Jean-Pierre v. U.S. Atty. Gen.

• Decision Date: 19 September 2007
• Docket Number: No. 06-13359.,06-13359.
• Citation: 500 F.3d 1315
• Parties: Jean Herold JEAN-PIERRE, a.k.a. Jean Harold Pierre, a.k.a. Martina Jean Pierre, a.k.a. Jean Pierre Jeanherold, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

500 F.3d 1315

Jean Herold JEAN-PIERRE, a.k.a. Jean Harold Pierre, a.k.a. Martina Jean Pierre, a.k.a. Jean Pierre Jeanherold, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 06-13359.

United States Court of Appeals, Eleventh Circuit.

September 19, 2007.

Rebecca Sharpless, FIU College of Law, Clinical Programs, Miami, FL, for Petitioner.

Anthony P. Nicastro, David V. Bernal, Margaret K. Taylor, Ernesto H. Molina, Jr., U.S. Dept. of Justice, OIL, Civ. Div., Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before ANDERSON, MARCUS and COX, Circuit Judges.

MARCUS, Circuit Judge:

More than fifty years ago, Justice Frankfurter wrote that, when it comes to torture, "there comes a point where this Court should not be ignorant as judges of what we know as men." Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949). Today, we decide not whether our humanity should inform our understanding of torture, but whether, in the context of this claim, Congress has eliminated the jurisdiction of the federal courts to address this issue in the first place. We conclude that the question at the heart of this appeal — whether a particular course of conduct amounts to torture under the Convention Against Torture¹ and the accompanying legislation — is a legal one, and accordingly falls squarely within our limited jurisdiction under the REAL ID Act of 2005.²

Petitioner Jean Herold Jean Pierre ("Jean Pierre"), a gravely ill AIDS patient, claims that he will be tortured in jail if he is removed to Haiti as a criminal alien. He has consistently said, without any dispute, that he will be beaten with metal rods, confined for weeks in a tiny crawl space, and subjected to the Haitian practice of "kalot marassa" (severe boxing of the ears). This conduct, he argues, is torture. Because the Board of Immigration Appeals failed to consider the heart of these claims, we grant his petition for review, vacate the BIA's decision, and remand for further proceedings.

I.

A.

Jean Herold Jean Pierre, a Haitian citizen, entered the United States in August 1992 on a temporary visa that expired in 1993. Thereafter, Jean Pierre was convicted of violating Florida's drug laws in 1995, 1997, and again in 2004.³ In 2005, while Jean Pierre was serving a two-year sentence in a St. Lucie County jail on his third controlled substance conviction, the Department of Homeland Security began removal proceedings against him pursuant to 8 U.S.C. § 1227. This section of the immigration laws provides that any alien convicted of certain crimes, including the drug crimes committed by Jean Pierre, is deportable upon the order of the Attorney General. See 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); id. § 1227(a)(2)(B)(i) ("Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . is deportable."). Claiming that he will be tortured if he is sent to Haiti, Jean Pierre sought withholding of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") art. 3, § 1, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.

These basic facts are undisputed. Jean Pierre has AIDS. While in United States custody, he has received life-saving medication, but the virus continues to ravage his body. He is infected with cytomegalovirus, an infection dangerous in immuno-compromised individuals. The infection has caused him to go blind in his left eye. He frequently suffers from headaches, fevers, and memory impairment; he often becomes terrified when he awakens to hallucinatory visions of big snakes or walls falling over. Jean Pierre claims that being deported to Haiti will amount to a death sentence, and will be the same as if someone "put a gun to his head and shot him." R. at 188. In fact, he testified that he would prefer this quick death to being deported.

Although Jean Pierre has served his sentence for violating Florida's drug laws, criminal deportees from the United States are subject to indefinite detention in Haitian prisons upon their return to Haiti. R at 190. No one disputes that the conditions in Haitian prisons are appalling. According to the State Department, prisoners in Haiti suffer from a lack of basic hygiene, malnutrition, and inadequate or nonexistent health care. U.S. State Dep't, Country Reports on Human Rights Practices — 2004 — Haiti (Feb. 28, 2005). Infectious disease flourishes in the overcrowded facilities, and even basic supplies such as water are limited. Id. In no small measure, the prisoners' suffering is undoubtedly a consequence of the fact that Haiti is the poorest country in the Western Hemisphere. See In re J-E-, 23 I. & N. Dec. 291, 301 (BIA 2002) (en banc) ("The record establishes that Haitian prison conditions are the result of budgetary and management problems as well as the country's severe economic difficulties.").

Poverty is not, however, the only problem. According to the State Department, Haitian prison guards sometimes beat prisoners with fists, sticks, and belts, and we have previously acknowledged that "certain isolated, vicious and deliberate acts, such as burning with cigarettes, choking, hooding, kalot marassa [severe boxing of the ears, sometimes leading to eardrum damage], and electric shock do occur in Haitian prisons." Cadet v. Bulger, 377 F.3d 1173, 1194 (11th Cir.2004).

Jean Pierre argues that Haitian jailors will single him out for especially harsh treatment because of his HIV infection and accompanying mental illness. In support of this claim, Jean Pierre presented materials specific to the treatment of AIDS-infected persons in Haiti, including information from the U.S. Centers for Disease Control and Prevention, reports from public health organizations, newspaper articles describing the stigmatization of AIDS patients, and testimony from a number of experts. Thus, for example, Jean Pierre pointed to the State Department's Country Report on Haiti, which says that "[s]ocietal discrimination occurred against persons with HIV/AIDS." 2004 Country Report. Jean Pierre also produced an affidavit from Dr. Paul Farmer, a professor at Harvard Medical School and founder of Partners in Health, an international public health organization with extensive operations in Haiti. Farmer's affidavit describes "the terrible social stigma associated with the virus" and the fact that "discrimination and abuse against poor Haitians with HIV/AIDS is a strong reality in Haiti." R. at 424-26.

Jean Pierre also presented testimony from Chandra Kantor, a nurse practitioner who estimated that, if deported to a Haitian prison, Jean Pierre would likely develop a life-threatening disease within a month or two and die shortly thereafter. This testimony was supported by Stacy Graziosi, an "intensive adherence specialist" in HIV/AIDS who began monitoring Jean Pierre's treatment regimen in 2002. She opined that Jean Pierre's AIDS-related complications would worsen upon his return to Haiti and that his infection, left unmedicated, "will cross [his] blood-brain barrier and will cause him to exhibit various neuropsychological illnesses such as neurosyphilis, herpes encephalitis, or general paresis of the insane." R. at 194.

Dr. Francis Cournos, professor of clinical psychiatry at Columbia University and deputy director of the New York State Psychiatric Institute, is an expert on the mental consequences associated with HIV/ AIDS. Her affidavit averred that individuals like Jean Pierre with late-stage AIDS are often "unable to function mentally, delirious, hallucinatory, or even psychotic," and that they are also prone to infection. R. at 192. In particular, she testified that cytomegalovirus — an infection that has already caused Jean Pierre to go blind in one eye — "infects the brain of an AIDS patient, causing rapid personality changes." R. at 193.

Finally, Michelle Karshan, the director of Alternative Chance, a Haiti-based program providing assistance to criminal deportees from the U.S., testified regarding the link between conditions in Haitian prisons, stigmatization of AIDS patients, and the treatment of mentally ill prisoners. Notably, Karshan said that prisoners with mental health issues are more likely to act out, and that the officers in a prison she visited used extended confinement in a tiny crawl space to deal with these difficult patients:

[I]f they have mental health problems, and they act out, which a lot of them do . . . . people think that they[ ] . . . have a spell, that they're possessed, . . . and when the officers cannot handle them, . . . they use a crawl space under the stairs. It's a tiny space where you can't even stand up, and they just lock them in there and sometimes for months on end, and there's no process to see them, either. They have to rely on some compassionate fellow prisoner to bring them food. So, you know, people can just die in the crawl space. I'm talking about just, you know, that little space under the stairwell, and they're just locked in there. It's a closet, and they can't stand, and they don't have a bed or anything, and that's where they stay for months, and I've personally witnessed that. You know, we fought very hard against that crawl space process, and they're still using it right this second.

R. at 290.

Karshan further testified that food inside the prisons is distributed by other inmates, and that sick or mentally ill prisoners were often unable to get any food. R. at 189. Finally, she said that criminal deportees from the United States are treated especially harshly, and that they are sometimes "beaten with metal wands because the prison guards perceive them to be professional criminals deserving of the punishment." R. at 190. The government offered no facts in response to...