In re J-E-: Divided BIA Denies CAT Protection to Criminal Deportee Fearing Torture

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

IN RE J-E-: DIVIDED BIA DENIES CAT PROTECTION TO CRIMINAL DEPORTEE FEARING TORTURE
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

In an en banc decision, a sharply divided Board of Immigration Appeals panel has held that a Haitian national who claimed that he would be detained and likely tortured if he were removed to Haiti does not merit protection under article 3 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The BIA held that the harm the man claimed he would likely suffer would not constitute torture under the CAT and that he had not met his burden of showing that it was more likely than not that he would be tortured if he were returned to Haiti.

The man had been placed in removal proceedings after having been convicted of selling cocaine. At his hearing before an immigration judge, he applied for asylum, withholding of removal, and protection under the CAT. He asserted that individuals who have been convicted of crimes in the U.S. and deported are detained in Haiti when they arrive. Because a Haitian commission charged with deciding whether and when to release such detainees meets irregularly, they may be held indefinitely. He further stated and submitted evidence that Haitian detainees are subject to cruel, inhumane treatment, including torture. In his application for relief, he submitted U.S. State Dept. reports and newspaper accounts of detainees being deprived of adequate food, water, medical care, sanitation, and exercise. In one newspaper article, a man who had been detained after being deported from the U.S. described burns he suffered on his chest and arm. The asylum applicant claimed that he would be subject to similar treatment if he were removed to Haiti. The immigration judge denied his application, and the man appealed.

On appeal, the BIA reviewed the history of the CAT and noted that the U.S. had ratified it subject to five "understandings." ("Understandings" are provisions that bind only the U.S. and not other CAT signatories.) According to the BIA, these understandings have been incorporated into the implementing regulations (8 C.F.R. § 208.18(a)), which set forth criteria for determining whether a particular act constitutes torture. According to the regulations, torture is (1) an act causing severe physical 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.

The BIA held that, according to these criteria, the harm the asylum applicant claimed he would be likely to suffer would not constitute torture. The BIA first reviewed Haiti's detention of criminal deportees. It held that the policy of incarcerating criminal deportees arises from Haiti's attempt to deter crime. The policy therefore has a legitimate purpose and is a lawful sanction. In addition, the BIA held that there is no evidence that criminals deported to Haiti are mistreated for a specific intent or a proscribed purpose. The BIA distinguished between mistreatment inflicted with specific intent and other harms, such as those stemming from police brutality, that are unanticipated or unintended. According to the BIA, the latter do not constitute torture. Moreover, criminal deportees who are detained upon their arrival in Haiti are not ill-treated in order to elicit confessions from them or to punish others' acts. Thus, the BIA held that the harms that the asylum applicant anticipated he would suffer upon his return to Haiti would not constitute torture.

The BIA then reviewed whether the applicant had met his burden of proof. In CAT cases, an applicant must show that it is "more likely than not" that he or she will be tortured if returned to a particular country. The applicant had presented documentation, including newspaper articles and State Dept. reports, on the torture suffered by convicted criminals who are returned to Haiti. The BIA held that the evidence established only that isolated acts of torture occur in Haitian detention facilities. The BIA held that the existence of a pattern of gross, flagrant, mass violations was insufficient to show that a particular individual would be similarly treated. It held that an applicant must show individualized evidence demonstrating that he or she is personally at risk. Since the applicant did not claim that he had suffered torture in the past, since he had no personal knowledge of conditions in Haitian detention facilities, and since he could not meet the individualized standard, the BIA denied his claim.

Two BIA members filed dissenting opinions. Both argued that the applicant had met his burden of proof and took issue with the extreme weight of the burden the majority had required the applicant to meet in supporting his claim under the CAT.

In re J-E-, 23 I. & N. Dec. 291, Int. Dec. 3466 (BIA Mar. 22, 2002).