         11-3438-ag
         Edouard v. Holder
                                                                                          BIA
                                                                                     Straus, IJ
                                                                                 A070 689 193

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
     AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 11th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                JOSÉ A. CABRANES,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       STEVE EDOUARD,
14
15                           Petitioner,
16
17                           v.                                  11-3438-ag
18                                                               NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:                    Glenn T. Terk, Wethersfield, CT.
26
27       FOR RESPONDENT:                    Tony West, Assistant Attorney
28                                          General; David V. Bernal, Assistant
29                                          Director; Lauren E. Fascett,
30                                          Attorney, Office of Immigration
31                                          Litigation, United States Department
32                                          of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 4   is DENIED.

 5       Petitioner Steve Edouard, a native and citizen of

 6   Haiti, seeks review of a July 27, 2011, order of the BIA,

 7   affirming the March 24, 2011, decision of Immigration Judge

 8   (“IJ”) Michael W. Straus, which denied his application for

 9   deferral of removal under the Convention Against Torture

10   (“CAT”).     In re Steve Edouard, No. A070 689 193 (B.I.A. July

11   27, 2011), aff’g No. A070 689 193 (Immig. Ct. Hartford Mar.

12   24, 2011).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   both the IJ’s and BIA’s opinions “for the sake of

16   completeness.”     See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

17   Cir. 2008).     The applicable standards of review are well

18   established.     See 8 U.S.C. § 1252(b)(4)(B); Weng v. Holder,

19   562 F.3d 510, 513 (2d Cir. 2009).

20       We lack jurisdiction, under 8 U.S.C. § 1252(a)(2)(C),

21   to review a final order of removal resulting from a

22   conviction for an aggravated felony.     Notwithstanding this


                                     2
 1   provision, however, we retain jurisdiction to review

 2   “constitutional claims” and “questions of law.”   8 U.S.C.

 3   § 1252(a)(2)(D).   Because Edouard does not challenge the

 4   agency’s determination that he is removable based on a

 5   conviction of an aggravated felony, we consider only

 6   Edouard’s challenge to the agency’s determination that he

 7   failed to demonstrate his eligibility for CAT relief.

 8       The agency denied CAT relief, acknowledging evidence of

 9   the incarceration of returning deportees to Haiti and harsh

10   prison conditions, but concluded that such conditions were

11   not carried out “with the specific intent to inflict severe

12   pain or suffering, or to otherwise defeat the purpose of the

13   CAT.”   Edouard argues that the agency applied the wrong

14   legal standard by requiring him to show that he would be

15   tortured rather than just subject to a danger of torture.

16   This argument raises a legal question as to whether the IJ

17   applied the appropriate legal standard.   See Barco-Sandoval

18   v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008) (explaining that

19   we retain jurisdiction to determine whether the agency

20   applied a legally erroneous standard); see also 8 C.F.R.

21   § 1208.17 (setting forth a “more likely than not” standard

22   for CAT claims).   However, contrary to Edouard’s argument,


                                   3
 1   both the IJ and the BIA cited the correct “more likely than

 2   not” standard.

 3       Moreover, in discussing his argument, Edouard focuses

 4   on the level of harm he might suffer in a Haitian prison and

 5   the harshness of prison conditions without addressing the

 6   dispositive issue of whether the Haitian authorities have an

 7   intent to torture as required for CAT relief.     See Pierre v.

 8   Gonzales, 502 F.3d 109, 118 (2d Cir. 2007) (finding that, to

 9   be eligible for CAT relief based on a fear of torture in

10   prison, the applicant must show that the alleged torturer

11   would act with the “specific intent” to torture).     As in

12   Pierre, Edouard’s reliance on harsh conditions, absent any

13   allegation of intent, is insufficient to demonstrate his CAT

14   eligibility.     Id. at 111 (concluding that “[t]he failure to

15   maintain standards of diet, hygiene, and living space in

16   prison does not constitute torture under the CAT unless the

17   deficits are sufficiently extreme and are inflicted

18   intentionally rather than as a result of poverty, neglect,

19   or incompetence”).

20       Edouard’s remaining argument, that the BIA improperly

21   declined to consider evidence he submitted on appeal

22   demonstrating the prevalence of cholera in Haitian prisons,


                                     4
 1   is without merit.   See 8 C.F.R. §§ 1003.1(d)(3)(iv)

 2   (prohibiting the BIA from engaging in independent

 3   factfinding other than “taking administrative notice of

 4   commonly known facts such as current events or the contents

 5   of official documents”).

 6       For the foregoing reasons, the petition for review is

 7   DENIED.   As we have completed our review, any stay of

 8   removal that the Court previously granted in this petition

 9   is VACATED, and any pending motion for a stay of removal in

10   this petition is DISMISSED as moot.    Any pending request for

11   oral argument in this petition is DENIED in accordance with

12   Federal Rule of Appellate Procedure 34(a)(2), and Second

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17




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