05-3260-ag Pierre v. Gonzales UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term,…

05-3260-ag
Pierre v. Gonzales
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term, 2006 4
5
6
(Argued: November 27, 2006 Decided: September 11, 2007) 7
8
Docket No. 05-3260-ag 9
10
- - - - - - - - - - - - - - - - - - - -X 11
12
FRANCK PIERRE, 13
14
Petitioner, 15
16
- v.- 17
18
ALBERTO R. GONZALES, Attorney General 19
of the United States; WILLIAM CLEARY, 20
Acting Field Director Deportation and 21
Removal, Buffalo District, Bureau of 22
Immigration and Customs Enforcement, 23
United States Department of Homeland 24
Security, 25
26
Respondents. 27
28
- - - - - - - - - - - - - - - - - - - -X 29
30
Before: JACOBS, Chief Judge, WALKER, and RAGGI, 31
Circuit Judges. 32
33
Petition for review of a final decision and order of 34
the Board of Immigration Appeals affirming an immigration 35
judge’s denial of an application for withholding of removal 36
under the Convention Against Torture. 37

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1 Subsequent to oral argument, petitioner’s counsel
withdrew; having afforded the petitioner an opportunity to
obtain new counsel and/or file supplemental briefing, and
having received no such briefing, we decide the case on the
original briefs and oral argument.
2
Petition denied. 1
MARK T. KENMORE, Buffalo, NY, 2
for Petitioner.1
3
4
GAIL Y. MITCHELL, Assistant 5
United States Attorney, for 6
Terrance P. Flynn, United States 7
Attorney for the Western 8
District of New York, Buffalo, 9
NY, for Respondent. 10
11
DENNIS JACOBS, Chief Judge: 12
13
Petitioner Franck Pierre, a native of Haiti, appeals 14
from the June 15, 2004 final decision and order of the Board 15
of Immigration Appeals (“BIA”) which affirmed the January 16
20, 2004 decision of immigration judge (“IJ”) John B. Reid 17
denying Pierre’s application for withholding of removal and 18
relief under the Convention Against Torture (“CAT”). 19
Pierre asserts that he has shown a sufficient 20
likelihood that he will be tortured if he is deported to 21
Haiti, because all Haitians who are deported from the United 22
States (and other countries) for criminal conduct are 23
imprisoned indefinitely, and because prison conditions 24
prevailing in Haiti amount to torture. He challenges the 25

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3
BIA’s decision in In re J-E-, 23 I. & N. Dec. 291 (B.I.A. 1
2002) (en banc), which held that a Haitian petitioner faced 2
with this detention is not entitled to CAT relief. He also 3
contends that his case is distinguishable from In re J-E- 4
because his medical conditions will be inadequately treated 5
in the Haitian prisons. 6
We deny the petition, and defer to the BIA’s 7
interpretation of the definition of torture under the CAT 8
regulations. The failure to maintain standards of diet, 9
hygiene, and living space in prison does not constitute 10
torture under the CAT unless the deficits are sufficiently 11
extreme and are inflicted by government actors (or by others 12
with government acquiescence) intentionally rather than as a 13
result of poverty, neglect, or incompetence. We also affirm 14
the agency’s conclusion that, based on the record evidence, 15
Pierre’s diabetes does not remove his case from the ambit of 16
In re J-E-. 17
18
BACKGROUND 19
Pierre was born in Haiti in 1962, and was admitted to 20
the United States in 1967. In August of 1997, Pierre was 21
convicted of criminal possession of a firearm; in September 22

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4
1999, he was convicted of grand larceny. For the latter 1
crime, he was sentenced to a period of 18 to 36 months’ 2
incarceration. 3
In 2000, the INS charged that Pierre was subject to 4
removal under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien 5
convicted of an aggravated felony, see 8 U.S.C. § 6
1101(a)(43)(G) (defining aggravated felony to include “a 7
theft offense . . . for which the term of imprisonment [is] 8
at least one year”), and under 8 U.S.C. § 1227(a)(2)(C) as 9
an alien convicted of a firearms offense. Pierre conceded 10
removability, but applied for withholding of removal and CAT 11
relief. Before the IJ, he presented documentary evidence 12
concerning the conditions in Haiti, as well as his own 13
testimony and that of his sister--a doctor--concerning 14
Pierre’s diabetes. 15
The record concerning country conditions in this case 16
is substantially similar to the record in In re J-E- (and 17
its progeny), and can be summarized as follows. 18
At one time, Haitian government policy had been to 19
briefly detain any Haitian deported for having committed 20
crimes in another country; release was ordinarily secured 21
within a week. In re J-E-, 23 I. & N. Dec. at 300. In 22

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5
2000, Haiti began to hold such deportees with no timetable 1
for their release. According to a 2000 U.S. State 2
Department country report (written in 2001), this policy was 3
instituted to “prevent the ‘bandits’ from increasing the 4
level of insecurity and crime in the country.” Id. (quoting 5
Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of 6
State, Haiti: Country Reports on Human Rights Practices-- 7
2000 (Feb. 23, 2001), available at 8
http://www.state.gov/g/drl/rls/hrrpt/2000/wha/795.htm (“the 9
2000 Country Report”)). 10
Conditions in Haitian prisons are awful. “[P]rison 11
facilities are overcrowded and inadequate. . . . 12
[P]risoners are deprived of adequate food, water, medical 13
care, sanitation, and exercise. Many prisoners are 14
malnourished.” Id. at 293. A lack of basic hygiene and 15
health care results in elevated morbidity and mortality. 16
Id. According to the 2000 Country Report, food and medicine 17
are in short supply, and prisoners receive one meal a day 18
unless their diet is supplemented by nearby family. Haitian 19
prison authorities, working with the Red Cross, have 20
attempted to improve conditions in the country’s prisons. 21
Id. at 301. 22

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6
The State Department reports that deliberate 1
mistreatment of those arrested or detained by police in 2
Haiti is “pervasive in all parts of the country,” commonly 3
involves “[b]eating with fists, sticks, and belts,” and 4
sometimes involves “burning with cigarettes, choking, 5
hooding, and kalot marassa (severe boxing of the ears, which 6
can result in eardrum damage).” Id. (quoting the 2000 7
Country Report). 8
At a January 7, 2004 hearing, Pierre’s sister testified 9
that her brother suffered from type two diabetes and from 10
hypertension, though she herself (an emergency room 11
physician with a pediatric specialty) had never treated him. 12
According to her testimony, without his diabetes medications 13
and a proper diet, Pierre’s blood sugar levels would become 14
unstable and acute dehydration could induce diabetic coma-- 15
or even death. She also testified that Pierre’s 16
hypertension, if left untreated, could bring on a stroke. 17
Pierre himself testified as to the circumstances 18
surrounding his criminal convictions and his connections 19
with Haiti. Pierre’s last visit to Haiti was in 1998, when 20
he got married; his wife lives there with her family. As of 21
the date of the 2004 hearing, he was corresponding with her 22

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7
by mail. He also testified that his aunt and uncle spend 1
part of the year in Haiti and maintain a residence there. 2
In a January 20, 2004 decision, the IJ denied Pierre 3
withholding of removal and CAT relief. As to the CAT, (1) 4
the IJ incorporated into his findings by reference the 5
conclusion in In re J-E- that “there is no evidence that 6
Haitian authorities are detaining criminal deportees with 7
the specific intent to inflict severe physical or mental 8
pain or suffering”; and (2) the IJ found (a) that Pierre’s 9
medications would be available in Haiti, (b) that his 10
relatives in Haiti could supply him with medication, and (c) 11
that he would neither be prevented from taking the 12
medication nor be denied a fairly prompt release when his 13
family took action. 14
Pierre appealed to the BIA both the denial of 15
withholding of removal and the denial of CAT relief. The 16
BIA denied Pierre’s appeal on June 15, 2004, declining to 17
revisit In re J-E- and holding that because Pierre had 18
failed to show that the substandard prison conditions in 19
Haiti amounted to torture, or that his family would be 20
prevented from giving him medication, he was not entitled to 21

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2 The IJ evidently assumed--without analysis--that In
re J-E- applied not only to the CAT but also to withholding
of removal under 8 U.S.C. § 1231(b)(3); the BIA affirmed
without an explanation of whether (or why) it adopted this
assumption. But Pierre’s brief to this Court addresses only
the denial of CAT relief, and therefore Pierre has abandoned
any challenge to the denial of withholding of removal under
§ 1231(b)(3). See Fen Yong Chen v. Bureau of Citizenship &
Immigration Servs., 470 F.3d 509, 515 n.4 (2d Cir. 2006);
Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.
2005). So we express no opinion on the matter. We also
express no view on the IJ’s conclusion that Haitian criminal
deportees constitute a “particular social group” under the
INA. See Toussaint v. Att’y Gen. of the U.S., 455 F.3d 409,
418 (3d Cir. 2006) (rejecting argument that Haitians who
commit crimes in the United States constitute a particular
social group); Elien v. Ashcroft, 364 F.3d 392, 397 (1st
Cir. 2004) (same).
8
relief under the CAT.2 On July 15, 2004, Pierre filed a 1
habeas petition in the Western District of New York; 2
pursuant to provisions of the REAL ID Act of 2005, Pub. L. 3
No. 109-13, 119 Stat. 231, § 106(c) (2005), the habeas 4
petition was transferred to this Court as a petition for 5
relief from a ruling of the BIA. 6
7
8
9
DISCUSSION 10
I 11
At issue in this case is a CAT regulation which 12

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9
provides that “[i]n order to constitute torture, an act must 1
be specifically intended to inflict severe physical or 2
mental pain or suffering.” 8 C.F.R. § 208.18(a)(5). In re 3
J-E- construed the phrase “specifically intended” to require 4
a showing of specific intent. Pierre argues that the 5
specific intent requirement of In re J-E- is an 6
impermissible reading of the CAT and of the implementing 7
regulations, and therefore is not entitled to deference. 8
The CAT (according to Pierre) requires only general intent-- 9
that is, the intent to commit an act that foreseeably 10
results in severe pain or suffering. 11
Because Pierre is a criminal alien, this Court’s review 12
is limited to constitutional claims and questions of law. 13
See 8 U.S.C. § 1252(a)(2)(C)-(D). “Except in cases where 14
the IJ’s factual findings are themselves based on 15
constitutional or legal error--thus raising ‘constitutional 16
claims or questions of law’--[the Court] does not review the 17
factual findings made by the IJ.” Xiao Ji Chen v. U.S. 18
Dep’t of Justice, 471 F.3d 315, 329 n.7 (2d Cir. 2006) 19
(citing Joaquin-Porras v. Gonzales, 435 F.3d 172, 178-80 (2d 20
Cir. 2006)). We review de novo the BIA’s application of 21
legal principles to undisputed facts. See Wangchuck v. 22

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3 “Refoulement,” as defined by the United Nations
Educational, Scientific and Cultural Organization, is “the
expulsion of persons who have the right to be recognised as
refugees,” whether to their country of origin or to another
country in which they could be subjected to persecution.
See UNESCO Migration Glossary, available at
http://portal.unesco.org/shs/en/ev.php-URL_ID=4145&URL_DO=DO
_TOPIC&URL_SECTION=201.html (last visited July 25, 2007).
10
Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). 1
But the BIA’s interpretations of immigration regulations are 2
reviewed with “‘substantial deference.’” Id. (quoting 3
Joaquin-Porras, 435 F.3d at 178). 4
The question as to the meaning of “torture” is 5
presented to us now in the procedural and statutory context 6
of immigration. But we bear in mind that (as this opinion 7
demonstrates) the wording of the immigration regulations we 8
read is carefully drawn to implement the wording of the CAT 9
itself--subject to the express understandings of the Senate 10
when it ratified--and that the CAT is not solely or 11
predominantly concerned with immigration and refoulement.3
12
The CAT binds its signatories to prevent torture within 13
their own borders. Any definition of torture adopted by the 14
United States has potential bearing on the obligations of 15
the United States, domestically and abroad, in contexts that 16
transcend our immigration laws. These considerations bear 17

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11
upon our deference to the BIA’s construction of the term 1
“torture.” Great deference is owed to the political 2
branches, which guide the nation’s efforts to achieve (and 3
define) domestic compliance and to coordinate with other 4
countries in eradicating torture worldwide. See El Al Isr. 5
Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999) 6
(“Respect is ordinarily due the reasonable views of the 7
Executive Branch concerning the meaning of an international 8
treaty.”). The deference owed to the BIA may be qualified 9
to the extent that its reading of the regulation (which 10
mirrors the wording of the CAT and the Senate’s 11
understanding of it) is a reading of terms that have 12
application outside the context of immigration. 13
14
15
II 16
A 17
The CAT, to which the United States is a signatory, 18
includes a provision that “[n]o State Party shall expel, 19
return (‘refouler’) or extradite a person to another State 20
where there are substantial grounds for believing that he 21
would be in danger of being subjected to torture.” United 22

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12
Nations Convention Against Torture and Other Cruel, Inhuman 1
or Degrading Treatment or Punishment, opened for signature 2
Dec. 10, 1984, art. III, S. Treaty Doc. No. 100-20 (1988), 3
1465 U.N.T.S. 85, 114, available at 4
http://www.unhchr.ch/html/menu3/b/h_cat39.htm. 5
Torture is defined by the CAT and the immigration 6
regulations as: 7
any act by which severe pain or suffering, whether 8
physical or mental, is intentionally inflicted on 9
a person for such purposes as obtaining from him 10
or her or a third person information or a 11
confession, punishing him or her for an act he or 12
she or a third person has committed or is 13
suspected of having committed, or intimidating or 14
coercing him or her or a third person, or for any 15
reason based on discrimination of any kind, when 16
such pain or suffering is inflicted by or at the 17
instigation of or with the consent or acquiescence 18
of a public official or other person acting in an 19
official capacity. 20
21
8 C.F.R. § 208.18(a)(1); see also CAT art. 1. Torture “does 22
not include pain or suffering arising only from, inherent in 23
or incidental to lawful sanctions.” 8 C.F.R. § 24
208.18(a)(3); CAT art. 1. 25
The CAT is not self-executing; by its own force, it 26
confers no judicially enforceable right on individuals. See 27
Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003). 28
To implement the CAT, Congress amended the immigration laws 29

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4 The CAT took some time to be implemented. President
Ronald Reagan signed the CAT on April 18, 1988, but the
United States did not ratify the convention until October
21, 1994, see Regulations Concerning the Convention Against
Torture, 64 Fed. Reg. 8478, 8478 (Feb. 19, 1999), and FARRA
followed in 1998.
13
with the Foreign Affairs Reform and Restructuring Act of 1
1998 (“FARRA”),4 which announced the policy of the United 2
States “not to expel, extradite, or otherwise effect the 3
involuntary return of any person to a country in which there 4
are substantial grounds for believing the person would be in 5
danger of being subjected to torture.” Pub. L. No. 105-277, 6
Div. G, tit. XXII, § 2242(a), 112 Stat. 2681, 2681-822 7
(codified at 8 U.S.C. § 1231 note); see Auguste v. Ridge, 8
395 F.3d 123, 132-33 (3d Cir. 2005). FARRA directed the 9
appropriate agency (the Department of Justice) to issue 10
implementing regulations, and specified that the regulations 11
should define torture as the term is defined in the treaty 12
“subject to any reservations, understandings, declarations, 13
and provisos contained in the United States Senate 14
resolution of ratification of the Convention.” FARRA § 15
2242(b), (f)(2) (codified at 8 U.S.C. § 1231 note), quoted 16
in 8 C.F.R. § 208.18(a); see Auguste, 395 F.3d at 133. The 17
definition of torture under domestic immigration law, and 18

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14
the scope of an individual’s entitlement to CAT relief, is 1
therefore governed by the text of the CAT subject to the 2
terms of the Senate ratification resolution. 3
The Senate ratification resolution included the 4
following understanding: “[T]he United States understands 5
that, in order to constitute torture, an act must be 6
specifically intended to inflict severe physical or mental 7
pain or suffering . . . .” 136 Cong. Rec. S17,486-01, 8
S17,491 (1990); see also Convention against Torture, 9
Declarations and Reservations, available at 10
http://www.ohchr.org/english/countries/ratification/9.htm 11
(last visited July 25, 2007). The FARRA regulations use the 12
wording of this understanding: “In order to constitute 13
torture, an act must be specifically intended to inflict 14
severe physical or mental pain or suffering.” 8 C.F.R. § 15
208.18(a)(5). One ramification of this, as the regulations 16
explain, is that an act is not torture if it “results in 17
unanticipated or unintended severity of pain and suffering.” 18
Id. 19
The text of the CAT itself recognizes that there are 20
“other acts of cruel, inhuman or degrading treatment or 21
punishment which do not amount to torture.” CAT art. 16. 22

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15
The regulations also draw this distinction: “Torture is an 1
extreme form of cruel and inhuman treatment and does not 2
include lesser forms of cruel, inhuman or degrading 3
treatment or punishment that do not amount to torture.” 8 4
C.F.R. § 208.18(a)(2). 5
The acts of private individuals may constitute torture 6
under the CAT only if there is government “acquiescence.” 7
See CAT art. 1. The Senate’s resolution indicates: 8
[T]he United States understands that the term 9
“acquiescence” requires that the public official, 10
prior to the activity constituting torture, have 11
awareness of such activity and thereafter breach 12
his legal responsibility to intervene to prevent 13
such activity. 14
15
136 Cong. Rec. S17,486-01, S17,491-92; see Khouzam v. 16
Ashcroft, 361 F.3d 161, 170-71 (2d Cir. 2004) (discussing 17
the U.S. government’s decision to revise its original 18
understandings “to make it clear that both actual knowledge 19
and ‘willful blindness’ fall within the definition of the 20
term ‘acquiescence’” (quoting S. Exec. Rep. 101-30, at 9 21
(1990))). The regulations incorporate the text of this 22
understanding. See 8 C.F.R. § 208.18(a)(7). 23
The CAT forbids deportation if there are “substantial 24
grounds” to believe that the deportee will suffer torture at 25
home; the Senate Ratification Resolution links this standard 26

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16
to the “more likely than not” standard used by immigration 1
courts for persecution-based withholding of removal claims: 2
[T]he United States understands the phrase, “where 3
there are substantial grounds for believing that 4
he would be in danger of being subjected to 5
torture,” as used in Article 3 of the Convention, 6
to mean “if it is more likely than not that he 7
would be tortured.” 8
9
136 Cong. Rec. S17,486-01, S17,492. Accordingly, the 10
regulations place the “burden of proof . . . on the 11
applicant for withholding of removal . . . to establish that 12
it is more likely than not that he or she would be tortured 13
if removed to the proposed country of removal,” 8 C.F.R. § 14
208.16(c)(2), and mandate withholding or deferral of removal 15
where the applicant meets this burden, 8 C.F.R. § 16
208.16(c)(4); see Mu Xiang Lin v. U.S. Dep’t of Justice, 432 17
F.3d 156, 159 (2d Cir. 2005). 18
19
B 20
The issue in this case is whether Haiti’s indefinite 21
detention of criminal deportees amounts to torture in light 22
of the prevailing prison conditions. The BIA answered this 23
question in the negative in In re J-E-, 23 I. & N. Dec. 291 24
(B.I.A. 2002) (en banc), and the BIA here affirmed the IJ’s 25
denial of relief because Pierre’s medical condition does not 26

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17
distinguish his case from In re J-E-. 1
In re J-E- held (1) that detaining criminal deportees 2
in the prison conditions prevailing in Haiti does not 3
constitute torture because the prison conditions are not 4
created or maintained with a specific intent to cause severe 5
pain and suffering, but are instead “the result of budgetary 6
and management problems as well as the country’s severe 7
economic difficulties,” id. at 301; and (2) that indefinite 8
detention does not amount to torture because it is a lawful 9
sanction, id. at 300. The BIA conceded that there are 10
examples of “isolated acts” constituting torture in Haitian 11
prisons, but concluded that the applicant there presented 12
insufficient evidence to show it was more likely than not 13
that he would be singled out for such treatment. Id. at 14
303-04. 15
Pierre argues that the specific intent standard of In 16
re J-E- is an impermissible narrowing of the CAT, and is 17
therefore not entitled to deference. However, the 18
regulations at issue were drawn by the DOJ pursuant to a 19
mandate in FARRA to craft regulations that implement the 20
exact wording of the Senate’s expressed understanding of a 21
treaty. On general principles, this circumstance bespeaks 22

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18
more deference, not less: deference to the Senate’s 1
ratification understanding, deference to the framing of the 2
regulations, and deference to an agency’s interpretation of 3
the regulations. “[I]n construing treaty language, 4
‘[r]espect is ordinarily due the reasonable views of the 5
Executive Branch.’” Tachiona v. United States, 386 F.3d 6
205, 216 (2d Cir. 2004) (second alteration in original) 7
(quoting El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 8
U.S. 155, 168 (1999)); see also Sumitomo Shoji Am., Inc. v. 9
Avagliano, 457 U.S. 176, 184-85 (1982) (“Although not 10
conclusive, the meaning attributed to treaty provisions by 11
the Government agencies charged with their negotiation and 12
enforcement is entitled to great weight.”). As to the CAT 13
regulations: where the BIA interprets “a regulation 14
promulgated by the Attorney General under the INA, we afford 15
‘substantial deference’ to the BIA’s interpretation, unless 16
it is plainly erroneous or inconsistent with the regulation, 17
or inconsistent with the agency’s previous interpretation.” 18
Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 262 (2d 19
Cir. 2006) (citations omitted). 20
Deference to the BIA’s interpretation of the CAT is 21
particularly important when (as here) “claims similar to 22

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3 In Lavira v. Att’y Gen. of the U.S., 478 F.3d 158 (3d
Cir. 2007), the Third Circuit remanded such a case, but not
because it rejected the validity of In re J-E-. Rather, the
19
[the petitioner’s] have been advanced by many petitioners 1
before this and other courts,” and the issue “raises 2
complicated public policy and foreign policy questions.” 3
Jian Hui Shao v. BIA, 465 F.3d 497, 502 (2d Cir. 2006) 4
(citing INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) 5
(“[J]udicial deference to the Executive Branch is especially 6
appropriate in the immigration context where officials 7
exercise especially sensitive political functions that 8
implicate questions of foreign relations.”)). 9
10
C 11
The BIA’s decision in In re J-E- has commanded 12
deference from several federal courts. See, e.g., Theagene 13
v. Gonzales, 411 F.3d 1107, 1113 (9th Cir. 2005); Auguste, 14
395 F.3d at 153; Cadet v. Bulger, 377 F.3d 1173, 1193 (11th 15
Cir. 2004); Elien v. Ashcroft, 364 F.3d 392, 399 (1st Cir. 16
2004); Thelemaque v. Ashcroft, 363 F. Supp. 2d 198, 211 (D. 17
Conn. 2005). No federal circuit court considering the case 18
of a Haitian criminal deportee has declined to follow In re 19
J-E-, though there are wrinkles in the Third Circuit.3
20

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Third Circuit held that the agency had failed to properly
consider whether the petitioner’s individual circumstances
made his case distinguishable from In re J-E-.
4 The Zubeda panel noted that the BIA had ignored
record evidence,
[r]educing Zubeda’s claim to an attack on . . .
inhumane prison conditions . . . [which] totally
ignores the fact that this record is replete with
reports from government agencies and human rights
organizations that detail what appear to be
country wide, systematic incidents of gang rape,
mutilation, and mass murder [in the Democratic
Republic of the Congo].
333 F.3d at 477.
20
In the case of a Congolese petitioner, the Third 1
Circuit distinguished In re J-E- on the basis that the 2
petitioner’s CAT claim was based on far more than evidence 3
of substandard prison conditions. See Zubeda v. Ashcroft, 4
333 F.3d 463 (3d Cir. 2003).4 The Zubeda panel also opined 5
that the wording of the CAT regulations stopped short of 6
requiring specific intent. But this discussion in Zubeda 7
was discounted as dicta in a later Third Circuit case that 8
decided the very issue before this Court--and followed In re 9
J-E-. See Auguste, 395 F.3d at 147-48. Of course, we are 10
free nevertheless to adopt Zubeda’s analysis as persuasive, 11
but we are unpersuaded for the following reasons. 12
Zubeda concluded that (under the statute and 13

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5 This runs counter to the ordinary understanding of
the word “torture”; but the Zubeda panel considered the
issue in a context--rape--that presents special difficulties
if (though only if) one thinks that the intent of a rapist
is satisfaction that does not depend on the pain inflicted
on the victim.
21
regulations) torture does not entail a specific intent to 1
inflict severe pain or suffering.5 The panel acknowledged 2
that severe pain and suffering must be “specifically 3
intended” to constitute torture; but to justify its 4
conclusion that one can “specifically intend” without 5
specific intent, the panel focused on the regulations’ 6
statement that an “‘act that results in unanticipated or 7
unintended severity of pain and suffering is not torture.’” 8
Zubeda, 333 F.3d at 473-74 (quoting 8 C.F.R. § 9
208.18(a)(5)). As a matter of plain language, we read that 10
portion of section 208.18(a)(5) differently to draw a 11
distinction between a severity of pain or suffering that is 12
intended (torture) and a severity of pain or suffering that 13
is unintentional or unanticipated (not torture), rather than 14
a distinction between what is foreseeable and what is not. 15
The proviso in section 208.18(a)(5) that an act must be 16
“specifically intended to inflict severe physical or mental 17
pain or suffering” bespeaks specific intent, the Zubeda 18

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22
dicta notwithstanding. 1
Zubeda discounted specific intent on another ground: 2
that the CAT regulations define torture to include threats 3
of physical harm that result in severe mental suffering, 4
regardless of whether the persecutor actually intends to 5
carry out the threat. Zubeda, 333 F.3d at 474. But this 6
proves little; when a credible threat of physical torture 7
causes extreme mental pain or suffering, the specific intent 8
requirement is altogether satisfied by the specific intent 9
to cause the mental pain or suffering; the persecutor’s 10
intent (specific or not) to follow through on the threat to 11
inflict physical torture does not matter if the making of 12
the credible threat amounts to the torture in itself. See 8 13
C.F.R. § 208.18(a)(4) (defining types of severe mental pain 14
and suffering that can rise to the level of torture with or 15
without any physical torture). 16
It is also important that the concept of specific intent 17
not be conflated with the concept of state acquiescence. 18
Because the CAT reaches torture committed by or acquiesced in 19
by government actors, it is not always necessary that the 20
specific intent required by section 208.18(a)(5) be formed by 21
the government itself. A private actor’s behavior can 22

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23
constitute torture under the CAT without a government’s 1
specific intent to inflict it if a government official is 2
aware of the persecutor’s conduct and intent and acquiesces 3
in violation of the official’s duty to intervene. See 4
Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (“In 5
terms of state action, torture requires only that government 6
officials know of or remain willfully blind to an act and 7
thereafter breach their legal responsibility to prevent it.” 8
(emphasis added)). But in that scenario, there is specific 9
intent--the intent of the private actor. 10
Some courts have contemplated the possibility that in 11
particular cases, a government’s “willful blindness” or 12
“deliberate indifference” to suffering might suffice to show 13
that the suffering is “specifically intended.” See, e.g., 14
Lavira v. Att’y Gen. of the U.S., 478 F.3d 158, 171 (3d Cir. 15
2007) (“Our criminal law jurisprudence . . . bolsters the 16
view that a finding of specific intent could be based on 17
deliberate ignorance or willful blindness.”); Thelemaque, 363 18
F. Supp. 2d at 215 (“[A] mechanical application of the 19
specific intent requirement might yield results at odds with 20
. . . CAT and . . . concepts such as deliberate indifference, 21
reckless disregard or willful blindness might well suffice in 22

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6 That said, nothing in this opinion prevents the
agency from drawing the inference, should the agency choose
to do so, that a particular course of action is taken with
specific intent to inflict severe pain and suffering if it
is found on the record evidence that the actor is aware of a
virtual certainty that such pain and suffering will result.
7 The federal criminal statute--like the CAT
regulations--requires that the infliction of severe pain and
suffering be “specifically intended.” 18 U.S.C. § 2340(1).
As other courts have noted, the George H.W. Bush
administration, which proposed the understandings that the
Senate adopted by resolution in 1990, clearly interpreted
the understanding to require specific intent: “‘[T]he
package now contains a revised understanding to the
definition of torture, which . . . maintains our position
that specific intent is required for torture.’” Thelemaque,
24
certain circumstances . . . .”). We do not see how these 1
concepts, which may bear on knowledge to the extent they 2
establish conscious avoidance, can without more demonstrate 3
specific intent, which requires that the actor intend the 4
actual consequences of his conduct (as distinguished from the 5
act that causes these consequences).6
6
In sum, the phrase “specifically intended” incorporates 7
a criminal specific intent standard, notwithstanding the 8
difficulties that might arise in applying that standard to 9
evidence of country conditions in order to predict the 10
likelihood of future events in individual cases. The 11
President and Senate knew full well that they were construing 12
a treaty designed to stop criminal conduct.7 We cannot 13

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363 F. Supp. 2d at 207 (emphasis added) (omission in
original) (quoting S. Exec. Rep. No. 101-30, app. A at 35
(1990)).
25
ignore the word “specifically” in the ratification 1
understanding and the regulations, and we decline to give it 2
a counter-intuitive spin. See Duncan v. Walker, 533 U.S. 3
167, 174 (2001) (citing principle that “‘a statute ought, 4
upon the whole, to be so construed that, if it can be 5
prevented, no clause, sentence, or word shall be superfluous, 6
void, or insignificant’” (quoting Market Co. v. Hoffman, 101 7
U.S. 112, 115 (1879))). The deference we owe to the BIA’s 8
analysis in In re J-E- simply confirms the understanding we 9
derive from plain meaning. The BIA’s reading of 8 C.F.R. § 10
208.18(a)(5), to which we defer, raises no insurmountable 11
obstacle to CAT relief, because there is no requirement that 12
a CAT claimant “provide direct proof of [the] persecutors’ 13
motives.” INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). 14
The CAT regulations, like the asylum regulations, “make[] 15
motive critical,” so a CAT claimant must “provide some 16
evidence” of specific intent, “direct or circumstantial.” 17
Id. But torture as commonly understood and practiced is not 18
subtle, elusive, or easy to misconstrue, and the torturer’s 19

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8 An act is only torture under the CAT if it is
motivated by some illicit purpose such as “obtaining . . .
information or a confession, punishing . . ., or
intimidating or coercing . . ., or for any reason based on
discrimination of any kind . . . .” 8 C.F.R. §
208.18(a)(1); see Auguste, 395 F.3d at 151. Evidence
showing an illicit purpose may easily overlap with evidence
showing a specific intent to inflict severe pain or
suffering. The issue of specific intent is isolated in this
case only because imprisonment is by its nature designed to
punish, but ordinarily does not trigger severe pain or
suffering as contemplated by the CAT.
26
intentions are rarely if ever obscure.8
1
2
D 3
Pierre appears to argue that even if the United States’s 4
ratification understanding reflects a definition of torture 5
that entails a specific intent to inflict severe pain and 6
suffering, it should yield to the broader language of the CAT 7
itself as interpreted under principles of international law. 8
Because the CAT is not a self-executing treaty, Mu-Xing 9
Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003), Pierre 10
has no judicially enforceable right directly arising from the 11
CAT as interpreted by its signatory nations: his claims arise 12
under United States law implementing the treaty. See Flores 13
v. S. Peru Copper Corp., 414 F.3d 233, 257 n.34 (2d Cir. 14
2003) (noting that non-self-executing treaties require 15

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27
implementing action in order to be suitable for judicial 1
application, while self-executing treaties immediately create 2
judicially enforceable rights). “United States law is not 3
subordinate to customary international law or necessarily 4
subordinate to treaty-based international law and, in fact, 5
may conflict with both.” United States v. Yousef, 327 F.3d 6
56, 91 (2d Cir. 2003). An act of Congress will govern in 7
domestic courts in derogation of previous treaties and 8
customary international law. See Oliva v. U.S. Dep’t of 9
Justice, 433 F.3d 229, 236 (2d Cir. 2005) (noting that clear 10
congressional action trumps customary international law in 11
the immigration context as elswhere); Empresa Cubana Del 12
Tabaco v. Culbro Corp., 399 F.3d 462, 481 (2d Cir. 2005) 13
(“[L]egislative acts trump treaty-made international law when 14
those acts are passed subsequent to ratification of the 15
treaty and clearly contradict treaty obligations.” (internal 16
quotation marks omitted)); Mu-Xing Wang, 320 F.3d at 142 17
n.18; Guzman v. Tippy, 130 F.3d 64, 66 (2d Cir. 1997) (per 18
curiam). 19
In that light, international law does not assist the 20
analysis. It is plain that in FARRA, Congress commanded the 21
immigration agencies to promulgate regulations that give full 22

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28
effect to all of the Senate’s reservations and 1
understandings, including the understanding that in order to 2
constitute torture, an act must be specifically intended to 3
inflict severe pain and suffering. See Auguste, 395 F.3d at 4
140 (“[I]n our opinion, FARRA codified the Senate’s 5
understandings into domestic law.”). By announcing its 6
understandings, the Senate implicitly recognized that the 7
treaty wording would benefit from clarification. Those 8
understandings are the indispensable premise for the 9
implementation of the CAT as domestic law. The agency is 10
bound by them, and we defer to the agency’s reasonable 11
interpretation of them: 12
[The petitioner] invites this Court to inquire into 13
the meaning of Article 1 of the [CAT], its drafting 14
history, and the interpretation of Article 1 by 15
various international tribunals. . . . We, 16
however, see no reason to be drawn into a debate 17
about the appropriate interpretation . . . , or 18
what the prevailing international understanding of 19
the intent standard required under Article 1 of the 20
[CAT] is. . . . [W]e believe that we must apply 21
the standard clearly stated in the ratification 22
record of the United States. 23
24
Id. 25
As we stated earlier, the CAT is not solely concerned 26
with immigration and refoulement; the same language that 27
governs the BIA’s review of deportation orders guides the 28

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29
political branches in their decisions about whether our 1
country and other signatories are in compliance with a 2
multilateral treaty. It is unseemly for a government to 3
adopt different meanings of the same word in the same treaty; 4
and it is imprudent for a court to fix on a special or 5
unnatural meaning in litigation when the political branches 6
are evidently disposed otherwise. 7
8
E 9
Pierre also challenges the ruling in In re J-E- that 10
Haiti’s policy of indefinite detention is a “lawful 11
sanction.” See 8 C.F.R. § 208.18(a)(3) (“Torture does not 12
include pain or suffering arising only from, inherent in or 13
incidental to lawful sanctions.”). Because we agree with the 14
BIA that the regulations validly promulgated pursuant to 15
FARRA clearly require a showing of specific intent to inflict 16
severe pain and suffering, we need not decide the question of 17
lawful sanction. 18
Nevertheless, a close reading of In re J-E- shows that 19
while the BIA decided that the “detention policy in itself” 20
was a “lawful sanction,” 23 I. & N. Dec. at 300, it did not 21

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9 We do not address the legality of Haiti’s detention
policy under Haitian law.
30
decide whether conditions of confinement, lawfully imposed,9
1
are categorically “lawful sanctions” that therefore cannot 2
amount to torture. In holding that the Haitian prison 3
conditions did not constitute torture, the BIA relied on the 4
lack of specific intent, not on the “lawful sanctions” 5
provision. Id. at 300-01. In any case, this Court has 6
already narrowly construed In re J-E- on this point. See 7
Khouzam, 361 F.3d at 169-70 (“It would totally eviscerate the 8
CAT to hold that once someone is accused of a crime it is a 9
legal impossibility for any abuse inflicted on that person to 10
constitute torture. . . . If J-E- actually stood for this 11
proposition, we would have to disapprove of it . . . .”). 12
Moreover, one United States understanding of the CAT reflects 13
Senate concern that the “lawful sanctions” language may be 14
too expansive. See 136 Cong. Rec. S17,486-01, S17,491 15
(“[T]he United States understands that a State Party could 16
not through its domestic sanctions defeat the object and 17
purpose of the Convention to prohibit torture.”); Kyaw Zwar 18
Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (“In accord with 19
the Senate’s understanding, even torture sanctioned by the 20

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31
alien’s country of origin for his criminal conduct will 1
sometimes establish entitlement to relief.”). 2
Prison is always an ordeal. Barbaric prison conditions 3
might constitute torture if they cause severe pain or 4
suffering and if circumstances indicate that the intent of 5
the authorities in causing the severity of pain and suffering 6
(over and above the discomforts incident to confinement in 7
that time and place) is to illicitly discriminate, punish, 8
coerce confessions, intimidate, or the like--just as live 9
burial would be torture even if somewhere it were the lawful 10
sanction for an offense. 11
Although we do not follow In re J-E- on the issue of 12
lawful sanction, we defer to In re J-E-’s interpretation of 8 13
C.F.R. § 208.18(a)(5): The failure to maintain standards of 14
diet, hygiene, and living space in prison does not constitute 15
torture under the CAT unless the deficits are sufficiently 16
extreme and are inflicted intentionally rather than as a 17
result of poverty, neglect, or incompetence. 18
19
20
III 21
The IJ and the BIA concluded that the medical evidence 22

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32
Pierre adduced did not command a result different from that 1
in In re J-E-. There is no reason to disturb the agency’s 2
decision. 3
Because Pierre is a criminal alien, we have no 4
jurisdiction to review the agency’s factual findings. 5
See supra Section I. Therefore, unless the agency’s fact- 6
finding process was premised on legal error, we cannot 7
question its findings about prevailing conditions in Haiti or 8
the likelihood that specific events will occur when Pierre is 9
returned to Haiti. It is beyond our power to revisit the 10
conclusion in In re J-E---and the IJ’s opinion--that prison 11
conditions in Haiti chiefly result from economic conditions 12
in that country and not from the intent on the part of the 13
authorities to worsen the suffering of inmates or detainees. 14
We also cannot question the IJ’s finding that Pierre will 15
likely have access to medicine through his family and will 16
likely be released in a timely fashion. However, we do 17
review, de novo, the agency’s application of the definition 18
of torture to its factual findings about what is likely to 19
happen. 20
As we have held: Assuming the validity of the factual 21
findings underlying In re J-E-, that decision reaches the 22

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33
correct conclusion as to whether deportees’ indefinite 1
detainment constitutes torture. Even though Haiti’s 2
government does apparently wish to intimidate criminal 3
deportees by imprisoning them in whatever prisons are 4
available, the agency found that neither the government nor 5
its agents have any specific intent to cause severe suffering 6
through harsh conditions as an additional means of 7
intimidation--the poor conditions result chiefly from the 8
economic situation in Haiti. Therefore, imprisonment in 9
Haiti without more is not torture. 10
As to Pierre’s attempt to distinguish his case from In 11
re J-E- on the basis of his medical condition, the IJ 12
appeared to opine in passing that as to the issue of specific 13
intent, Pierre’s condition was irrelevant. We disagree to 14
the extent this suggests that a petitioner’s individual 15
circumstances are per se irrelevant under In re J-E- and can 16
have no bearing on the likelihood that the petitioner would 17
be subjected to torture. It is true that, given the United 18
States’s understandings of the CAT, even suffering of the 19
utmost severity cannot constitute torture unless it is 20
specifically intended, and this principle undercuts the 21
importance of evidence that a particular petitioner’s 22

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10 In Lavira v. Attorney General of the United States,
a panel of the Third Circuit remanded the case of an HIV-
positive Haitian criminal alien because both the IJ and the
BIA summarily relied on In re J-E- and failed to “focus[] on
the specifics of [the petitioner’s] situation in denying his
CAT claim.” 478 F.3d 158, 171 (3d Cir. 2007). The Lavira
panel purported to further hold that Lavira had a “non-
frivolous and legally available” argument that the extremely
high likelihood of an HIV-positive petitioner’s death in
Haitian prison meant that any Haitian official who detained
such a petitioner would exhibit “willful blindness” to the
likelihood of death; the panel reasoned that this would
adequately show specific intent. Notwithstanding assertions
to the contrary in Lavira, this proposition seems to us
inconsistent with the Third Circuit’s holding in Auguste
that “[t]he mere fact that the Haitian authorities have
knowledge that severe pain and suffering may result by
placing detainees in these conditions does not support a
finding that the Haitian authorities intend to inflict
severe pain and suffering.” 395 F.3d at 153-54. How can
willful blindness towards a fact be legally significant if
actual knowledge of it is not? To the extent the two cases
are in tension, Auguste is the more persuasive precedent,
though it is hard to contest Lavira’s chief holding: IJs
should carefully consider evidence that individual
petitioners put forth to distinguish their cases from In re
J-E-. That is what the IJ did here.
34
suffering in prison will be more severe or more foreseeable 1
than others’; but it does not render such evidence 2
irrelevant. Nothing in In re J-E- or in our opinion dictates 3
that a petitioner cannot present evidence that the severe 4
suffering to which the petitioner is likely to be subjected 5
is motivated by some actor’s specific intent--that is, some 6
intent not present in In re J-E-.10 As In re J-E- 7
acknowledged, acts of abuse committed by prison guards are 8

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35
not infrequent in Haiti, and it might be that petitioners 1
with certain histories, characteristics, or medical 2
conditions are more likely to be targeted not only with these 3
individual acts but also with particularly harsh conditions 4
of confinement. But Pierre adduced no evidence suggesting 5
this to be the case as to diabetics or as to him 6
individually. 7
Even though the IJ arguably overstated the impact of In 8
re J-E- on the relevance of Pierre’s medical condition, the 9
record indicates that the IJ carefully considered Pierre’s 10
evidence and entered individualized findings that adequately 11
support the conclusion that, notwithstanding Pierre’s medical 12
condition, Pierre has not adduced the evidence that he will 13
likely be subjected to torture. The BIA affirmed on that 14
basis, and so do we. 15
16
CONCLUSION 17
For the foregoing reasons, the petition is denied. 18

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