                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 14-2380


WILERMS OXYGENE,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



                              No. 15-1099


WILERMS OXYGENE,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



On Petitions for Review of Orders of the Board of Immigration
Appeals.


Argued:   December 8, 2015                 Decided:   February 22, 2016


Before MOTZ, KING, and KEENAN, Circuit Judges.
Petitions for review denied in part and dismissed in part by
published opinion. Judge Motz wrote the opinion, in which Judge
King and Judge Keenan joined.


ARGUED: Tamara L. Jezic, YACUB LAW OFFICES, Woodbridge,
Virginia, for Petitioner.     Jeffery R. Leist, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.    ON
BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Ernesto H. Molina, Jr., Assistant
Director, Gladys M. Steffens Guzman, Trial Attorney, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.




                               2
DIANA GRIBBON MOTZ, Circuit Judge:

       Wilerms Oxygene petitions for review of orders denying his

application for deferral of removal under the Convention Against

Torture     (“CAT”)      and    subsequent         motion     to    reopen     his       removal

proceedings.           For   the    reasons        that   follow,     the     petition         for

review is denied in part and dismissed in part.



                                            I.

       In 1994, Oxygene, accompanied by his mother and siblings,

fled political violence in his native country of Haiti.                                       This

violence     included        occasions      when      death    squads        fired       on   the

family    home     while     Oxygene     and       others    were     inside    the       house.

Oxygene entered the United States as a refugee; in 1996 the

United States granted him lawful permanent resident status.

       Five years later, a Virginia court convicted Oxygene of

several     state        crimes,      including           burglary,     grand        larceny,

robbery, and use of a firearm to commit a felony.                              In 2011, the

Department       of    Homeland       Security       (“DHS”    or     “the     Government”)

commenced    removal         proceedings       against       him.      Oxygene       conceded

that   he   was       removable     under   various         subsections       of     8    U.S.C.

§ 1227(a)(2)          (2012)    due    to   his       convictions        for       aggravated

felonies     and      firearm      offenses,        but     applied    for     deferral         of

removal under the CAT.



                                               3
      At his removal hearing before an Immigration Judge (“IJ”),

Oxygene testified to his family’s past persecution in Haiti and

his fear that, if removed, he would face indefinite detention in

Haitian prisons.         Oxygene also expressed fear that, if detained

in Haiti, he would not receive the medical care necessary to

prevent his latent tuberculosis from becoming active.                              Oxygene

and   his   sister      testified      that      they   had   no       remaining    family

members in Haiti who could provide support in the form of food,

medicine, or payment for release from detention.

      Oxygene submitted documentary evidence to substantiate his

allegations       of    poor        prison       conditions       in     Haiti.        The

administrative record contains several State Department country

reports     for   Haiti,       a    report       from   various        non-governmental

organizations submitted to the United Nations (“the 2011 NGO

report”), and news articles and press releases concerning human

rights abuses in the country.                 Together, these sources paint a

bleak picture of what criminal deportees like Oxygene can expect

upon removal to Haiti.

      According to the State Department country reports, as early

as 2000, Haiti began detaining criminal deportees “who [have]

already     served     full   sentences       overseas    .   .    .     for   indefinite

periods of time.”         The 2013 country report describes “detention

center    overcrowding”        as    “severe,”      explaining         that    “[i]n   some

prisons detainees slept in shifts due to lack of space” and that

                                             4
“[s]ome prisons had no beds for detainees, and some cells had no

access to sunlight.”             Prisoners and detainees generally had no

access    to   treated       drinking      water,        and   approximately      seventy

percent “suffered from a lack of basic hygiene, malnutrition,

poor    quality       health    care,     and    water-borne        illness.”       As   a

result,     the       report     concludes       that      malaria,      drug-resistant

tuberculosis, and other infectious diseases present a “serious

problem.”        The 2013 country report also states that, despite

laws   prohibiting       such     practices,        on    several   occasions      police

“allegedly beat or otherwise abused detainees and suspects,” and

“corrections           officers        use[d]       physical         punishment       and

psychological abuse to mistreat prisoners.”

       The record is unclear as to whether Haiti’s blanket policy

of detaining criminal deportees remains in force.                              While the

2013 State Department report makes no mention of the policy, the

2011 NGO report indicates that Haitian officials have continued

to    detain   a     majority     of     criminal    deportees      immediately      upon

arrival.         A    2013   press     release      by     the   human    rights    group

Alternative Chance also notes skepticism as to recent claims by

the    Haitian       government    that     it   had      abandoned      the   indefinite

detention program.

       The IJ carefully considered this documentary evidence and

the    testimony        of     Oxygene     and   his       sister     when     evaluating

Oxygene’s claim for CAT relief.                   The IJ found “no doubt that

                                             5
prison    conditions       in    Haiti    remain         deplorable,       and     that     as    a

criminal deportee [Oxygene] may possibly be held in custody upon

his return to Haiti for some unknown period of time in those

poor conditions.”           He also noted that Oxygene “could be at a

higher    risk    than     normal    of    disease,          given     his    diagnosis          of

latent tuberculosis.”             Finally, the IJ recognized that “[t]he

record    evidence       even     indicates          that     there     have        been      some

incidents of mistreatment of Haitian prisoners so severe as to

constitute torture.”

      Despite these findings, the IJ denied Oxygene’s application

for   deferral     of    removal     under         the    CAT.       The     IJ    found      that

Oxygene had not demonstrated that it was more likely than not he

would suffer torture upon removal to Haiti.                            The IJ concluded

that application of BIA precedent, In re J-E-, 23 I. & N. Dec.

291 (BIA 2002) (en banc), foreclosed Oxygene’s argument that

Haiti’s     detention       policy       and       prison     conditions           necessarily

constitute       torture    under        the       CAT.       This     was        so,   the      IJ

explained,       because        Oxygene    offered          “no   evidence          that       the

[Haitian]     authorities         intentionally             and   deliberately             detain

deportees in order to inflict torture.”                       Rather, the record only

contained evidence of “isolated incidents” of mistreatment by

correctional      officers       that     would      qualify      as    torture.            Thus,

Oxygene failed to meet the more-likely-than-not burden of proof

required for relief under the CAT.

                                               6
        Oxygene appealed the IJ’s removal order to the Board of

Immigration Appeals (“BIA”) and at the same time moved the BIA

to remand the case for the IJ to consider whether Oxygene’s

recent     diagnoses        of      post-traumatic         stress         disorder    and

depression impacted his CAT claim.                  The BIA affirmed the removal

order    and   denied       the     remand       motion    for     lack    of   evidence

concerning the recent diagnoses.                  Oxygene then moved the BIA to

reconsider     this    decision,      attaching         relevant    medical     evidence

and an article on the stigma associated with mental illness in

Haiti.     The BIA construed this filing as a timely motion to

reopen the removal proceedings and denied it, concluding that

Oxygene failed to show that the new evidence would change the

result of the case.

     Oxygene filed two appeals to this court -- one challenges

the BIA’s denial of his application for CAT relief, and the

other challenges its denial of his motion to reopen the removal

proceedings.     We have consolidated the two cases.



                                           II.

        Oxygene concedes that a Virginia court convicted him of

committing an aggravated felony.                  For this reason, Congress has

limited our jurisdiction over his petition for review of the

order     denying     him     CAT     relief       to     questions       of    law   and

constitutional        claims.        See     8    U.S.C.    §    1252(a)(2)(C),       (D)

                                             7
(2012); Saintha v. Mukasey, 516 F.3d 243, 248 (4th Cir. 2008).

Congress has similarly limited our review of the order denying

his     motion     to     reopen    his        removal     proceedings.          See

§ 1252(a)(2)(C), (D); Larngar v. Holder, 562 F.3d 71, 75 (1st

Cir. 2009).        Given this limitation, as a “threshold question,”

we    must    analyze    each    argument      Oxygene     raises    to   determine

whether      it   presents   a   legal    or    constitutional       question,    or

raises only a factual dispute.            Saintha, 516 F.3d at 248-252.

       In challenging the order denying his application for CAT

relief, Oxygene offers two arguments.                First, he maintains that

In re J-E-, on which the IJ and BIA relied, incorrectly states

the legal test for the intent necessary to establish torture

under the CAT.          This is a question of law over which we retain

jurisdiction       despite   Oxygene’s        aggravated    felony    conviction.

See 8     U.S.C.    §   1252(a)(2)(D);        Cherichel   v.   Holder,    591   F.3d

1002, 1009 (8th Cir. 2010).              Oxygene argues in the alternative

that, even if In re J-E- correctly states the intent requirement

for CAT claims, the IJ and BIA erred in their application of

that requirement to his case.             At bottom, Oxygene contends that

substantial evidence does not support the IJ and BIA decisions

to deny him CAT relief.            We ordinarily can “review[] decisions

to deny CAT relief for substantial evidence.”                  Suarez-Valenzuela

v. Holder, 714 F.3d 241, 245 (4th Cir. 2013).                        But when an

applicant for CAT relief has committed an aggravated felony,

                                          8
§ 1252(a)(2)(C) eliminates appellate review for sufficiency of

evidence.      See Saintha, 516 F.3d at 249-50.               Consequently, we

lack jurisdiction to consider his alternative argument. 1

      In his challenge to the order denying his motion to reopen

his application for CAT relief, Oxygene maintains that, given

his   recent    mental     health     diagnoses,        the   BIA    abused   its

discretion in denying relief.               According to Oxygene, Haitian

officials will likely single him out for torture because of the

stigma associated with mental health conditions in Haiti.                     But

the BIA disagreed, finding that that the record evidence, along

with his newly proffered evidence, did not demonstrate that it

was   more   likely     than   not   Oxygene    would    suffer     torture   upon

removal.         This     constitutes       a    quintessentially        factual

determination over which we lack jurisdiction.                    See Hernandez-

Nolasco v. Lynch, 807 F.3d 95, 99 (4th Cir. 2015).




      1Oxygene also raises a related claim of legal error in this
alternative argument.    According to Oxygene, the IJ and BIA
committed   legal  error   by  “ignor[ing]   unrebutted,   legally
significant   evidence”  and   failing  to   offer   a   “reasoned
explanation” for their rulings. Pet. Br. at 25. This argument
fails. In fact, the IJ carefully considered Oxygene’s testimony
and documentary evidence, including facts that potentially
distinguished his case from In re J-E-, before concluding that
In re J-E- compelled him to deny the application. And the BIA’s
opinion affirming the IJ’s decision adequately explains why the
IJ’s decision was correct.


                                        9
     Accordingly,    we   turn   now    to   consider      a    single    issue:

whether In re J-E- states the correct legal standard for intent

in CAT claims.



                                  III.

     The    Government    maintains     that    In    re       J-E-   correctly

articulates the intent element in the CAT definition of torture.

According to the Government, to establish torture meriting CAT

relief,    Oxygene   must    demonstrate       that     Haitian       officials

specifically intend not only the act of detention, but also the

severe pain and suffering that is the near-inevitable result of

prolonged detention in Haitian prisons.              The Government argues

that mere knowledge does not suffice to prove intent.                    Rather,

the alleged torturers must actually desire the consequences of

their actions.    Oxygene maintains that In re J-E- does not state

the correct legal standard.           He contends that the intent to

detain, coupled with knowledge to a near certainty that severe

pain and suffering will result, qualifies as specific intent to

torture under the CAT.

     To resolve this question, we must examine the CAT and its

implementing regulations to determine its definition of torture

and the resulting treaty obligations of the United States.                  The

United Nations General Assembly adopted the CAT on December 10,

1984.     See Convention Against Torture and Other Cruel, Inhuman

                                   10
or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty

Doc. No. 100-20 (1988).              As a signatory to this multinational

treaty,     the     United        States    agreed     not     to        “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.”                  Id. art. 3.1.           The CAT defines

torture, in relevant part, as “any act by which severe pain or

suffering,        whether     physical       or      mental,        is     intentionally

inflicted on a person.”            Id. art. 1.1 (emphasis added).

     Upon    signing        the    CAT,    the    President     proposed,          and    the

Senate adopted, a number of reservations, understandings, and

declarations.       Relevant here is the understanding that “in order

to constitute torture, an act must be specifically intended to

inflict severe physical or mental pain or suffering.”                              S. Exec.

Rep. 101-30, at 9, 30, 36 (1990) (emphasis added).                                 Such an

express understanding reflects the intent of the United States

to influence how executive and judicial bodies later interpret

the treaty on both the international and domestic level.                                  See

Stefan A. Riesenfeld & Frederick M. Abbot, The Scope of U.S.

Senate Control over the Conclusion and Operation of Treaties, 67

Chi.-Kent    L.    Rev.     571,     604   (1991).       Thus,       by    the     time   of

ratification, the intent requirement in the CAT had acquired a

“specific intent” gloss in the United States.



                                            11
      Congress      enacted      the        Foreign       Affairs      Reform          and

Restructuring Act of 1998 (“FARRA”) to implement the CAT.                              See

Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822 (codified

as note to 8 U.S.C. § 1231 (2012)).                       FARRA itself does not

define      torture.     Instead,       it      directs     “the    heads        of    the

appropriate agencies [to] prescribe regulations to implement the

obligations of the United States under Article 3 of the [CAT],

subject to any reservations, understandings, declarations, and

provisos contained in the United States Senate resolution of

ratification of the Convention.”                Id.     Pursuant to FARRA, the

Department of Justice promulgated regulations governing claims

for   CAT    relief.     See    Regulations        Concerning       the    Convention

Against Torture, 64 Fed. Reg. 8478-01 (Feb. 19, 1999) (codified

at 8 C.F.R. §§ 208.16-208.18 (2016)).

      These regulations adopt the specific intent interpretation

of the definition of torture, echoing the understanding of the

President and Senate.          The regulations define torture as “any

act   by    which   severe    pain    or    suffering,      whether       physical      or

mental,     is   intentionally       inflicted     on   a   person.”         8    C.F.R.

§ 208.18(a)(1)      (2016).      A    separate     subsection       provides          that,

“[i]n 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



                                           12
pain    and    suffering         is       not    torture.”           Id.    §    208.18(a)(5)

(emphasis added).

       Thus, every entity responsible for the progress of the CAT

from    treaty      to     domestic        law     of    the    United      States    --     the

President, the Senate, and the Department of Justice -- made

clear that, in order to qualify as torture under the treaty, an

act    must   be    specifically           intended       to   cause       severe    pain    and

suffering.          But    at   no    point      did     any   entity      define    specific

intent.       Nor    did    any       entity     address       the   question       this    case

presents:     whether an actor must actually desire to cause severe

pain and suffering for his actions to constitute torture under

the CAT.      That task fell to the BIA, which in 2002 issued its en

banc    decision      in    In       re    J-E-,        announcing     the      standard     for

evaluating CAT claims.               See 23 I. & N. Dec. at 296-99.                  Thus, In

re J-E- articulated a five prong test in defining torture under

the CAT:

       (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.

Id. at 297.

       Most relevant here, In re J-E- expressly addressed whether

the practice of the Haitian government of indefinitely detaining

criminal      deportees          under          horrific       conditions         constitutes


                                                 13
torture.       See id. at 303-04.               The BIA denied J-E-’s claim for

CAT relief, finding it deficient under the test’s second prong

because he offered “no evidence that Haitian authorities are

detaining criminal deportees with the specific intent to inflict

severe physical or mental pain or suffering.”                         Id. at 300.       In

so   holding,      the    BIA     rejected      the     applicant’s        argument    that

Haiti’s detention of deportees with knowledge of the substandard

conditions       they     will    face     in     and    of   itself       satisfied    the

specific intent requirement for torture under the CAT.                           The BIA

held    that     “[a]lthough       Haitian        authorities      are     intentionally

detaining        criminal        deportees        knowing     that       the   detention

facilities are substandard,” the applicant needed to show that

officials      were      “intentionally         and     deliberately       creating    and

maintaining such prison conditions in order to inflict torture”

to secure relief under the CAT.                 Id. at 301.

       In   re    J-E-     relied     on     the      definition      in    Black’s    Law

Dictionary that “[s]pecific 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 or negligence.”               Id. (internal quotation marks and

alteration omitted).              On the record before it, the BIA found

that “Haitian prison conditions are the result of budgetary and

management problems as well as the country’s severe economic

difficulties,” and not part of an intentional effort to punish

                                             14
criminal    deportees.       Id.   Consequently,   the      BIA   denied   the

applicant’s claim. 2



                                    IV.

     With    these   legal   principles   in   mind,   we   consider   their

application to the case at hand.

     The BIA explained in In re J-E- that, as usually defined,

“specific intent” constitutes “[t]he intent to accomplish the

precise criminal act that one is later charged with.”                23 I. &

N. Dec. at 301 (quoting Intent, Black’s Law Dictionary (10th ed.

2014)).     This contrasts with “general intent,” defined as “[t]he

intent to perform an act even though the actor does not desire

the consequences that result.”        Intent, Black’s Law Dictionary.

Thus, the distinction between specific and general intent rests

on the mens rea related to the consequences of a wrongful act.




     2 The BIA in In re J-E- also held that the CAT claim failed
under the test’s third prong, finding no evidence that Haitian
officials inflicted severe pain and suffering on detainees for a
proscribed purpose.   See id. at 300.   The IJ in Oxygene’s case
made a similar finding.     In his petition for review, Oxygene
makes a passing challenge to In re J-E-‘s proscribed purpose
holding, but fails to develop any arguments with respect to it.
As a result, Oxygene has waived this argument.      See Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009).   Even if preserved and meritorious, Oxygene’s argument
concerning the purpose prong would not save his petition. This
is so because, as we explain in Part IV, Oxygene’s challenge to
the intent prong fails, providing an independent ground on which
to deny his petition for review.


                                    15
      Haiti’s    detention    of    criminal    deportees    under    extremely

substandard conditions constitutes the challenged wrongful act

both here and in In re J-E-.           And in both cases, the applicant

argues that this detention results in pain and suffering from

malnutrition     and    disease    severe   enough   to   constitute       torture

under the CAT.         The BIA in In re J-E- rejected that argument.

The BIA concluded that, in light of the prevailing meaning of

“specific    intent,”     a   claimant      needed   to   show    that     Haitian

officials    “are      intentionally     and   deliberately       creating    and

maintaining such prison conditions in order to inflict torture,”

and that the record before it did not support such a finding.

23 I. & N. Dec. at 301.           Put another way, In re J-E- requires a

CAT claimant to demonstrate that the state actor who mistreats

him desires to cause his severe pain and suffering, and is not

merely negligent nor reckless as to the risk.

      Oxygene argues that a claimant should be able to satisfy

this requirement by demonstrating that an official acts with

knowledge to a near certainty that he will cause severe pain and

suffering.      This constitutes one possible interpretation of the

CAT   and    its       implementing    regulations,       given      the     legal

presumption that people intend the foreseeable consequences of

their actions and given the trivial difference in culpability

between one who desires harm and one who acts knowing he will

cause harm.        See United States v. Bailey, 444 U.S. 394, 404

                                       16
(1980).       After all, no entity -- not the President, not the

Senate, not the Department of Justice -- defined specific intent

as the CAT progressed from treaty to domestic law.                        And specific

intent occupies a notoriously ambiguous space in the criminal

law.       See, e.g., id. at 403.          Indeed, in In re J-E-, six of the

BIA’s      nineteen    board   members      agreed      with      the    view    Oxygene

asserts here.        See 23 I. & N. Dec. at 304-318.

       But    the   majority   of    the    BIA   in    In   re    J-E-    interpreted

§ 208.18(a)(5) as expressly foreclosing this argument.                          While we

review      the   BIA’s   legal     conclusions    de    novo,      we    afford    them

appropriate deference.         See Turkson v. Holder, 667 F.3d 523, 527

(4th Cir. 2012); see also INS v. Aguirre-Aguirre, 526 U.S. 415,

424 (1999). 3       Such deference is well deserved here.                 Although the

conclusion reached by the BIA in In re J-E- is not the only

plausible interpretation of the CAT, this interpretation accords

with the prevailing meaning of specific intent and reflects the




       3
       Despite consensus among our sister circuits that courts
owe deference to In re J-E-, they have not agreed on the
appropriate degree of deference due to the BIA. Compare Auguste
v. Ridge, 395 F.3d 123, 144-45 (3d Cir. 2005) (applying Chevron
deference to uphold the BIA’s interpretation as reasonable),
with Pierre v. Gonzales, 502 F.3d 109, 116-17 (2d Cir. 2007)
(affording the BIA “substantial deference” and citing cases
applying the standard from Auer).     We need not wade into the
debate over the proper degree of deference, for it makes no
difference in this case.      The BIA’s interpretation is not
plainly erroneous nor inconsistent with the regulation under
Auer, nor is it unreasonable under Chevron.


                                           17
likely wish       of    the   President        and   Senate     to    incorporate        that

meaning into the CAT regulations.

       Courts     routinely        describe       the    requisite      mens      rea     for

specific intent crimes as akin to purpose or desire, rather than

mere    knowledge.        The      Supreme     Court     has    noted    that     specific

intent    “corresponds        loosely”       with    “purpose,”        whereas       general

intent “corresponds loosely” with “knowledge.”                         Bailey, 444 U.S.

at   405.       This     distinction        holds    true      even    when    the      actor

possesses    knowledge        to    a   near      certainty     that    something        will

occur.      See, e.g., 21 Am. Jur. 2d Criminal Law § 119 (2015)

(“[A]    specific-intent           crime    requires     not    simply      the      general

intent to do the immediate act with no particular, clear, or

undifferentiated end in mind, but the additional deliberate and

conscious purpose or design of accomplishing a very specific and

more     remote        result;      mere       knowledge       that     a     result       is

substantially certain to follow from one’s actions is not the

same as the specific intent or desire to achieve that result.”)

(emphasis added).

       Of course, the factfinder in a criminal trial may infer an

actor’s     desire       to   bring        about     a   consequence          from      facts

illustrating that he knew precisely what would result from his

actions.        Thus, judges regularly instruct juries in criminal

cases that they may infer intent from knowledge.                              See, e.g.,

United States v. Arthur, 544 F.2d 730, 737 (4th Cir. 1976) (“An

                                             18
instruction   that   it    is    reasonable       to    infer   that   a   person

ordinarily intends the natural and probable consequences of his

voluntary acts has generally been held proper.”).                But it is the

prerogative of the factfinder to make the inferential leap from

knowledge to desire.       Id.     In this way, the factfinder remains

free to consider facts suggesting that, despite a defendant’s

knowledge of a likely result, the defendant in fact did not

desire a certain consequence.            Oxygene’s proposed interpretation

of § 208.18(a) would preclude such an inquiry. 4

     Oxygene’s    contrary      view    ignores   the    significance      of   the

understanding of the President and Senate at ratification that

torture   under   the     treaty       required   heightened     intent.        As

explained above, the definition of torture in the CAT included

an intent requirement.           Section 208.18(a)(5) incorporates the


     4 None of the cases Oxygene cites suggest that the BIA
rendered an unreasonable interpretation of § 208.18(a) in In re
J-E-. At most, those cases illustrate the occasional difficulty
courts have in applying the common-law concept of specific
intent to particular facts or statutes.    Even in United States
v. Neiswender, 590 F.2d 1269, 1274 (4th Cir. 1979), where we
held that knowledge of foreseeable consequences satisfied the
intent element of a obstruction of justice conviction, the jury
instruction we approved merely charged the jury to “find an
intent to obstruct justice,” noting that “[i]t is ordinarily
reasonable to infer that a person intends the natural and
probable consequences of acts knowingly done or undertaken.”
Id. (emphasis added). While we recognized that some courts had
characterized obstruction of justice as a “specific intent”
crime, we saw “no need to undertake an extended excursion into
the subtleties of specific intent,” and did not define the term.
Id. at 1273.


                                         19
instruction of the President and the Senate to require “specific

intent”     --   a    more    stringent    standard          than       the    unqualified

“intent” from Article 1 of the CAT.                   The position of the BIA in

In re J-E- accords with this instruction.

       In   contrast,    Oxygene’s      argument          goes    a    long    way    toward

requiring only general intent for claims under the CAT, reading

the explicit understanding of the President and Senate out of

the regulation.        While the President and Senate never expressly

stated that knowledge to a near certainty would not constitute

specific     intent,     at     common-law          the    term       “specific      intent”

traditionally        referred   to    “certain        narrow      classes      of    crimes”

where “heightened culpability has been thought to merit special

attention.”          Bailey,    444    U.S.     at        405.        It     was    entirely

reasonable for the BIA to conclude that the President and Senate

wished to incorporate into the CAT regulations a more exacting

intent standard that excludes mere knowledge when they chose a

term traditionally associated with heightened intent.

       In sum, we join the majority of our sister circuits, who

have    considered       the     issue,        in     deferring         to     the     BIA’s

interpretation of the CAT’s intent requirement as articulated in

In re J-E-.          See Villegas v. Mukasey, 523 F.3d 984, 988 (9th

Cir. 2008); Pierre, 502 F.3d at 116-17 (2d Cir.); Auguste, 395

F.3d at 144 (3d Cir.); Cadet v. Bulger, 377 F.3d 1173, 1185-86

(11th Cir. 2004); Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st

                                          20
Cir. 2004).      But see Cherichel, 591 F.3d at 1014 (8th Cir.)

(affirming denial of CAT relief based on the court’s own reading

of the CAT and § 208.18(a) and taking no position on whether the

BIA’s interpretation in In re J-E- is entitled to deference). 5

     We   note   that,   in   many    cases,    In   re    J-E-   will    pose   no

significant hurdle for CAT applicants.               For instance, if a CAT

claimant proves it is more likely than not he will be abducted

and severely beaten upon removal, the specific intent of the

torturer to inflict pain and suffering on his victim would be

established.      Moreover,    even    for     claims     premised   on   Haitian

prison conditions in which intent is more difficult to prove, In

re J-E- does not prevent an IJ from inferring specific intent if

the facts allow.     Rather, In re J-E- leaves the window open to

such claimants.    See Pierre, 502 F.3d at 116, 118 n.6 (deferring

to In re J-E- but noting that nothing in that opinion “prevents

the agency from drawing the inference, should the agency choose


     5 The fact that the BIA relied on a legal dictionary in its
analysis, and that specific intent derives its meaning from
criminal law, does not negate the deference due to the BIA.
While the BIA may not have particular expertise in the
construction of criminal laws, it is expert at construing
ambiguous immigration regulations like § 208.18(a).     For that
same reason, Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005),
offers Oxygene no assistance.   In Soliman we declined to defer
to the BIA’s interpretation of a Virginia criminal statute. See
419 F.3d at 281.      Soliman thus involved a very different
question than the deference due the BIA when interpreting not a
state statute but an immigration regulation promulgated by the
federal government.


                                      21
to do so, that a particular course of action is taken with

specific intent to inflict severe pain and suffering”). 6

       Thus, other CAT applicants have succeeded where Oxygene and

the applicant in In re J-E- fell short.                     For example, at his

removal      hearing,      the   petitioner    in   Ridore      v.   Holder    offered

testimony from an expert witness as to the intent of Haitian

officials in their detention of criminal deportees.                           See 696

F.3d 907, 910, 916-17 (9th Cir. 2012).                    Accordingly, the IJ in

Ridore assessed a more robust factual record than that in In re

J-E-       (and   here).     On   that   basis,     the    IJ   there      found   that

allowing disease “to run rampant through the prison population”

and    failing     to   “maintain    proper    medical      facilities       in    those

institutions         [could]      only    be      attributable        to      [Haitian

officials’] willingness to use the jails to harm the inmates so

that they will never be a threat to the population again.”                          Id.

at 913.       Accordingly, the IJ granted CAT relief.                Id. at 912-14.

       6
       Some commentators have asserted that after In re J-E- the
BIA has categorically denied CAT claims based on prison
conditions in Haiti.     See, e.g., Renee C. Redman, Defining
“Torture”: The Collateral Effect on Immigration Law of the
Attorney   General’s  Narrow   Interpretation  of  “Specifically
Intended” When Applied to United States Interrogators, 62 N.Y.U.
Ann. Surv. Am. L. 465, 482 (2007).          To the extent that
individual IJs or BIA members interpret In re J-E- as a
categorical impediment to CAT relief, they misread that
precedent.   In its treatment of specific intent under the CAT,
the BIA in In re J-E- merely held that the record facts in that
case did not support an inference that the Haitian officials
desired the pain and suffering of its detainees. See 23 I. & N.
Dec. at 300-01.


                                         22
The BIA reversed.         Id. at 914.       But the Ninth Circuit held there

was   “nothing    illogical”      in      the    IJ’s    findings    “inferring    the

government     intends     to   put      those   prisoners      at   risk   of   cruel,

abusive treatment that would qualify as ‘severe suffering’ or

‘torture.’”      Id. at 917.        For that reason, the court granted the

petition for review.        Id. at 917, 919.

      We call attention to Ridore as an example of how, even when

a court defers to the BIA’s interpretation of specific intent in

In re J-E-, a Haitian citizen may be able to obtain CAT relief.

Of course, the record in Oxygene’s case does not contain similar

evidence as to Haitian officials’ specific intent to torture,

and the IJ and BIA declined to infer such intent.



                                           V.

      In conclusion, we reject Oxygene’s contention that the IJ

and   BIA     committed     legal      error     in     following     the   precedent

established in In re J-E- to deny his application for deferral

of removal under the CAT.             Accordingly, we deny his petition for

review   of    that   order.        We    dismiss       for   lack   of   jurisdiction

Oxygene’s petition for review from the order denying his motion

to reopen.

                                         DENIED IN PART AND DISMISSED IN PART




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