Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-2005

Auguste v. Secretary Homeland
Precedential or Non-Precedential: Precedential

Docket No. 04-1739




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                                            PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 04-1739




        NAPOLEON BONAPARTE AUGUSTE,

                       Appellant

                           v.

    THOMAS RIDGE, SECRETARY, UNITED STATES
   DEPARTMENT OF HOMELAND SECURITY; JOHN
  ASHCROFT, ATTORNEY GENERAL OF THE UNITED
 STATES; MICHAEL GARCIA, ASSISTANT SECRETARY,
     BUREAU OF IMMIGRATION AND CUSTOMS
  ENFORCEMENT (BICE); ANTHONY S. TANGEMAN,
DIRECTOR OF DETENTION AND REMOVAL, BICE; JOHN
CARBONE, DETENTION AND REMOVAL FIELD OFFICE
 DIRECTOR - NEW JERSEY, BICE; MICHAEL T. ABODE,
WARDEN, MIDDLESEX COUNTY ADULT CORRECTIONS
                   CENTER.




     On Appeal from the United States District Court
              for the District of New Jersey
                 (D.C. No. 04-cv-01094)
        District Judge: Honorable Joel A. Pisano


               Argued November 1, 2004

 Before: ALITO, FUENTES, and BECKER, Circuit Judges.

                (Filed: January 20, 2005)
Robert W. Brundige
Renee C. Redman (ARGUED)
Sarah Loomis Cave
Laurence Burger
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004

The Legal Aid Society
Janet Sabel, Supervising Attorney
Immigration Law Unit
Bryan Lonegan, Of Counsel
199 Water Street
New York, New York 10038

ATTORNEYS FOR APPELLANT

Christopher J. Christie
United States Attorney, District of New Jersey
Stuart A. Minkowitz (ARGUED)
Assistant United States Attorney, District of New Jersey
970 Broad Street, Suite 700
Newark, New Jersey 07102

Robert D. M cCallum, Jr.
Assistant Attorney General
Margaret Perry
Senior Litigation Counsel, Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, DC 20044-0878

ATTORNEYS FOR APPELLEES




                    OPINION OF THE COURT


FUENTES, Circuit Judge.

                               -2-
        Napoleon Bonaparte Auguste appeals from the District
Court’s denial of his petition for writ of habeas corpus seeking
relief under the United Nations Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (the
“CAT” or “Convention”). Auguste, who is facing removal to
Haiti, claims that he will be indefinitely detained upon his arrival
in Haiti in prisons that are notorious for their brutal and deplorable
conditions that have been compared to those existing on slave
ships. There is no doubt that the prison conditions that Auguste
and others like him may face upon their removal to Haiti are indeed
miserable and inhuman. However, because we hold that in order
to constitute torture, an act must be inflicted with the specific intent
to cause severe physical or mental pain and suffering, the standard
the President and Senate understood as applying when the United
States ratified the CAT, we find that Auguste is not entitled to
relief. Accordingly, we will affirm the decision of the District
Court.

                           I. Background

        Auguste, a twenty-seven year old male, is a native and
citizen of Haiti who was admitted to the United States as a lawful
permanent resident on December 8, 1987. His entire family lives
in the United States. On April 4, 2003, Auguste was convicted of
Attempted Criminal Sale of a Controlled Substance (cocaine) in the
third degree in Queens County, New York, and sentenced to ten
months imprisonment.

       On July 3, 2003, the Department of Homeland Security,
Bureau of Immigration and Customs Enforcement, issued a notice
to appear charging Auguste with removal on two grounds: (1) as an
alien who has been convicted of a controlled substance violation
pursuant to § 237(a)(2)(B)(i) of the Immigration and Nationality
Act (the “INA” or “Act”), 8 U.S.C. § 1227(a)(2)(B)(i), and (2) as
an alien who has been convicted of an aggravated felony/attempted
drug trafficking crime pursuant to § 237(a)(2)(A)(iii) of the Act, 8
U.S.C. § 1227(a)(2)(A)(iii).



                                  -3-
        Auguste did not contest his eligibility for deportation as
charged and instead, as his defense, applied for deferral of removal
under the CAT and its implementing regulations. With regards to
his claim for relief under the CAT, Auguste argued that he was
entitled to a deferral of removal on the grounds that he faces torture
in Haiti because, as a deported drug offender, he will be detained
by Haitian authorities for an indeterminate amount of time in harsh
and intolerable prison conditions.

       A.     Conditions in Haitian Prisons

        Since at least 2000, it has been the policy of the Haitian
government to detain deported Haitians, who have incurred a
criminal record while residing in the United States and who have
already served their sentences, in preventive detention. The policy
appears to have been motivated by the belief that criminal
deportees pose a threat of recidivist criminal behavior after their
return to Haiti. The length of the detention can vary, lasting in
many instances upwards of several months. Auguste contends that
release often depends on the family members of the deportees
petitioning the Haitian Ministry of Interior for release and their
ability to pay anywhere between $1,000 to $20,000.

       Documentary evidence submitted by Auguste in support of
his CAT claim describes the brutal and harsh conditions that exist
in the Haitian prison system. We recount briefly some of these
conditions. The prison population is held in cells that are so tiny
and overcrowded that prisoners must sleep sitting or standing up,
and in which temperatures can reach as high as 105 degrees
Fahrenheit during the day. Many of the cells lack basic furniture,
such as chairs, mattresses, washbasins or toilets, and are full of
vermin, including roaches, rats, mice and lizards. Prisoners are
occasionally permitted out of their cells for a duration of about five
minutes every two to three days. Because cells lack basic
sanitation facilities, prisoners are provided with buckets or plastic
bags in which to urinate and defecate; the bags are often not
collected for days and spill onto the floor, leaving the floors
covered with urine and feces. There are also indications that prison
authorities provide little or no food or water, and malnutrition and
starvation is a continuous problem. Nor is medical treatment

                                 -4-
provided to prisoners, who suffer from a host of diseases including
tuberculosis, HIV/AIDS, and Beri-Beri, a life-threatening disease
caused by malnutrition. At least one source provided by Auguste
likened the conditions in Haiti’s prisons to a “scene reminiscent of
a slave ship.”

       There are also reports of beatings of prisoners by guards.
State Department reports on conditions in Haiti in 2001 and 2002
discussed police mistreatment of prisoners and noted that there
were isolated allegations of torture by electric shock, as well as
instances in which inmates were burned with cigarettes, choked, or
were severely boxed on the ears, causing ear damage. The
authorities’ record of disciplining police misconduct was, however,
inconsistent.

      The Department of State reported that Haiti remains a “very
poor” country, and that the prison system operates at or near the
same budget level as in 1995. Despite attempts at increasing the
budgetary allocation for prisons, political instability in Haiti was
expected to cause a continuation of budgetary freezes.

       B.     The Convention Against Torture

        Auguste seeks protection under Article 3 of the Convention.
See Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 3, opened for signature
Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S.
85 (entered into force June 26, 1987). Because the history of
ratification of the Convention by the United States will prove
relevant to resolving Auguste’s habeas claim, we recount that
history in some detail.

       The CAT was adopted by the United Nations General
Assembly on December 10, 1984, with the stated purpose to “make
more effective the struggle against torture and other cruel, inhuman
or degrading treatment or punishment throughout the world.” See
Preamble to Convention, S. Treaty Doc. No. 100-20, 1465
U.N.T.S. 85. The CAT represented a continuing process in the
codification of an international legal norm condemning the practice
of torture by public officials, a norm first recognized in several

                                -5-
prior multilateral agreements.1 As the preamble to the CAT
recognizes, it is the obligation of nations under the United Nations
Charter to “promote universal respect for, and observance of,
human rights and fundamental freedoms.” See Preamble to
Convention, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. Since
opening for signature in December 1984, over 130 countries have
signed and/or become parties to the Convention.2

          Article 1 of the CAT defines torture as:

                 [A]ny act by which severe pain or suffering, whether
                 physical or mental, is intentionally inflicted on a
                 person for such purposes as obtaining from him or a
                 third person information or a confession, punishing
                 him for an act he or a third person has committed or
                 is suspected of having committed, or intimidating or
                 coercing him or a third person, or for any reason
                 based on discrimination of any kind, whether such
                 pain or suffering is inflicting by or at the instigation
                 of or within the consent or acquiescence of a public
                 official or other person acting in an official capacity.

      1
     See, e.g., U.N. Charter, chap. IX, art. 55, para. c (directing
United Nations member countries to promote “universal respect
for, and observance of, human rights and fundamental freedoms for
all”); Universal Declaration of Human Rights, art. 5, G.A. Res.
217A (III), U.N. Doc. A/810 (1948) (stating that “[n]o one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment”); International Covenant on Civil and Political Rights,
Dec. 16, 1966, art. 7, 999 U.N.T.S. 171, 6 I.L.M. 368 (stating that
“[n]o one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment”). See generally J Herman
Burgers & Hans Danelius, The United Nations Convention against
Torture: A Handbook on the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment 5-30
(1988).
  2
   See Status of the Ratification of the Convention against Torture
( v i s i t e d            N o v .         2 4 ,      2 0 0 4 )
(http://www.ohchr.org/english/law/cat-ratify.htm).

                                   -6-
              It does not include pain or suffering arising only
              from, inherent in or incident to lawful sanctions.

Art. 1(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. In turn,
Article 3 of the CAT states: “No State Party shall expel, return
(“refouler”) or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of
being subjected to torture.” Art. 3(1), S. Treaty Doc. No. 100-20,
1465 U.N.T.S. 85.

        President Reagan signed the Convention on April 18, 1988,
with the following reservation: “The Government of the United
States of America reserves the right to communicate, upon
ratification, such reservations, interpretive understandings, or
declarations as are deemed necessary.” See Ogbudimpka v.
Ashcroft, 

, 211 (3d Cir. 2003); see also Declarations
a n d Reserv a ti on s ( vi si te d N o v . 2 4 , 2 0 0 4)
(http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI
/chapterIV/treaty14.asp). Approximately one month later, on May
20, 1988, the President transmitted the CAT to the Senate for its
advice and consent with seventeen proposed conditions (four
reservations, nine understandings, and four declarations). See
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, S. Exec. Rep. 101-30, at 2, 7
(1990).

       In response to congressional and public concern regarding
several of the proposed conditions, in January 1990 President
George H. W . Bush submitted a revised and reduced list of
proposed conditions. See 

7-8; see also 

n.11. Of the proposed conditions, President Bush
submitted several understandings, two of which are directly
relevant to this case. First, with respect to Article 1 of the CAT,
the President proposed the understanding that the “United States
understands that, in order to constitute torture, an act must be
specifically intended to inflict severe physical or mental pain or




                                -7-
suffering.” See S. Exec. Rep. 101-30, at 9, 36.3 This first
understanding closely tracked a similar understanding initially
submitted by President Reagan in 1988, which stated that the
United States “understands that, in order to constitute torture, an
act must be a deliberate and calculated act of an extremely cruel
and inhuman nature, specifically intended to inflict excruciating
and agonizing physical or mental pain or suffering.” See S. Exec.
Rep. 101-30, at 15.4 Second, with respect to Article 3 of the CAT,
President Bush submitted an understanding, previously submitted
by President Reagan, 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.’” See S. Exec. Rep. 101-30, at 16, 36.5


      3
    In a cover letter from Janet G. Mullins, Assistant Secretary,
Legislative Affairs, Department of State, to Senator Claiborne Pell,
Chairman of the Senate Committee on Foreign Relations,
transmitting President Bush’s revised reservations, understandings,
and declarations to the CAT, it was stated that the revised
understanding “maintains our position that specific intent is
required for torture.” See S. Exec. Rep. 101-30, at 35 (App. A).
  4
   A summary and technical analysis of the Convention submitted
by President Reagan to the Senate further stated: “[T]he
requirement of intent to cause severe pain and suffering is of
particular importance in the case of alleged mental pain and
suffering, as well as in cases where unexpectedly severe physical
suffering is caused. Because specific intent is required, an act that
results in unanticipated and unintended severity of pain and
suffering is not torture for purposes of this Convention.” See S.
Exec. Rep. 101-30, at 13-14.
  5
      The Senate Report explains why this understanding was added:

                Article 3 forbids a State Party from forcibly
                returning a person to a country where there are
                “substantial grounds for believing that he would be
                in danger of being subjected to torture.”


                                 -8-
        The Senate adopted a resolution of advice and consent to
ratification of the CAT on October 27, 1990, subject to several
reservations, understandings, and declarations. See 136 Cong. Rec.
S17,486, S17491-92 (daily ed. 1990) (“Senate Resolution”).
Importantly, the Senate adopted the two understandings proposed
by President Bush with respect to Articles 1 and 3 of the
Convention. Thus, the Senate explained that with reference to the
definition of torture contained in Article 1 of the CAT, the “United
States understands that, in order to constitute torture, an act must
be specifically intended to inflict severe physical or mental pain or
suffering.” See Senate 

, II.1(a). Moreover, the
Senate explained that with reference to the standard of proof
required in Article 3 of the CAT, 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.’” See Senate 

, II.2.




              Under U.S. immigration law, the United States can
              not deport an individual if “it is more likely than not
              that the alien would be subject to persecution.” INS
              v. Stevic, 

(1984). U.S. immigration
              law also provides that asylum may be granted to an
              alien who is unwilling to return to his home country
              “because of persecution or a well-founded fear of
              persecution.” INS v. Cardoza-Fonseca, 

(1987).

              The administration’s proposed understanding adopts
              the more stringent Stevic standard because the
              administration regards the nonrefoulement
              prohibition of article 3 as analogous to mandatory
              withholding of deportation. Therefore, article 3
              would apply when it is “more likely than not” that
              the individual would be tortured upon return.

       See S. Exec. Rep. 101-30, at 10.

                                -9-
        Finally, pursuant to Article 26 of the Convention, President
Clinton deposited the instrument of ratification with the United
Nations on October 21, 1994.6 See Regulations Concerning the
Convention Against Torture, 64 Fed. Reg. 8478, 8478 (Feb. 19,
1999); see also Status of the [Convention] (visited Nov. 24, 2004)
(http://www.un.org/documents/ga/docs/53/plenary/a53-253.htm).
Notably, the President included the Senate understandings in the
instrument of ratification. See 1830 U.N .T.S. 320, 321, 322
(1994); Declarations and Reservations made upon Ratification,
Accession, or Succession (visited Nov. 24, 2004)
(http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI
/chapterIV/treaty14.asp).

       Because the resolution of advice and consent specified that
the CAT was not self-executing, Congress proceeded to pass
legislation in order to implement the United States’ obligations
under the Convention in 1998 with the Foreign Affairs Reform and
Restructuring Act (“FARRA”). See Pub. L. No. 105-227, Div. G.,
Title XXII, § 2242, 112 Stat. 2681, 2681-822, codified as note to
8 U.S.C. § 1231.7 The first section of FARRA, § 2242(a),

 6
   Article 26 of the Convention states in pertinent part: “Accession
shall be effected by the deposit of an instrument of accession with
the Secretary-General of the United Nations.” See art. 26, S. Treaty
Doc. No. 100-20, 1465 U.N.T.S. 85.
     7
     Treaties that are not self-executing do not create judicially-
enforceable rights unless they are first given effect by
implementing legislation. See 

(citing Mannington Mills, Inc. v. Congoleum Corp., 

,
1298 (3d Cir. 1979)). Several circuits have already determined that
the CAT is not self-executing. See, e.g., Reyes-Sanchez v. United
States Attorney Gen., 

, 1240 n.1 (11th Cir. 2004);
Saint Fort v. Ashcroft, 

, 202 (1st Cir. 2003); Wang v.
Ashcroft, 

, 140 (2d Cir. 2003); Castellano-Chacon v.
INS, 

, 551 (6th Cir. 2003). This Court, however, has
not previously addressed whether the CAT is self-executing. See

n.22 (noting that because Congress
passed FARRA to implement the United States’ obligations under
the CAT, “we need not consider whether CAT is self-executing”).

                               -10-
contained a general statement of congressional policy, providing
that: “It shall be the policy of the United States not to expel,
extradite, or otherwise effect the involuntary return of any person
to a country in which there are substantial grounds for believing the
person would be in danger of being subjected to torture.” In turn,
§ 2242(b), which substantively implements the CAT, directed “the
heads of the appropriate agencies” to “prescribe regulations to
implement the obligations of the United States under Article 3 of
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.

       In accordance with § 2242(b) of FARRA, the Department
of Justice, of which the Immigration and Naturalization Service
(“INS”) at that time was a division, promulgated regulations setting
forth the procedures by which individuals could seek relief
pursuant to the CAT. See 64 Fed. Reg. 8478 (Feb. 19, 1999),
codified at 8 C.F.R. §§ 208.16(c), .17, & .18(a) (2004).
Section 208.18(a) sets out the definitions to be used in applying the
United States’ obligations under the CAT and states: “The
definitions in this subsection incorporate the definition of torture
contained in Article 1 of the [Convention], subject to the



As noted later, we decide that the Convention is not self-executing.

       On a side note, in Ogbudimpka, we briefly considered
whether a claim seeking relief from removal on the grounds of
alleged future torture should be called a “CAT claim” or a
“FARRA 

n.24. We noted that, if it were
true that the Convention was not self-executing, then strictly
speaking an alien would seek relief under FARRA, and not the
Convention. 

given that the language of
FARRA is virtually identical to the language of Article 3 of the
Convention, we concluded that the difference between the
terminology of a “CAT claim” versus a “FARRA claim” was
inconsequential. 

used there, and we continue
to use here, the colloquial reference to a “CAT claim” rather than
a “FARRA claim” in discussing Auguste’s requested relief. 

understandings, declarations, and provisos contained
in the [Senate] resolution of ratification of the Convention.” 8
C.F.R. § 208.18(a). Section 208.18(a)(1) proceeds then to adopt a
basic definition of torture, mirroring the definition of torture in
Article 1 of the CAT, which is then clarified by six additional
provisions, several of which are relevant in this matter:

              (a)(1) Torture is defined as any act by which severe
              pain or suffering, whether physical or mental, is
              intentionally inflicted on a person for such purposes
              as obtaining from him or her or a third person
              information or a confession, punishing him or her for
              an act he or she or a third person has committed or is
              suspected of having committed, or intimidating or
              coercing him or her or a third person, or for any
              reason based on discrimination of any kind, when
              such pain or suffering is inflicted by or at the
              instigation of or with the consent or acquiescence of
              a public official or other person acting in an official
              capacity.

              (a)(2) Torture is an extreme form of cruel and
              inhuman treatment and does not include lesser forms
              of cruel, inhuman or degrading treatment or
              punishment that do not amount to torture.

              (a)(3) Torture does not include pain or suffering
              arising only from, inherent in or incidental to lawful
              sanctions . . . .

              (a)(5) In order to constitute torture, an act 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.

       In addition to clarifying the definition of torture that is to
apply in the domestic context, the Department of Justice also
promulgated regulations specifying the elements and burden of
proof for a CAT claim. Section 208.16(c)(2), which tracks the

                                -12-
understanding proposed by the President and adopted by the Senate
in its resolution of ratification, states that “[t]he burden of proof is
on the applicant for withholding of removal to establish that it is
more likely than not that he or she would be tortured if removed to
the proposed country of removal.” 8 If an applicant establishes that
he “more likely than not would be tortured” upon return to his
home country, withholding of removal or deferral of removal is
mandatory. See 8 C.F.R. §§ 208.16(c)(3) and (4). The objective
evidence to be considered in evaluating a CAT claim includes
“[e]vidence of past torture inflicted upon the applicant;”
“[e]vidence of gross, flagrant or mass violations of human rights
within the country of removal;” and “[o]ther relevant information
regarding conditions in the country of removal.” See 8 C.F.R.
§ 208.16(c)(3); see also 8 C.F.R. § 208.17(a).9

  8
   Auguste seeks deferral of removal, not withholding of removal.
Regulations for withholding of removal are set out at 8 C.F.R.
§ 208.16, while regulations for deferral of removal are set out at 8
C.F.R. § 208.17. However, the general standards of eligibility for
each are identical, i.e., a requirement that an alien establish that
future “torture” is “more likely than not.” See 8 C.F.R.
§ 208.16(c), .17(a); see also 64 Fed. Reg. 8478, 8481 (noting that
Ҥ 208.17(a) is subject to the same standard of proof and
definitional provisions as § 208.16(c)”).
  9
   Applications for relief under the CAT are not the only instance
in which courts address torture-related claims. For instance,
pursuant to Articles 4 and 5 of the Convention, the United States
enacted §§ 2340-2340A of the U.S. Criminal Code, which
criminalize torture in the United States and defines torture as any
“act committed by a person acting under the color of law
specifically intended to inflict severe physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or physical
control.” 18 U.S.C. §§ 2340-2340A.

       In addition, the Torture Victims Protection Act (“TVPA”),
28 U.S.C. § 1350 note (2000), provides a civil tort remedy for
victims of torture. Torture is defined under the TVPA as:


                                 -13-
       C.     The Immigration Judge’s Decision

        On November 12, 2003, an immigration judge (“IJ”) issued
an oral decision finding Auguste ineligible for deferral of removal
under the CAT. The IJ began by noting that Auguste had conceded
that he had never been tortured in the past in Haiti, and that his
application was based on the likelihood that he would be detained
upon arrival and subject to harsh prison conditions. (J.A. 43.) In
denying Auguste’s claim for CAT relief, the IJ found that the
matter was governed by the Board of Immigration Appeals’
(“BIA”) decision in Matter of J-E-, 23 I. & N. Dec. 291 (BIA
2002), a 13-5 decision interpreting the elements of a claim for
relief under the CAT.

       In Matter of J-E-, the BIA considered the same issue raised
by Auguste: whether Haiti’s indefinite detention of criminal
deportees, the deplorable prison conditions in Haiti, and the
physical abuse of prisoners constitute “torture” as that term is
defined under the Convention and the implementing regulations.

The BIA emphasized that the Convention itself
expressly differentiates between “torture” and “other acts of cruel,
inhuman or degrading treatment or punishment.” 

              any act, directed against an individual in the
              offender’s custody or physical control, by which
              severe pain or suffering (other than pain or suffering
              arising only from or inherent in, or incidental to,
              lawful sanctions), whether physical or mental, is
              intentionally inflicted on that individual for such
              purposes as obtaining from that individual or a third
              person information or a confession, punishing that
              individual for an act that individual or a third person
              has committed or is suspected of having committed,
              intimidating or coercing that individual or a third
              person, or for any reason based on discrimination of
              any kind.
  10
    “Torture” is prohibited by Article 1 of the CAT, while “other
acts of cruel, inhuman or degrading treatment or punishment” are

                               -14-
Only those acts that constitute torture under Article 1 trigger the
requirement that an individual’s return to the removal country be
suspended. 

the difference between “torture” and
“other acts of cruel, inhuman or degrading treatment or
punishment,” the BIA noted that “the act [of torture] must cause
severe pain or suffering, physical or mental. It must be an extreme
form of cruel and inhuman treatment, not lesser forms of cruel,
inhuman, or degrading treatment or punishment that do not amount
to torture.” 

(citing 8 C.F.R. §§ 208.18(a)(1),(2)).

        With reference to the regulations implementing the CAT,
the BIA summarized a five-part test for determining whether an act
rises to the level of torture:

              For an act to constitute torture it must be: (1) an act
              causing severe physical or mental pain or suffering;
              (2) intentionally inflicted; (3) for a 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.

Matter of J-E-, 23 I. & N. Dec. at 297. As to the second element,
that of intent, the BIA explained that the “act must be specifically
intended to inflict severe physical or mental pain or suffering. This
specific intent requirement is taken directly from the understanding
contained in the Senate ratification resolution . . . . Thus, an act
that results in unanticipated or unintended severity of pain or
suffering does not constitute torture.” 

(citation omitted).
The BIA went on to define “specific intent” with reference to its
common legal definition: “specific intent is defined as the intent to
accomplish the precise criminal act that one is later charged with
while general intent commonly takes the form of recklessness.” 

(quoting Black’s Law Dictionary 813-14 (7th ed. 1999)).

      In light of the requirements of 8 C.F.R. § 208.18(a), the BIA
in Matter of J-E- considered whether any of the alleged state



prohibited by Article 16 of the CAT. 

                                -15-
actions by Haiti – indefinite detention, inhuman prison conditions,
and police mistreatment – constituted torture. First, with regards
to the policy of indefinite detention, the BIA concluded that it
appeared to be a “lawful enforcement sanction designed by the
Haitian Ministry of Justice to protect the populace from criminal
acts committed by Haitians who are forced to return to the country
after having been convicted of crimes abroad.” 

Accordingly, the BIA concluded that the detention policy was a
lawful sanction and, standing alone, did not constitute torture by
virtue of 8 C.F.R. § 208.18(a)(3). See 

the BIA
noted 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” within the meaning of
8 C.F.R. § 208.18(a)(1). See 

regards to the inhuman prison conditions in
Haiti, even when coupled with the possibility of indefinite
detention, the BIA again concluded that this did not constitute
torture. In particular, the BIA noted that there was “no evidence
that they are intentionally and deliberately creating and maintaining
such prison conditions in order to inflict torture.” 

(citing
8 C.F.R. §§208.18(a)(1), (5)). The BIA noted that this specific
intent requirement was drawn from the Senate’s understanding,
which accompanied the resolution of advice and consent, and was
distinct from a general intent requirement. See 

contrary,
the BIA concluded that the prison conditions were not the result of
any specific intent to inflict severe physical or mental pain or
suffering, but rather were the “result of budgetary and management
problems as well as the country’s severe economic difficulties.”

BIA considered whether police mistreatment of
prisoners constituted torture. The BIA noted that there had been
reports of isolated instances of police mistreatment, some of which
could rise to the level of torture. See 

In particular, the
BIA noted that while certain “[i]nstances of police brutality do not
necessarily rise to the level of torture . . . deliberate vicious acts
such as burning with cigarettes, choking, hooding, kalot marassa
[severe boxing of the ears, which can result in eardrum damage],
and electric shock may constitute acts of torture.” 

the alien in Matter of J-E- had shown that acts of torture have
occurred in Haitian prisons, the BIA concluded that he had failed
to satisfy the requisite burden of proof, i.e., that it was more likely
than not that he would be tortured if returned to Haiti. See 

The alien had made no claim of past torture, and the basis
of his CAT claim was premised on the possibility that he would be
subject to police mistreatment when detained in a Haitian prison.
Accordingly, the BIA concluded that the alien had failed to
establish that the severe yet isolated instances of mistreatment were
“so pervasive as to establish a probability that a person detained in
a Haitian prison will be subject to torture, as opposed to other acts
of cruel, inhuman, or degrading punishment or treatment.” 

In other words, the alien’s evidence had failed to show that
he as an individual in a Haitian prison was more likely than not to
suffer “torture,” as defined by the CAT, as opposed to “other acts
of cruel, inhuman or degrading punishment or treatment.” Id.12

       Returning to the present matter, the IJ found Auguste’s CAT
claim to be virtually indistinguishable from the matter presented in

   11
     In considering whether an alien has satisfied his burden of
proof, the BIA stated that:

               all evidence relevant to the possibility of future
               torture shall be considered, including, but not limited
               to: (1) evidence of past torture inflicted upon the
               applicant; (2) evidence that the applicant could
               relocate to a part of the country of removal where he
               or she is not likely to be tortured; (3) evidence of
               gross, flagrant, or mass violations of human rights
               within the country of removal, where applicable; and
               (4) other relevant information regarding conditions
               in the country of removal.

        Matter of J-E-, 23 I. & N. Dec. at 303 (citing 8 C.F.R.
        § 208.16(c)(3)).
   12
    It does not appear that the aggrieved alien in Matter of J-E-
appealed the adverse decision of the BIA or otherwise filed a
habeas petition.

                                 -17-
Matter of J-E-, noting that counsel “for [Auguste] is not claiming
here today that the situation in Haiti is somehow different from the
situation that confronted the [alien] in [Matter of J-E-].” (J.A. 46.)
Accordingly, the IJ denied Auguste’s request for deferral of
removal. Auguste appealed the IJ’s decision to the BIA, which, on
February 27, 2004, affirmed the IJ’s decision without an opinion.
Accordingly, the IJ’s decision is the final agency determination for
purposes of our review. See Dia v. Ashcroft, 

(3d Cir.
2003) (en banc).

       D.     Auguste’s Habeas Petition

        On March 9, 2004, in the District of New Jersey, Auguste
filed a Verified Petition for a Writ of Habeas Corpus and
Complaint for Declaratory and Injunctive Relief, as well as a
request for a stay of removal, on the grounds that the decision of
the IJ, as affirmed by the BIA, erroneously denied him relief under
the Convention for deferral of removal to Haiti. Count One of
Auguste’s petition alleged that his CAT claim was denied
improperly based on Matter of J-E-’s interpretation of the phrase
“specifically intended” in 8 C.F.R. § 208.18(a)(5) to require a
showing of “specific intent” as that term is used in U.S. criminal
law. In addition, Auguste contended that the BIA in Matter of J-E-
erroneously concluded that the detention of criminal deportees in
harsh and deplorable prison conditions did not constitute torture.
Count Two of Auguste’s petition alleged that his CAT claim was
improperly denied because the Department of Justice had adopted
regulations at 8 C.F.R. § 208.16(c)(2) that set the burden of proof
for CAT relief higher than what was required by Article 3 of the
Convention and FARRA.

       The District Court began by noting that the conditions which
Auguste would be subjected to in Haiti “can objectively be
described as horrifying prison conditions which are inflicted upon
anyone unfortunate enough to find themselves in custody in Haiti.”
(J.A. 14.) Nonetheless, the District Court denied Auguste’s habeas
petition 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 noted that “we have
circumstances here where we have simply the allegation of general

                                -18-
prison conditions in Haiti. So it does not appear to me that
[Auguste] has made any showing that his pain and suffering or
physical or mental injury would be intentionally inflicted.” (J.A.
15.) 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.” (J.A. 18.) 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.

       This timely appeal followed.

       II. JURISDICTION AND SCOPE OF REVIEW

        As an alien convicted of an aggravated felony/drug
trafficking crime and removable on such grounds, Auguste is
statutorily barred from filing a petition for direct review from the
BIA’s decision to a court of appeals challenging his ineligibility for
relief under the CAT. See 8 U.S.C. § 1252; see also Bakhtriger v.
Elwood, 

, 420 (3d Cir. 2004). Several of the circuits,
including this one, however, have concluded that aliens convicted
of crimes retain the right to seek relief under the traditional habeas
statute for alleged violations of the Convention. See 

; see also Cadet v. Bulger, 

, 1182
(11th Cir. 2004); Saint Fort v. Ashcroft, 

, 200-02 (1st
Cir. 2003); Wang v. Ashcroft, 

, 140-43 (2d Cir.
2003); Singh v. Ashcroft, 

, 441-42 (9th Cir. 2003).
We have jurisdiction over appeals involving habeas petitions filed
in the District Court pursuant to 28 U.S.C. §§ 1291, 2241, and
2253.

        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. On direct petitions
for review, we review factual findings made by an immigration
judge or the BIA under the familiar substantial evidence standard.
See Mulanga v. Ashcroft, 

, 131 (3d Cir. 2003); see
also 

. However, on a habeas petition, our

                                -19-
review does not extend so far. It 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. See 

(“In the wake of
[INS v. St. Cyr, 

(2001)] we are not aware of any
cases that have upheld habeas review of factual findings or
discretionary determinations in criminal alien removal cases.”);

; see also 

;
Bravo v. Ashcroft, 

, 592 (5th Cir. 2003); Gutierrez-
Chavez v. INS, 

, 829-30 (9th Cir. 2002), amended by

; Carranza v. INS, 

, 71-73 (1st Cir.
2002); Sol v. INS, 

, 651 (2d Cir. 2001); Bowrin v.
INS,194 F.3d 483, 489-90 (4th Cir. 1999). 13


     13
       We note that neither party has addressed whether the
regulation-specific jurisdiction-stripping provision of § 2242(d) of
FARRA affects our jurisdiction in this matter. See § 2242(d)
(“[N]o court shall have jurisdiction to review the regulations
adopted to implement this section.”). In Ogbudimpka, we held that
a different aspect of § 2242(d), stating that “nothing in this section
shall be construed as providing any court jurisdiction to consider
or review claims raised under the Convention . . . except as part of
a review of a final order of removal,” does not affect habeas
review. See 

(noting that
“Ogbudimkpa does not challenge the regulations themselves, but
the IJ’s application of the regulations to his case, and thus [the
regulation-specific jurisdiction-stripping] provision is not
implicated”).     The regulation-specific jurisdiction-stripping
provision may be relevant insofar as any of Auguste’s arguments
may be construed as challenging the regulations themselves,
instead of their application to his case.

       We believe the rationale behind Ogbudimpka applies here
with the same force. In St. Cyr, the Supreme Court held that “at
the absolute minimum, the Suspension Clause protects the writ [of
habeas corpus] as it existed in 

(internal
quotation omitted). The Court found that, at that time, “the
issuance of the writ was not limited to challenges to the jurisdiction

                                -20-
      Keeping in mind the narrow scope of our habeas review, we
now turn to consider Auguste’s appeal.

                         III. ANALYSIS

        In his appeal from the denial of his habeas petition, Auguste
raises three arguments. First, Auguste contends that the BIA erred
as a matter of law in Matter of J-E-, upon which the IJ relied in
denying Auguste’s application, in construing the definition of
torture in 8 C.F.R. § 208.18(a)(1) and (a)(5) to require a showing
of “specific intent” to inflict severe pain and suffering. Auguste
contends that such a specific intent requirement is inconsistent with
the Convention’s commonly understood international interpretation
as well as the Third Circuit’s prior decision in Zubeda v. Ashcroft,

(3d Cir. 2003). Second, Auguste contends that the
Department of Justice promulgated regulations at 8 C.F.R.
§ 208.16(c)(2), which require that an alien show “more likely than
not that he or she would be tortured,” that are inconsistent with
Article 3 of the Convention, which only requires that an alien show
that there are “substantial grounds for believing the person would
be in danger of being subjected to torture.” Finally, Auguste
contends that even if the specific intent standard is the correct
standard in defining torture, and even if the correct burden of proof
is the “more likely than not” standard, he is nonetheless entitled to
relief under the Convention because Haitian authorities knowingly
and purposefully detain criminal deportees, such as him, in prison
conditions that he contends are tortuous.



of the custodian, but encompassed detentions based on errors of
law, including the erroneous application or interpretation of
statutes.” 

Thus, just as the wholesale jurisdiction-
stripping provision of FARRA cannot eliminate habeas jurisdiction
without what has been termed a “superclear statement” or “magic
words,” 

(Scalia, J., dissenting) (characterizing the
requirement set forth by the majority), the regulation-specific
jurisdiction-stripping provision may not restrict that jurisdiction
beyond its 1789 form without such an unmistakably clear
statement, which is lacking in either provision of § 2242(d).

                                -21-
       We address each argument in turn.

       A.     The Standard of Intent Required for CAT Relief

                                 1.

        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.” In Matter of J-E-, the BIA stated that the “ratification
[history of the CAT] make it clear that this is a ‘specific intent’
requirement not a ‘general intent’ requirement.” 23 I. & N. Dec.
at 300-01. Thereafter, the BIA defined the term “specific intent”
by its ordinary usage in American law as the “intent to accomplish
the precise criminal act that one is later charged with.” 

(internal quotations omitted). Auguste, however, contends that the
specific intent standard is at odds with the prevailing and
commonly understood meaning of Article 1 of the Convention.
Auguste argues that the infliction of severe pain and suffering, so
long as the pain and suffering is not unanticipated or unintended,
would satisfy the definition of torture under Article 1 of the
Convention, and that the BIA’s specific intent standard is in
conflict with the more liberal standard he proposes. Auguste in
effect suggests that a general intent standard would satisfy the
requirements of Article 1 of the Convention, arguing that torture
exists where the “actor had knowledge that the action (or inaction)
might cause severe pain and suffering.” Appellant’s Br. at 25.
Because this involves a pure question of law, we have habeas
jurisdiction over the issue. See 

.14


  14
    This, of course, is not the first instance in which this Court has
applied the standards for relief under the CAT and its regulations.
See, e.g., Sevoian v. Ashcroft, 

, 174-78 (3d Cir. 2002)
(denying alien facing deportation to Republic of Georgia relief
under the CAT). However, we are not aware of a prior decision by
this Court, or any other court, that has analyzed whether the
Department of Justice or the BIA thereunder have faithfully
implemented the United States’ obligations under the Convention.

                                -22-
         The issue that we must resolve then is what the controlling
standard for relief under the Convention is in the domestic context.
Is it, as Auguste contends, the standard of intent that he believes is
the prevailing requirement under international legal interpretations
of the Convention? Or is it, as the Government contends, the
specific intent standard which the Department of Justice adopted
in the Convention’s implementing regulations issued pursuant to
FARRA, and interpreted by the BIA in Matter of J-E-? We
approach this matter mindful of the sensitive considerations that
are raised in Auguste’s habeas petition. Auguste is asking this
Court in effect to declare the administrative regulations
implementing the United States’ obligations under the Convention,
and implicitly the understandings which accompanied the United
States’ ratification, to be inconsistent with the Convention.

        In so doing, Auguste invites this Court to inquire into the
meaning of Article 1 of the Convention, its drafting history, and the
interpretation of Article 1 by various international tribunals.
Should we do so, we would of course not be interpreting the treaty
from scratch, and the Government’s interpretation would be
accorded some deference. “[A]lthough not conclusive,” the
interpretive views of the government agencies that have been
charged with the negotiation and enforcement of a treaty are
“entitled to great weight.” See United States v. Stuart, 

, 369 (1989) (internal citations omitted); see also El Al Israel
Airlines, Ltd. v. Tsui Yuan Tseng, 

, 168 (1999)
(“Respect is ordinarily due to reasonable views of the Executive
Branch concerning the meaning of an international treaty.”)
(internal citations omitted); Kolovrat v. Oregon, 

, 194
(1961). We, however, see no reason to be drawn into a debate
about the appropriate interpretation of Article 1 of the Convention,
or what the prevailing international understanding of the intent
standard required under Article 1 of the Convention is. As will be
discussed below, we believe that we must apply the standard
clearly stated in the ratification record of the United States.

                                  2.

      In FARRA, Congress directed the appropriate agencies to
implement the United States’ obligations under the CAT “subject

                                -23-
to any reservations, understandings, declarations, and provisos
contained in the United States Senate resolution of ratification of
the [CAT].” § 2242(b), codified at 8 U.S.C. § 1231 note. Congress
passed FARRA because the Senate had explicitly included a
declaration in its resolution of ratification that the Convention was
not self-executing. See 

(citing 136
Cong. Rec. 36,198 (1990)). 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, in
our opinion, FARRA codified the Senate’s understandings into
domestic law.

        Auguste, however, contends that the United States’
understanding regarding specific intent was without effect and
could not be enacted into domestic law as part of FARRA. In
particular, 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. 15 Auguste also contends more generally that
an understanding “that conflicts with those of other signatory states


  15
     The United States has not ratified the Vienna Convention on
the Law of Treaties. Nonetheless, several courts have stated that
they look to it “as an authoritative guide to the customary
international law of treaties.” See, e.g., Ehrlich v. Am. Airlines,
Inc., 

, 373 n.5 (2d Cir. 2004).

                                -24-
[is] of little weight,” suggesting at one point that the fact that the
Netherlands objected to the United States’ understanding as overly
restrictive should weigh in this Court’s analysis. Appellant’s Reply
Br. at 11, 14. Thus, according to Auguste, FARRA could not
modify or abrogate the United States’ obligations under the
Convention merely by incorporating the understanding
accompanying the United States’ ratification of the Convention
because that understanding was void under international norms
governing treaty interpretation.16

        The issue of whether and in what circumstances courts
should give effect to reservations, declarations and understandings
to treaties is a hotly contested area of academic debate. See Curtis
A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and
Conditional Consent, 149 U. Pa. L. Rev. 399, 401-02 (2000). To
date, several courts have enforced reservations, understandings, or
declarations, but we are not aware of any court that has considered




 16
    Auguste makes a related argument: because the understandings
were without effect, and thus the interpretation of the Convention
he advocates was in effect upon ratification in the United States, a
clear statement was required by Congress to modify or abrogate the
treaty in FARRA to enact the specific intent standard. Auguste
relies on the well-known rule that a “treaty will not be deemed to
be abrogated or modified by a later statute unless such purpose on
the part of Congress has been clearly expressed.” See Trans World
Airlines v. Franklin Mint Corp., 

, 252 (1984)
(quotations omitted). In Auguste’s view, Congress’ statement in
§ 2242(b) of FARRA directing the appropriate agencies to
implement the United States’ obligations under the CAT “subject
to any reservations, understandings, declarations, and provisos
contained in the United States Senate resolution of ratification of
the [CAT],” 8 U.S.C. § 1231 note, was not a clear enough
statement to modify or abrogate the Convention as it was ratified
by the United States. Because we ultimately conclude that the
understandings must be given domestic legal effect, we need not
address this argument.

                                -25-
their validity in any detail.17 However, we believe that resolution
of this issue in this case is fairly straightforward.

        We begin by noting that the Constitution vests the President
and the U.S. Senate with the responsibility of making treaties,
stating that the President “shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur.” See U.S. Const. art. II,
sec. 2, cl. 2.18 As part of its role in the advice and consent process,
the U.S. Senate has routinely attached conditions to ratification
known as reservations, understandings, and declarations.19


  17
    See, e.g., Igartua de la Rosa v. United States, 

, 10 n.1
(1st Cir. 1994) (enforcing declaration that the International
Covenant on Civil and Political Rights was not self-executing);
Ralk v. Lincoln County, 

, 1380 (S.D. Ga.
2000) (same); Sandhu v. Burke, No. 97 Civ. 4608 (JGK), 

(S.D.N.Y. Feb. 10, 2000) (enforcing declaration that the
CAT was not self-executing); Calderon v. Reno, 

, 956 (N.D. Ill. 1998) (same); White v. Paulsen, 

, 1387 (E.D. Wash. 1998) (same).
       18
      In practice, the treaty-making process operates as follows.
After the executive branch negotiates the terms of a treaty with
foreign nations, and a completed draft is signed, the President
thereafter transmits the treaty to the Senate for its advice and
consent. If the treaty receives the required two-thirds vote, the
Senate sends a resolution to the President approving the treaty.
The President has the discretion at this point to ratify or not ratify
the treaty. Should the President decide to ratify the treaty, he will
sign the instrument of ratification and deposit it in a place typically
specified by the treaty. See Bradley & 

, (citing
Congressional Research Service, Treaties and Other International
Agreements: The Role of the United States Senate, 103rd
Congress, 1st Sess., at 75-120 (1993)).
  19
    Although we are aware of no cases construing the limits of the
Senate’s prerogative to attach reservations, understandings, and
declarations as part of its advice and consent function to
ratification, we note in passing that the Supreme Court has

                                 -26-
        As we recounted at some length above in Part I.B, the
specific intent standard was the standard accepted by both the
President and the Senate during the ratification process. Both
Presidents Reagan and 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. See S. Exec. Rep. 101-30, at 9, 15. The Senate
adopted the language of President Bush’s understanding in its
resolution of ratification. See Senate 

, II.1(a).
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. See 1830
U.N.T.S. 320, 321; Declarations and Reservations made upon
Ratification, Accession, or Succession (visited Nov. 24, 2004)
(http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI
/chapterIV/treaty14.asp).

        Thus, we are presented with a situation where both the
President and the Senate, the two institutions of the federal
government with constitutional roles in the treaty-making process,
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. In our view, 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. We think it so plain a proposition
that the United States may attach an understanding interpreting the
meaning of a treaty provision as part of the ratification process that,
where as here there is clear consensus among the President and
Senate on that meaning, a court is obliged to give that



previously held that the Senate’s ability to put forward its
understanding of a treaty does not extend beyond the ratification
process. See Fourteen Diamond Rings v. United States, 

, 180 (1901) (“The meaning of the treaty cannot be controlled
by subsequent explanations of some of those who may have voted
to ratify it.”).

                                 -27-
understanding effect.

        We find support for this position in the Restatement (Third)
of the Foreign Relations Law of the United States, a persuasive
authority. Section 314(2) of the Restatement 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.”
See Restatement (Third) of the Foreign Relations Law of the
United States § 314 (2004). 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.” See § 314 cmt. d. Thus, we hold
that, 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.

        In so holding, we should be clear what this case is not about.
We are not presented with a situation where the President and the
Senate took contradictory positions on the meaning of a treaty
provision during the ratification process. Nor are we required to
resolve the situation where the President is contending that a
Senate conditionality of ratification is improper, infringes on
executive authority, or is without domestic or international legal
effect. Undoubtedly, these situations, and others like them, would
present more difficult constitutional issues. Instead, we are
presented with a situation where both the President and Senate
shared an understanding as to the meaning of a treaty provision
during the ratification process.

       Thus, because we find that the governing standards to be
applied in the domestic context are those in the understanding that
accompanied the United States’ ratification of the treaty, and which
were later incorporated in FARRA’s implementing legislation, we
believe that Auguste’s claim that a specific intent standard is in
conflict with what he perceives to be the prevailing international
consensus misses the point. Generally, it is true that courts should
interpret treaties so as to give a “meaning consistent with the
shared expectations of the contracting parties.” See Air France v.
Saks, 

, 399 (1985); see also MacNamara v. Korean

                                -28-
Air Lines, 

, 1143 (3d Cir. 1988) (noting that “our
role in treaty interpretation is limited to ascertaining and enforcing
the intent of the treaty parties”). Moreover, it is well-established
that when construing international agreements, courts will often
look to the drafting history of the agreement, as well as the intent
of the other signatory parties, as Auguste now proposes. See

; see also El Al Israel Airlines, 

(“Because a treaty ratified by the United States is not
only the law of this land . . . but also an agreement among
sovereign powers, we have traditionally considered as aids to its
interpretation the negotiating and drafting history (travaux
preparatoires) and the postratification understanding of the
contracting parties.”) (citations omitted). However, we believe that
where the President and the Senate express a shared consensus on
the meaning of a treaty as part of the ratification process, that
meaning is to govern in the domestic context. 20


  20
    In passing, we express some skepticism as to whether it is so
obvious, as Auguste contends, that the United States’
understanding of Article 1 of the Convention as requiring “specific
intent” is inconsistent with the Convention, as he contends it is
generally understood internationally.

        Auguste relies on several sources in support of his
contention that a specific intent standard would be inconsistent
with the common understanding of Article 1 of the Convention.
For instance, he notes that during the negotiations of the treaty, a
U.S. proposal for Article 1 that read “the offence of torture
includes any act by which extremely severe pain and suffering,
whether physical or mental, is deliberately and maliciously
inflicted” was rejected. See Burgers and 

.
However, in our view, it does not follow necessarily that the final
language of Article 1 was a repudiation of a specific intent
standard.

       We also believe it to be telling that both Presidents Reagan
and Bush submitted the condition interpreting Article 1 with the
“specifically intended” language as an understanding, and not as a
reservation or declaration. This suggests to us that the commonly

                                -29-
                                  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. We now consider
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.21


understood meaning at the time of ratification was that, at least to
the United States, the specific intent standard was consistent with
a reasonable interpretation of the language in Article 1.

       In any event, we need not resolve this issue. Whether
specific intent is or is not commonly understood to be part of
Article 1’s definition of torture is not relevant to our holding. But,
as the CAT gains increased attention in light of recent events
abroad, we are confident that the debate on this question will
continue.
  21
   We note that this issue was itself a source of division within the
BIA. In Matter of J-E-, one Board member, in dissent, wrote:

              Contrary to what the majority suggests, the
              regulatory requirement that the torture be
              “specifically intended” does not mean that proof of
              specific intent, as that term is used in American
              criminal prosecutions, is required . . . . The
              majority’s reading of the regulations functionally
              converts the Senate understanding that torture must
              be “specifically intended” into a “specific intent”
              requirement. I disagree. I can find no basis to
              conclude that the Senate understanding was intended
              to require proof of an intent to accomplish a precise
              criminal act, as the majority contends is required.
              Rather, the plain language of the text of 8 C.F.R.
              § 208.18(a)(5) reflects only that something more
              than an accidental consequence is necessary to

                                -30-
       Our resolution of whether the BIA’s interpretation of the
specific intent standard in 8 C.F.R. § 208.18(a)(5) was appropriate
implicates two well-known principles of deference. First, the
BIA’s interpretation and application of immigration law are subject
to Chevron deference. See Tineo v. Ashcroft, 

, 396
(3d Cir. 2003) (“There is no longer any question that the BIA
should be accorded Chevron deference for its interpretations of the
immigration laws.”) (citing INS v. Aguirre-Aguirre, 

,
424 (1999)). 22 Second, this Court owes deference to the agency’s


               establish the probability of torture.

               Nowhere does the regulation state that the
               respondent must prove that the prospective torture he
               may face will result from the torturer’s specific
               intent to torture him. Indeed, it would be difficult, if
               not impossible, to prove specific intent in a
               prospective context.

         23 I. & N. Dec. at 315-16 (Rosenberg, Comm’r, dissenting).

       Another Board member in dissent wrote: “We are in the
early stages of the very difficult and thankless task of construing
the Convention. Only time will tell whether the majority’s narrow
reading of the torture definition and its highly technical approach
to the standard of proof will be the long-term benchmark for our
country’s implementation of this international treaty . . . . I do not
believe the majority adequately carries out the language or the
purposes of the Convention and the implementing regulations.” 

(Schmidt, Comm’r, dissenting).
    22
      Under the Chevron analysis, in determining whether an
agency’s interpretation of the statute which it administers is
reasonable, the initial question is whether the statute is silent or
ambiguous with respect to the specific issue. If the statutory
language is clear, the court need not look any further, and the
agency’s interpretation fails if it is inconsistent with the plain
language. If, however, the statute is silent or ambiguous, the
question for the court is whether the agency’s interpretation is

                                 -31-
interpretation to the extent that the CAT involves issues of
immigration law which may implicate questions of foreign
relations. See INS v. Aguirre-Aguirre, 

, 424 (1999)
(noting that “judicial deference to the Executive Branch is
especially appropriate in the immigration context where officials
exercise especially sensitive political functions that implicate
questions of foreign relations”) (citations omitted).

        In light of these principles, we cannot say 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



based on a permissible construction of the statute. See Chevron
U.S.A. v. Natural Res. Def. Council, Inc., 

(1984).

        Auguste contends that Chevron deference to the BIA’s
interpretation of the Convention is not appropriate because the BIA
does not have any particular expertise in interpreting treaties.
Whether agencies are to be given Chevron deference when
interpreting and implementing treaties is an unsettled topic. See
generally Curtis A. Bradley, Chevron Deference and Foreign
Affairs, 

. Rev. 649 (2000). We note that some courts have
applied or suggested applying Chevron deference to agency
interpretation and implementation of United States’ treaty
obligations. See, e.g., Hill v. Norton, 

, 104 (D.C. Cir.
2001) (applying Chevron framework to agency’s interpretation of
a treaty and an implementing statute); see also Collins v. Nat’l
Transp. Safety Bd., 

, 1251 (D.C. Cir. 2003)
(applying some standard of deference to an agency construction of
a treaty). However, in this matter, because we view the issue as
one of the BIA interpreting and applying FARRA and its
implementing regulations, and not the Convention per se, we do
not believe that resolution of the issue is necessary. This is
particularly so because we believe there is no ambiguity in the
Convention for which we would need to afford the BIA any
deference in the first place. Accordingly, unless there be any
misunderstanding, we afford Chevron deference to the BIA’s
interpretation of FARRA and the implementing regulations in
Matter of J-E- and no more.

                                -32-
criminal law. In other contexts, we have noted that “congressional
intent is presumed to be expressed through the ordinary meaning
of the statute’s plain language.” United States v. Whited, 

, 263 (3d Cir. 2002). We think that the same principle applies
when interpreting an understanding proposed by the President and
adopted by the Senate in its resolution of ratification. Thus, 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. Matter of J-E-, 23 I. & N. Dec. at 301
(“specific intent is defined as the intent to accomplish the precise
criminal act that one is later charged with while general intent
commonly takes the form of recklessness”) (internal quotations
omitted).


       Auguste’s contention that the introduction of criminal law
concepts into the standard for relief under the Convention was in
error because the Convention is not about criminal prosecution, but
rather about protecting the victims of torture, is besides the point.
The specific intent standard is a term of art that is well-known in
American jurisprudence. The Supreme Court has explained that in
order for an individual to have acted with specific intent, he must
expressly intend to achieve the forbidden act. See Carter v. United
States, 

, 269 (2000). In contrast, the more relaxed
general intent standard typically only requires that a defendant
“possessed knowledge with respect to the actus reus of the crime.”
Carter, 530 U.S at 268.23


    23
      In explaining the difference between specific and general
intent, the Supreme Court used the following example to
distinguish the two mental states:

               [A] person entered a bank and took money from a
               teller at gunpoint, but deliberately failed to make a
               quick getaway from the bank in the hope of being
               arrested so that he would be returned to prison and
               treated for alcoholism. Though this defendant

                                 -33-
       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,” Appellant’s Br. at 25, is inconsistent
with the meaning of specific intent.

        Nonetheless, despite what we think is the clear import of the
use of the phrase “specifically intended” in 8 C.F.R. § 208.18(a)(5)
and the understanding attached to ratification, the Government
inserted a curious footnote in its Brief to this Court, stating that:

              There has been some confusion about the [BIA’s]
              reading of the specific-intent requirement. At one
              point in [Matter of J-E-] the majority stated that,
              “[a]lthough Haitian authorities are intentionally
              detaining criminal deportees knowing that the
              detention facilities are substandard, there is no
              evidence that they are intentionally and deliberately
              creating and maintaining such prison conditions in
              order to inflict torture.” 23 I. & N. Dec. at 301.
              However, when read in light of the majority’s other
              statements describing the intent requirement quoted
              above, it is clear that this was not a heightened strict-



              knowingly engaged in the acts of using force and
              taking money (satisfying “general intent”), he did not
              intend permanently to deprive the bank of its
              possession of the money (failing to satisfy “specific
              intent”).

       

(citing United States v. Lewis, 

, 1279 (10th Cir. 1980)).

                                -34-
               intent standard.

               Nonetheless, one of the dissenting Board members
               [in Matter of J-E-] accused the [BIA] of imposing a
               requirement that an alien “pro[ve] . . . an intent to
               accomplish a precise criminal act” and “the torture’s
               [sic] specific intent to torture [the victim].” See
               Matter of J-E- at 315 (Rosenberg, L., dissenting).
               This is not what the majority concluded, given a full
               reading of its decision and the excerpts quoted
               above.

Appellee’s Br. at 40. Not surprisingly, Auguste seizes on this
statement, and argues that it merits reversal in this matter, stating
that he finds “it difficult to believe that the [BIA] did not require
a heightened specific-intent requirement” in Matter of J-E-.
Appellant’s Reply Br. at 15.

         We see the source of the Government’s concern. Standing
alone, the problematic statement in Matter of J-E-, which the
Government now disavows, could be read to impose a “heightened
strict intent” or a “specific intent plus” standard. The statement can
be broken down as follows: the Haitian authorities (1) intend the
act of detaining deportees (“Haitian authorities are intentionally
detaining criminal deportees knowing that the detention facilities
are substandard”) but (2) lack an intent to inflict severe pain and
suffering (“there is no evidence that they are intentionally and
deliberately creating and maintaining such prison conditions”) and
(3) lack an intent to inflict torture (“in order to inflict torture”). As
the Government suggests, we think this last element goes too far
and is not required under the specific intent standard.
Section 208.18(a)(5) only requires that the act be specifically
intended to inflict severe pain and suffering, not that the actor
intended to commit torture. The two are distinct and separate
inquiries.

       However, we disagree with Auguste that this single
troubling statement in Matter of J-E- renders the entire decision of
the BIA in error. The statement should not be read out of context,
and the rest of the opinion clearly indicates that the BIA

                                  -35-
appropriately understood 8 C.F.R. § 208.18(a)(5) to require only
specific intent to inflict severe pain or suffering, not anything more.
See Matter of J-E-, 23 I. & N. Dec. at 297 (stating that “for an act
to constitute ‘torture’ . . . the act must cause severe physical or
mental pain or suffering [and] . . . be intentionally inflicted”); 

(quoting 8 C.F.R. § 208.18(a)(5) as requiring that “the act
must be specifically intended to inflict severe physical or mental
pain or suffering”); 

“the specific intent requirement
is taken directly from the understanding contained in the Senate’s
ratification resolution”); 

“an act that results in
unanticipated or unintended severity of pain or suffering does not
constitute torture”); 

(determining that no conduct
constituting “torture” took place based in part on the lack of
evidence that “Haitian authorities are detaining criminal deportees
with the specific intent to inflict severe physical or mental pain or
suffering” (citing 8 C.F.R. § 208.18(a)(5)). Thus, we reject
Auguste’s contention that the BIA applied in Matter of J-E- a
“heightened strict intent” or a “specific intent plus” standard.

                                  4.


       We must resolve one final issue before turning to the
appropriate burden of proof. Auguste contends that this Court
previously held in Zubeda v. Ashcroft, 

(3d Cir.
2003), that a showing of specific intent is not required under the
Convention or its implementing regulations. In Zubeda, an alien
successfully obtained relief from an order of removal under the
Convention on the grounds that she would likely be subject to rape
upon her return to the Democratic Republic of Congo (“DRC”).
Zubeda introduced evidence tending to show that her family had
been persecuted in the DRC, that members of her family had been
brutally murdered, and that she had been gang-raped by soldiers.
However, the BIA reversed, finding that the record did not support
the immigration judge’s finding that Zubeda would likely be
detained if returned to the DRC, or that she would be targeted for
harm by the soldiers of the Congolese government. In addition, the
BIA likened the case to Matter of J-E-, noting that reported isolated
instances of mistreatment that may rise to the level of torture do not
establish that the alien herself was more likely than not to be

                                 -36-
tortured.

       Zubeda filed a petition for review to this Court, and we
reversed. In particular, we were troubled by the cursory nature of
the BIA’s opinion and noted that the BIA “completely ignore[d]
the basis of the Immigration Judge’s 

.
For instance, we took issue with the BIA’s assertion that the record
did not support a finding that Zubeda would be likely detained
upon her return to the DRC when the record clearly supported a
contrary conclusion, a fact which the IJ had taken administrative
notice of. 

we held that the BIA erred when it relied
on the IJ’s adverse credibility finding, m ade in the context of
Zubeda’s asylum and withholding of deportation claims, to
discredit her application for relief under the Convention. 

We noted that because Zubeda’s CAT claim was analytically
separate from her other claims for relief, the BIA was required to
provide a further explanation before relying on the IJ’s adverse
credibility finding. 

found the BIA’s application of
Matter of J-E- to Zubeda’s CAT claim to be wholly unconvincing,
noting that “[r]educing Zubeda’s claim to an attack on the kind of
inhumane prison conditions that formed the basis of the [BIA’s]
decision in Matter of J-E- totally ignores the fact that the record is
replete with reports . . . that detail what appear to be systematic
incidents of gang rape, mutilation, and mass murder.” 

        In addition to our criticisms of the BIA’s opinion in Zubeda,
we 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. 

With regards to the intent
element, we 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

                                -37-
              foreseeable consequence of deliberate conduct.
              However, this is not the same as requiring a specific
              intent to inflict suffering.

(emphasis added). We 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].” 

(citation omitted).

        We recognize that this portion of Zubeda is in tension with
our holding in this case, that based on the ratification record of the
CAT, the appropriate standard to be applied in the domestic context
is the specific intent standard. However, we believe that the quoted
passage of Zubeda, upon which Auguste relies, is dicta. The basis
of our 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.” 

Our
discussion of the specific intent standard in 8 C.F.R. § 208.18(a)(5)
was not necessary to our 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. Thus, we decline to
follow that portion of the Zubeda opinion that is dicta. See
Ponnapula v. Ashcroft, 

, 488 n.5 (3d Cir. 2004);
United Artists Theatre Circuit, Inc. v. Township of Warrington,

, 397 (3d Cir. 2003).

       B.     The Burden of Proof Required to Prove a Claim
              for Relief under the CAT

       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 upon removal, rather than the standard
Auguste contends is required under Article 3 of the Convention,

                                -38-
which requires a showing of “substantial grounds for believing that
he would be in danger of being subjected to torture.” In particular,
Auguste points to the drafting history of the Convention, which he
argues shows that negotiators rejected a similar increased burden
of proof on individuals seeking protection from torture. Moreover,
Auguste points to several decisions of the Committee against
Torture, an advisory body created by the Convention to monitor
compliance with the terms of the treaty, that have used the
“substantial grounds” standard of Article 3 in rendering opinions
under the Convention. Because this involves a pure question of
law, we have habeas jurisdiction over the issue. See 

.

        We begin by noting that on several prior occasions, we have
applied the “more likely than not” standard in evaluating claims for
relief under the Convention. See, e.g., Berishaj v. Ashcroft, 

, 332 (3d Cir. 2004); Wang v. Ashcroft, 

, 348
(3d Cir. 2004); 

(quotations omitted).
Our prior uses of the “more likely than not” standard constitute
precedent in this matter, and we are bound to apply the standard
contained in 8 C.F.R. § 208.16(c)(2) to resolve Auguste’s claim.
See Third Circuit Internal Operating Procedure 9.1 (“It is the
tradition of this court that the holding of a panel in a precedential
opinion is binding on subsequent panels. Thus, no subsequent
panel overrules the holding in a precedential opinion of a previous
panel. Court en banc consideration is required to do so.”).

        Nor do we see any error in our prior decisions in this regard
because it is plain that 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.’” See Senate 

, II.2. This standard was
then codified into domestic law through § 2242(b) of FARRA,
which directed the relevant agencies to adopt regulations

                                -39-
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, we must apply the “more likely than
not” standard contained in 8 C.F.R. § 208.16(c)(2).24

        C.    Whether Auguste is Entitled to Relief on his
              Habeas Petition

                                 1.

       Auguste argues that, even if the BIA adopted the correct
intent and burden of proof standards in the implementing
regulations, he is nonetheless entitled to relief under the CAT.
Auguste contends that he will be subject to indefinite detention
upon his return to Haiti, that the conditions in Haitian prisons are
deplorable, and that the Haitian authorities are not only aware that
their imprisonment policy causes severe pain and suffering, but
purposely place deportees in the deplorable conditions in order to
punish and intimidate them.

       We review de novo the District Court’s denial of Auguste’s
habeas petition. See De Leon-Reynoso v. Ashcroft, 

,
635 (3d Cir. 2002). However, because our evaluation of the merits
of Auguste’s habeas claim involves a review of the IJ’s decision,
which in turn relied on the BIA’s decision in Matter of J-E-, our
standard of review is far narrower because the BIA’s interpretation
and application of its own regulations is entitled to “great


   24
     Because we find that the applicable burden of proof to be
applied for CAT claims is the “more likely than not” standard, we
do not reach Auguste’s arguments that the Department of Justice
improperly incorporated the burden of proof used in claims arising
under Article 33 of the United Nations Convention Relating to the
Status of Refugees, July 28, 1951, 19 U.S.T. 6223, 189 U.N.T.S.
150, or whether we should resort to the rule of lenity as an aid in
interpreting the Convention.

                               -40-
deference.” See Abdille v. Ashcroft, 

, 484 (3d Cir.
2001). This deference “to the Executive Branch is especially
appropriate in the immigration context where officials exercise
especially sensitive political functions that implicate questions of
foreign relations.” 

(quoting Aguirre-

).

                                  2.

        Before considering the merits of Auguste’s habeas petition,
we address an issue related to the scope of our habeas review. As
we noted above, our review is limited to errors of law, such as the
application of law to undisputed facts or adjudicated facts, but does
not include review of administrative fact findings. Thus, as an
initial matter, we must identify what the undisputed facts are in this
matter, and what administrative fact findings were made by the IJ.

       The IJ found the factual situation presented by Auguste’s
application for deferral of removal to be indistinguishable from the
matter presented in Matter of J-E-. The IJ’s oral decision states:

              Counsel for the respondent is not claiming here today
              that the situation in Haiti is somehow different from
              the situation that confronted the respondent in
              [Matter of J-E-] and that the Board had to consider in
              Matter of J-E-. So, we are dealing with essentially
              the same fact pattern, the respondent like the
              respondent in [Matter of J-E-] is a person from Haiti
              on the brink of deportation back to that country for
              criminal reasons, and the prison conditions are
              fundamentally the same today as they were just a
              year ago in Haiti, and so the claim is in this Court’s
              view virtually the identical claim that was before the
              Board in Matter of J-E- both as a legal issue and in
              terms of the facts of the case.

(J.A. 46-47.) Thus, on habeas review, we are limited to the
administrative factual findings of the IJ, which are essentially those
that the BIA addressed in Matter of J-E-. In addition, the IJ found
that, with regards to Auguste’s predicament in particular, there was

                                -41-
no evidence (nor was there any submitted) that Auguste’s situation
differed in any way from the alien in Matter of J-E-, or that he had
faced torture in Haiti in the past. The District Court, in considering
Auguste’s habeas petition, does not appear to have made any
independent findings of fact in this matter and instead relied on the
facts presented in Matter of J-E-. Thus, at a minimum, the
administrative facts in this matter are the same as those in the
factual record the BIA considered in Matter of J-E-.25

        The Government, however, contends that Auguste has
introduced evidence in his habeas petition that conflicts with the
factual findings made by the BIA in Matter of J-E-, and that this
constitutes an attack on fact findings inappropriate on habeas
review. The specific facts in dispute include a statement by a
Haitian government official that acknowledges that the conditions
in the prisons are “tough,” as well as a statement that the purpose
of Haiti’s imprisonment policy is to intimidate and punish
deportees, and to teach them a lesson about the true conditions in
Haiti’s prisons. Even assuming that we agree with the Government
that these statements somehow are in conflict with the findings of
the BIA in Matter of J-E-, we nonetheless see no reason to decide
the question of whether the foregoing statements offered by
Auguste may be considered on habeas review because they do not,
in our opinion, strengthen Auguste’s CAT claim or change our
ultimate disposition of his petition. Accordingly, although we will
discuss these facts below, nothing in this opinion should be
construed as a holding that the disputed facts are properly before




  25
    The Government explains that the record before this Court is
incomplete and does not include a copy of Auguste’s pleadings
before the IJ or the BIA. This is because the complete
administrative record of the removal proceedings was not yet in
evidence at the time the District Court denied the habeas petition
on the merits. The only record we have is contained in the Joint
Appendix, which contains the petition for writ of habeas corpus
and attached exhibits, as well as an affidavit executed by counsel
for Auguste with attached exhibits.

                                -42-
this Court. 26

                                  3.

        “An applicant for relief on the merits under [Article 3] of the
[Convention] bears the burden of establishing ‘that it is more likely
than not that he or she would be tortured if removed to the proposed
country of removal.’” See Sevoian v. Ashcroft, 

, 174-
75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)). The standard
for relief under the Convention “has no subjective component, but
instead requires the alien to establish, by objective evidence, that he
is entitled to relief.” See 

and quotations
omitted); see also Elien v. Ashcroft, 

, 398 (1st Cir.
2004); 

.

        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)); see also 

(outlining


   26
      As an additional matter, in his Brief to this Court, Auguste
relies in part on the 2003 State Department Country Report on
Human Rights Practices for Haiti (“2003 Report”) which was
released on February 25, 2004. Because the IJ decided this case on
November 12, 2003, the 2003 Report was not part of the
administrative record on which the IJ based his finding that
Auguste was not eligible for CAT relief. In contrast, it appears that
the 2001 and 2002 State Department Country Reports were before
the IJ. The Government contends that the 2003 Report is not
properly before this Court. However, after reviewing the 2003
Report submitted as part of Auguste’s habeas petition, we believe
that it contains no new evidence that strengthens Auguste’s claim
or which would change our ultimate disposition of his habeas
petition. Accordingly, we need not decide whether the 2003
Report is properly before this Court.

                                 -43-
the same requirements); 

(same). An “alien’s
testimony, if credible, may be sufficient to sustain the burden of
proof without corroboration.” 

(citing
Mansour v. INS, 

, 907 (7th Cir. 2000)). “If an alien
meets his/her burden of proof, withholding of removal under the
Convention is mandatory just as it is for withholding of deportation
under § 243(h).” 

(citing INA § 241(b)(3)
and 8 C.F.R. §§ 208.16 - 208.18).

        We can discern at least three separate circumstances which
Auguste contends constitute torture within the meaning of the
Convention. First, Auguste contends that the indefinite detention
of criminal deportees constitutes torture. Second, Auguste
contends that the detention, coupled with the harsh and deplorable
prison conditions, constitutes torture. Finally, Auguste contends
that the fact that he may be subject to physical abuse and beatings
by prison guards constitutes torture. We consider each in turn.

                     a.     Indefinite Detention

        As we discussed above in Part I.A, the government of Haiti
uses a preventive detention policy for criminal deportees. The State
Department’s 2000 Country Report on Human Rights Practices in
Haiti, which was submitted to the District Court as an exhibit to
Auguste’s habeas petition, states:

              In the past, when the authorities received Haitian
              citizens deported from other countries for having
              committed crimes, they were generally processed in
              1 week and then released. Since March 2000,
              criminal deportees who already have served
              sentences outside the country are kept in “preventive
              detention,” with no fixed timetable for their eventual
              release. According to police officials, the deportees
              are held in order to prevent an increase in insecurity
              and to convince them that they would not want to
              risk committing crime because of prison conditions.
              The average period of preventive detention for these
              persons has decreased to approximately 1 month,
              compared to several months in 2000.

                               -44-
       2000 Country Report.

        The BIA found in Matter of J-E- as a factual matter that the
Haitian government uses the detention procedure “to prevent the
bandits from increasing the level of insecurity and crime in the
country” and as a “warning and deterrent not to commit crimes in
Haiti.” Matter of J-E-, 23 I. & N. Dec. at 300 (internal citations and
quotations omitted). The BIA also found that the detention policy
“in itself appears to be a lawful sanction designed by the Haitian
Ministry of Justice to protect the populace from criminal acts
committed by Haitians who are forced to return to the country after
having been convicted of crimes abroad.” 

BIA concluded that the detention policy constituted a lawful
sanction within the meaning of 8 C.F.R. § 208.18(a)(3), and was
not otherwise intended to defeat the purpose of the Convention, and
thus was not torture. Matter of J-E-, 23 I. & N. Dec. at 300.

        Auguste, however, contends that the detention policy,
whatever its deterrent purposes, is unlawful under Haiti’s
Constitution and criminal code and violates the international human
rights law prohibition against indefinite and arbitrary imprisonment.
 Auguste, in effect, contends that whether a state policy is a lawful
sanction within the meaning of 8 C.F.R. § 208.18(a)(3) hinges on
the legality of that policy under the removal country’s applicable
law. This is undoubtedly an interesting but difficult issue.27

        However, we note that 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. As will be shown in the next section, we agree with
that conclusion. Thus, even if we were to find that the detention


  27
    The District Court in this matter, relying on the BIA’s finding
in Matter of J-E- that the detention policy constituted a lawful
sanction within the meaning of 8 C.F.R. § 208.18(a)(3), apparently
found no violation or challenge to Haitian law by the use of the
detention policy.

                                 -45-
policy was not a lawful sanction, we would conclude that the
Haitian authorities lacked the requisite intent for a finding of
torture. Thus, we see no need to address the lawful sanction issue
arising under 8 C.F.R. § 208.18(a)(3) or be drawn into an inquiry
as to the particularities of Haitian or international law on this
matter.

                      b.     Prison Conditions

        Auguste contends that his detention in harsh and brutal
prison conditions constitutes torture. We briefly described these
conditions above in Part I.A, and 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 w ith medical care, food, and legal aid.” 

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. 

Court, relying on
Matter of J-E-, agreed, concluding that “we have circumstances
here where we have simply the allegation of general prison
conditions in Haiti. So it does not appear to me that [Auguste] has
made any showing that his pain and suffering or physical or mental
injury would be intentionally inflicted.” (J.A. 15.)

       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).
He contends that the Haitian authorities are not only aware that
their imprisonment policy causes severe pain and suffering, but

                                -46-
purposely place deportees in the brutal prison conditions in order to
punish and intimidate them. 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 our 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.

        Keeping in mind the appropriate deference we must give to
the BIA in the interpretation of its own regulations, we do not think
the BIA acted 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). As
we noted above, 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. We think it goes without saying that
detainees and other prisoners face a brutal existence, experiencing
pain and suffering on a daily basis. The conditions that we have
described are among the worst we have ever addressed. But, the
pain and suffering that the prisoners experience in Haiti cannot be
said to be inflicted with a specific intent by the Haitian government




                                -47-
within the meaning of 8 C.F.R. § 208.18(a)(5). 28

        In so holding, we caution that we are not adopting a per se
rule that brutal and deplorable prison conditions can never
constitute torture. To the contrary, 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. Perhaps, as evidence is further developed
on conditions in Haiti, the BIA may arrive at a different conclusion
in the future. But, the situation that we are presented with, and the
evidence that we must consider, do 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.

                      c.      Physical Abuse

        Finally, Auguste points to reports of physical beatings of
prisoners by prison guards as evidence that he faces torture upon
his removal to Haiti. In Matter of J-E-, the BIA noted that the
reports of prisoner abuse have ranged from the beating with fists,
sticks and belts to burning with cigarettes, choking, hooding, and
kalot marassa. 23 I. & N. Dec. at 302. In Matter of J-E-, the BIA


  28
    Although we do not think that the following list, contained in
the record of the ratification of the Convention by the Senate, was
intended to be exhaustive, we think the illustrative list of the acts
which could constitute torture supports our analysis of the specific
intent requirement of 8 C.F.R. § 208.18(a)(5):

               The term ‘torture,’ in United States and international
               usage, is usually reserved for extreme, deliberate and
               unusually cruel practices, for example, sustained
               systematic beating, application of electric currents to
               sensitive parts of the body, and tying up or hanging
               in positions that cause extreme pain.

       See S. Exec. Rep. 101-30, at 14 (citations omitted).

                                 -48-
concluded that, although such acts may rise to the level of torture,
the alien there had failed to meet his burden of proof that he would
be more likely than not subject to torture. 

In
particular, the BIA noted that there were no claims by the alien of
past torture. 

Moreover, although there were reported
instances of beatings of prisoners, the alien had failed to show that
the beatings were “so pervasive as to establish a probability that a
person detained in a Haitian prison will be subject to torture.” 

The situation here is no different. 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-.

                       IV. CONCLUSION

       The conditions that Auguste will likely face in Haiti’s
prisons, like those awaiting many other criminal deportees, are
harsh and deplorable. However, in ratifying the Convention against
Torture, the United States undertook its obligations subject to
certain understandings on the proper intent and burden of proof
standards.    The Department of Justice thereafter adopted
regulations that properly implemented those standards in the
regulations governing CAT claims. Auguste has not satisfied those
standards. Accordingly, we will affirm the order of the District
Court.




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