involving torture referenced

in Article 16. The severity of the pain and suffering inflicted is a

distinguishing characteristic of torture.5 This distinction is further emphasized

by the different obligations that attach to each. The obligations undertaken

by a State Party regarding acts of torture are far more comprehensive than

those regarding nontorturous acts.6 Notably, the protection afforded under

4

Article 1 of the Convention 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, 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, inherent in

or incidental to lawful sanctions.

5

During the negotiations on the Convention there were several unsuccessful attempts to

eliminate the term “severe” from the torture definition. See Boulesbaa, supra, at 16; see also

J. Herman Burgers & Hans Danelius, The United Nations Convention against Torture 117

(1988).

6

For example, as a signatory to the Convention, the United States agreed not to expel, return,

or extradite a person to a state where there are substantial grounds for believing that he would

be subjected to torture (Article 3). The United States also agreed to criminalize acts of torture

(Article 4); to establish universal jurisdiction over acts of torture and to prosecute and extradite

(continued...)

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Article 3 extends only to acts of torture as defined in Article 1 of the

Convention.

On April 18, 1988, President Reagan signed the Convention Against

Torture and transmitted it to the Senate the following month with

17 conditions, which were later revised by the Bush Administration. On

October 27, 1990, the Senate adopted its resolution of advice and consent to

ratification. The treaty became effectively binding on the United States on

November 20, 1994.

The Senate ratified the Convention subject to two reservations, five

understandings, two declarations, and a proviso. See 136 Cong. Rec.

S17,486, S17,491-92 (daily ed. Oct. 27, 1990) (“Senate Resolution”). Two

of the Senate’s understandings directly relate to Article 3 of the Convention

and, consequently, to this case in particular. 7 These understandings, which

have been incorporated in the implementing regulations, are critical to

comprehending the United States’ obligations under Article 3. Notably, the

Senate ratified the Convention subject to an understanding that refines the

definition of torture contained in Article 1 of the Convention. See Senate

Resolution, supra, II.(1)(a)-(e). As detailed below, this understanding is

incorporated into the federal regulations at 8 C.F.R. § 208.18(a).

Another of the Senate’s understandings provides that “where there are

substantial grounds for believing that he would be in danger of being

subjected to torture,” as used in Article 3 of the Convention, means “if it is

more likely than not that he would be tortured.” Senate Resolution, supra,

II.(2). The ratification history reveals that the standard of proof for protection

under Article 3 is the same as the standard of proof for withholding of

removal under section 241(b)(3) of the Act. See Report of the Committee on

Foreign Relations, S. Exec. Rep. No. 30, 101st Cong., 2d Sess., 16-17 (1990)

(“Senate Report”). This understanding is incorporated in the federal

regulations at 8 C.F.R. § 208.16(c)(2).

B. Regulatory Definition of Torture

On October 21, 1998, the President signed into law the Foreign Affairs

Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div. G, § 2242,

112 Stat. 2681-761, 2681-822, which authorized the implementation of

Article 3 of the Convention Against Torture and required that implementing

6

(...continued)

alleged torturers (Articles 5, 6, and 7); and to give victims of torture the legal right to receive

compensation (Article 14). These obligations do not extend to other acts of cruel, inhuman,

or degrading treatment or punishment.

7

An “understanding” binds only the United States, not other Convention signatories. See

Restatement (Third) of the Foreign Relations Law of the United States § 314 (1986).

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regulations be promulgated by the interested agencies within 120 days.8 As

directed, the Service promulgated interim regulations implementing Article 3

of the Convention in the context of the removal of aliens by the Attorney

General. Regulations Concerning the Convention Against Torture, 64 Fed.

Reg. 8478 (Feb. 19, 1999) (effective Mar. 22, 1999).

These federal regulations govern our decision in this case. The regulatory

definition of torture incorporates the definition of Article 1 of the Convention

and draws directly from the reservations, understandings, declarations, and

proviso contained in the Senate’s resolution of advice and consent to ratify

the Convention, and the ratification documents. See Senate Resolution,

supra, II.(1)(a)-(e), 4; see also Regulations Concerning the Convention

Against Torture, 64 Fed. Reg. at 8482-83 (Supplementary Information). The

regulations reflect the United States’ longstanding position that torture is an

extreme form of cruel, inhuman, or degrading treatment or punishment. See

8 C.F.R. §§ 208.18(a)(1), (2); see also Senate Report, supra, at 13.

Instead of categorizing acts that constitute torture, the regulatory definition

of torture sets forth criteria that must be applied in determining whether a

given act amounts to torture. See Regulations Concerning the Convention

Against Torture, 64 Fed. Reg. at 8482. 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.

8 C.F.R. § 208.18(a).

First, the act must cause severe pain or suffering, physical or mental. It

must be an extreme form of cruel and inhuman treatment, not lesser forms of

cruel, inhuman, or degrading treatment or punishment that do not amount to

torture. 8 C.F.R. §§ 208.18(a)(1), (2). Mental pain or suffering may

constitute torture if it falls within the regulatory definition at 8 C.F.R.

§ 208.18(a)(4). See Senate Resolution, supra, II.(1)(a).

While the Convention Against Torture makes a clear distinction between

torturous and nontorturous acts, actually differentiating between acts of

torture and other bad acts is not so obvious. Although not binding on the

United States, the opinions of other governmental bodies adjudicating torture

claims can be instructive.

Pursuant to Article 3 of the European Convention on Human Rights, a

Contracting State Party may not expel an individual to a country where he

would be placed at risk of torture or inhuman or degrading treatment.

8

Just 2 months earlier, we held that we lacked jurisdiction to adjudicate a claim for relief from

deportation pursuant to Article 3 of the Convention Against Torture, in the absence of specific

legislation or regulations implementing the provisions of Article 3, given the Senate’s

declaration that Article 3 is not a self-executing treaty provision. Matter of H-M-V, Interim

Decision 3365 (BIA 1998).

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European Convention for the Protection of Human Rights and Fundamental

Freedoms, opened for signature Nov. 4, 1950 (“European Convention”),

available at http://www.hrcr.org/docs/Eur_Convention/euroconv.html .9 In

adjudicating such claims, the European Court has differentiated three levels

of mistreatment: torture, inhuman treatment, and degrading treatment. 10 See

Greek Case, 12 Y.B. Eur. Conv. on H.R. 1 (1969).

In Ireland v. United Kingdom, 2 Eur. Ct. H.R. 25 (1978), the European

Court struggled to determine whether the acts complained of constituted

torture or other, lesser forms of cruel or inhuman treatment. It observed that

torture is an aggravated and deliberate form of cruel, inhuman, or degrading

treatment resulting in intense suffering. Degrading treatment is characterized

by gross humiliation of an individual. In that case, the court held that

suspected terrorists who were detained and subjected to wall standing,

hooding, and constant loud, hissing noise, and who were deprived of sleep,

food, and drink by the British Army had been subjected to inhuman and

degrading treatment, but not torture.

Second, the act must be specifically intended to inflict severe physical or

mental pain or suffering. 8 C.F.R. § 208.18(a)(5). This specific intent

requirement is taken directly from the understanding contained in the Senate’s

ratification resolution. Senate Resolution, supra, II.(1)(a). Thus, an act that

results in unanticipated or unintended severity of pain or suffering does not

constitute torture. In view of the specific intent requirement, the Senate

Foreign Relations Committee noted that rough and deplorable treatment, such

as police brutality, does not amount to torture. See Senate Report, supra, at

13-14.11

Third, the act must have an illicit purpose. The definition of torture

illustrates, but does not define, what constitutes a proscribed or prohibited

purpose. Examples of such purposes include the following: obtaining

information or a confession; punishment for a victim’s or another’s act;

intimidating or coercing a victim or another; or any discriminatory purpose.

The Foreign Relations Committee noted that these listed purposes indicate the

type of motivation that typically underlies torture, and it recognized that the

illicit purpose requirement emphasizes the specific intent requirement. Id. at

14.

9

Article 3 of the European Convention provides: “No one shall be subject to torture or to

inhuman or degrading treatment or punishment.”

10

The European Court of Human Rights was created to hear human rights claims asserted

under the European Convention. The United States is not a party to the European Convention

and is not subject to its jurisdiction, and we recognize the differences between the Convention

Against Torture and the European Convention. However, the court’s jurisprudence regarding

torture claims is instructive, and we consider the court’s decisions to be advisory only.

11

A deliberate act is not necessarily an intentional act. See Burgers & Danelius, supra, at

118-19.

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Fourth, torture covers intentional governmental acts, not negligent acts or

acts by private individuals not acting on behalf of the government. The

regulations require that the harm be “inflicted by or at the instigation of or

with the consent or acquiescence of a public official or other person acting in

an official capacity.” 8 C.F.R. § 208.18(a)(1); see also Matter of Y-L-, A-G& R-S-R-, 23 I&N Dec. 270 (A.G. 2002); Matter of S-V-, Interim Decision

3430 (BIA 2000).

To constitute torture, an act must be directed against a person in the

offender’s custody or control. 8 C.F.R. § 208.18(a)(6). The term

“acquiescence” requires that the public official, prior to the activity

constituting torture, have awareness of such activity and thereafter breach his

legal responsibility to intervene to prevent such activity. 8 C.F.R.

§ 208.18(a)(7). These federal regulations are taken directly from the Senate’s

understandings upon which ratification was conditioned. See Senate

Resolution, supra, II.(1)(b), (d); see also Matter of Y-L-, A-G- & R-S-R-,

supra; Matter of S-V-, supra.

Finally, the regulations incorporate the second sentence of Article 1 of the

Convention Against Torture, which states that torture “does not include pain

or suffering arising only from, inherent in or incidental to lawful sanctions.”

8 C.F.R. § 208.18(a)(3) (emphasis added). “Lawful sanctions include

judicially imposed sanctions and other enforcement actions authorized by law,

including the death penalty, but do not include sanctions that defeat the object

and purpose of the Convention Against Torture to prohibit torture.” Id.; see

also Senate Resolution, supra, II.(1)(c), (e).

C. Treatment of Deportees to Haiti

In the case before us, the respondent asserts that he will be tortured in Haiti

by the Government because Haitians deported from the United States on

criminal grounds are detained indefinitely in prison facilities where prisoners

are subjected to inhuman conditions and police mistreatment. We must

determine whether any of these state actions—indefinite detention, inhuman

prison conditions, and police mistreatment—constitute torturous acts within

the meaning of the regulatory definition of torture.

First, the respondent asserts that he will be tortured if returned to Haiti

because he will be indefinitely detained by the Haitian authorities. It is

undisputed that the respondent will be subject to detention of an indeterminate

length on his return to Haiti. Letter from William E. Dilday, Director of

Office of Country Reports and Asylum Affairs, Bureau of Democracy,

Human Rights and Labor, U.S. Dep’t of State, to Immigration Judge

(Apr. 12, 2001) (“Dilday letter”); Bureau of Democracy, Human

Rights, and Labor, U.S. Dep’t of State, Haiti Country Reports on

Human Rights Practices - 2000 (Feb. 2001), available at

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http://www.state.gov/g/drl/rls/hrrpt/2000/wha/index.htm, reprinted in

Committees on Foreign Relations and International Relations, 107th Cong.,

1st Sess., Country Reports on Human Rights Practices for 2000 2625 (Joint

Comm. Print 2001) (“Country Reports”). 12 According to the State

Department, criminal deportees were once processed and released within

1 week. Country Reports, supra, at 2630. Now, due to irregular commission

meetings, deportees are held for weeks in police holding cells prior to their

release. Dilday letter, supra.

We recognize that Haiti has a legitimate national interest in protecting its

citizens from increased criminal activity. According to the Country Reports,

this detention procedure is designed “to prevent the ‘bandits’ from increasing

the level of insecurity and crime in the country.” Country Reports, supra, at

2630. This confirms Mr. Dilday’s report that Haitian authorities detain

criminal deportees “as a warning and deterrent not to commit crimes in Haiti.”

Dilday letter, supra. Thus, Haiti’s detention policy in itself appears to be a

lawful enforcement sanction designed by the Haitian Ministry of Justice to

protect the populace from criminal acts committed by Haitians who are forced

to return to the country after having been convicted of crimes abroad. We

find that this policy is a lawful sanction and, therefore, does not constitute

torture. See 8 C.F.R. § 208.18(a)(3). Additionally, there is no evidence that

Haiti’s detention policy is intended to defeat the purpose of the Convention

to prohibit torture.

Notwithstanding, the United States has condemned the manner in which

Haiti is implementing its detention policy, that is, by detaining deportees for

an indeterminate period. Although this practice is unacceptable and must be

discontinued, there is no evidence that Haitian authorities are detaining

criminal deportees with the specific intent to inflict severe physical or mental

pain or suffering. 8 C.F.R. § 208.18(a)(5). Nor is there any evidence that

Haiti’s detention procedure is inflicted on criminal deportees for a proscribed

purpose, such as obtaining information or a confession; punishment for a

victim’s or another’s act; intimidating or coercing a victim or another; or any

discriminatory purpose. 8 C.F.R. § 208.18(a)(1). Based on the foregoing, we

find that Haiti’s detention practice alone does not constitute torture within the

meaning of the regulations.

The respondent asserts that such indefinite detention, coupled with inhuman

prison conditions, amounts to torture. In order to constitute torture, the act

must be specifically intended to inflict severe pain or suffering. The

12

According to Director Dilday, Haitian deportees are detained in “police holding cells.”

Dilday letter, supra. The State Department Country Reports state that the “National

Penitentiary is the only prison originally constructed for use as a prison; all other prisons are

former police holding cells.” Country Reports, supra, at 2630. While criminal suspects and

convicted criminals are held in “police holding cells,” it is unclear from the reports whether

Haitian deportees are detained with criminals and are subject to these forms of mistreatment.

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ratification documents make it clear that this is a “specific intent”

requirement, not a “general intent” requirement. Senate Report, supra, at 14;

see also Senate Resolution, supra, II.(a)(1). “Specific intent” is defined as

the “intent to accomplish the precise criminal act that one is later charged

with” while “general intent” commonly “takes the form of recklessness . . .

or negligence.” Black’s Law Dictionary 813-14 (7th ed. 1999).

Although Haitian authorities are intentionally detaining criminal deportees

knowing that the detention facilities are substandard, there is no evidence that

they are intentionally and deliberately creating and maintaining such prison

conditions in order to inflict torture. See 8 C.F.R. §§ 208.18(a)(1), (5). In

fact, according to an article submitted by the respondent, it was reported that

President Aristide and his wife visited one of the prisons. President Aristide

commuted the sentences of seven women in honor of Women’s Day and

promised to make judicial reform one of his priorities in his 5-year term.

The record establishes that Haitian prison conditions are the result of

budgetary and management problems as well as the country’s severe

economic difficulties. Two thirds of the country’s population live in extreme

poverty. Country Reports, supra, at 2626. According to the Department of

State, even when the prison authorities purchase adequate food, there is no

effective delivery system. Id. at 2630. Individual prison officials come to

the warehouse, traveling by bus or taxi, and carry away as much food as they

can. There is evidence that, although lacking in resources and effective

management, the Haitian Government is attempting to improve its prison

system.

Additionally, the Country Reports state that the Haitian Government

“freely permitted the ICRC [International Committee of the Red Cross], the

Haitian Red Cross, MICAH [International Civilian Mission for Support in

Haiti], and other human rights groups to enter prisons and police stations,

monitor conditions, and assist prisoners with medical care, food, and legal

aid.” Country Reports, supra, at 2630. The ICRC funds and manages its

own programs within the prison system. Id. at 2629. Moreover, as evidenced

by the respondent’s documentary submissions, a reporter and a photographer

from the Miami Herald were recently given access to Haiti’s prisons. For

these reasons, we cannot find that these inexcusable prison conditions

constitute torture within the meaning of the regulatory definition.

Finally, the respondent bases his torture claim on the likelihood that he will

be mistreated by the Haitian authorities while indefinitely detained. The

Country Reports describe incidents of deliberate mistreatment of detainees:

Police mistreatment of suspects at both the time of arrest and during detention remains

pervasive in all parts of the country. Beating with the fists, sticks, and belts is by far the

most common form of abuse. However, international organizations documented other

forms of mistreatment, such as burning with cigarettes, choking, hooding, and kalot marassa

(severe boxing of the ears, which can result in eardrum damage). Those who reported such

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abuse often had visible injuries consistent with the alleged maltreatment. There were also

isolated allegations of torture by electric shock. Mistreatment also takes the form of

withholding medical treatment from injured jail inmates. Police almost never are

prosecuted for the abuse of detainees.

Country Reports, supra, at 2629.

This single paragraph in a 15-page report documents many forms of

mistreatment which can be categorized as either torturous or nontorturous

acts. Instances of police brutality do not necessarily rise to the level of

torture, whereas deliberate vicious acts such as burning with cigarettes,

choking, hooding, kalot marassa, and electric shock may constitute acts of

torture. As noted above, the distinguishing characteristic of torture is the

severity of the pain and suffering inflicted. The record reflects that there are

isolated instances of mistreatment in Haitian prisons that rise to the level of

torture within the meaning of 8 C.F.R. § 208.18(a).

D. Burden of Proof

As a “vigorous supporter of the international fight against torture,” the

United States views any incident of torture as unacceptable. U.S.

Department of State Initial Report of the United States of America to the UN

Committee Against Torture, (Oct. 15, 1999), available at

http://www.state.gov/www/global/human_rights/torture_intro.html. Indeed, in

ratifying the Convention Against Torture, the United States agreed to take

effective measures to prevent acts of torture in any territory under its

jurisdiction. See Convention Against Torture, supra, art. 2. In the context of

these removal proceedings, the United States agreed not to remove an alien

to a country in which it is more likely than not that he or she would be

tortured. See Convention Against Torture, supra, art. 3.

The question before us is whether the respondent has established his

eligibility for protection under Article 3 of the Convention. The respondent

bears the burden of proving that it is more likely than not that he will be

tortured if returned to Haiti. The respondent’s testimony, if credible, may be

sufficient to sustain the burden of proof without corroboration. See 8 C.F.R.

§ 208.16(c)(2).

As noted, the ratification history of the Convention underscores the concept

that the standard of proof for protection under Article 3 is the same as the

standard of proof for withholding of removal under section 241(b)(3) of the

Act. See INS v. Stevic, 467 U.S. 407 (1984). The “more likely than not”

standard of proof has no subjective component, but instead requires the alien

to establish, by objective evidence, that it is more likely than not that he or

she will be subject to torture upon removal. See INS v. Cardoza-Fonseca,

480 U.S. 421, 430 (1987).

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In assessing whether it is more likely than not that an alien would be

tortured in the proposed country of removal, all evidence relevant to the

possibility of future torture shall be considered, including, but not limited to:

(1) evidence of past torture inflicted upon the applicant; (2) evidence that the

applicant could relocate to a part of the country of removal where he or she

is not likely to be tortured; (3) evidence of gross, flagrant, or mass violations

of human rights within the country of removal, where applicable; and (4) other

relevant information regarding conditions in the country of removal. 8 C.F.R.

§ 208.16(c)(3).

The United Nations Committee Against Torture 13 has consistently held that

the existence of a consistent pattern of gross, flagrant, or mass violations of

human rights in a particular country does not, as such, constitute sufficient

grounds for determining that a particular person would be in danger of being

subjected to torture upon his return to that country. Specific grounds must

exist that indicate the individual would be personally at risk. At the same

time, the absence of such human rights violations does not preclude an

individual from establishing eligibility for protection under the Convention.

See Mutombo v. Switzerland, Comm. No. 13/1993, CAT/C/12/D/13/1993

(Apr. 27, 1994); see also Matter of S-V-, supra, at 9.

The respondent has made no claim of past torture. His torture claim is

premised on the mistreatment he would face while detained for an

indeterminate period on returning to Haiti. Neither he nor his father had

personal knowledge of Haitian prison conditions. The respondent’s evidence

consists of five newspaper articles, the Department of State Country Reports,

and a letter from a State Department official. This documentary evidence

contains only two references to police mistreatment, as the Miami Herald

reporter who was given access to the Haitian prisons reported two complaints

of police misconduct. In addition, the Department of State reported only

isolated allegations of misconduct that rise to the level of torture.

The evidence establishes that isolated acts of torture occur in Haitian

detention facilities. However, this evidence is insufficient to establish that it

is more likely than not that the respondent will be subject to torture if he is

removed to Haiti. For example, there is no evidence that deliberately

inflicted acts of torture are pervasive and widespread; that the Haitian

authorities use torture as a matter of policy; or that meaningful international

oversight or intervention is lacking. Additionally, the United States has urged

the Aristide administration to discontinue this detention practice.

13

The United Nations Committee Against Torture is a monitoring body for the

implementation and observance of the Convention Against Torture. Convention Against

Torture, supra, arts. 17-22. The United States recognizes the Committee but does not

recognize its competence to consider cases brought by one state party against another or cases

brought by an individual against a state party. See Senate Resolution, supra, III.(2). We

therefore consider the Committee’s opinions to be advisory only.

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On the basis of this evidence, we find that the respondent has failed to

establish that these severe instances of mistreatment are so pervasive as to

establish a probability that a person detained in a Haitian prison will be

subject to torture, as opposed to other acts of cruel, inhuman, or degrading

punishment or treatment. See, e.g., Al-Saher v. INS, 268 F.3d 1143 (9th Cir.

2001) (finding an Iraqi national eligible for protection under Article 3 of the

Convention where he established that he was likely to be detained by the Iraqi

authorities, and the record indicated that the security services routinely

tortured detainees and that Iraqi refugees often reported instances of torture).

As we read the State Department Country Reports in their entirety, it is

clear that most of the range of mistreatment described therein falls outside the

scope of Article 1 of the Convention, while fitting squarely within Article 16

of the Convention. Nothing could be clearer from the language of the

Convention, the Senate ratification documents, and the implementing

regulations than that the nonrefoulement obligation of Article 3 does not apply

to most of the abysmal conditions described in the Country Reports. It bears

repeating that although these prison conditions do not rise to the level of

torture, every effort must be made to improve such conditions.

IV. CONCLUSION

As the foregoing discussion demonstrates, the regulations implementing the

Convention Against Torture, drawn directly from the language of the

Convention and the Senate’s resolution of ratification, govern our analysis

and decision regarding Article 3 claims for protection. In applying these

regulatory standards to the evidence before us, we cannot find that the

respondent has established that it is more likely than not that he will be

tortured if he is returned to Haiti. Accordingly, the respondent’s appeal will

be dismissed.

ORDER: The appeal is dismissed.

DISSENTING OPINION: Paul Wickham Schmidt, Board Member, in

which John W. Guendelsberger, Noel Ann Brennan, Cecelia M.

Espenoza, and Juan P. Osuna, Board Members, joined

I respectfully dissent.

The respondent more likely than not will be tortured upon return to Haiti.

Therefore, we should sustain his appeal and grant him deferral of removal

under Article 3 of the Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment, adopted and opened for signature

Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at

197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for

the United States Apr. 18, 1988) (“Convention Against Torture” or

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“Convention”), and the implementing regulations. See 8 C.F.R. §§ 208.16208.18 (2001).

I. ISSUE

This case involves an important issue of mandatory protection under the

Convention Against Torture, an international instrument to which our country

is a party. The respondent is a removable Haitian national who committed a

crime in the United States. It is undisputed that, as a returning criminal, the

respondent will be detained by the Haitian Government for an indeterminate

period, during which he is likely to be subject to mistreatment at a level that

has been condemned by our Government.

The issue is whether the respondent has shown that it is “more likely than

not” that he will be “tortured” upon return to Haiti. The respondent meets

this standard.

II. DEFINITION OF TORTURE

The regulations define “torture” as follows:

Torture is defined as any act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for such purposes as obtaining from him or her

or a third person information or a confession, punishing him or her for an act he or she or

a third person has committed or is suspected of having committed, or intimidating or

coercing him or her or a third person, or for any reason based on discrimination of any

kind, when such pain or suffering is inflicted by or at the instigation of or with the consent

or acquiescence of a public official or other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1).

Torture “is an extreme form of cruel and inhuman treatment and does not

include lesser forms of cruel, inhuman or degrading treatment or punishment

that do not amount to torture.” 8 C.F.R. § 208.18(a)(2). We are directed to

consider all relevant evidence including evidence “of gross, flagrant or mass

violations of human rights within the country of removal, where applicable.”

8 C.F.R. § 208.16(c)(3)(iii).

The standard of proof is “more likely than not.” 8 C.F.R. § 208.16(c)(2).

Deferral of removal for those covered by the Convention is mandatory, and

there are no exceptions. 8 C.F.R. § 208.17(a). This means that we are

compelled by law to defer removal of anyone who shows that it is more

likely than not that he or she would be subjected to torture, even if that person

has engaged in serious criminal activity.

The reasoning behind this absolute prohibition is plain: torture is so

abhorrent that it can never be justified, and its application is “outside the

domain of a criminal justice system.” Suresh v. Canada, [2002] S.C.R. 1,

12 (noting that “[t]orture is an instrument of terror and not of justice”). This

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prohibition on torture is a principle that has attained the status of a

peremptory norm in international law. Id. at 13. The corollary of that

principle is that removal of an individual to a country where he or she would

be tortured can never be justified. See 8 C.F.R. § 208.17(a); David

Weissbrodt & Isabel Hortreiter, The Principle of Non-refoulement: Article

3 of the Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment in Comparison with the NonRefoulement Provisions of Other International Human Rights Treaties,

5 Buff. Hum. Rts. L. Rev. 1, 16 (1999) (pointing out that “no exceptional

circumstances justify expelling a person to a country where he or she would

be in danger of being subjected to torture,” and that the drafters of Article 3

of the Convention Against Torture deliberately did not adopt the limitations

on nonrefoulement included in other treaties, such as the “particularly serious

crime” limitation on nonrefoulement included in Article 33(1) of the 1951

Convention Relating to the Status of Refugees).

Therefore, if we conclude that the conditions in Haiti to which the

respondent would be returned constitute torture, and if the respondent

establishes that it is more likely than not that he would be subjected to that

torture, we must defer his removal, despite his serious criminal record.

III. EVIDENCE

The record contains the 2001 Department of State Country Reports.

Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, Haiti

Country Reports on Human Rights Practices - 2000 (Feb. 2001), available

at http://www.state.gov/g/drl/rls/hrrpt/2000/wha/index.htm reprinted in

Committees on Foreign Relations and International Relations, 107th Cong.,

1st Sess., Country Reports on Human Rights Practices for 2000 2625 (Joint

Comm. Print 2001) (“Country Reports”). The report confirms that “many

criminal deportees who already served full sentences overseas are put back

in jail for indefinite periods of time.” This describes the respondent.

The Country Reports further describe how detainees are mistreated:

Police mistreatment of suspects at both the time of arrest and during detention remains

pervasive in all parts of the country. Beating with the fists, sticks, and belts is by far the

most common form of abuse. However, international organizations documented other

forms of mistreatment, such as burning with cigarettes, choking, hooding, and kalot marassa

(severe boxing of the ears, which can result in eardrum damage). Those who reported such

abuse often had visible injuries consistent with the alleged maltreatment. There were also

isolated allegations of torture by electric shock. Mistreatment also takes the form of

withholding medical treatment from injured jail inmates. Police almost never are

prosecuted for the abuse of detainees.

Country Reports, supra, at 2629.

The respondent also submitted a number of newspaper articles describing

the deplorable conditions in Haitian prisons. One article, acknowledged by

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the majority, chronicles widespread official mistreatment and contains

accounts by inmates who were beaten and burned, as well as a response in

which the warden basically admits that inmates are beaten but tries to

minimize the severity of the beatings.

Inmates receive “insufficient calories to sustain life.” “Corruption, not just

malnutrition, is killing inmates,” bluntly states one report. Another article

tells of a returnee from the United States who was dumped in a police

substation detention cell “unfit for human habitation.” She was denied food

and potable water and died after 4 days. Overall, these squalid, inhuman

conditions describe an atmosphere in which unchecked, officially sanctioned

abuse of the type highlighted in the State Department Country Reports is

likely to be the rule, not the exception.

Of particular importance in determining whether the respondent has met his

burden of proof is the apparent blanket policy of the Haitian authorities to

automatically detain all criminal returnees to Haiti. As the majority

concedes, it is undisputed that the respondent will be detained upon his return

to Haiti. According to the State Department, this detention may last many

weeks.

Thus, it appears that the respondent has shown that he falls in the class of

persons who are guaranteed to be subjected to the treatment at issue in this

case. If we conclude that such treatment rises to the level of torture, the

respondent has therefore met his burden of proof.

IV. ANALYSIS

Clearly, the abuse documented in the record is extreme, deliberate, cruel,

and intentionally inflicted to cause severe pain and suffering. It fits squarely

within the regulatory definition of torture. See 8 C.F.R. § 208.18(a)(1).

The majority errs by concluding that because the Haitian authorities do not

have a specific intent to subject returnees to severe physical or mental pain

or suffering, the treatment does not rise to the level of torture. These

authorities have continued the policy of detaining returnees with the full

knowledge, as documented by the State Department and international

organizations, that returnees will be forced to endure horrific prison

conditions as well as starvation, beatings, and other forms of physical abuse.

This is not a case where the authorities merely are being negligent. See J.

Herman Burgers & Hans Danelius, The United Nations Convention Against

Torture 118 (1988) (noting that where the pain or suffering is the result of an

accident or mere negligence, it is not torture). Rather, it is an instance of a

government deliberately continuing a policy that leads directly to torturous

acts.

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The Government of Haiti cannot claim that it does not know what happens

to detainees in its prisons. Therefore, its conduct falls squarely within the

meaning of 8 C.F.R. § 208.18(a)(1).

Beatings with sticks, fists, and belts have no legitimate purpose and

obviously are specifically intended to inflict extreme pain and suffering upon

the victims. Burning with cigarettes, choking, hooding, and kalot marassa are

not accidental occurrences, nor are they the result of lack of resources or

mere mismanagement in a poor country’s prison system. Rather, they are

well-recognized ways in which torturers torment their victims. Electric shock,

in this case, is intentionally applied to cause excruciating pain and prolonged

physical and mental anguish.

The Country Reports do not purport to provide a statistical analysis of the

odds on torture in Haiti. Indeed, given the international condemnation of

torture, there is every incentive for the Haitian Government to conceal or

minimize the evidence of torture occurring in its detention system. It is likely,

therefore, that the Country Reports substantially understate the actual number

of instances and severity of torture.

What is striking, however, is the clearly documented acceptance of extreme

mistreatment amounting to torture as a routine aspect of detention in Haiti.

Even the prison warden freely admits to a reporter that systematic beatings

occur; he merely attempts to minimize the severity of the misconduct for

which he is responsible. This confirms the State Department’s report that

torture by government officials is carried out with impunity.

Few, if any, prospective torture victims will be able to provide “statistical

proof” of a “50.001% chance” of torture. But the information in the Country

Reports shows that torture of detainees in Haiti is routine, widespread,

horrific, and officially tolerated. This satisfies a reasonable, common-sense

application of the “more likely than not” standard for protection under the

Convention.

The Senate Report cited by the majority specifically states that “sustained

systematic beatings” constitute “torture.” Report of the Committee on

Foreign Relations, S. Exec. Rep. No. 30, 101st Cong., 2d Sess. 1, 14 (1990).

I disagree with the majority’s attempt to characterize certain aspects of the

systematic, aggravated abuse documented in the Country Reports—beating

with fists, sticks, and belts—as mere “rough treatment” or “police brutality.”

The majority’s characterization of the Haitian Government’s practice of

detaining returning Haitian citizens as a “lawful sanction” is also unusual.

Such citizens of Haiti committed crimes in the United States, completed their

sentences here, and have committed no apparent crimes in Haiti that would

earn them such “sanctions.” Moreover, their detention has been condemned

by our Government. Furthermore, torture can never be a “lawful sanction.”

See 8 C.F.R. § 208.18(a)(3) (stating that lawful sanctions do not include

sanctions that defeat the object and purpose of the Convention).

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In essence, the majority errs by looking at the various factors that

contribute to the abuse of Haitian returnees in isolation, and not as a whole.

Generally, deplorable prison conditions, by themselves, do not rise to the

level of torture, although they can rise to the level of cruel, inhuman, and

degrading treatment. See Amnesty International, Haiti: Unfinished Business:

justice and liberties at risk, AI Index: AMR 36/01/00, at 9 (Mar. 21, 2000)

(noting that the physical conditions in Haitian prisons give rise to cruel,

inhuman, and degrading instances). 1

In this case, however, we must examine not only the prison conditions, but

also the effect on someone who, while having to endure those deplorable

conditions, has to endure various forms of physical abuse, including beatings,

electric shock, burning with cigarettes, choking, and other forms of

mistreatment, as well as the withholding of food and medical treatment, in an

atmosphere where his abusers act with almost complete impunity. It is only

by looking at this entire picture that we can be faithful to the mandate in the

regulations that we consider “all evidence relevant to the possibility of future

torture.” 8 C.F.R. § 208.16(c)(3).

V. CONCLUSION

The majority concludes that the extreme mistreatment likely to befall this

respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading

treatment.” The majority further concludes that conduct defined as “torture”

occurs in the Haitian detention system, but is not “likely” for this respondent.

In short, the majority goes to great lengths to avoid applying the Convention

Against Torture to this respondent.

We are in the early stages of the very difficult and thankless task of

construing the Convention. Only time will tell whether the majority’s narrow

reading of the torture definition and its highly technical approach to the

standard of proof will be the long-term benchmarks for our country’s

implementation of this international treaty.

1

The majority’s reliance on the European Court’s decision in Ireland v. United Kingdom,

Eur. Ct. H.R. 25 (1978), is of only limited value. While the Court did generally hold that

prison conditions may constitute cruel, inhuman, and degrading treatment, but not torture, the

context of that decision is vastly different from the present case. The European Court was

examining conditions in prisons in the United Kingdom, not Haiti. Moreover, the court was

reviewing the treatment of suspected terrorists whose detention was carried out according to

strict guidelines on how to treat detainees, not a blanket and indiscriminate detention policy as

now exists in Haiti. When those guidelines were violated, guards were prosecuted for abuse

of detainees. In Haiti, there is near total impunity. The State Department notes that

international human rights observers and prison officials admit that there is abuse by guards

against prisoners, but that prisoners are afraid to file official complaints for fear that the abuse

may get worse. Country Reports, supra, at 2630.

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Although I am certainly bound to follow and apply the majority’s

constructions in all future cases, I do not believe that the majority adequately

carries out the language or the purposes of the Convention and the

implementing regulations. Therefore, I fear that we are failing to comply with

our international obligations.

I conclude that the respondent is more likely than not to face officially

sanctioned torture if returned to Haiti. Therefore, I would grant his

application for deferral of removal under the Convention Against Torture and

the implementing regulations. Consequently, I respectfully dissent.

DISSENTING OPINION: Lory Diana Rosenberg, Board Member, in

which Cecelia M. Espenoza, Board Member, joined

“Among the rights universally proclaimed by all nations . . . is the right to

be free of physical torture. Indeed, for purposes of civil liability, the torturer

has become like the pirate and slave trader before him hostis humani generis,

an enemy of all mankind.” Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d

Cir. 1980). Although articulated in the context of a civil action brought under

the Alien Tort Claims Act, 28 U.S.C. § 1350, these same rights—as well as

the right to be free of severe mental pain and suffering—are insured under

Article 3 of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, adopted and opened for signature

Dec. 10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at

197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for

the United States Apr. 18, 1988) (“Convention Against Torture” or

“Convention”), and the implementing regulations by which we are bound. See

8 C.F.R. § 208.17(a) (2001) (stating that “an alien who . . . has been found

under § 208.16(c)(3) to be entitled to protection under the Convention

Against Torture . . . shall be granted deferral of removal”).

Notwithstanding this mandatory prohibition on the return of an alien to

circumstances in which he or she is more likely than not to be tortured, the

majority concludes that the respondent, a potential victim of severe physical

and mental abuse in the Haitian jails, does not qualify for protection. The

majority opinion construes the Senate Reservations that were issued in the

course of ratification of the Convention, and the subsequent regulations

governing our implementation of the provisions of the Convention Against

Torture, to restrict, rather than extend, protection to such potential victims.

I take issue with this approach, which I fear can only lead to a derogation

and not a meaningful implementation of our obligations under the Convention

Against Torture.1 Considering the limitations adopted by the majority in this

1

See Louis Henkin, Foreign Affairs and the United States Constitution 200-02 (2d ed. 1996)

(questioning the policy of attaching reservations, understandings, and declarations to

(continued...)

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case, I find it difficult to conceive of the circumstances in which an

individual might qualify for our protection, as there will always be some basis

for disqualification. It is no secret that Congress was not pleased with being

obligated to extend protection to persons, including those with criminal

convictions, who are barred from eligibility for asylum and withholding of

removal. 2 But the very terms of the Convention that the Senate ratified

require us to protect such individuals from the probability of torture, no

matter how undesirable they may be and “notwithstanding the prior criminal

offenses.” Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 279 (A.G.

2002) (recognizing that “[a]lthough the respondents are statutorily ineligible

for withholding of removal . . . the regulations . . . allow them to obtain a

deferral of removal . . . if they can establish they are ‘entitled to protection’

under the Convention).

Accordingly, I join the dissenting opinion of Board Member Schmidt. I

agree that “[t]he issue is whether the respondent has shown that it is ‘more

likely than not’ that he will be ‘tortured’ upon return to Haiti” and that, based

on the evidence in the record, “[t]he respondent meets this standard.” Matter

of J-E-, 23 I&N Dec. 291, 305 (BIA 2002) (Schmidt, dissenting). I write

separately to address certain aspects of the majority opinion concerning the

legal issues relating to the definition of “torture,” the requirement that the

torturous act be “specifically intended” by the torturer, and the burden of

proof borne by the potential torture victim.

I. ISSUE

I concur with the articulation of the issue offered by Board Member

Schmidt in his dissenting opinion. The question is whether the respondent has

shown that it is more likely than not that he will suffer torture because he is

a convicted criminal who, on return to Haiti, will be placed in a Haitian prison

where prisoners are deprived of adequate food, water, exercise, sanitation,

and medical care and are subjected to pervasive mistreatment, including

beatings, burning, choking, hooding, ear-boxing, and instances of electric

shock.

This case does not present the broader issue—posited by the majority—of

whether “any actions by the Haitian authorities,” including police

1

(...continued)

international treaties).

2

See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div. G,

§ 2242(c), 112 Stat. 2681-761, 2681-822—which provides in pertinent part as follows:

EXCLUSION OF CERTAIN ALIENS.—To the maximum extent consistent with the

obligations of the United States under the Convention . . . the regulations described in

subsection (b) shall exclude from the protection of such regulations aliens described in

section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. § 1231(b)(3)(B)).

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mistreatment, constitute torture. Matter of J-E-, supra, at 292. In addition,

there is no dispute that it is officials of the Haitian Government who are the

perpetrators of the potential torture asserted by the respondent. Contrary to

the majority opinion, the issue is not whether jailing Haitian returnees who

have criminal convictions is a lawful sanction that Haiti may elect to impose.

That may be. Nonetheless, it is the allegedly deliberate torture to which the

respondent is likely to be subjected while jailed that is at issue.

Furthermore, the regulations require that each claim for protection under

the Convention be evaluated on an individual, case-by-case basis. 8 C.F.R.

§ 208.16(c)(3) (2001). Therefore, even if the respondent’s case fails, as an

evidentiary matter, it is not possible to draw broad conclusions concerning the

treatment of all returned Haitians who have been convicted abroad.

II. ELEMENTS OF A CONVENTION AGAINST

TORTURE CLAIM

The United States Court of Appeals for the Eleventh Circuit, in which this

case arises, has recognized that, “[i]n making out a claim under CAT, ‘[t]he

burden of proof is on the applicant . . . to establish that it is more likely than

not that he or she would be tortured if removed to the proposed country of

removal.’” Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001)

(quoting 8 C.F.R. § 208.16(c)(2)). The “more likely than not” standard was

addressed in INS v. Stevic, 467 U.S. 407, 430 (1984), as “a familiar one to

immigration authorities and reviewing courts.”

By its terms, the “more likely than not” standard requires evidence of a

greater than 50% chance that an event will occur. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 431 (1987), in which the Supreme Court

differentiated the “more likely than not” standard from a less stringent

standard, ruling that “[o]ne can certainly have a well-founded fear of an event

happening when there is less than a 50% chance of the occurrence taking

place.” Thus, the “more likely than not” standard requires the proponent to

establish the elements of his claim by a preponderance of the evidence.

The “preponderance of the evidence” standard, applied in most civil cases,

requires a lesser quantum of proof than either the “clear and convincing”

standard or the “beyond a reasonable doubt” standard used in criminal

proceedings. Matter of Patel, 19 I&N Dec. 774, 783 (BIA 1988) (citing

Addington v. Texas, 441 U.S. 418, 425 (1979)). The burden of showing

something by a preponderance of the evidence “simply requires the trier of

fact ‘to believe that the existence of a fact is more probable than its

nonexistence before [he] may find in favor of the party who has the burden

to persuade the [judge] of the fact’s existence.’” In re Winship, 397 U.S.

358, 371-72 (1970) (Harlan, J., concurring) (quoting F. James, Civil

Procedure 250-251 (1965)). “Unlike other standards of proof such as

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reasonable doubt or clear and convincing evidence, the preponderance

standard ‘allows both parties to share the risk of error in roughly equal

fashion’ . . . .” Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 137

(1997) (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 390

(1983)); see also Addington v. Texas, supra, at 423.

Moreover, it is critical to recognize that the protection afforded under the

Convention Against Torture relates to prospective mistreatment that can be

found more likely than not to rise to the level of severe physical or mental

pain and suffering. In assessing whether this standard is met, we do not have

the benefit of an accomplished act to examine. Rather, we must draw

inferences about what may happen in the future and the reasons it may occur.

A. Torture

The first question is: What is torture? “Torture is universally and

unequivocally prohibited in international law.” Karen Musalo, Irreconcilable

Differences? Divorcing Refugee Protections from Human Rights Norms,

15 Mich. J. Int’l L. 1179, 1210 (1994). “[T]he law of nations contains a

‘clear and unambiguous’ prohibition of official torture.” Forti v. SuarezMason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987) (quoting Filartiga v.

Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980); see also Siderman de Blake

v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992) (“The crack of

the whip, the clamp of the thumb screw, the crush of the iron maiden, and, in

these more efficient modern times, the shock of the electric cattle prod are

forms of torture that the international order will not tolerate.”).

Torture has long been abhorred by the American judicial system. In

Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court observed that the

Eighth Amendment to the Constitution reflects “the primary concern of the

drafters . . . to proscribe ‘torture(s)’ and other ‘barbar(ous)’ methods of

punishment.” Id. at 102 (emphasis added) (quoting Granucci, Nor Cruel and

Unusual Punishment Inflicted: The Original Meaning, 57 Calif. L. Rev. 839,

842 (1969)). Over a century ago, the Court recognized that “it is safe to

affirm that punishments of torture . . . and all others in the same line of

unnecessary cruelty, are forbidden by that amendment.” Wilkerson v. Utah,

99 U.S. 130, 136 (1878).

Certainly, it is not the Eighth Amendment, but the definition of “torture”

under the Convention Against Torture that controls our determination. See

8 C.F.R. § 208.18(a) (2001). Undeniably, the Eighth Amendment more

broadly encompasses mistreatment of criminals and suspects that need not

rise to the level of torture as defined in the Convention. See McElligott v.

Foley, 182 F.3d 1248, 1257 (11th Cir. 1999), in which the Eleventh Circuit

found that “[o]ur cases, too, have recognized that prison officials may violate

the Eighth Amendment’s commands by failing to treat an inmate’s pain”

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(citing Brown v. Hughes, 894 F.2d 1533 (11th Cir.1990)). Cases that would

trigger Eighth Amendment protection need only be those that constitute cruel,

inhuman, or degrading treatment or punishment under Article 16 of the

Convention and need not amount to torture under Article 3. Nevertheless, we

cannot ignore the fact that our courts have addressed “torture” in the context

of finding violations of the Eighth Amendment.

The concept of “torture” also has long been invoked in our civil

jurisprudence. In Blanchard v. Morris, 15 Ill. 35 (Ill. 1853), available at

1853 WL 4779, *1, the Illinois Supreme Court recognized that whether or not

a defendant’s recovery of a $700 judgment was excessive depended the

circumstances of the particular case, holding that the “threats, violence and

imprisonment [imposed to make the offender confess] were accompanied by

mental fear, torture and agony of mind.” More recently, in upholding

a downward departure of a prescribed sentence for a criminal act, the

Eleventh Circuit accepted the notion that a parole examiner’s determination

that “both petitioners had endured extremely harsh prison conditions in the

Bahamas, and beatings by guards” was an appropriate basis on which to

downwardly depart from the prescribed sentence. Tramel v. United States

Parole Comm’n, 100 F.3d 129, 131 (11th Cir. 1996) (emphasis added).

Notably, in Tramel, the examiner determined that the “beatings by guards . . .

amounted to torture.” Id.

The line drawn between torture and ill-treatment that is cruel, inhuman, or

degrading is significant. See Evelyn Mary Aswad, Torture by Means of

Rape, 84 Geo. L.J. 1913, 1916 (1996) (“International law explicitly grants

more protections and remedies to torture survivors than to survivors of

ill-treatment.”). Aswad explains:

[I]n the United States, the Torture Victim Protection Act of 1991 (“TVPA”) permits torture

survivors, but not survivors of ill-treatment, of any nationality to bring civil suits for

damages in U.S. courts against the individuals who tortured them. Aliens who are survivors

of torture may also sue both the governments and individuals who tortured them under the

Alien Tort Claims Act of 1789 (“ATCA”).

Aswad, supra, at 1918.3

In general, the authorities have agreed that the distinction between torture

and inhuman, degrading treatment is a matter of degree, based primarily on

the severity of the pain and suffering caused. Deborah E. Anker, Law of

Asylum in the United States 465, 482 (3d ed. 1999) (citing Walter Suntinger,

The Principle of Non-Refoulement: Looking Rather to Geneva than to

Strasbourg?, 49 Austrian J. Pub. Int’l. 203, 212 (1995)). As Professor Anker

points out in her treatise, in 1969 the European Commission of Human Rights

(“European Commission”) articulated the distinction between torture and ill

3

Notably, the definition of “torture” in the TVPA is almost identical to that in the Convention

Against Torture.

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treatment of political prisoners, stating that “[t]orture . . . is generally an

aggravated form of inhuman treatment.” Anker, supra, at 485 (quoting Greek

Case, 1969 Y.B. Eur. Conv. on H.R. 1, 186 (Eur. Comm’n on H.R)). Thus,

torture has been defined as an aggravated form of inhuman treatment

imposed with an illicit purpose. See Aswad, supra, at 1923. Contrary to the

majority’s reliance on Ireland v. United Kingdom as a vehicle for dismissing

the ill-treatment of prisoners as merely inhuman, degrading treatment rather

than torture, Ireland simply distinguished suffering that “‘did not occasion

suffering of the particular intensity and cruelty implied in the word torture.’”

Anker, supra, at 483 (quoting Ireland v. United Kingdom, 25 Eur. Ct. H.R.

(ser. A) ¶ 167 (1978)).

The question remains: What is torture? In Wilson v. Seiter, 501 U.S. 294

(1991), our Supreme Court affirmed that “the denial of medical care is cruel

and unusual because, in the worst case, it can result in physical torture.”

Id. at 308 (emphasis added) (citing Estelle v. Gamble, supra). Yet the

majority decision would categorically deny protection even in the face of

beatings by prison guards that our courts have found, in other contexts, to

amount to torture. The majority would characterize such abuse as “police

brutality” not covered by the Convention. Matter of J-E-, supra, at 302. It

does not take much imagination to see that the restrictive interpretation

proposed by the majority would not only deny protection from severe police

brutality, but would categorically reject the denial of medical care as an

indicator of torture, even where such denial amounted to torture under the

reasoning in Wilson v. Seiter, supra. Such a restrictive definition of torture

is contrary to both international and domestic interpretations of the term. 4

B. Intent

The next question is: What level of intent is required to find that there is

a probability of torture? Under the Convention Against Torture, torture is

distinguished from ill-treatment that is inhumane and degrading by its

deliberate nature as well as its severity. The Senate conditioned its advice

and consent to the Convention on its understanding that “with reference to

Article 1, . . . in order to constitute torture, an act must be specifically

intended to inflict severe physical or mental pain or suffering.” 136 Cong.

Rec. S17,486, S17,491-92 (daily ed. Oct. 27, 1990) (“Senate Resolution”

II.(1)(a)).

All that the Senate understanding indicates is that the torture that might be

imposed must not be accidental, i.e., that it would be “deliberate,” as

described in most authoritative interpretations of the Convention’s terms.

Contrary to what the majority suggests, the regulatory requirement that the

4

See Beharry v. Reno, 183 F. Supp. 2d 584, 599 (E.D.N.Y. 2002) (collecting Supreme Court

cases recognizing the need to harmonize domestic and international law).

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torture be “specifically intended” does not mean that proof of specific intent,

as that term is used in American criminal prosecutions, is required. See

Anker, supra, at 486 (citing J. Hermann Burgers & Hans Danelius, The

Convention Against Torture: A Handbook on the Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

41 (1988)); see also Keith Highet, et al., British Commonwealth Case Note,

88 Am. J. Int’l L. 775 , 778-79 (1994) (clarifying that Ireland v. United

Kingdom, supra, put to rest any impression that proof of a specific intent was

required).

The majority’s reading of the regulations functionally converts the Senate

understanding that torture must be specifically intended into a “specific

intent” requirement. I disagree. I can find no basis to conclude that the

Senate understanding was intended to require proof of an intent to accomplish

a precise criminal act, as the majority contends is required. See Matter of

J-E-, supra, at 301 (defining “specific intent”). Rather, the plain language of

the text of 8 C.F.R. § 208.18(a)(5) reflects only that something more than an

accidental consequence is necessary to establish the probability of torture.

Id. (stating plainly that unanticipated or unintended pain and suffering that is

severe enough to constitute torture is not covered). Moreover, 8 C.F.R.

§ 208.18(a)(4) states that a threat of infliction of severe physical pain or

suffering may amount to torture.

Nowhere does the regulation state that the respondent must prove that the

prospective torture he may face will result from the torturer’s specific intent

to torture him. Indeed, it would be difficult, if not impossible, to prove

specific intent in a prospective context. In her article addressing the difficulty

in proving intent in the asylum context, Professor Musalo emphasizes that

“[e]ven under the best of circumstances, the motivation and state of mind of

another individual are difficult to ascertain and even more difficult to prove.”

Musalo, supra, at 1202. She elaborates that “[t]he persecutor can neither be

put on the stand and questioned as to his motivation nor deposed or required

to answer interrogatories” and that “evidence of intent—direct or

circumstantial—is exceedingly difficult to obtain.” Id.

Professor Musalo explains that “[t]he requirement, or lack thereof, of proof

of intent in three distinct areas of law, criminal, tort, and statutory civil rights,

demonstrates judicial flexibility in the accommodation of jurisprudential

objectives.” Id. at 1229. She notes both that proof of intent in criminal cases

has often been modified to protect perceived societal interests, and that tort

law has evolved away from proof of negligence toward absolute or strict

liability. Id. Such considerations are particularly apt in assessing whether it

is more likely than not that severe pain and suffering to which a victim will

be subjected in the future is specifically intended by government officials.

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As Professor Musalo’s article makes clear, it has long been accepted that

“[t]he victim may not know the exact motivation of his or her persecutor, nor,

as the Ninth Circuit remarked, are persecutors ‘likely to provide their victims

with affidavits attesting to their acts of persecution.’” Id. at 1202 (quoting

Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1985)). In

assessing whether it is more likely than not that the respondent will face

torture in a Haitian prison once returned to Haiti, it is necessary to draw

inferences. Matter of S-P-, 21 I&N Dec. 486, 494 (BIA 1996) (citing INS v.

Elias-Zacarias, 502 U.S. 478 (1992)). In such circumstances, the potential

victim cannot be charged with proving specific intent.

In attempting to undermine the evidence of “deliberateness” on the part of

Haitian Government prison authorities, the majority opinion emphasizes the

“legitimate national interest” in protecting citizens from increased criminal

activity. Matter of J-E-, supra, at 300. Without more, the majority seems to

conclude that categorically detaining any individual convicted of a crime in

the United States—whether or not that person has served his or her time, no

matter what the crime and whether or not the offender has been rehabilitated

or reformed—is acceptable as a lawful sanction. Even if such detention

without trial or charges were acceptable under Haiti’s laws, conditions of

detention that are so egregious that they are more likely than not to inflict

severe physical or mental pain and suffering on the respondent violate the

Convention Against Torture.

The infliction of torture cannot be excused by virtue of it being a

consequence of the imposition of ostensibly “lawful sanctions.” “Lawful

sanctions include judicially imposed sanctions and other enforcement actions

authorized by law, . . . but do not include sanctions that defeat the object and

purpose of the Convention Against Torture . . . .” 8 C.F.R. § 208.18(a)(3)

(emphasis added). The record reflects that Haitian authorities have continued

to detain returnees, notwithstanding their awareness of the deplorable

conditions and mistreatment in the prisons that amounts to severe pain and

suffering. Knowing and deliberate detention under such conditions is

sufficient to establish intentionally inflicted torture under the regulations.

C. Individual Circumstances

Lastly, I emphasize that the determination of eligibility under the

Convention relies on a prediction of the likelihood of future torture to which

a respondent may be subjected. The regulations are clear that “all evidence

relevant to the possibility of future torture shall be considered.” 8 C.F.R.

§ 208.16(c)(3). Such evidence includes, but is not limited to, evidence of

past torture inflicted upon the applicant; evidence that the applicant could

relocate to another part of the country of removal; evidence of gross, flagrant,

or mass violations of human rights within the country of removal; and other

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relevant information regarding conditions in the country of removal. Id.; see

also Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001); Mansour v.

INS, 230 F.3d 902, 908 (7th Cir. 2000). Although past circumstances may

be considered, the determination is a prospective one.

It may be that, as a general rule, prison conditions alone will not meet the

definition of torture. However, we must focus on the specific evidence

presented in each case rather than relying on blanket conclusions. In this

case, the certainty that this respondent will be detained in prison and the

evidence of horrific prison conditions in Haiti, combined with the reports of

regular beatings by prison guards, exacerbated further by reports of other

forms of torture, all committed by Haitian Government officials with

impunity, establish that it is more likely than not the respondent will be

tortured if returned to Haiti.

III. CONCLUSION

Accordingly, I dissent from the opinion of the majority. I agree with the

opinion of Board Member Schmidt, which concludes that it is more likely than

not that the respondent would be tortured upon his return to Haiti and

detention in a Haitian jail.

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