Deportation Case Ruling: Knowledge of Almost Certain Torture Isn't Deliberate

By Jonathan R. Tung, Esq. on March 02, 2016 | Last updated on March 21, 2019

The Court of Appeals for the Fourth Circuit reviewed a deportation case that implicated the proper interpretation and application of the International Treaty of the Convention Against Torture (CAT). The case is an interesting highlight into the limitations of the CAT.

The appeals court found that almost certain knowledge by a state actor who detains a deported felon (from the United States) that the detainee might suffer severe pain and suffering does not rise to the level of "specific intent" under CAT -- thereby not affording such persons protection under the treaty.

Wilerms Oxygene: Haitian Refugee

In the mid-90s, Wilerms Oxygene, his siblings, and his mother escaped chaotic civil unrest and political violence in his native country, Haiti. Oxygene had endured Haitian death squads firing upon his home while his family was still inside taking cover. He was able to escape to the states and in 1996, the United States granted his lawful permanent resident status.

Unfortunately, Oxygene was convicted of several crimes in a Virginia court. All of them were felonies. Because of this, DHS began proceedings to deport him. Oxygene did not dispute that he had committed the felonies, but he deferral of removal under CAT.

Before his Immigration Judge, Oxygene presented several compelling pieces of evidence that painted a near certainty that he would be subjected to almost inhuman living conditions, exposure to various communicable diseases, and that his life would be imperiled -- particularly given his already existing tuberculosis condition. He also presented evidence that Haitian police had in the past consistently beat and abused detainees and criminal suspects. In sum, he made an argument that he, and people like him, could expect a bleak outcome if detained in Haiti.

Application of CAT: Multiple Parts

Oxygene argued that the near certainty that he would suffer such inhuman conditions essentially per se qualified him as a protected party under CAT. An earlier Board of Immigration Appeals case, In re J-E-, was directly on point in this issue.

That case stood for the principle that a state's detention policy conditions, taken alone, cannot necessarily constitute torture under CAT. Moreover, the standard of review that was employed in In re J-E- was determined by circuit court to be correctly applied. Even though certain gaps existed between the levels of mens rea and were left unanswered, it was clear under the circumstances that the standard outlined in In re J-E- was the correct one.

Mens Rea: Specific vs. General Intent

The Appeals Court looked to the standard as first outlined by the BIA with regards to In re J-E- and focused on the divisions of intent under criminal law doctrine. To the BIA, a claimant under CAT needed to show that the subject country (the country to which the detainee would be deported) "intentionally and deliberately created" such conditions "in order to inflict torture." Notice how this is different from maintaining horrible conditions but without the conscious object of inflicting torture.

If this result seems gossamer thin to some lawyers, it should be known that this distinction has stood the test of time in many courts. As expressed in United States v Bailey: "The Supreme Court has noted that specific intent 'corresponds loosely' with 'purpose,' whereas general intent 'corresponds loosely' with 'knowledge.' And because Section 208.18(a)(5) incorporates instructions form the President and the Senate to mandate "specific intent" mens rea, the rule stands firm -- even if it leads to somewhat 'unjust' results that might even seem to defeat the purpose of CAT.

Oxygene's petition to delay his removal under CAT was denied, and this was affirmed by the Fourth Circuit.

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