D. The District Court denied Auguste’s petition for a writ of habeas corpus on the merits, finding that the BIA in Matter of J-E- properly interpreted the intent requirement of 8 C.F.R. � 208.18(a)(5). The District Court concluded that “there must be some sort of underlying intentional direction of pain and suffering against a particular petitioner, more so than simply complaining of the general state of affairs that constitute conditions of confinement in a place, even as unpleasant as Haiti.” The District Court, however, did not appear to reach the issue of whether the BIA’s application of the burden of proof in 8 C.F.R. � 208.16(c)(2) was inconsistent with Article 3 of the CAT or FARRA.
II. The scope of review of an alien’s habeas petition is far narrower than that typically available to an alien who has filed a direct petition for review to a court of appeals. Review is limited to constitutional issues and errors of law, including both statutory interpretations and application of law to undisputed facts or adjudicated facts, but does not include review of administrative fact-findings or the exercise of discretion.
III. A. 1. Title 8 C.F.R. � 208.18(a)(5) states that in order for an act to constitute torture, “[it] must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture.”
2. Congress passed FARRA because the Senate had explicitly included a declaration in its resolution of ratification that the convention was not self-executing. Because the CAT was not self-executing, FARRA, at least in the domestic context, represented a clear statement on the part of Congress to incorporate into domestic law the understandings submitted by the president and adopted by the Senate in its resolution of ratification, including the understanding that “in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.” The Department of Justice, in promulgating the relevant regulations, adopted verbatim the understanding in defining the intent standard at 8 C.F.R. � 208.18(a)(5). Thus, FARRA codified the Senate’s understandings into domestic law.
Auguste argues that because the understanding regarding specific intent was in conflict with the accepted international interpretation of the convention, as he believes it to be, it could not modify the United States’ obligations under the convention. Auguste appears to rely in part on Article 19 of the Vienna Convention on the Law of the Treaties, which states that reservations to a treaty ratification are prohibited where they are “incompatible with the object and purpose of the treaty.” See Vienna Convention on the Law of Treaties, May 23, 1969, art. 19, 1155 U.N.T.S. 331.
The specific-intent standard was the standard accepted by both the president and the Senate during the ratification process. Both Presidents Ronald Reagan and George H.W. Bush submitted nearly identical understandings containing the language stating that for an act to constitute torture, it must be specifically intended to inflict severe pain and suffering. The Senate adopted the language of President Bush’s understanding in its resolution of ratification. Moreover, when the president deposited the instrument of ratification with the United Nations, he did so with the relevant understanding relating to the specific-intent requirement.
Thus, both the president and the Senate agreed during the ratification stage that their understanding of the definition of torture contained in Article 1 of the convention included a specific-intent requirement. This is enough to require that the understanding accompanying the United States’ ratification of the convention be given domestic legal effect, regardless of any contention that the understanding may be invalid under international norms governing the formation of treaties or the terms of the convention itself. The United States may attach an understanding interpreting the meaning of a treaty provision as part of the ratification process and where, as here, there is clear consensus among the president and Senate on that meaning, a court is obliged to give that understanding effect.
The Restatement (Third) of the Foreign Relations Law of the United States, � 314(2), states: “When the Senate gives its advice and consent to a treaty on the basis of a particular understanding of its meaning, the President, if he makes the treaty, must do so on the basis of the Senate’s understanding.” Comment d to � 314 further states: “A treaty that is ratified or acceded to by the United States with a statement of understanding becomes effective in domestic law subject to that understanding.” Thus, for purposes of domestic law, the understanding proposed by the president and adopted by the Senate in its resolution of ratification are the binding standard to be applied in domestic law.
3. Based on the ratification record, there is no doubt that the applicable standard to be applied for CAT claims in the domestic context is the specific-intent standard, which was adopted verbatim by the Department of Justice in 8 C.F.R. � 208.18(a)(5) from the understanding accompanying ratification. It now must be considered whether the BIA’s interpretation of the specific-intent standard in Matter of J-E-, which defined the term by reference to its ordinary meaning in American law, was appropriate.
It cannot be said that the BIA erred in its interpretation of the “specific intent” requirement in Matter of J-E- by defining that term as it is ordinarily used in American criminal law. In light of the use of the phrase “specifically intended” in the understanding to ratification, the BIA acted reasonably in interpreting that language as mandating the use of a specific-intent requirement and defining that term in accord with its ordinary meaning in American law.
Held: Thus, in the context of the convention, for an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act, namely the infliction of the severe pain and suffering. In contrast, if the actor intended the act but did not intend the consequences of the act, i.e., the infliction of the severe pain and suffering, although such pain and suffering may have been a foreseeable consequence, the specific-intent standard would not be satisfied. Auguste’s suggestion that torture exists where the “actor had knowledge that the action (or inaction) might cause severe pain and suffering” is inconsistent with the meaning of specific intent.
4. Auguste contends that the court previously held in Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003), that a showing of specific intent is not required under the convention or its implementing regulations. Zubeda discussed at length whether “rape can constitute torture” when it is inflicted with the requisite intent, imposed for one of the purposes specified under the convention, and inflicted with the knowledge or acquiescence of a public official with custody or control over the victim. Id. at 473. With regards to the intent element, the court considered the applicable regulations and stated:
Although the regulations [8 C.F.R. � 208.18] require that severe pain or suffering be intentionally inflicted, we do not interpret this as a specific intent requirement . . . . The intent requirement [under � 208.18(a)(5)] therefore distinguishes between suffering that is the accidental result of an intended act, and suffering that is purposefully inflicted or the foreseeable consequence of deliberate conduct. However, this is not the same as requiring a specific intent to inflict suffering. Id. at 473.
The court proceeded to note that “requiring an alien to establish the specific intent of his/her persecutors could impose insurmountable obstacles to affording the very protections the community of nations sought to guarantee under the [Convention].” Id. at 474.
This portion of Zubeda is in tension with the holding here. However, the quoted passage of Zubeda, on which Auguste relies, is dicta. The basis of the holding in Zubeda was limited to the defects in the BIA’s reversal of the IJ’s ruling that Zubeda was entitled to relief under the CAT. In fact, the INS agreed that, in light of these defects, “the most appropriate resolution [was] to remand to the Immigration Judge for clarification and additional evidence.” Id. at 465. The discussion of the specific-intent standard in 8 C.F.R. � 208.18(a)(5) was not necessary to a finding of the defects in the BIA’s opinion. Moreover, it does not appear that the meaning of the specific-intent standard was challenged in that case, as there is no discussion of the United States’ ratification history of the convention, nor a discussion of the understandings submitted by the president and agreed to by the Senate.
B. Auguste argues that the BIA erroneously set the burden of proof in 8 C.F.R. � 208.16(c)(2) to require an alien seeking relief under the convention to show that it is “more likely than not” that he would be tortured on removal, rather than the standard Auguste contends is required under Article 3 of the convention, which requires a showing of “substantial grounds for believing that he would be in danger of being subjected to torture.”
On several prior occasions, the court has applied the “more likely than not” standard in evaluating claims for relief under the convention. Prior uses of the “more likely than not” standard constitute precedent in this matter, and the court is bound to apply the standard contained in 8 C.F.R. � 208.16(c)(2) to resolve Auguste’s claim.
Furthermore, the “more likely than not” standard is the correct standard to be applied for CAT claims. The “more likely than not” standard has its origins in identical understandings submitted by Presidents Reagan and Bush with regards to Article 3 of the convention, and adopted by the Senate in its resolution of ratification, stating that the “United States understands the phrase ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in Article 3 of the Convention, to mean ‘if it is more likely than not that he would be tortured.’” This standard was then codified into domestic law through � 2242(b) of FARRA, which directed the relevant agencies to adopt regulations implementing the United States’ obligations under the convention “subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.” See 8 U.S.C. � 1231 note. Accordingly, in evaluating Auguste’s claim that he is entitled to relief under the convention, the court must apply the “more likely than not” standard contained in 8 C.F.R. � 208.16(c)(2).
For an act to constitute torture under the convention and the implementing regulations, it must be (1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) not arising from lawful sanctions. See Matter of J-E-, 23 I.&N. Dec. at 297 (citing 8 C.F.R. � 208.18(a)).
The government of Haiti uses a preventive detention policy for criminal deportees. In Matter of J-E-, the BIA made an alternative ruling why the policy of indefinite detention does not constitute torture, specifically 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.” 23 I.&N. Dec. at 300.
Auguste contends that his detention in harsh and brutal prison conditions constitutes torture. There is no doubt that these conditions are objectively deplorable. In Matter of J-E-, the BIA found from the record that the Haitian prison conditions were “the result of budgetary and management problems as well as the country’s severe economic difficulties.” Matter of J-E-, 23 I.&N. Dec. at 301. In addition, the BIA found that “although lacking in resources and effective management, the Haitian government is attempting to improve its prison systems,” and that the Haitian government “freely permitted the ICRC [International Committee of the Red Cross], the Haitian Red Cross, MICAH [International Civilian Mission for Support in Haiti], and other human rights groups to enter prisons and police stations, monitor conditions, and assist prisoners with medical care, food, and legal aid.” Id. (citations omitted).
However, the BIA found that placing detainees in these prison conditions did not constitute torture because there was no evidence that the Haitian authorities had the specific intent to create or maintain these conditions so as to inflict severe pain or suffering on the detainees. Id. The District Court, relying on Matter of J-E-, agreed.
Auguste, however, challenges the conclusion of the District Court and the BIA in Matter of J-E- that the Haitian authorities do not have the requisite specific intent under 8 C.F.R. � 208.18(a)(5). The BIA’s finding that the prison conditions are the result of budgetary and management problems is a factual finding that falls outside the scope of habeas review. However, Auguste’s contention that the BIA misapplied 8 C.F.R. � 208.18(a)(5) involves the application of law to facts and thus is appropriate on habeas review.
The BIA did not act outside of its authority or contrary to law in Matter of J-E- in concluding that the Haitian authorities lack the requisite specific intent to inflict severe pain and suffering on Auguste, or others like him, within the meaning of 8 C.F.R. � 208.18(a)(5). For an act to constitute torture, the actor must not only intend to commit the act but also intend to achieve the consequences of the act. In this case, the latter is lacking. As the BIA found in Matter of J-E-, the prison conditions, which are the cause of the pain and suffering of the detainees, result from Haiti’s economic and social ills, not from any intent to inflict severe pain and suffering on detainees by, for instance, creating or maintaining the deplorable prison conditions. The 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. The difference goes to the heart of the distinction between general and specific intent.
In effect, Auguste is complaining about the general state of affairs that exists in Haitian prisons. The brutal conditions are faced by all prisoners and are not suffered in a unique way by any particular detainee or inmate. The pain and suffering that the prisoners experience in Haiti cannot be said to be inflicted with a specific intent by the Haitian government within the meaning of 8 C.F.R. � 208.18(a)(5).
If there is evidence that authorities are placing an individual in such conditions with the intent to inflict severe pain and suffering on that individual, such an act may rise to the level of torture should the other requirements of the convention be met. But the situation here does not support a finding that Auguste will face torture under the only definition that is relevant for our purposes � the definition contained in the convention and the implementing regulations.
Finally, Auguste points to reports of physical beatings of prisoners by prison guards as evidence that he faces torture on his removal to Haiti. Auguste has not alleged any past torture, nor has he offered any evidence tending to show that he faces an increased likelihood of torture anymore than the alien in Matter of J-E-.
Affirmed.
� Digested by Steven P. Bann
[The slip opinion is 49 pages long.]
For appellant � Robert W. Brundige, Renee C. Redman, Sarah Loomis Cave and Laurence Burger, of the N.Y. bar (Hughes Hubbard & Reed), and Janet Sabel and Bryan Lonegan (The Legal Aid Society, New York, N.Y.). For appellees � Stuart A. Minkowitz, Assistant U.S. Attorney (Christopher J. Christie, U.S. Attorney) and Robert D. McCallum Jr., Assistant Attorney General, and Margaret Perry, Office of Immigration Litigation (U.S. Department of Justice, Civil Division, Washington, D.C.).
