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Decided: February 22, 2016

The Fourth Circuit denied in part and dismissed in part petitions for review of orders of the BIA.

In 1994, Petitioner, Wilerms Oxygene, along with his his family, sought refuge in the United States after facing political persecution in in his native country of Haiti, and two years later he was subsequently granted lawful permanent resident status in 1996. In 2011, Oxygene was convicted of several state crimes, including aggravated felonies and firearm offenses, and the Department of Homeland Security (“DHS”) began removal proceedings against him. Oyxgene feared he would be detained indefinitely if deported to Haiti, which would subject him to deplorable prison conditions and prevent him from receiving necessary medical care for his latent tuberculosis, and so he applied for deferral of removal under the Convention Against Torture (“CAT”). At his removal hearing, the Immigration Judge (“IJ”) recognized that prison conditions in Haiti remained dismal and that Oxygene was at a higher risk of disease due to his latent tuberculosis. While the IJ noted that Oxygene would possibly be detained if he was deported to Haiti, the IJ found that Oxygene failed to present evidence that “[Haitian] authorities intentionally and deliberately detained deportees in order to inflict torture.” As a result, precedent established in In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) (en banc), precluded Oxygene’s argument that “Haiti’s detention policy and prison conditions necessarily constitute torture under the CAT,” and he failed to meet the “more-likely-than-not burden of proof required for relief under the CAT.” Oxygene filed two appeals that challenged the BIA’s denial of his application for CAT relief and its denial of his motion to reopen the removal proceedings.

The main issue was whether In re J-E- provided the correct standard for showing intent in CAT claims. DHS contends to “establish torture meriting CAT relief,” the petitioner must show not only that foreign officials intend to detain the deportee, but also that “the alleged torturers must actually desire the consequences of their actions.” Conversely, Oxygene maintains In Re J-E- does not provide the correct standard for establishing specific intent. Instead, intent to detain “coupled with knowledge to a near certainty that severe pain and suffering will result” is enough.

The Court found that all parties involved with turning the CAT from a treat into a law—the President, the Senate and the Department of Justice—interpret the definition of torture under the CAT as “an act [that] must be specifically intended to cause severe pain and suffering.” However, none of those parties addressed the definition of “specific intent.” Instead, the Court joins the majority of their sister circuits in deferring to the BIA’s interpretation as found in In re J-E-. Thus, Oxygene must demonstration that Haitian officials “are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture.”

Accordingly, the Court rejected Oxygene’s argument that the IJ and BIA erred in applying the legal standard prescribed in In re J-E- and denied his petition for review. Additionally, due to lack of jurisdiction, the Court dismissed Oxygene’s petition for review of denial to reopen.

Full Opinion

Charlotte Harrell