Pierre v. Gonzales

• Decision Date: 11 September 2007
• Docket Number: Docket No. 05-3260-ag.
• Parties: Franck PIERRE, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States; William Cleary, Acting Field Director Deportation and Removal, Buffalo District, Bureau of Immigration and Customs Enforcement, United States Department of Homeland Security, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

502 F.3d 109

Franck PIERRE, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States; William Cleary, Acting Field Director Deportation and Removal, Buffalo District, Bureau of Immigration and Customs Enforcement, United States Department of Homeland Security, Respondents.

Docket No. 05-3260-ag.

United States Court of Appeals, Second Circuit.

Argued: November 27, 2006.

Decided: September 11, 2007.

Mark T. Kenmore, Buffalo, NY, for Petitioner.¹

Gail Y. Mitchell, Assistant United States Attorney, for Terrance P. Flynn, United States Attorney for the Western District of New York, Buffalo, NY, for Respondent.

Before: JACOBS, Chief Judge, WALKER, and RAGGI, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Petitioner Franck Pierre, a native of Haiti, appeals from the June 15, 2004 final decision and order of the Board of Immigration Appeals ("BIA") which affirmed the January 20, 2004 decision of immigration judge ("IJ") John B. Reid denying Pierre's application for withholding of removal and relief under the Convention Against Torture ("CAT").

Pierre asserts that he has shown a sufficient likelihood that he will be tortured if he is deported to Haiti, because all Haitians who are deported from the United States (and other countries) for criminal conduct are imprisoned indefinitely, and because prison conditions prevailing in Haiti amount to torture. He challenges the BIA's decision in In re J-E-, 23 I. & N. Dec. 291 (B.I.A.2002) (en banc), which held that a Haitian petitioner faced with this detention is not entitled to CAT relief. He also contends that his case is distinguishable from In re J-E- because his medical conditions will be inadequately treated in the Haitian prisons.

We deny the petition, and defer to the BIA's interpretation of the definition of torture under the CAT regulations. The failure to maintain standards of diet, hygiene, and living space in prison does not constitute torture under the CAT unless the deficits are sufficiently extreme and are inflicted by government actors (or by others with government acquiescence) intentionally rather than as a result of poverty, neglect, or incompetence. We also affirm the agency's conclusion that, based on the record evidence, Pierre's diabetes does not remove his case from the ambit of In re J-E-.

BACKGROUND

Pierre was born in Haiti in 1962, and was admitted to the United States in 1967. In August of 1997, Pierre was convicted of criminal possession of a firearm; in September 1999, he was convicted of grand larceny. For the latter crime, he was sentenced to a period of 18 to 36 months' incarceration.

In 2000, the INS charged that Pierre was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, see 8 U.S.C. § 1101(a)(43)(G) (defining aggravated felony to include "a theft offense . . . for which the term of imprisonment [is] at least one year"), and under 8 U.S.C. § 1227(a)(2)(C) as an alien convicted of a firearms offense. Pierre conceded removability, but applied for withholding of removal and CAT relief. Before the IJ, he presented documentary evidence concerning the conditions in Haiti, as well as his own testimony and that of his sister—a doctor—concerning Pierre's diabetes.

The record concerning country conditions in this case is substantially similar to the record in In re J-E- (and its progeny), and can be summarized as follows.

At one time, Haitian government policy had been to briefly detain any Haitian deported for having committed crimes in another country; release was ordinarily secured within a week. In re J-E-, 23 I. & N. Dec. at 300. In 2000, Haiti began to hold such deportees with no timetable for their release. According to a 2000 U.S. State Department country report (written in 2001), this policy was instituted to "prevent the `bandits' from increasing the level of insecurity and crime in the country." Id. (quoting Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, Haiti: Country Reports on Human Rights Practices—2000 (Feb. 23, 2001), available at http://www. state. gov/g/drl/rls/hrrpt/2000/wha/795.htm ("the 2000 Country Report")).

Conditions in Haitian prisons are awful. "[P]rison facilities are overcrowded and inadequate. . . . [P]risoners are deprived of adequate food, water, medical care, sanitation, and exercise. Many prisoners are malnourished." Id. at 293. A lack of basic hygiene and health care results in elevated morbidity and mortality. Id. According to the 2000 Country Report, food and medicine are in short supply, and prisoners receive one meal a day unless their diet is supplemented by nearby family. Haitian prison authorities, working with the Red Cross, have attempted to improve conditions in the country's prisons. Id. at 301.

The State Department reports that deliberate mistreatment of those arrested or detained by police in Haiti is "pervasive in all parts of the country," commonly involves "[b]eating with fists, sticks, and belts," and sometimes involves "burning with cigarettes, choking, hooding, and kalot marassa (severe boxing of the ears, which can result in eardrum damage)." Id. (quoting the 2000 Country Report).

At a January 7, 2004 hearing, Pierre's sister testified that her brother suffered from type two diabetes and from hypertension, though she herself (an emergency room physician with a pediatric specialty) had never treated him. According to her testimony, without his diabetes medications and a proper diet, Pierre's blood sugar levels would become unstable and acute dehydration could induce diabetic coma—or even death. She also testified that Pierre's hypertension, if left untreated, could bring on a stroke.

Pierre himself testified as to the circumstances surrounding his criminal convictions and his connections with Haiti. Pierre's last visit to Haiti was in 1998, when he got married; his wife lives there with her family. As of the date of the 2004 hearing, he was corresponding with her by mail. He also testified that his aunt and uncle spend part of the year in Haiti and maintain a residence there.

In a January 20, 2004 decision, the IJ denied Pierre withholding of removal and CAT relief. As to the CAT, (1) the IJ incorporated into his findings by reference the conclusion in In re J-E- that "there is no evidence that Haitian authorities are detaining criminal deportees with the specific intent to inflict severe physical or mental pain or suffering"; and (2) the IJ found (a) that Pierre's medications would be available in Haiti, (b) that his relatives in Haiti could supply him with medication, and (c) that he would neither be prevented from taking the medication nor be denied a fairly prompt release when his family took action.

Pierre appealed to the BIA both the denial of withholding of removal and the denial of CAT relief. The BIA denied Pierre's appeal on June 15, 2004, declining to revisit In re J-E- and holding that because Pierre had failed to show that the substandard prison conditions in Haiti amounted to torture, or that his family would be prevented from giving him medication, he was not entitled to relief under the CAT.² On July 15, 2004, Pierre filed a habeas petition in the Western District of New York; pursuant to provisions of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, § 106(c) (2005), the habeas petition was transferred to this Court as a petition for relief from a ruling of the BIA.

DISCUSSION

I

At issue in this case is a CAT regulation which provides that "[i]n order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering." 8 C.F.R. § 208.18(a)(5). In re J-E- construed the phrase "specifically intended" to require a showing of specific intent. Pierre argues that the specific intent requirement of In re J-E- is an impermissible reading of the CAT and of the implementing regulations, and therefore is not entitled to deference. The CAT (according to Pierre) requires only general intent—that is, the intent to commit an act that foreseeably results in severe pain or suffering.

Because Pierre is a criminal alien, this Court's review is limited to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C)-(D). "Except in cases where the IJ's factual findings are themselves based on constitutional or legal error—thus raising `constitutional claims or questions of law'—[the Court] does not review the factual findings made by the IJ." Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 329 n. 7 (2d Cir.2006) (citing Joaquin-Porras v. Gonzales, 435 F.3d 172, 178-80 (2d Cir.2006)). We review de novo the BIA's application of legal principles to undisputed facts. See Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006). But the BIA's interpretations of immigration regulations are reviewed with "`substantial deference.'" Id. (quoting Joaquin-Porras, 435 F.3d at 178).

The question as to the meaning of "torture" is presented to us now in the procedural and statutory context of immigration. But we bear in mind that (as this opinion demonstrates) the wording of the immigration regulations we read is carefully drawn to implement the wording of the CAT itself—subject to the express understandings of the Senate when it ratified—and that the CAT is not solely or predominantly concerned with immigration and refoulement.³ The CAT binds its signatories to prevent torture within their own borders. Any definition of torture adopted by the United States has potential bearing on the obligations of the United States, domestically and abroad, in contexts that transcend our immigration laws. These considerations bear upon our deference to the BIA's construction of the term "torture." Great deference is owed to the political branches, which guide the nation's efforts to achieve (and define) domestic compliance and to coordinate with other countries in eradicating torture worldwide. See El Al Isr. Airlines, Ltd. v. Tsui...