PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 11-1849
                   _____________

              TEHRAM STEVE ROYE,
                             Petitioner

                          v.

 ATTORNEY GENERAL OF THE UNITED STATES,
                           Respondent
             _______________

       On Petition for Review of an Order of the
           Board of Immigration Appeals
                (BIA 1:A038-576-174)
       Immigration Judge: Hon. Walter Durling
                  _______________

                       Argued
                    June 26, 2012

Before: SLOVITER, CHAGARES, and JORDAN, Circuit
                    Judges.

             (Filed: September 10, 2012)
                  _______________
Megan Bremer [ARGUED]
700 Light Street
Baltimore, MD 21230
      Counsel for Petitioner


Jennifer R. Khouri [ARGUED]
Katherine Clark
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
      Counsel for Respondent
                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

        Tehram Steve Roye petitions for review of a final
order of the Board of Immigration Appeals (the “BIA” or the
“Board”) ordering him removed from the United States based
on his state-law convictions for aggravated assault and
endangering the welfare of a child. Roye asserts that he is
entitled to deferral of removal under the United Nations
Convention Against Torture (“CAT”) because, if removed to
his home country, he will likely be imprisoned and, with the
consent or acquiescence of the Jamaican government, be
subjected to torture by other prisoners and prison guards.
Because the BIA erred in its review of Roye’s claims, we will
grant his petition for review, vacate the BIA’s order of




                               2
removal, and remand the matter for further proceedings
consistent with this opinion.

I.     Background

       Roye is a fifty-eight-year-old native of Jamaica, who
was admitted to the United States on April 5, 1984 as the
spouse of a U.S. citizen. On April 30, 1992, he pled guilty in
the Pennsylvania Court of Common Pleas to committing an
aggravated assault, in violation of 18 Pa. C.S.A. § 2702(a)(1),
and to endangering the welfare of a child, in violation of 18
Pa. C.S.A. § 4304. The amended information to which he
pled alleged that he had “sexual intercourse … by forcible
compulsion” with his eight-month old daughter.
(Administrative Record (“A.R.”) at 760.) The trial judge
sentenced Roye to a term of six to twenty years’
imprisonment       but     “strongly    recommend[ed]      that
consideration be given to [his] immediate transfer into … [a]
psychiatric [f]acility.” (Id. at 763.)

      Fourteen years after Roye pled guilty, the Department
of Homeland Security (“DHS”) issued a Notice to Appear
(“NTA”), charging him as removable under INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he
had been convicted of an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(A).

       A.     Roye’s Application for Deferral of Removal

       Roye subsequently filed, on February 11, 2009, a Form
I-589, Application for Asylum and Withholding of Removal,
seeking deferral of removal under the CAT. On that form,
Roye stated that he “fear[s] … rape and death if returned to




                              3
Jamaica,” and that his “mental illness gives rise to bizarre and
criminal behavior that will make him a clear target for police
officers and other inmates who sexually assault inmates with
mental illnesses.” (A.R. at 747.)

        An Immigration Judge (“IJ”) held a hearing on
May 26, 2009, during which Roye’s counsel presented three
witnesses. 1 Dr. Anne Weidman testified that, after examining
Roye, she diagnosed him as having schizoaffective disorder,
bipolar type. She said that the nature of Roye’s condition was
such that he would need to take medication for the remainder
of his life, but she noted that Roye often refused to take
medication “outside a treatment environment.” (Id. at 298.)
Dr. Weidman also observed that Roye suffered manic and
depressive episodes, and “had incidents in which he set his
cell on fire and … [became] very sexually preoccupied … .”
(Id. at 299.)
        Nancy Anderson, an attorney who has practiced law in
Jamaica and who was a member of the Independent Jamaican

       1
          Roye did not testify during the May 26 hearing,
though he did make a few disjointed statements that bear little
relation to his petition for review but provide some insight
into his overall mental condition. For example, he told the
IJ, “I don’t care what you say, I have perfectly got the right to
initiate my children in life as a nation anytime I feel
(indiscernible).” (A.R. at 281.) He also said, “don’t tell me
about [the] crime of sex or whatever. I know what to do to
my children and how far to go, how to take it. Do you
understand that?” (Id. at 281-82.) Finally, he said “I don’t
care about your ground rules. I’m asking you do you
understand as a nation I have the right to initiate my children
in life. Do you understand that?” (Id. at 282.)




                               4
Council for Human Rights, 2 also testified during the hearing.
She said that many mentally ill persons in Jamaica are
prosecuted for minor offenses and are incarcerated, often
indefinitely. She also described the general experience of
mentally ill inmates in Jamaican prisons, indicating that they
are frequently subjected to physical and sexual abuse by both
fellow prisoners and prison officials. She said that “the most
prevalent abuse is sexual,” but that mentally ill inmates also
suffer other kinds of physical abuse because it “is easy to
inflict on someone who is … on some medication.” (Id. at
316-17.) Anderson believed that, if Roye were returned to
Jamaica, he was “likely to be incarcerated for an indefinite
period of time if he’s arrested,” and “would be exposed to
abuse by guards and other inmates” while in prison. (Id. at
340-41.)

      Anderson also testified regarding the extent to which
Jamaican prison officials are involved in the abuse of
mentally ill prisoners.    When asked to describe that
involvement, Anderson replied:
      a lot of complaints … are of ill treatment at the
      hands of these correctional officers or warders.

      2
         Anderson testified that the Independent Jamaican
Council for Human Rights (the “Council”) is a non-
governmental organization whose mission is to “promote and
protect the human rights of citizens of Jamaica.” (A.R. at
323.) She explained that the Council provides services in
three areas – “human rights education, advocacy where [the
Council becomes] involved in dealing with the mentally ill in
the criminal justice system, and … constitutional and legal
reform.” (Id. at 324.) According to Anderson, one-third to
one-half of the work of the Council involves the mentally ill.




                              5
       … [T]hings are done that they must know about
       and they must be able to see, but they do
       nothing to prevent it or to assist … the mentally
       ill [inmates]. There are some warders … who
       will call me and say that this person is being
       abused, they don’t know by who, but I should
       come and have a look at the situation or I
       should send someone to speak to them, and --
       but that -- those are few and far between. I
       really believe that … I believe that some of the
       correctional officers themselves are abusing
       prisoners and a lot of them are turning a blind
       eye to what is going on.

(Id. at 321.)

       Dr. Wendel Abel, a physician who worked “with
deportees with mental illness[es] … for almost 20 years” (id.
at 349), and whose research involved “looking at the impact
[of] deportation [on] persons who are mentally ill and who
have been deported to Jamaica” (id. at 349-50), also testified
during the hearing. He said that mentally ill prisoners in
Jamaica suffer “physical abuse, both by [prison] staff and also
other prisoner[s,] so much so that [prison officials] have had
to separate the mentally ill” from the remainder of the prison
population. (Id. at 372-73.) He also said that mentally ill
prisoners “are not allowed out at the same period of time [as
prisoners who are not mentally ill] because [the] other
prisoners will physically … and sexually abuse them.” (Id. at
373.)
       B.     The IJ’s June 4, 2009 Decision




                              6
       On June 4, 2009, the IJ found that Roye was
removable due to his felony convictions, but the IJ granted
Roye’s request for deferral of removal under the CAT. In
that decision and order, the IJ summarized the evidence of
record, specifically detailing the testimony of Anderson,
Abel, and Weidman. He gave particular emphasis to the
testimony of Anderson and Abel, noting that they “verified
that mentally ill detainees and prisoners are often sexually
and physically assaulted in the Jamaican prison system
because of the nature of their mental illness … .” (Id. at 177.)
He also credited Anderson’s assertion that “the high incident
rate of sexual assaults against [mentally ill detainees and
prisoners] is well known to the Jamaican government who
essentially refuses to take the necessary action to punish the
guards responsible.” (Id.)

       Based on the evidence, the IJ found that

       [t]he only reasonable and fact-based conclusion
       … is that [Roye] will be homeless in Jamaica
       due to a lack of family ties there. He will
       decompensate due to a lack of needed
       medications for his anti-psychotic behavior. He
       has a history of violence while off his
       medications, and even while on the
       medications, continues to exhibit anti-social
       behavior.      [Roye] at times refused to
       acknowledge his mental disease, and sometimes
       refuses to take his medicines. As Dr. Abel
       opined, even in the best of circumstances,
       which are highly unlikely to prevail, [Roye] will




                               7
       likely be detained in prison and thereby suffer
       sexual and physical assaults … .[3]

(Id. at 178.) The IJ also found that the evidence demonstrated
that Roye’s prospective persecutors would physically and
sexually assault him with “the specific intent to inflict severe
pain or suffering, i.e. … the goal or purpose of inflicting
severe pain or suffering.” (Id. (internal quotation marks
omitted).)

       C.     The BIA’s October 29, 2009 Opinion and Order

       The DHS appealed the IJ’s order, arguing that “the
Immigration Court erred as a matter of law when it found
[Roye] will be subject to torture by or through the
acquiescence of Jamaican prison guards, if removed to
Jamaica.” (Id. at 161.) On October 29, 2009, the BIA
sustained the appeal and ordered Roye to be removed.

       Based on its examination of the record, the BIA
concluded that Roye had failed to “[meet] his burden of
establishing by a preponderance of the evidence that it is
more likely than not that he would be tortured if returned to

       3
        It is not clear what in Dr. Abel’s testimony the IJ was
relying on to say that Roye will likely be imprisoned. When
asked “what’s the likelihood of Mr. Roye ending up in a
prison by being taken off the street by the police,” Dr. Abel
responded that Roye “probably would not end up in [a
Jamaican] prison unless he has been charged for an offense”
(A.R. at 370), but the doctor predicted that Roye would
“probably end up homeless and more than likely … die very
soon on the street.” (Id. at 369-70.)




                               8
Jamaica, either through the government inflicting or
instigating the feared torture, or because the government
would consent or acquiesce to such torture.” (Id. at 118.)
Significantly, the BIA “credit[ed] the testimony of [the three
witnesses who testified at the May 26, 2009 hearing] and
accept[ed] their testimony as an accurate depiction of what
likely would occur upon [Roye’s] return to Jamaica.” (Id. at
117.) However, even crediting that testimony, the BIA
determined that the evidence of record did not “establish[]
that the government of Jamaica has the specific intent to
torture [Roye], as required for a grant of deferral of removal
under the [CAT].” (Id.) The BIA explained that, “even if
Jamaican government officials were to place [Roye] in
indefinite detention despite being aware that [Roye] would be
likely to suffer physical and sexual abuse in prison, as
maintained by [Roye’s] witnesses, such action would not, by
itself, establish that they possess the motive or purpose of
torturing [Roye].” (Id.)

        The BIA also rejected the assertion that the Jamaican
government would consent to or acquiesce in Roye’s abuse
by other prisoners or prison guards. In doing so, it explained
that, under the governing law, to prove that Roye will be
tortured “by or through the acquiescence of Jamaican”
officials (id. at 161), Roye would have to “do more than show
that the officials are simply aware of the activity constituting
torture yet are powerless to stop it” (id. at 117; cf. 

that “mere willful blindness to, or deliberate
ignorance of, the tortuous acts of others is insufficient to
constitute acquiescence by public officials” (internal
quotation marks omitted))). The BIA went on to say that
Roye must show that “the public official[s], prior to the
activity constituting torture, [had] awareness of such activity




                               9
and thereafter breached [their] legal responsibility to
intervene to prevent such activity.” (Id. at 117 (citations and
internal quotation marks omitted).)

       On May 26, 2010, Roye filed a petition for review of
the order of removal and a motion seeking a stay of removal
pending the resolution of that petition. 4 The government
subsequently moved to remand the matter to the BIA to allow
the BIA to reconsider Roye’s petition in light of our decision
in Kaplun v. Attorney General of the United States, 

(3d Cir. 2010). On June 4, 2010, we granted Roye’s
request to stay the BIA’s order of removal, and on October
22, 2010, we granted the government’s motion to remand.

       D.     The BIA’s May 14, 2011 Opinion and Order

       On remand, a divided BIA again sustained the DHS’s
appeal. 5 In its March 14, 2011 opinion, the BIA observed

       4
         On December 2, 2009, Roye filed a petition for
review of the BIA’s October 29, 2009 decision. We
dismissed that petition as untimely on March 3, 2010.
Thereafter, on March 16, 2010, Roye filed a motion with the
BIA, asking the BIA to reissue its October 29, 2009 decision
on the grounds of ineffective assistance of counsel, which the
BIA granted on May 17, 2010. Hence, the May 26, 2010
petition was timely.
       5
          One Board member dissented, arguing that remand
was appropriate “for more specific fact-finding,” because,
“[i]n light of Kaplun, [there] appears to be a question of fact
as to whether prison officials would commit sexual assaults
on [Roye] for the specific purpose of inflicting severe pain or
suffering (or would acquiesce in assaults by others for that




                              10
that, under Kaplun, “the question of the future likelihood of
torture is a mixed one, with both a factual component (i.e.,
what is likely to happen to the petitioner if [he is] removed)
and a legal one (i.e., does what is likely to happen amount to
the legal definition of torture).” (A.R. at 3 (citations and
internal quotation marks omitted).) The BIA decided that,
under the standards articulated in Kaplun, there was “no clear
error in the [IJ’s] factual determination of what is likely to
happen to [Roye] if he is returned to Jamaica,” but the BIA
“reaffirm[ed] [its] prior … determination that what is likely to
happen to [Roye] upon his return to Jamaica does not satisfy
the legal definition of torture for purposes of [granting]
deferral of removal” under the CAT. (Id. at 4.)

       It based that conclusion on its “determination that,
upon de novo review, the evidence does not establish that
[Roye] would be imprisoned by Jamaican authorities for the
specific purpose of torturing him.” (Id.) It said that, under
Pierre v. Attorney General of the United States, 

,
189 (3d Cir. 2008) (en banc), “proof of knowledge on the part
of government officials that severe pain or suffering will be a
practically certain result of an applicant’s detention does not


purpose).” (A.R. at 5.) The dissenting Board member argued
that the IJ had not explained why Roye satisfied the CAT’s
specific intent requirement. Although the dissenter said,
“[s]ome evidence in the record suggests that sexual assaults
are committed on prisoners who are less likely to report the
abuse,” he went on to say that the evidence does not shed
light on “whether such assaults are committed to satisfy the
sexual urges of the offenders (regardless of the level of harm
to the victims) or whether the specific goal of the assault[s] is
to inflict severe pain or suffering.” (Id.)




                               11
satisfy the specific intent [requirement] of the [CAT].” (Id.)
Rather, the BIA stated, “the specific intent requirement
requires an applicant to show that his prospective torturer will
have the motive or purpose to cause him pain or suffering.”
(Id.) The BIA also rejected the assertion that Jamaican prison
officials would consent to or acquiesce in Roye’s
mistreatment.        That conclusion was based on its
understanding that the evidence Roye offered that Jamaican
prison “officials … turn[] a blind eye” to the physical and
sexual abuse of mentally ill prisoners was insufficient to
prove that “the Jamaican government possesses the requisite
specific intent to torture [Roye] … .” (Id.; see 

willful blindness to, or deliberate ignorance of, the
torturous acts of others is insufficient to constitute
acquiescence by public officials” (internal quotation marks
omitted).) 6




       6
          The BIA also briefly addressed whether another
intervening decision, Kang v. United States Attorney General,

(3d Cir. 2010), affected Roye’s case. It
determined that Kang did not alter its October 29, 2009
decision because, unlike the petitioner in that case, who
offered “affidavits from similarly situated individuals,
including members of her organization, detailing their
detention and torture, and testimony and an affidavit
concerning police beatings and [the] torture of her son to
elicit information about the alien,” Roye failed to “provide[]
affidavits or substantially similar evidence that would serve to
establish that the government of Jamaica would imprison
[him] with the specific intent of torturing him.” (A.R. at 5.)




                               12
      Roye timely petitioned for review of the BIA’s
March 14, 2011 decision. 7

II.    Jurisdiction and Standard of Review

       Because the basis for Roye’s removal is his conviction
for an aggravated felony, “our jurisdiction is limited under the
REAL ID Act ‘to constitutional claims or questions of law’”
raised by his appeal. Catwell v. Att’y Gen., 

, 205
(3d Cir. 2010) (quoting 8 U.S.C. § 1252(a)(2)(D)). The
phrase “questions of law” refers to purely legal inquiries such
as those involved in statutory interpretation, Jarbough v. Att’y
Gen., 

, 189 (3d Cir. 2007), or inquiries into
“whether the BIA used the correct standard in reviewing the
IJ’s decision and whether [the BIA] assigned to [the
petitioner] the correct burden of proof,” Tran v. Gonzales,

, 943 (6th Cir. 2006). “[C]onstitutional claims,”
constitute, at minimum, “colorable violation[s] of the United
States Constitution.” 

. “[F]actual
or discretionary determinations are outside of our scope of
review.” 

.

       We review de novo the constitutional and legal
questions raised by Roye’s petition, Yusupov v. Att’y Gen.,

, 977 (3d Cir. 2010), though our review is
“subject to the principles of deference articulated in Chevron
v. Natural Resources Defense Council, 

, 844
(1984),” 

. Because the BIA did not
summarily affirm the IJ’s order but instead issued a separate

       7
         On September 9, 2011, the government filed a
motion to remand, along with its answering brief. We denied
the government’s motion to remand on October 6, 2011.




                              13
opinion, we review the BIA’s disposition and look to the IJ’s
ruling only insofar as the BIA deferred to it. Chavarria v.
Gonzalez, 

, 515 (3d Cir. 2006).

III.   Discussion

       Roye’s petition for review requires us to answer the
following legal questions: whether the BIA correctly applied
the law in reviewing the IJ’s finding that Roye will be
physically and sexually assaulted in a Jamaican prison by
prisoners and prison guards who specifically intend to cause
him pain or suffering; and whether the BIA applied the
correct legal standard in reviewing the IJ’s finding that it is
more likely than not that Jamaican public officials will
consent to or acquiesce in assaults on Roye. 8 The answers to

       8
          Presumably in response to the dissenting Board
member’s opinion, see supra note 5, Roye also argues that the
specific intent to inflict severe pain or suffering is endemic to
prison rape and that any such rape must therefore be seen as
an act of torture, (Petitioner’s Opening Br. at 6 (“Mr. Roye
argues that acts of sexual assaults, especially rape, in prison
constitute torture… .”); Reply Br. at 12 (noting that “[p]ursuit
of [t]he question of whether sexual assault is primarily about
sexual gratification or power and control … . would be
inappropriate because neither possibility should undermine
[Roye’s] argument that the sexual violence [in prison] and its
consequences would be specifically intended.”); 

severe pain and suffering [endemic to rape] cannot
merely be an accidental consequence” of rape)). While we
certainly agree with Roye that rape is a reprehensible and all-
too-common crime, the regulatory definition of “torture” for
purposes of applying the CAT appears to undermine his




                               14
these questions turn largely on the language of the CAT and
its implementing regulations, as well as our precedents.




demand for a rule that assumes the specific intent of all
rapists.    See 

(holding that
“[k]nowledge that pain and suffering will be the certain
outcome of conduct may be sufficient for a finding of general
intent but it is not enough for a finding of specific intent,”
which is a prerequisite to relief under the CAT); Zubeda v.
Ashcroft, 

, 473 (3d Cir. 2003) (observing that
“[t]he severe pain and suffering endemic to rape is a
necessary but not sufficient element of torture under the
[CAT]” and that the intent of the rapist has to be considered).
Ultimately, however, it is unnecessary for us to reach this
issue. Although the BIA’s opinion is not entirely clear, it
seemed to accept the IJ’s finding that Roye’s “prospective
[persecutors]” would physically and sexually assault him with
“the specific intent to inflict severe pain or suffering, i.e. …
the goal or purpose of inflicting severe pain or suffering.”
(A.R. at 178 (internal quotation marks omitted); see 

the BIA’s conclusion that there was “no clear error in
the [IJ’s] factual determination of what is likely to happen to
[Roye] if he is returned to Jamaica”)). The dissenting Board
member questioned whether the IJ’s statement to that effect
was adequately supported, see supra note 5, but, for purposes
of this appeal, we assume that the factual statement regarding
specific intent is sound. Accordingly, Roye’s “all-rape-is-
torture” argument, while raising important public policy
issues, need not be addressed.




                              15
      A.     The CAT

       The CAT prohibits any signatory State from
“expel[ling], return[ing] … or extradit[ing] 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. The treaty became binding upon the United States when
President Clinton delivered the ratifying documents to the
U.N. in 1994. U.N. Doc. 571 Leg/SER.E/13.IV.9 (1995). It
thereafter became “‘the policy of the United States not to
expel … 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 … .’” Silva-Rengifo v. Att’y Gen., 

, 64 (3d
Cir. 2007) (alterations in original) (quoting Foreign Affairs
Reform and Restructuring Act of 1998 (“FARRA”), Pub. L.
No. 105-277, div. G., tit. XXII, § 2242, 112 Stat. 2681-822
(codified at 8 U.S.C. § 1231 note)).

      Article I of the CAT defines torture 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 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,
      when such pain or suffering is inflicted by or at
      the instigation of or with the consent or




                             16
       acquiescence of a public official or other person
       acting in an official capacity. It does not
       include pain or suffering arising only from,
       inherent in or incidental to lawful sanctions.

Art. 1(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
Under regulations promulgated by the United States
Department of Justice, 9 an alien who, like the petitioner here,
seeks relief under the CAT, bears the burden of proving “that
it is more likely than not that he or she [will] be tortured if
removed … .” 10 8 C.F.R. § 208.16(c)(2); see Auguste v.

       9
        The FARRA implements the CAT. Pub. L. No. 105-
277, div. G., tit. XXII, § 2242, 112 Stat. 2681-822 (codified at
8 U.S.C. § 1231 note). Pursuant to the FARRA, the
Department of Justice promulgated regulations that govern
the procedures by which aliens may obtain relief from
removal under the CAT. See 64 Fed. Reg. 8478 (Feb. 19,
1999), codified at 8 C.F.R. §§ 208.16(c), .17, & .18(a) (2004).
       10
           The regulations, which parallel the definition of
torture in Article I of the CAT, define “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 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




                              17
Ridge, 

, 149 (3d Cir. 2005) (“[I]n evaluating
[petitioner’s] claim that he is entitled to relief under the
[CAT], we must apply the ‘more likely than not’ standard
contained in 8 C.F.R. § 208.16(c)(2).”); Sevoian v. Ashcroft,

, 174-75 (3d Cir. 2002) (same). Thus, an alien
can show that he is entitled to relief under the CAT by
proving that “it is more likely than not” that his persecutors
will commit an act that causes severe physical or mental pain
or suffering; that the pain or suffering will be intentionally
inflicted; that it will be inflicted for an illicit or proscribed
purpose; that it will be inflicted by or at the instigation of or
with the consent or acquiescence of a public official who has
custody or physical control of the alien; and that the pain or
suffering does not arise from lawful sanctions. 

. If a petitioner demonstrates that he will be
subjected to torture “by or at the instigation of or with the
consent or acquiescence of” a public official, 8 C.F.R.
§ 208.18(a)(1), then “withholding of removal or deferr[al] of
removal is mandatory,” 

(citing
8 C.F.R. §§ 1208.16-.18.).

       B.     The Physical and Sexual Abuse of Mentally Ill
              Prisoners in Jamaican Prisons

       The IJ stated that the widespread physical and sexual
abuse of mentally ill inmates in Jamaican prisons was
specifically intended to cause severe pain and suffering. The
BIA did not disagree with that conclusion (see A.R. at 4

       or with the consent or acquiescence of a public
       official or other person acting in an official
       capacity.
8 C.F.R. § 208.18(a)(1).




                               18
(accepting that there was “no clear error in the [IJ’s] factual
determination of what is likely to happen to [Roye] if he is
returned to Jamaica”)), but went on to reject Roye’s request
for CAT relief because, inter alia, Roye had not demonstrated
that he would “be imprisoned by Jamaican authorities for the
specific purpose of torturing him,” (id.). Roye contends that
it was error for the BIA to focus on the intent of Jamaican
public officials who decide to imprison someone with mental
illness, instead of focusing on whether the physical and
sexual abuse that mentally ill prisoners experience is intended
to cause pain and so may qualify as torture. He is correct.

        During the May 26, 2009 hearing before the IJ, Roye
offered the testimony of expert witnesses who opined that, if
removed, he will be imprisoned and will be physically and
sexually assaulted by guards and other inmates. Specifically,
Roye offered the testimony of Anderson, who said that
mentally ill prisoners are frequently the victims of sexual
abuse because they are easy targets for sexual predators (A.R.
316-17), as well as the testimony of Dr. Abel, who said that
the physical and sexual abuse of mentally ill inmates in
Jamaican prisons is so pervasive that those inmates must be
separated from the rest of the prison population (id. at 372-
73). The IJ credited that testimonial evidence and concluded
that, if removed, Roye would indeed be imprisoned 11 and
subjected to physical and sexual abuse by people specifically
intending to cause him severe pain and suffering. The BIA,
as noted, did not disagree with those factual findings.

       11
         As noted, supra note 3 and accompanying text, the
IJ found that, if removed to Jamaica, Roye would likely stop
taking his medications and, in his deteriorating mental state,
would end up in prison.




                              19
Nevertheless, battling a strawman, it rejected Roye’s CAT
claim based on the fact that there was no indication that Roye
would be imprisoned “by Jamaican authorities for the specific
purpose of torturing him.” (Id.)

        No one had raised the question of Jamaican
authorities’ intent regarding imprisonment because it is beside
the point Roye was endeavoring to make. Yet that is where
the BIA chose to center its attention, saying, “proof of
knowledge on the part of government officials that severe
pain or suffering will be a practically certain result of an
applicant’s detention does not satisfy the specific intent
[requirement] of the [CAT] … .” (Id.) By concentrating its
inquiry on whether the act of detaining mentally ill deportees
is an act of torture, rather than on whether the physical and
sexual abuse of mentally ill prisoners that occurs in Jamaican
prisons rises to the level of torture, the BIA incorrectly
analyzed Roye’s claim for relief. Thus, although the BIA
articulated the correct legal standard for specific intent in a
CAT case, see 

(holding that specific
intent requires more than “proof of knowledge on the part of
government officials that severe pain or suffering will be the
practically certain result” of the actions challenged as torture),
it applied it to the wrong question, ignoring the IJ’s finding
on specific intent and bypassing consideration of whether the
physical and sexual assaults that Roye is likely to experience
during a term of incarceration in a Jamaican prison rise to the
level of torture under the CAT.

       By focusing on the intent of public officials who may
decide to imprison Roye, the BIA failed to attend to Roye’s
actual argument regarding the intent of those who will likely




                               20
assault him. That failure requires us to grant Roye’s petition
for review.

       C.     Alleged Consent to or Acquiescence in Acts of
              Torture

        Roye contends that he is also entitled to relief under
the CAT because Jamaican officials have turned a blind eye
to the pervasive assaults in their prisons and are thus
consenting to or acquiescing in torture. He argues that, in this
instance, the BIA understood the question but applied the
wrong legal standard. More specifically, he contends that the
BIA erred in holding that “mere willful blindness to, or
deliberate ignorance of, the torturous acts of others is
insufficient to constitute acquiescence by public officials.”
(Petitioner’s Br. at 24 (citation and internal quotation marks
omitted).) Roye also argues that the BIA inappropriately
conflated the mens rea necessary to prove that public officials
consent to or acquiesce in acts of torture with the mens rea
necessary to prove that public officials themselves have
committed acts of torture. He is correct on both counts.

       Under the CAT and its implementing regulations, in
order to prove that a public official will consent to or
acquiesce in torture, an alien must demonstrate that “the
public official, prior to the activity constituting torture, [had]
awareness of such activity and thereafter breach[ed] his or her
legal responsibility to intervene to prevent such activity.” 12 8

       12
         Roye also asserts that because “acts committed in
government custody must implicate either direct commission
or acquiescence by the government,” the BIA erroneously
concluded that the evidence fails to demonstrate that




                               21
C.F.R. § 1208.18(a)(7). Although that language suggests that
public officials must have actual knowledge of torture for it to
be said that they consent to or acquiesce in it, we held in
Silva-Rengifo that “the [CAT’s] definition of ‘acquiescence’
includes both actual knowledge and ‘willful 

. We reasoned that a showing of willful blindness 13


Jamaican public officials will consent to or acquiesce in his
torture. (Petitioner’s Br. at 30.) We lack the authority to
address that issue, however, because whether Jamaican public
officials will consent to or acquiesce in his torture is
essentially a factual question. In Kaplun, we made that much
clear by holding that the BIA committed an error of law by
reviewing the IJ’s finding that “public officials would consent
or acquiesce to [the] mistreatment of [the petitioner]” under
the de novo standard of review instead of the clearly
erroneous standard of 

(internal
quotation marks omitted). Thus, even if the BIA’s factual
findings regarding the issue of government consent or
acquiescence are clearly erroneous, we do not have
jurisdiction to say so.
       13
          Although we explained that willful blindness is
sufficient to demonstrate government consent to or
acquiescence in torturous activity, we did not detail what we
meant by the term “willful blindness.” In Global-Tech
Appliances, Inc. v. SEB S.A., 

(2011) the
Supreme Court described “willful blindness” as follows:
       [C]ourts applying the doctrine of willful
       blindness hold that defendants cannot escape
       the reach of … [the law] by deliberately
       shielding themselves from clear evidence of
       critical facts that are strongly suggested by the




                              22
is sufficient to demonstrate government acquiescence in
torture because “[e]vidence that officials turn a blind eye to
certain groups’ torturous conduct is no less probative of
government acquiescence” than evidence that such officials
participate in acts of torture. 

under Silva-
Rengifo, acquiescence to torture can be found when
government officials remain willfully blind to torturous
conduct and thereby breach their legal responsibility to
prevent it. 

relied on a contrary understanding of
the law. In its May 14, 2011 opinion, it accepted the IJ’s

      circumstances. The traditional rationale for this
      doctrine is that defendants who behave in this
      manner are just as culpable as those who have
      actual knowledge.
      …
      [A] 1962 proposed draft of the Model Penal
      Code, which has since become official,
      attempted to incorporate the doctrine [of willful
      blindness] by defining knowledge of the
      existence of a particular fact to include a
      situation in which a person is aware of a high
      probability of the fact’s existence, unless he
      actually believes that it does not exist. …
      [E]very Court of Appeals – with the possible
      exception of the District of Columbia Circuit …
      has fully embraced willful blindness, applying
      the doctrine to a wide-range of criminal statutes.

deleted) (citations and internal
quotation marks omitted).




                             23
factual finding that Jamaican prison officials “turn[] a blind
eye to” the physical and sexual abuse of mentally ill
prisoners. (A.R. at 4 (citation and internal quotation marks
omitted).) The BIA also said, however, that willful blindness
is insufficient to prove government consent to or
acquiescence in torture. It thus concluded that Roye had
failed to demonstrate that Jamaican public officials will, for
purposes of the CAT, be culpable for any assault he is likely
to suffer in prison. That holding ignores the import of Silva-
Rengifo and was therefore error.

         The error of applying an incorrect rule of law was
compounded when the BIA conflated the mens rea
requirement pertaining to those who commit acts of torture
(i.e., specific intent) with the minimum mens rea requirement
pertaining to those who consent to or acquiescence in acts of
torture committed by others (i.e., willful blindness). As noted
above, the BIA acknowledged that the record contained
evidence that Jamaican officials deliberately ignore the rape
of mentally ill prisoners. Nevertheless, the BIA said that
evidence of the government’s willful blindness is insufficient
to demonstrate “that the Jamaican government possesses the
requisite specific intent to torture.” (Id. at 2.) The BIA thus
confused two distinct elements of a claim for relief under the
CAT – i.e., torture versus consent to or acquiescence in
torture – and further confused the mental states associated
with each. See 

(explaining that an
alien seeking relief under the CAT must show both that
“severe physical or mental pain or suffering” will be
“intentionally inflicted” and that it will be inflicted “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”). Again, Roye adduced evidence tending to prove




                               24
that, if removed, he will be physically and sexually assaulted
in prison and that Jamaican prison officials will turn a blind
eye to that severe mistreatment. Instead of examining those
two issues separately, as controlling precedent requires, see

them together, saying that evidence that
the Jamaican government is willfully blind to the
mistreatment of mentally ill prisoners could not prove
specific intent to cause pain and suffering. 14 Merging those

       14
           The specific intent and willful blindness inquiries
are not necessarily unrelated. To be culpable under the CAT,
government officials must, at a minimum, be willfully blind
to “activity constituting torture” 8 C.F.R. § 208.18(a)(7), so it
may not be enough for someone seeking CAT relief to say
that officials are willfully blind to rape. In some fashion the
evidence may have to support the conclusion that the officials
are willfully blind to rape that constitutes torture. Cf. Silva-

n.8 (noting that the drafting history of
the CAT includes “text suggested by the United States
[which] would have defined ‘public official’ … to include
those who ‘fail to take appropriate measures to prevent or
suppress torture when such person has knowledge or should
have knowledge that torture has or is being committed and
has the authority or is in a position to take such measures …
.” (quoting J. Herman Burgers & Hans Danelius, The United
Nations Convention Against Torture 4-42 (1988))); 

Ashcroft, 

, 1194 (9th Cir. 2003), for
the proposition that “Congress has made clear that the correct
inquiry under the Convention is whether an applicant can
show that public officials demonstrate ‘willful blindness’ to
the torture of their citizens by third parties.”). In other words,
some intent evidence associated with the alleged rapes may
be required. Cf. 

(observing that




                               25
inquiries was an error of law that requires us to grant Roye’s
petition for review. 15

“[t]he severe pain and suffering endemic to rape is a
necessary but not sufficient element of torture under the
[CAT]” and that the intent of the rapist has to be considered).
We do not, however, need to decide that question in this case.
       15
          Roye also contends that the BIA erred by failing to
conduct the three-step inquiry articulated in Abdulai v.
Ashcroft, 

(3d Cir. 2001), before denying his
application for deferral of removal on the grounds that he
failed to present sufficient corroborating evidence in support
of his claim for relief under the CAT. (Petitioner’s Br. at 25.)
We disagree.       Roye’s argument is predicated upon a
fundamental misunderstanding of the BIA’s opinion. As the
government correctly notes in its brief, the BIA did not
sustain the DHS’s appeal because Roye failed to corroborate
his own testimony or the testimony of one of the witnesses
who testified during the May 26, 2009 hearing. Instead, the
BIA said that Roye failed to put forth “affidavits or
substantially similar evidence that would serve to establish
that the government of Jamaica would imprison [him] with
the specific intent of torturing him.” (A.R. at 5.) The BIA
distinguished his case from that of the petitioner in Kang,
who offered “affidavits from similarly situated individuals …
detailing their detention and torture, and testimony and an
affidavit concerning police beatings and [the] torture of her
son to elicit information about the” petitioner, (A.R. at 5). In
other words, the BIA did not say that Roye failed to
corroborate his claim – it just made clear that Roye failed to
put forth evidence sufficient to satisfy the CAT’s specific
intent requirement, as the petitioner did in Kang. Thus, even
if none of the testimonial or documentary evidence that Roye




                              26
IV.    Conclusion

       Because the BIA answered the wrong question and
applied an incorrect legal standard in reviewing Roye’s
claims for deferral of removal under the CAT, we will grant
his petition for review, vacate the BIA’s May 14, 2011
opinion and order, and remand the matter to the BIA. On
remand, the BIA should review the IJ’s conclusion that the
evidence of record demonstrates that Roye’s persecutors will
physically and sexually abuse him in a manner that rises to
the level of torture under the CAT, and decide whether
Jamaican public officials will consent to or acquiesce in any
such abuse. 16


presented to the IJ required corroboration, the BIA decided
that the evidence did not prove that the Jamaican government
would imprison Roye with the specific intent to cause him
pain or suffering. As we have already described, that ruling is
flawed, but not because, as Roye argues, the BIA’s
conclusion “departs from the required three-step inquiry
[articulated in Abdulai] by creating an additional requirement
for a specific type of evidence.” (Petitioner’s Br. at 25.)
       16
         In its Answering Brief, the government argues that
remand is appropriate to give the BIA the opportunity to
“analyze, in light of Yusupov, 

, whether the
immigration judge’s finding regarding specific intent was a
finding of fact, subject to clear error review.” (Respondent’s
Br. at 17.) However, because remand is appropriate due to
the legal errors discussed above, we do not address the
government’s assertion that we should remand to allow the
BIA to determine whether the IJ’s finding that Roye’s
oppressors will physically and sexually abuse him with the




                              27
specific intent to cause him pain or suffering is a finding of
fact.




                             28