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Published
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No. 14-2380
WILERMS OXYGENE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 15-1099
WILERMS OXYGENE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
Argued:
December 8, 2015
Decided:
(CAT)
proceedings.
and
For
subsequent
the
reasons
motion
that
to
reopen
follow,
the
his
removal
petition
for
I.
In 1994, Oxygene, accompanied by his mother and siblings,
fled political violence in his native country of Haiti.
violence
family
included
home
while
occasions
Oxygene
when
and
death
others
squads
were
fired
inside
This
on
the
the
house.
state
crimes,
including
burglary,
grand
larceny,
In 2011, the
Department
Government)
commenced
that
he
of
removal
was
1227(a)(2)
felonies
Homeland
and
Security
proceedings
removable
(2012)
firearm
under
due
to
(DHS
against
various
his
offenses,
or
the
him.
subsections
convictions
but
Oxygene
applied
of
for
for
conceded
8
U.S.C.
aggravated
deferral
of
his
sister
testified
that
they
had
no
remaining
Oxygene
family
of
poor
prison
conditions
in
Haiti.
The
for
Haiti,
report
from
various
non-governmental
served
full
periods of time.
center
sentences
overseas
for
indefinite
overcrowding
as
severe,
explaining
that
[i]n
some
[s]ome prisons had no beds for detainees, and some cells had no
access to sunlight.
access
to
treated
drinking
water,
and
approximately
seventy
quality
result,
the
health
care,
and
report
concludes
water-borne
that
illness.
malaria,
As
drug-resistant
prohibiting
such
practices,
on
several
occasions
police
officers
use[d]
physical
punishment
and
While the
detain
majority
2013
arrival.
of
press
criminal
release
deportees
by
the
immediately
human
rights
upon
group
Haitian
government
that
it
had
abandoned
the
indefinite
detention program.
The IJ carefully considered this documentary evidence and
the
testimony
of
Oxygene
and
his
sister
when
evaluating
prison
conditions
in
Haiti
remain
deplorable,
and
that
as
risk
than
normal
of
disease,
given
his
diagnosis
of
latent tuberculosis.
record
indicates
evidence
even
that
there
have
been
some
deferral
of
removal
under
the
CAT.
The
IJ
found
that
Oxygene had not demonstrated that it was more likely than not he
would suffer torture upon removal to Haiti.
The IJ concluded
detention
policy
and
prison
conditions
the
CAT.
This
constitute
torture
under
explained,
because
Oxygene
[Haitian]
authorities
offered
intentionally
no
and
was
necessarily
so,
evidence
the
that
deliberately
IJ
the
detain
officers
that
would
qualify
as
torture.
Thus,
diagnoses
of
post-traumatic
and
denied
the
remand
this
decision,
disorder
and
motion
stress
for
lack
of
evidence
attaching
relevant
medical
evidence
II.
Oxygene concedes that a Virginia court convicted him of
committing an aggravated felony.
denying
constitutional
him
CAT
claims.
relief
See
8
7
to
questions
U.S.C.
of
law
and
1252(a)(2)(C),
(D)
(2012); Saintha v. Mukasey, 516 F.3d 243, 248 (4th Cir. 2008).
Congress has similarly limited our review of the order denying
his
motion
to
reopen
his
removal
proceedings.
See
must
whether
analyze
it
each
presents
argument
legal
Oxygene
or
raises
constitutional
to
determine
question,
or
U.S.C.
despite
Oxygenes
aggravated
1252(a)(2)(D);
Cherichel
felony
v.
conviction.
Holder,
591
F.3d
Suarez-Valenzuela
But when an
Consequently, we
recent
mental
health
diagnoses,
the
BIA
abused
its
officials will likely single him out for torture because of the
stigma associated with mental health conditions in Haiti.
But
the BIA disagreed, finding that that the record evidence, along
with his newly proffered evidence, did not demonstrate that it
was
more
removal.
likely
This
than
not
Oxygene
constitutes
would
suffer
torture
quintessentially
upon
factual
See Hernandez-
Accordingly,
we
turn
now
to
consider
single
issue:
III.
The
Government
maintains
that
In
re
J-E-
correctly
Oxygene
must
demonstrate
that
Haitian
officials
specifically intend not only the act of detention, but also the
severe pain and suffering that is the near-inevitable result of
prolonged detention in Haitian prisons.
Rather,
The
the
United
States
agreed
not
to
expel,
return
whether
physical
inflicted on a person.
Upon
signing
the
or
mental,
is
intentionally
the
President
proposed,
and
the
S. Exec.
Such an
See
L.
Rev.
571,
604
(1991).
Thus,
by
the
time
of
11
Congress
enacted
the
Foreign
Affairs
Reform
and
See
torture.
Instead,
it
directs
the
heads
of
the
Id.
CAT
relief.
See
Regulations
Concerning
the
Convention
by
mental,
which
is
severe
intentionally
208.18(a)(1)
(2016).
or
suffering,
inflicted
A
separate
on
whether
person.
subsection
physical
8
provides
or
C.F.R.
that,
12
pain
and
suffering
is
not
torture.
Id.
208.18(a)(5)
(emphasis added).
Thus, every entity responsible for the progress of the CAT
from
treaty
to
domestic
law
of
the
United
States
--
the
must
be
suffering.
intent.
specifically
But
Nor
presents:
at
did
no
any
intended
point
entity
did
to
cause
any
entity
address
the
severe
define
question
pain
and
specific
this
case
decision
in
In
re
J-E-,
announcing
the
standard
for
Thus, In
deportees
under
horrific
13
conditions
constitutes
torture.
holding,
the
BIA
rejected
the
Id. at 300.
applicants
argument
In
that
they
will
face
in
and
of
itself
satisfied
that
[a]lthough
detaining
criminal
Haitian
authorities
deportees
knowing
are
that
the
The BIA
intentionally
the
detention
were
intentionally
and
deliberately
creating
and
re
J-E-
relied
on
Id. at 301.
the
definition
in
Blacks
Law
while
general
intent
recklessness or negligence.
alteration omitted).
commonly
takes
the
form
of
criminal
deportees.
Id.
Consequently,
the
BIA
denied
the
applicants claim. 2
IV.
With
these
legal
principles
in
mind,
we
consider
their
23 I. &
intent to perform an act even though the actor does not desire
the consequences that result.
The BIA in In re J-E- also held that the CAT claim failed
under the tests third prong, finding no evidence that Haitian
officials inflicted severe pain and suffering on detainees for a
proscribed purpose.
See id. at 300.
The IJ in Oxygenes case
made a similar finding.
In his petition for review, Oxygene
makes a passing challenge to In re J-E-s proscribed purpose
holding, but fails to develop any arguments with respect to it.
As a result, Oxygene has waived this argument.
See Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009).
Even if preserved and meritorious, Oxygenes argument
concerning the purpose prong would not save his petition. This
is so because, as we explain in Part IV, Oxygenes challenge to
the intent prong fails, providing an independent ground on which
to deny his petition for review.
15
Haitis
detention
of
criminal
deportees
under
extremely
and
disease
severe
enough
to
constitute
torture
intent,
officials
are
claimant
intentionally
needed
and
to
show
deliberately
that
Haitian
creating
and
and
implementing
regulations,
given
the
legal
(1980).
And specific
BIAs
nineteen
asserts here.
But
the
board
members
with
the
view
of
the
BIA
in
In
re
J-E-
interpreted
the
Oxygene
BIAs
legal
appropriate deference.
conclusions
de
novo,
we
While we
afford
them
(4th Cir. 2012); see also INS v. Aguirre-Aguirre, 526 U.S. 415,
424 (1999). 3
Although the
likely wish
of
the
President
and
Senate
to
incorporate
that
routinely
describe
the
requisite
mens
rea
for
knowledge.
intent
The
corresponds
Supreme
loosely
Court
with
has
noted
purpose,
that
specific
whereas
general
at
when
405.
possesses
occur.
([A]
This
distinction
knowledge
to
holds
near
true
even
certainty
that
the
actor
something
will
crime
requires
not
simply
the
general
remote
result;
mere
knowledge
that
result
is
desire
to
bring
about
consequence
from
facts
See, e.g.,
United States v. Arthur, 544 F.2d 730, 737 (4th Cir. 1976) (An
18
instruction
that
it
is
reasonable
to
infer
that
person
But it is the
Id.
contrary
view
ignores
the
significance
of
the
under
the
treaty
required
heightened
intent.
As
--
more
stringent
standard
than
the
unqualified
contrast,
Oxygenes
argument
goes
long
way
toward
requiring only general intent for claims under the CAT, reading
the explicit understanding of the President and Senate out of
the regulation.
intent,
traditionally
at
referred
common-law
to
the
certain
term
narrow
specific
classes
intent
of
crimes
Bailey,
444
U.S.
at
405.
It
was
entirely
reasonable for the BIA to conclude that the President and Senate
wished to incorporate into the CAT regulations a more exacting
intent standard that excludes mere knowledge when they chose a
term traditionally associated with heightened intent.
In sum, we join the majority of our sister circuits, who
have
considered
the
issue,
in
deferring
to
the
BIAs
Cir. 2008); Pierre, 502 F.3d at 116-17 (2d Cir.); Auguste, 395
F.3d at 144 (3d Cir.); Cadet v. Bulger, 377 F.3d 1173, 1185-86
(11th Cir. 2004); Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st
20
Cir. 2004).
note
that,
in
many
cases,
In
re
J-E-
will
pose
no
Moreover,
even
for
claims
premised
on
Haitian
hearing,
the
petitioner
in
Ridore
v.
Holder
offered
See 696
Accordingly, the IJ in
(and
here).
On
that
basis,
the
IJ
there
found
that
failing
institutions
to
maintain
[could]
proper
only
be
medical
facilities
attributable
to
in
those
[Haitian
Id.
Id. at 912-14.
nothing
government
Id. at 914.
illogical
intends
to
in
the
put
those
IJs
findings
prisoners
at
inferring
risk
of
the
cruel,
Id. at 917.
V.
In conclusion, we reject Oxygenes contention that the IJ
and
BIA
committed
legal
error
in
following
the
precedent
of
that
order.
dismiss
for
lack
of
jurisdiction
Oxygenes petition for review from the order denying his motion
to reopen.
DENIED IN PART AND DISMISSED IN PART
23