                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2007

Lavira v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-3334




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                                    PRECEDENTIAL


    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT



                 NO. 05-3334


            MAURICE LAVIRA,

                                       Petitioner

                       v.

ATTORNEY GENERAL OF THE UNITED STATES,

                                       Respondent



     Petition for Review of an Order of the
      United States Department of Justice
         Board of Immigration Appeals
             BIA No. A72-550-331
       Immigration Judge: Grace Sease
               Argued on September 28, 2006

Before: RENDELL, ROTH, AND GIBSON*, Circuit Judges,

                 (Filed February 26, 2007)


Valerie A. Burch [ARGUED]
Pennsylvania Immigration Resource Center
50 Mount Zion Road
York, PA 17402
Counsel for Petitioner
Maurice Lavira

Ethan B. Kanter
James E. Grimes
William C. Minick [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044

Counsel for Respondent
Attorney General of the United States

____________________
    * Honorable John R. Gibson, Judge of the United States
      Court of Appeals for the Eighth Circuit, sitting by
      designation.



                              2
                 OPINION OF THE COURT



RENDELL, Circuit Judge.

       Maurice Lavira is an above-the-knee amputee with a
lifelong political affiliation with exiled former President
Jean-Bertrand Aristide of Haiti. He is also HIV positive. Lavira
has been in the United States since 1993. He petitions for
review of the decision of the Immigration Judge (“IJ”), affirmed
by the Board of Immigration Appeals (“BIA”), that his
conviction for purchasing a $10 bag of drugs for an undercover
agent was a “particularly serious crime” under the terms of the
Immigration and Nationality Act (“INA”). In addition, Lavira
claims that the IJ failed to recognize the basis for his claim
under the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”), as implemented by the Foreign Affairs Reform and
Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G,
Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified
as Note to 8 U.S.C. § 1231), and the Department of Justice’s
corresponding regulations at 8 C.F.R. §§ 208.16-208.18. Lavira
argues that his removal to Haiti would violate the CAT in that
placing him in the inhumane conditions of the Haiti detention
center (an airless, disease-ridden facility that this Court has
likened to a “slave ship,” Auguste v. Ridge, 395 F.3d 123, 129

                               3
(3d Cir. 2005)) would more likely than not subject him to severe
pain and suffering, and that he would be singled out for abuse
and mistreatment by the guards given, among other
characteristics, his HIV status.1 We will remand to the agency
for further proceedings.

       I.     Factual and Procedural History

       Born in Haiti on January 1, 1970, Lavira had his leg and
ear cut off in a car accident.2 Lavira lost fingers in Haiti while
repairing a truck. Lavira had little contact with his mother
growing up and when he was 16 his father was killed. He found
refuge at a church in Port-au-Prince where Jean-Bertrand
Aristide preached. Aristide permitted Lavira to stay at the
church, and Lavira did so for two years until the church was


  1
    If the IJ committed legal error in concluding that his drug
offense was a “particularly serious crime,” Lavira would then be
eligible for withholding of removal. Whether or not he succeeds
on that claim, Lavira may be eligible for deferral of removal if
he prevails on his second claim, namely, that the IJ erred as a
matter of law in denying his Convention Against Torture (CAT)
claim.
   2
    While Lavira contends that he lost his leg and ear when
“anti-Aristide thugs attacked him with a machete for supporting
the exiled President of Haiti,” Appellant's brief “does not
dispute the facts found by the IJ, nor does it rely upon
information found unreliable by the IJ.”

                                4
burned down by Aristide opponents. Lavira was an open
Aristide supporter in 1990 when Aristide ran for and won
election as President of Haiti. At roughly the same time as
Aristide was ousted from Haiti in a military coup, Lavira left
Haiti for the United States on a boat and was picked up by the
U.S. Marines. The then-INS detained him for more than a year,
then released him “for humanitarian reasons,” according to
Lavira.

        Believing that he had been granted permanent asylum,
Lavira sought no new immigration status after being released.
He became depressed and by 1996 was homeless and a drug
addict. In 1998, Lavira pled guilty to a charge of Attempted
Criminal Sale of a Controlled Substance in the Third Degree,
N.Y.P.L. § 110/220.39, as a result of his having accepted $10
from an undercover officer in order to obtain crack cocaine for
the officer.3 In July 2003, Lavira was taken into custody by the
Department of Homeland Security (“DHS”).

       In November 2003, the IJ ordered that Lavira be removed
to Haiti in light of his drug conviction. Unable to write or speak

 3
       Lavira also pled guilty in 2002 to a charge of Criminal
Facilitation in the Fourth Degree, N.Y.P.L. § 115.00. Lavira
had purchased three small baggies of crack cocaine from an
undercover officer. Lavira served roughly 18 months in New
York state prisons for these offenses. The record is clear,
however, that the only conviction used as a basis for deporting
Lavira was the attempted sale conviction. A.R. 952.

                                5
English, Lavira appealed pro se to the BIA. The BIA sustained
the appeal and remanded the case to the IJ, finding that Lavira’s
opportunity to make claims for withholding of removal under
the INA and the CAT had been improperly limited by the IJ. In
the remand order, the BIA instructed the IJ to consider the
circumstances surrounding Lavira’s drug trafficking crime in
order to determine whether Lavira had in fact been convicted of
a “particularly serious crime.” The remand also ordered that
Lavira be permitted to “flesh out” his fear of returning to Haiti,
as the opportunity to do so at the removal hearing was limited.
Appx. 31.

       Thereafter venue was changed to the York Immigration
Court in Pennsylvania, and Lavira received free counsel
pursuant to 8 C.F.R. § 292.1(a)(2). He applied for withholding
of removal to Haiti under 8 U.S.C. § 1231(b)(3), withholding of
removal under the CAT, 8 C.F.R. § 208.16, and deferral of
removal to Haiti under the CAT, 8 C.F.R. § 208.17. After
several hearings over the course of six months, the IJ denied all
of Lavira’s claims, concluding that Lavira had committed a
particularly serious crime and that he was not eligible for
deferral of removal to Haiti because he had leveled only a
generalized attack on the conditions of the Haitian facility.




                                6
       A.     “Particularly Serious Crime”

        Individuals seeking to obtain withholding of removal
may not do so if they are deemed by the Attorney General to
have committed a particularly serious crime. 8 U.S.C.
§ 1231(b)(3)(ii) (person not removable if the Attorney General
decides that “the alien, having been convicted by a final
judgment of a particularly serious crime is a danger to the
community of the United States”). The statute gives guidance
as to the meaning of this term:

       For purposes of clause (ii), an alien who has been
       convicted of an aggravated felony (or felonies) for
       which the alien has been sentenced to an
       aggregate term of imprisonment of at least 5 years
       shall be considered to have committed a
       particularly serious crime. The previous sentence
       shall not preclude the Attorney General from
       determining that, notwithstanding the length of
       sentence imposed, an alien has been convicted of
       a particularly serious crime.

8 U.S.C. § 1231(b)(3)(iv).

       Although Lavira committed a drug trafficking offense, a
crime that he concedes is an aggravated felony, he did not
receive a sentence in excess of five years. Thus, it was left up
to the Attorney General to determine whether the crime was a


                               7
“particularly serious crime.” We have jurisdiction to decide
whether the Attorney General’s determination is correct. Alaka
v. Gonzales, 456 F.3d 88, 104 (3d Cir. 2006) (“We thus have
jurisdiction over whether the IJ misapplied the law in
determining whether Alaka’s bank fraud conviction was
‘particularly serious.’”).4

       Under Matter of Y-L-, 23 I. & N. Dec. 270 (BIA 2002),
the BIA opined that the presumption is that a drug trafficking
crime is a “particularly serious crime.” That presumption can be
overcome, however, if the offense is a drug trafficking crime but
nevertheless “fall[s] short of that standard.” Matter of Y-L-, 23
I. & N. at 276-77. The BIA in that case described the proper
analysis:

       I might be well within my discretion to conclude
       that all drug trafficking offenses are per se
       ‘particularly serious crimes’ under the INA. I do
       not consider it necessary, however, to exclude
       entirely the possibility of the very rare case where
       an alien may be able to demonstrate extraordinary
       and compelling circumstances that justify treating
       a particular drug trafficking crime as falling short
       of that standard. While this opinion does not


   4
    Respondent initially claimed that the Attorney General’s
determination was unreviewable, but rescinded that argument by
letter in light of Alaka.

                                8
afford the occasion to define the precise
boundaries of what those unusual circumstances
would be, they would need to include, at a
minimum: (1) a very small quantity of controlled
substance; (2) a very modest amount of money
paid for the drugs in the offending transaction;
(3) merely peripheral involvement by the alien in
the criminal activity, transaction, or conspiracy;
(4) the absence of any violence or threat of
violence, implicit or otherwise, associated with
the offense; (5) the absence of any organized
crime or terrorist organization involvement, direct
or indirect, in relation to the offending activity;
and (6) the absence of any adverse or harmful
effect of the activity or transaction on juveniles.
Only if all of these criteria were demonstrated by
an alien would it be appropriate to consider
whether other, more unusual circumstances (e.g.,
the prospective distribution was solely for social
purposes, rather than for profit) might justify
departure from the default interpretation that drug
trafficking felonies are ‘particularly serious
crimes.’ I emphasize here that such commonplace
circumstances as cooperation with law
enforcement authorities, limited criminal
histories, downward departures at sentencing, and
post-arrest (let alone post-conviction) claims of



                        9
       contrition or innocence do not justify such a
       deviation.

Id.5

        In a hearing that took place several weeks before the IJ
rendered her ultimate decision on the particularly serious crime
question, the IJ indicated that she understood that Matter of Y-L-
set forth the correct standard. At the same time, however, she
appeared to misconceive the facts of Lavira’s case, asking
Lavira’s counsel, “How do you overcome the fact that he has
been convicted of three drug trafficking crimes?” A.R. 187.
Lavira was in fact convicted of two crimes and Matter of Y-L-
confines the “particularly serious crime” inquiry to the facts
underlying the crime upon which removal is predicated, here
just one offense. Moreover, the number of drug trafficking
crimes does not appear as a relevant consideration when the
inquiry under Matter of Y-L- is whether the crime for which he
is being deported is a minor drug offense and thus not a
particularly serious crime.

       At the last hearing the IJ rendered an oral decision,
ultimately determining that withholding was unavailable. She


 5
       In a later portion of the opinion, the BIA declared that it
found that “a drug ‘courier’ plays more than a sufficiently active
part in a distribution conspiracy to render his conviction a
‘particularly serious crime.’” Matter of Y-L-, 23 I. & N. at 278.

                               10
stated her reasoning: “[n]ot only because he has been convicted
of an aggravated felony, but because he has been convicted of
a drug trafficking offense. Which is presumptively and [sic]
particularly serious crime. No evidence has been submitted to
this Court that would allow the Court to find that departure from
this interpretation would be warranted or permissible.” Appx.
16-17. This language is the entirety of the IJ’s decision on this
point; the IJ did not allude to the facts of the crime,
notwithstanding the BIA’s directive that she was to do so on
remand. Nor did the IJ refer to Y-L- or engage in any reasoning.

       B.     Convention Against Torture Claim

       Lavira’s CAT challenge to the Haitian facility was by no
means the first of its kind. In fact, our previous cases have made
us all too aware of the deplorable conditions in the Haitian
prisons. See, e.g., Auguste, 395 F.3d at 129. What makes
Lavira’s claim distinguishable from past attacks, however, is his
physical condition and the record evidence in this case.

       When Lavira’s application for withholding and deferral
was first brought before the IJ on remand, he had not yet tested
positive for HIV. The torture claim was thus initially based on
Lavira’s fear that would be tortured while detained in the
Haitian facility by prison guards who would target the
wheelchair-bound Aristide supporter.




                               11
        During the proceedings that occurred in the weeks
leading up to the IJ’s oral decision, and prior to learning that
Lavira was HIV positive, the IJ evinced concern about sending
Lavira to Haiti’s notorious facility (Haiti’s National
Penitentiary) in light of his amputee status. She distinguished
Lavira’s case from that of the typical person who is sent to the
facility and she distinguished Lavira’s challenge from a
generalized attack on the facility conditions. She also
questioned the Government intently on this point: “How do you
deal with the fact of somebody who has the physical
condition–the physical disabilities and injuries that the
respondent has? And the conditions of the Haitian prisons?”
Tr. Oct. 26, 2004 Hr’g at 77. The IJ discussed the horrific
conditions the BIA had considered in a previous case, Matter of
J-E- and stated that those conditions “were present in the Matter
of J-E-, but J-E-, if I recall correctly, was not confined to a
wheel chair, appeared to have two legs and appeared to be
ambulatory.” Id.

       Unsatisfied with the Government’s answers, the IJ then
held the case over for several weeks in order to take additional
evidence as to what would happen to Lavira if he were sent to
the facility. She instructed Lavira’s attorney to gather
“objective evidence on the treatment of some body [sic] in Mr.
Lavira’s physical condition and health conditions would be
treated in the prisons in Haiti.” Id. at 78. The Government
attorney offered to do the same. The IJ then specifically stated
two key facts she would expect to have before her at the next


                               12
hearing: “what kind of treatment does somebody, such as Mr.
Lavira require to have because of his medical situation” and “is
that kind of treatment available in a detention setting in Haiti .
. . . [Y]ou might also want to focus a little bit [of] attention on
what are the consequences to him should he not have that kind
of treatment.” Id. at 80.

        While attorneys for the Government and for Lavira were
assembling the additional information, Lavira tested positive for
HIV. Based on this diagnosis, counsel for Lavira submitted to
the IJ as part of the record a doctor’s report describing Lavira’s
medical needs and an affidavit by Michelle Karshan, an expert
on mistreatment in Haiti’s prisons. The extensive expert report
detailed the conditions of both Lavira and the prisons and
opined that in light of Lavira’s medical condition his health
would dramatically deteriorate upon incarceration, and that he
would lose 30 pounds in a matter of weeks (Lavira is of average
height and weight). The report detailed the pain and suffering
that would be inflicted on Lavira, both by the guards who would
single out the HIV-positive prisoner and by the lethal
combination of slave-ship conditions and the prisoner’s
infection with the virus that causes an incurable auto-immune
disease.

       At the final hearing on February 8, 2005, the IJ first noted
that the Government’s attorney had indicated that he would
request that DHS exercise its discretion and defer removal in



                                13
light of Lavira’s condition.6 The IJ then rendered her decision.
In her oral decision, the IJ made no mention of the
Government’s previously stated intention to recommend
discretionary deferral, nor did the IJ mention the Karshan report
or the doctor’s report. Despite the IJ’s earlier concern about
Lavira’s condition, the BIA’s instruction that he be permitted to
flesh out his CAT claim, and the record evidence of the unique
pain and suffering that awaited Lavira in Haiti, the IJ’s decision
failed to mention Lavira’s HIV status or address the specific
problems he would face. The IJ denied the CAT claim in the
following sentences:

       [T]he Third Circuit in Auguste v. Ridge, looked at
       the general prison conditions in Haiti and found
       that for an act to constitute torture, it must be
       intentionally inflicted with the specific intent to
       cause. There is no specific intent and the Third
       Circuit found the deplorable and a [sic] poor
       prison conditions that exist in Haiti are not the
       result of specific intent to cause torture, but rather
       a result of the general climate in Haiti, the lack of


   6
    Questioned by our panel on this point at oral argument,
counsel for Lavira stated that the Government had agreed to
pursue discretionary deferral only if Lavira waived his right to
appeal the IJ’s decision. Electing not to rest her client’s fate on
the Government’s promise to seek deferral, Lavira’s counsel
perfected the appeal.

                                14
       funding. And it is a general state of affairs. All
       prisoners who are detained in Haiti, are subject to
       the same deplorable conditions. The respondent
       would not be singled out. To be sure the
       respondent does have certain disabilities, but
       there is no evidence that has been submitted other
       than evidence relating to the general overall
       deplorable conditions that could lead this Court
       to conclude that the respondent would be placed
       or detained upon his return to Haiti with an intent
       to inflict severe pain or suffering.

Appx. 19 (emphasis added).

       The BIA affirmed the IJ’s decision in a streamlined order
by a single judge, and Lavira timely appealed.

       II.     DISCUSSION

       A.      Standard of Review

        The BIA adopted the opinion of the IJ, and as such we
review the IJ’s decision. See Chen Yun Gao v. Ashcroft, 299
F.3d 266, 271 (3d Cir. 2002) (“When the BIA does not render
its own opinion . . . and either defers or adopts the opinion of the
IJ, a Court of Appeals must then review the decision of the IJ.”).
Under Alaka v. Gonzales, 456 F.3d 88 (3d Cir. 2006), we review
de novo the question of whether Lavira’s drug conviction is a


                                15
particularly serious crime. Id. at 104 (“We thus have
jurisdiction over whether the IJ misapplied the law in
determining whether Alaka’s bank fraud conviction was
‘particularly serious.’”). With respect to the CAT claim, we
have jurisdiction to review an order denying a CAT claim under
8 U.S.C. § 1252(a)(2)(C) and 8 U.S.C. § 1252(a)(2)(D), and we
review de novo constitutional claims and questions of law
(including the application of law to fact), while “factual or
discretionary determinations . . . fall outside the jurisdiction of
the court of appeals entertaining a petition for review.”
Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).

        In addition, a decisionmaker such as the IJ “must actually
consider the evidence and argument that a party presents.”
Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal
quotations omitted). An IJ decision that flatly ignores the
grounds presented by the petitioner fails to furnish the Court of
Appeals with the basis for its particular decision, and as such
any meaningful review is not possible. Accordingly, remand is
appropriate in such circumstances because under INS v. Ventura,
537 U.S. 12 (2002), “a reviewing court is powerless to decide in
the first instance issues that an agency does not reach.” Konan
v. Att’y Gen. of the United States, 432 F.3d 497, 501 (3d Cir.
2005).




                                16
       B.     Particularly Serious Crime

       We first address the question of whether the IJ committed
legal error by finding that Lavira’s drug conviction was a
“particularly serious crime” disqualifying him from withholding
of removal under 8 U.S.C. § 1231(b)(3) and the CAT. As noted
above, Lavira’s case had been before an IJ once before and on
appeal the BIA reversed the IJ and remanded the case,
instructing the IJ to consider the circumstances surrounding
Lavira’s drug trafficking crime and to determine whether Lavira
had in fact been convicted of a “particularly serious crime” as
defined by the statute. We can find no indication in the record
that the circumstances of Lavira’ s offense were indeed
considered by the IJ on remand in her ruling regarding the
nature of the crime.

       Lavira testified that the conviction for attempting the sale
of a controlled substance resulted from his accepting $10 from
an undercover police officer in order to obtain crack cocaine for
the officer. Lavira never purchased the drugs; it is not clear
from the record whether that is because he was arrested or
whether he simply failed to make the purchase. The facts of this
offense appear to place him squarely within the exception
carved out by the six-part test in Matter of Y-L-. The
Government argues that Lavira was like the “courier” in Matter
of Y-L-, and therefore the crime should be deemed particularly
serious. However, Lavira’s case bears no resemblance to the
petitioner who was denied relief in Matter of Y-L-. There was


                                17
no distribution conspiracy at all in Lavira’s case, to say nothing
of one approaching the scope and sophistication of the
conspiracy in Matter of Y-L-. The courier deemed to have
committed a particularly serious crime in Matter of Y-L-
confessed to “participation in a conspiracy to produce cocaine
in Puerto Rico and transport it in multi-kilogram quantities for
subsequent distribution in New York. . . . [A]ny scheme
designed to transport cocaine in such large quantities necessarily
exposed numerous individuals to physical harm.” Matter of Y-L,
23 I. & N. Dec. at 278 (emphasis in original). During the
hearings, the IJ correctly recognized Matter of Y-L- as the
relevant precedent, though she did not mention the six-part test
that would have possibly excepted Lavira’s crime from being
considered “particularly serious.” We question, therefore,
whether the IJ ever actually applied Matter of Y-L- to the facts
of Lavira’s conviction for attempted sale or analyzed the six
relevant factors.

        As noted above, at the hearing during which the IJ issued
her opinion and denied Lavira’s “particularly serious crime”
claim, the IJ focused on the fact that he had several drug
trafficking convictions. A.R. 187. She asked Lavira’s counsel,
“How do you overcome the fact that he has been convicted of
three drug trafficking crimes?”, a question that is both factually
incorrect and irrelevant to the issue of whether the crime for
which Lavira is being deported is particularly serious under 8
U.S.C. § 1231(b)(3). The IJ stated correctly that Lavira’s drug
trafficking offense is presumptively a particularly serious crime,


                               18
but inexplicably declared that “[n]o evidence has been submitted
to this Court that would allow the Court to find that departure
from this interpretation would be warranted or permissible.”
Appx. 16-17. That statement is quite simply at odds with the
undisputed facts of Lavira’s case when viewed through the lens
of the six-part test in Matter of Y-L-. Furthermore, the BIA had
specifically remanded the case to the IJ for further consideration
of Lavira’s particular circumstances.

       “While the IJ ‘is not required to write an exegesis on
every contention,’ he must show ‘that [he] has reviewed the
record and grasped the movant’s claims.” Korytnyuk v.
Ashcroft, 396 F.3d 272, 294 (3d Cir. 2005) (quoting Sevoian v.
Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002)). Here, the
declaration that “[n]o evidence has been submitted to this Court
that would allow the Court to find that” the crime was not
particularly serious collides with the record evidence as to the
nature of the crime and the unique facts in Lavira’s favor. The
IJ never referred to the facts of the crime, and made only a
conclusory statement. The IJ has the duty of correctly
apprehending the basis of a petitioner’s claim–especially where,
as here, the BIA so instructed. Here that appears not to have
happened.

       We are thus left with the firm impression that the IJ
“missed the mark” in disposing of Lavira’s challenge to the
“particularly serious crime” designation. Konan v. Att’y Gen. of
the United States, 432 F.3d 497, 501 (3d Cir. 2005). In Konan


                               19
we concluded that the BIA’s findings “miss[ed] the mark”
because they appeared to ignore the factual basis of the
applicant’s claim. Similarly, here either the IJ failed to consider
the factual basis, or if the IJ did do so, we cannot discern her
reasoning in doing so. Accordingly, the IJ’s decision must be
remanded once again so that we have a basis for reviewing the
IJ’s legal conclusion. Vente v. Gonzales, 415 F.3d 296, 302-03
(3d Cir. 2005) (“[I]f the BIA fails to address one of an
applicant’s stated grounds for relief, the case must be remanded
for the BIA to consider the claim.”).

       C.     Convention Against Torture

        We next take up the question of whether the IJ committed
legal error by denying Lavira’s CAT claim regarding the
conditions in Haiti’s prisons, taking into account his unique
physical condition. For CAT claims, the “burden of proof is on
the applicant for withholding of removal . . . to establish that it
is more likely than not that he or she would be tortured if
removed to the proposed country of removal. The testimony of
the applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.” 8 C.F.R. § 208.16(c)(2).
Factors in determining whether or not torture is likely to occur
include evidence of past torture inflicted upon the applicant; the
ability to relocate within the country to a place where torture
will not occur; evidence of gross, flagrant, or mass violations of
human rights; and other relevant information regarding
conditions in the country of removal. 8 C.F.R. § 1208.16(c)(3).


                                20
      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, whether such pain or
      suffering is inflicted by or at the instigation of or
      within the consent or acquiescence of a public
      official or other person acting in an official
      capacity.

Art. 1(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.

     The BIA has distilled the regulations implementing the
CAT as follows:

      For an act to constitute torture it must be: (1) an
      act causing severe physical or mental pain or
      suffering; (2) intentionally inflicted; (3) for a
      proscribed purpose; (4) by or at the instigation of
      or with the consent or acquiescence of a public
      official who has custody or physical control of the
      victim; and (5) not arising from lawful sanctions.


                               21
Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA 2002).

        We have clear precedent that guides our analysis of this
issue as it pertains specifically to the prisons in Haiti. In our
recent, comprehensive opinion in Auguste v. Ridge, 395 F.3d
123 (3d Cir. 2005), we embraced the five-part test referenced in
Matter of J-E-, applying it in the context of a CAT challenge to
Haiti’s detention facility. There we held that the overall
conditions of the facility did not constitute torture. Specifically,
in Auguste we interpreted torture under the CAT7 and its
implementing regulations to include only the intentional
infliction of severe pain or suffering upon a person, and found
that where the petitioner relied only on the general conditions of
the Haitian detention facility, he could not qualify for relief
under the CAT.

        In Auguste we concluded that the conditions in the
facility, while “objectively deplorable,” Auguste, 395 F.3d at
153, did not constitute torture. We described those conditions
in the following terms:

       The prison population is held in cells that are so
       tiny and overcrowded that prisoners must sleep


   7
    As in Auguste, “we continue to use . . . the colloquial
reference to a ‘CAT claim’ rather than a ‘FARRA claim.’”
Auguste, 395 F.3d at 133 n.7.


                                22
       sitting or standing up, and in which temperatures
       can reach as high as 105 degrees Fahrenheit
       during the day. Many of the cells lack basic
       furniture, such as chairs, mattresses, washbasins
       or toilets, and are full of vermin, including
       roaches, rats, mice and lizards. Prisoners are
       occasionally permitted out of their cells for a
       duration of about five minutes every two to three
       days. Because cells lack basic sanitation facilities,
       prisoners are provided with buckets or plastic
       bags in which to urinate and defecate; the bags are
       often not collected for days and spill onto the
       floor, leaving the floors covered with urine and
       feces. There are also indications that prison
       authorities provide little or no food or water, and
       malnutrition and starvation is a continuous
       problem. Nor is medical treatment provided to
       prisoners, who suffer from a host of diseases
       including tuberculosis, HIV/AIDS, and Beri-Beri,
       a life-threatening disease caused by malnutrition.
       At least one source provided by Auguste likened
       the conditions in Haiti's prisons to a “scene
       reminiscent of a slave ship.”

Auguste, 395 F.3d at 129.

      The record also contained reports of beatings of prisoners
by guards. State Department reports on conditions in Haiti in


                                23
2001 and 2002 discussed police mistreatment of prisoners and
noted that there were isolated allegations of torture by electric
shock, as well as instances in which inmates were burned with
cigarettes, choked, or were severely boxed on the ears, causing
ear damage. The authorities’ track record in disciplining police
misconduct was inconsistent at best. Auguste, 395 F.3d at 129.
 Nevertheless, the deplorable condition of the facility alone did
not constitute torture.

As we wrote:

       [I]n the context of the Convention, for an act to
       constitute torture, there must be a showing that
       the actor had the intent to commit the act as well
       as the intent to achieve the consequences of the
       act, namely the infliction of the severe pain and
       suffering. In contrast, if the actor intended the act
       but did not intend the consequences of the act,
       i.e., the infliction of the severe pain and suffering,
       although such pain and suffering may have been
       a foreseeable consequence, the specific intent
       standard would not be satisfied.

Auguste, 395 F.3d at 145-46.

      We found that the severe pain that detainees experienced
was not specifically intended–rather, it “result[s] from Haiti’s
economic and social ills, not from any intent to inflict severe


                                24
pain and suffering on detainees by, for instance, creating or
maintaining the deplorable prison conditions.” Id. at 153. In
our holding, we engaged in an extended exegesis of the
ratification of the CAT and the drafting of the implementing
regulations, see Auguste, 395 F.3d at 138-48. We firmly
established specific intent as the appropriate standard and
distinguished as dictum the language in Zubeda v. Ashcroft, 333
F.3d 463 (3d Cir. 2002) that “requiring an alien to establish the
specific intent of his/her persecutors could impose
insurmountable obstacles to affording the very protections the
community of nations sought to guarantee under the Convention
Against Torture.” Id. at 474. In Auguste, we explained that the
“basis of our holding in Zubeda was limited to the defects in the
BIA’s reversal of the IJ's ruling that Zubeda was entitled to
relief under the CAT. . . . Our discussion of the specific intent
standard in 8 C.F.R. § 208.18(a)(5) was not necessary to our
finding of the defects in the BIA’s opinion.” Auguste, 395 F.3d
at 148.

        In doing so, we gave our blessing to the interpretation the
BIA had adopted in Matter of J-E-, 23 I. & N. Dec. 291 (BIA
2002), which involved Haiti and the CAT. In Matter of J-E-, the
petitioner challenged his removal to Haiti and its detention
facility, arguing that his indefinite detention in the facility’s
awful conditions as well as the predictable mistreatment by the
guards constituted torture under the CAT. The Board in Matter
of J-E- found that relief under the CAT required a specific intent
to inflict severe pain or suffering, an interpretation that


                                25
“defin[ed] that term as it is ordinarily used in American criminal
law,” Auguste, 395 F.3d at 145, and in Auguste we approved of
that reading. Id. at 145-46. The culpable mental states that
would be sufficient to find in favor of the claimant were
therefore necessarily limited. Applying this standard of intent
to the facts of the case, Auguste held that the deplorable
conditions in the Haitian facility did not constitute torture under
the CAT.

        It is important to understand how we reached that
conclusion in Auguste in order to analyze properly the IJ’s
decision in Lavira’s case. The original IJ in Auguste found the
facts indistinguishable from those presented in the BIA decision
in Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002), and focused
much of its attention on that case. We followed the same
approach in Auguste, making Matter of J-E- the focus of our
discussion of the CAT issues, as “the administrative facts in this
matter are the same as those in the factual record the BIA
considered in Matter of J-E-.” Auguste, 395 F.3d at 150.

          There was nothing about Auguste’s physical or mental
condition which set him apart from the petitioner in Matter of
J-E- or the general population incarcerated at the facility, a fact
which was noted by Auguste’s IJ, the district court which heard
his habeas claim, as well as our Court. See Auguste, 395 F.3d
at 136 (“[T]he IJ found Auguste’s CAT claim to be virtually
indistinguishable from the matter presented in Matter of J-E-
. . . . .”); id. at 137 (“‘[W]e have circumstances here where we


                                26
have simply the allegation of general prison conditions in
Haiti.’” (quoting unpublished District Court decision)); id.
(“‘[T]here must be some sort of underlying intentional direction
of pain and suffering against a particular petitioner, more so than
simply complaining of the general state of affairs that constitute
conditions of confinement in a place, even as unpleasant as
Haiti.’” (quoting unpublished District Court decision); see also
id. at 154 (“In effect, Auguste is complaining about the general
state of affairs that exists in Haitian prisons. The brutal
conditions are faced by all prisoners and are not suffered in a
unique way by any particular detainee or inmate.”) (emphasis
added); id. (“Auguste has not . . . offered any evidence tending
to show that he faces an increased likelihood of torture anymore
than the alien in Matter of J-E-.”) (emphasis added).


        Thus, Auguste’s claim failed because he was understood
to be presenting a generalized claim against the Haitian facility
no different from that presented in Matter of J-E-. The poor
prison conditions did not constitute torture because they were
not specifically directed by officials towards him or intended by
officials to cause severe pain or suffering. Auguste did not
possess any characteristics or qualities unique to his situation
which would permit a different analysis or result. Auguste, 395
F.3d at 145-46. The fact that severe pain and suffering was a
possibility in the facility was not enough to merit a finding that
it was more likely than not that there would be an intent on the
part of the guards or the officials who placed Auguste in the


                                27
facility to inflict severe pain upon him. The “mere fact that the
Haitian authorities have knowledge that severe pain and
suffering may result by placing detainees in these conditions
does not support a finding that the Haitian authorities intend to
inflict severe pain and suffering.” Id. at 153-54.

        In Auguste we included a caveat: “we caution that we are
not adopting a per se rule that brutal and deplorable prison
conditions can never constitute torture. To the contrary, if there
is evidence that authorities are placing an individual in such
conditions with the intent to inflict severe pain and suffering on
that individual, such an act may rise to the level of torture
should the other requirements of the Convention be met.” Id. at
154.8 Following Auguste, where we have found the claims
presented to be no different from Auguste’s, we have rejected
petitioners’ CAT claims. See, e.g., Francois v. Gonzales, 448
F.3d 645, 652 (3d Cir. 2006) (“Francois’ claim is factually
indistinguishable from the one we rejected in Auguste.
Accordingly, we hold that Francois is not eligible for relief
under the CAT.”).


  8
   Nor did Auguste hold that under the CAT detainees had to
demonstrate an intent to torture. A showing of an intent to
inflict severe pain and suffering was what the Convention
required. See Auguste, 395 F.3d at 146 (“Section 208.18(a)(5)
only requires that the act be specifically intended to inflict
severe pain and suffering, not that the actor intended to commit
torture. The two are distinct and separate inquiries.”).

                               28
         Lavira argued before the IJ, the BIA, and this Court that
his case is distinguishable from Auguste, and fits the situation
described in the caveat quoted above, in two principal ways.
First, he argues that it is likely that he will be singled out by the
prison guards due to his HIV status, his status as an above-the-
knee amputee, and his pro-Aristide political affiliation. Second,
he argues that he is uniquely vulnerable to the horrid conditions
at Haiti’s detention facility due to being HIV positive, and that
to place him knowingly in the disease-infested Haitian facility
is to intentionally subject him to severe pain and suffering, even
death. Lavira urges that his obvious vulnerability and its nearly
inevitable consequences, supported by the opinions of a doctor
and an expert on Haiti’s facility, satisfy the requirement that the
harm that awaits him is specifically intended.

        The IJ addressed the issue of Lavira’s CAT claim in the
most general of terms, almost cryptically ignoring the specific
facts at hand in the record: “[I]t is a general state of affairs. All
prisoners who are detained in Haiti, are subject to the same
deplorable conditions. The respondent would not be singled out.
To be sure the respondent does have certain disabilities, but
there is no evidence that has been submitted other than evidence
relating to the general overall deplorable conditions that could
lead this Court to conclude that the respondent would be placed
or detained upon his return to Haiti with an intent to inflict
severe pain or suffering.” Appx. 19.




                                 29
       It cannot be questioned that the undisputed facts Lavira
presented in support of his claim are not merely an attack on the
“general state of affairs.” Lavira’s CAT claim details how
guards will treat this HIV-positive prisoner, and addresses the
specific act of placing someone with his medical conditions in
a disease-infested facility. The facts supporting Lavira’s claim
are “evidence tending to show that he faces an increased
likelihood of torture” compared to the alien in Matter of J-E-,
evidence which we said in Auguste could be the foundation of
a CAT claim. Auguste, 395 F.3d at 123.

       Contrary to the description provided by the IJ, the facts
of Lavira’s condition stand out distinctly as facts “other than
evidence relating to the general overall deplorable conditions.”
Aside from the fact that Lavira is an above-the-knee amputee
and thus more likely to have difficulty in defending himself
against guards or other prisoners within the facility (even if
provided a wheelchair), the dire consequences that await Lavira
are undeniable. There is no dispute he has the virus that causes
an incurable auto-immune disease. There is no dispute that
medical care is wholly inadequate if not completely absent in
the facility. There is no dispute that the conditions are rife with
disease and comparable to a “slave ship.” Severe pain is not “a”
possible consequence that “may result” from placing Lavira in
the facility, it is the only plausible consequence given what
Haitian officials know about Lavira and about their own




                                30
facility.9 Indeed, Lavira has specifically alleged the type of
claim Auguste explicitly permits, a claim that “that authorities
are placing an individual in such conditions with the intent to
inflict severe pain and suffering on that individual.” Id. at 154.
Notably, at least one IJ has upheld a CAT claim on grounds
similar to Lavira’s.10 In that case, the IJ correctly distinguished
Matter of J-E- and finding that “the [HIV-positive] respondent’s
likely inability to obtain medication, in combination with the
prison conditions in Haiti, may result in a more likely than not
possibility that she will be tortured.”11



  9
     Cf. Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (“[T]he
denial of medical care [to prisoners] is cruel and unusual
because, in the worst case, it can result in physical torture
. . . .”); Cronin v. Islamic Republic of Iran, 238 F. Supp. 2d 222
(D.D.C. 2002) (finding torture under the Foreign Sovereign
Immunities Act where plaintiff was abducted from a Beirut
hospital while awaiting treatment for small bowel obstruction,
beaten and held without treatment for three days in a cell,
brought by his captors before a local doctor–who did not
provide treatment–after his condition worsened dramatically,
and then returned to his cell where he was again beaten and
deprived of medical care).
 10
   See Matter of J-F-, (BIA 2005) (unpublished) (Appx. 55-57)
(issued post-Auguste). An affidavit by Michelle Karshan was
part of the record before the IJ in Matter of J-F-.
  11
      Id.

                                31
       The Karshan expert report clearly stated that Lavira
would have little or no chance of obtaining food and water,
given his physical condition and the aggressive behavior
required of detainees in order to obtain nourishment. The report
also detailed how Lavira as an HIV-infected detainee would not
receive any meaningful medical treatment because the Haitian
system does not have antiretroviral drugs for HIV patients.
These and other factors led the expert to conclude that Lavira
would face the exceptionally dire prospect of losing 30 pounds
soon after being incarcerated, and that death would follow
shortly after.

       We cannot help but conclude that Auguste demands no
more than has been shown here. This is so because of the
factual record, but also because of two unique aspects of the law
regarding proof of intent. The first is that demonstrating proof
of intent is necessarily an inferential endeavor in nearly every
case; we must draw conclusions about actors’ mental states from
the conduct of those actors. In the CAT setting, those inferences
are based on reports of the current activity in the proposed
country of removal and predictions about what result will befall
an individual after removal. Such an inquiry is different from
the normal method of discerning or imputing intent–usually
done in hindsight, after conduct has occurred. But in this
setting, the IJ must make predictions about future states of mind.
The CAT’s implementing regulations recognize these concerns,
urging IJs and courts to rely on the type of information normally
used to determine intent. See 8 C.F.R. § 1208.16(c)(3) (listing


                               32
evidence of past torture inflicted upon the applicant and
evidence of gross, flagrant, or mass violations of human rights
as factors for determining whether or not torture is likely to
occur). And IJs are obligated to consider “all evidence relevant
to the possibility of future torture.” 8 C.F.R. § 1208.16(c)(3).
As such, IJs must be careful not to apply a standard of proof
higher than Auguste requires,12 or the facts permit, given the
predictive and thus necessarily speculative inquiry into intent.

        Second, we cannot rule out the generally accepted
principle that intent can be proven through evidence of willful
blindness. At least one CAT case interpreting Auguste has
posited that certain mental states, such as willful blindness, may
permit a finding of specific intent. See Thelemaque v. Ashcroft,
363 F. Supp. 2d 198, 215 (D. Conn. 2005) (“The Court
recognizes that a mechanical application of the specific intent
requirement might yield results at odds with the language and
intent of CAT and that concepts such as deliberate indifference,
reckless disregard or willful blindness might well suffice in
certain circumstances to satisfy the specific intent requirement
of the Convention.”). While in Auguste we noted that mere
recklessness was insufficient for a finding of specific intent
under the CAT, Lavira is not relying on simple recklessness
with respect to his condition. See Auguste, 395 F.3d at 145
(approving of Matter of J-E-’s determination that recklessness
is a state of general intent). Our criminal law jurisprudence,


 12
   See n.8 supra.

                               33
which we relied on in Auguste, see Auguste, 395 F.3d at 145,
bolsters the view that a finding of specific intent could be based
on deliberate ignorance or willful blindness. See, e.g, United
States v. Caminos, 770 F.2d 361, 365 (3d Cir. 1985) (“[A]
judge’s version of the ‘deliberate ignorance’ instruction must
make clear that the defendant himself was subjectively aware of
the high probability of the fact in question, and not merely that
a reasonable man would have been aware of the probability.”).

        Neither the IJ nor the BIA focused on the specifics of
Lavira’s situation in denying his CAT claim. When the IJ’s
findings are “wholly unsupported by the record and essentially
ignore the actual basis of [the] claim,” the case must be
remanded so the IJ may take a “fresh look . . . one that focuses
on the true underpinnings of that claim.” Vente v. Gonzales, 415
F.3d 296, 302-03 (3d Cir. 2005). This happened here: Lavira
presented an individualized attack on his removal to Haiti, an
attack that was obviously specific to his case in light of the
doctor’s report on his medical condition and the expert report
describing how removal would cause Lavira to lose 30 pounds
in a short time. The IJ deemed Lavira’s petition a general attack
on the Haiti facility, and stated that there was no evidence that
he would be “singled out.” This was not only contradicted by
the record, but by the IJ’s own statements during Lavira’s
hearings. The IJ evinced great concern that Lavira would
experience intense suffering based on his physical condition if
sent to the Haitian facility, and this concern was demonstrated
even before it was known that Lavira was HIV positive. The IJ


                               34
on her own distinguished Lavira from the petitioner in Matter of
J-E-. After receiving an indication from the Government that it
would seek discretionary deferral, the IJ appears to have done an
about-face and reframed Lavira’s challenge as a generalized
attack, ignoring significant evidence to the contrary without any
explanation whatsoever.

       Thus, as we have ruled with respect to the particularly
serious crime determination, we will similarly remand the IJ’s
CAT determination for further proceedings, as we lack the
proper basis to review Lavira’s legal challenge to the IJs
determination. Necessary to our holding is the fact that the
claim pressed by Lavira is non-frivolous and legally available.

         V.   CONCLUSION

       For the reasons stated above, we will GRANT Lavira’s
Petition for Review and REMAND this case so the IJ may
squarely address Lavira’s challenge to the particularly serious
crime designation and his challenge based on the CAT.13 (The

    13
      Lavira also argues that new evidence of worsening
conditions in Haiti’s prisons has come to light since the time
Auguste was decided. Lavira notes that Auguste was decided in
January of 2005 (argued in November 2004), and states that new
evidence arising after the regime change in Haiti in February
2004 was not considered by the administrative record before that
panel. As our decision decides Lavira’s petition on other
grounds, we do not take up this claim.

                               35
panel will retain jurisdiction in the event review subsequent to
the Lavira’s administrative proceedings is required.)

______________




                              36
