In re J----E----

• Decision Date: 22 March 2002
• Docket Number: Interim Decision Number 3466
• Citation: 23 I&N Dec. 291
• Parties: In re J----E----, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

23 I&N Dec. 291

In re J----E----, Respondent

Interim Decision Number 3466

Board of Immigration Appeals

Decided March 22, 2002.

(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

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.

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.

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.

The history of the negotiations reveals that a central issue for the drafters of the Convention Against Torture was whether the...