and 07-2800 EMMANUEL DALEGRAND v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-4766 and 07-2800
___________
EMMANUEL DALEGRAND,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
____________________________________
On Petitions for Review of Two Orders
of the Board of Immigration Appeals
Agency No. A97 519 219
Immigration Judge: Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 9, 2008
Before: FUENTES, ALDISERT and GARTH, Circuit Judges
(Opinion filed: July 28, 2008)
___________
OPINION
___________
PER CURIAM
Emmanuel Dalegrand petitions for review of two orders of the Board of
Immigration Appeals (Board or BIA). The first order sustained the Department of

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Dalegrand was ineligible for other relief from removal, such as asylum or statutory1
withholding of removal, because of his aggravated felony.
Dalegrand was represented by counsel for his appeal to the BIA and continues to be2
represented in connection with his petitions for review.
2
Homeland Security’s (DHS’s) appeal from the order of an Immigration Judge (IJ), which
had granted Dalegrand deferral of removal pursuant to the United Nations Convention
Against Torture (CAT). The second order denied Dalegrand’s motion to reconsider the
denial of a motion to reopen. We have consolidated the two petitions, see 8 U.S.C.
§ 1252(b)(6); and will deny the petitions, based on our recent decision in Pierre v.
Attorney General, ___ F.3d ___, 2008 WL 2331388 (3d Cir. June 9, 2008) (en banc).
Dalegrand, a Haitian citizen, entered the United States in 1981. In 2006,
Dalegrand, proceeding pro se, was found removable for having been convicted of an
aggravated felony. The Immigration Judge granted a deferral of removal under the CAT,1
finding that due to Dalegrand’s probable indefinite detention upon returning to Haiti and
his need for heart medication he would likely be subject to intentional infliction of severe
pain and suffering. The BIA sustained the DHS’s appeal, finding that Dalegrand had not
satisfied his burden of proof for deferral of removal.2
The BIA noted that general prison conditions in Haiti did not constitute torture,
citing Auguste v. Ridge, 395 F.3d 123, 152-54 (3d Cir. 2005) and Matter of J-E-, 23 I&N
Dec. 291, 300 (BIA 2002). The BIA discounted the IJ’s finding that medication would
not be available to Dalegrand in prison, noting that the country report only stated that

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“dispensary supplies were limited.” The BIA disagreed with the IJ’s statement that
Haitians with mental defects or diseases warranted protection under the CAT, citing
Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006), which concerned the return of an alien to
the Dominican Republic who feared he would suffer due to a lack of medication. The
BIA rejected Dalegrand’s argument that Haitian prison officials would intentionally steal
what medication he had, and that he would then exhibit aberrant behavior, for which the
officials would torture him. The BIA concluded that Dalegrand had not presented any
competent evidence to support this “entirely speculative chain of events.” The BIA
recognized that torture sometimes occurred in Haitian prisons, but found the record
evidence insufficient for establishing that it is more likely than not that Dalegrand would
be tortured. Dalegrand filed a timely petition for review of this decision, docketed at
C.A. No. 06-4766.
Dalegrand filed a timely motion to reopen before the BIA to present evidence that
he had been diagnosed with schizophrenia since the time of the original BIA decision,
and that he had been prescribed medications for his mental illness. He argued that the
Board had regularly granted deferral of removal relief to mentally ill Haitian deportees,
and that because of his mental illness, it was more likely than not that he would be
tortured in Haitian prisons. The BIA found that the evidence was new, but that it was
“not sufficiently material to the question of deferral of removal eligibility to warrant a
plenary hearing.” App. at 128. The BIA then noted that its unpublished decisions

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granting relief to Haitian deportees predated Matter of J-F-F-. The BIA reiterated that
even if medicine would be unavailable to Dalegrand in prison, he had not shown that the
unavailability was the “product of any intent by prison officials to harm the respondent, as
opposed to being due to the scarcity of such medication in Haitian prisons generally.”
App. at 129.
Dalegrand then filed a timely motion to reconsider the denial of his motion to
reopen (App. 111-24), arguing that the BIA had failed to consider or follow Lavira v.
Attorney General, 478 F.3d 158 (3d Cir. 2007), which had been issued two days before
the BIA decision denying the motion to reopen. Lavira, like Auguste, involved a claim
that placement in Haiti’s detention facility would constitute torture. Unlike in Auguste,
however, this Court granted the petition for review in Lavira, emphasizing that the IJ had
denied the CAT claim without focusing on whether the likelihood of torture is affected by
the petitioner’s specific circumstances–in that case, an HIV-positive above-the-knee
amputee. 478 F.3d at 171-72. Auguste did not preclude relief, this Court stated, because
“a finding of specific intent could be based on deliberate ignorance or willful blindness,”
mental conditions which the record supported. Id. at 171. Dalegrand also argued that the
BIA should reconsider because it had departed from its unpublished case law.
The BIA denied the motion to reconsider. The BIA stated that it discussed in both
of its previous decisions “whether the Haitian government acquiesces (e.g. ‘willful
blindness’) in torture of individuals suffering with the medical disabilities described by

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the respondent, finding that the conditions in the Haitian prisons were due to the scarcity
of medical services and medication found in Haiti, and not due to the willful acquiescence
of the Haitian government.” App. 3. The BIA also distinguished Lavira, noting that
Lavira’s “disabilities were in part due to a leg that had been amputated as a result of a
machete attack while previously living in Haiti that was inflicted due to his political
opinion and opposition to government policies,” and that Lavira had established that
Haitian authorities would be motivated, in part, due to his political opinion. The BIA
found that Dalegrand’s allegation that inmates with disabilities in Haitian prisons would
be tortured was mere speculation, similar to the claim in Matter of J-F-F-. The BIA found
that reconsideration was not warranted.
Dalegrand filed a timely petition for review of this decision, which was docketed
at C.A. No. 07-2800. The two petitions were consolidated for decision. Dalegrand filed a
counseled brief, arguing that the BIA misunderstood and misapplied Lavira, that it
arbitrarily departed from its unpublished caselaw, and that it failed to apply the clearly
erroneous standard to its review of the IJ’s findings of fact.
The Government filed a brief arguing that no record evidence compels reversal of
the BIA’s finding that Dalegrand failed to meet his burden of showing that it is more
likely than not that he will be tortured. The Government argues that the BIA did not
engage in improper factfinding, and that it did not abuse its discretion in denying
Dalegrand’s motion for reconsideration. Dalegrand filed a reply brief refuting the

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Government’s arguments.
A brief was also filed by Amicus Curiae International Law, Criminal Law,
Constitutional Law, and Immigration Law Professors in support of Dalegrand. The
amicus brief argues that the BIA improperly applied a heightened “specific intent”
standard to the CAT claim.
Dalegrand raises the same types of issues that recently have been resolved by our
Court in Pierre v. Attorney General, ___ F.3d ___, 2008 WL 2331388 (3d Cir. June 9,
2008) (en banc). In Pierre, we held that “[t]he lack of medical care and likely pain that” a
petitioner such as Dalegrand “will experience is an unfortunate but unintended
consequence of the poor conditions in the Haitian prisons, which exist because of Haiti’s
extreme poverty.” Id., at *7. However, we held “that this unintended consequence is not
the type of proscribed purpose contemplated by the CAT” and that “Pierre [wa]s unable
to show that the Haitian authorities specifically intend[ed] to cause him severe pain or
suffering.” Id. at *7, *9. Here, Dalegrand similarly did not present any evidence that
Haitian authorities specifically intended to inflict severe pain or suffering on him for any
of the purposes prohibited by the CAT. Thus, the BIA did not err in holding that
Dalegrand did not meet his burden of showing that it was more likely than not that he
would be “tortured,” as the law defines that term, when he is returned to Haiti. We
therefore will deny the petition for review challenging the BIA’s initial decision.
As to his motion for reconsideration, we find that the matters raised by the motion

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are no longer an issue. Dalegrand asked the BIA to reconsider its decision in light of
Lavira, which we overruled. Dalegrand also argued that the BIA overlooked its own
precedent in denying his motion to reopen. However, the BIA’s decision, in retrospect, is
consonant with our decision in Pierre, which has precedent over BIA decisions. We will
thus deny the petition for review that challenges the BIA’s decision denying the motion
for reconsideration.

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