                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2008

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Precedential or Non-Precedential: Precedential

Docket No. 06-2496




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                                             PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 06-2496


                       PAUL PIERRE,

                                        Petitioner,

                               v.

    ATTORNEY GENERAL OF THE UNITED STATES,

                                       Respondent.

                ________________________

                 On Petition for Review from
              the Board of Immigration Appeals
                   BIA No: A93-021-438
            Immigration Judge: Daniel A. Meisner
                ________________________

             Argued En Banc: February 26, 2008

Before: SCIRICA, Chief Judge, SLOVITER, McKEE,
RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER,
CHAGARES, JORDAN, HARDIMAN, and GARTH, Circuit
Judges.

                    (Filed: June 9, 2008 )


Rebecca Sharpless (Argued)
Florida International University
Clinical Program, College of Law
University Park
Miami, FL 33199
       Attorney for Petitioner

Steven A. Morley (Argued)
Thomas M. Griffin
Morley, Surin & Griffin
325 Chestnut Street, Suite 1305-P
Philadelphia, PA 19106

       Amicus Curiae for the Court

Thomas H. Dupree, Jr. (Argued)
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

David E. Dauenheimer
Richard M. Evans
Susan K. Houser
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

       Attorneys for Respondent




                  OPINION OF THE COURT


FUENTES, Circuit Judge, joined by SCIRICA, SLOVITER,
BARRY, SMITH, FISHER, CHAGARES, JORDAN,
HARDIMAN, and GARTH, Circuit Judges.

        We ordered rehearing en banc in this case to determine the
level of intent required, under the Convention Against Torture (the




                                 2
“CAT”),1 for an applicant to show that he is more likely than not to
be tortured if sent to the proposed country of removal. Paul Pierre,
who is restricted to a liquid-only diet because of a self-imposed
injury to his esophagus, appeals the decision of the Board of
Immigration Appeals (“BIA”) denying him CAT relief, claiming
that as an ex-convict he will be imprisoned upon his deportation to
Haiti, will not be provided with the necessary medical care and diet
he requires, and will likely die as a result. He contends that the
prison officials’ knowledge that it is practically certain that he will
suffer severe pain if imprisoned in Haiti is sufficient for a finding
of specific intent to torture under the CAT. The government, on
the other hand, argues that the jailer’s knowledge that an action
might cause severe pain and suffering is not sufficient for a finding
of specific intent. We conclude that Pierre is not entitled to relief
under the CAT because he is unable to sustain his burden of proof
to show that, by imprisoning him, the Haitian authorities have the
specific intent to torture him. Accordingly, we will deny his
petition.

                                  I.

        Pierre, a Haitian citizen, first entered the United States in
1986 and was granted permanent legal resident status on December
1, 1990. On October 14, 1992, Pierre broke into the home of his
ex-girlfriend and stabbed her repeatedly with a meat cleaver.
When a neighbor interrupted the attack after hearing the victim’s
cries, Pierre drank a container full of battery acid, in an attempt to
commit suicide. His suicide attempt was unsuccessful, however,
and due to his ingestion of the battery acid, Pierre suffers from a
condition called esophageal dysphagia, limiting him to a liquid diet
administered through a feeding tube. According to Pierre, the



1
  United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,
S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, implemented in
the United States by the Foreign Affairs Reform and
Restructuring Act of 1998, Pub. L. No. 105-277, Div. G, Tit.
XXII, § 2242, 112 Stat. 2681, 2681-761, 2681-822 (codified as a
note to 8 U.S.C. § 1231).

                                  3
feeding tube must be replaced on a monthly basis and he requires
daily medical care.

       Following a trial by jury, Pierre was convicted of various
crimes for his attack on his ex-girlfriend, including attempted
murder, and was subsequently sentenced to 20 years imprisonment
with a mandatory minimum of 10 years without parole. After he
had served his 10-year minimum, the former Immigration and
Naturalization Service filed a Notice to Appear charging Pierre
with being deportable under INA § 237(a)(2)(A)(iii), for having
been convicted of an aggravated felony.

        According to the 2006 State Department Country Report for
Haiti (the “Country Report”), Haiti detains its citizens deported by
reason of prior convictions in a foreign country. These detentions
sometimes last several months and the Haitian government justifies
its detention policy on the grounds of public safety. The Country
Report indicates that the prisons are overcrowded, poorly
maintained, unsanitary, and rodent infested. Prisoners suffer from
malnutrition, inadequate health care, and a lack of basic hygiene.

         At a hearing before the Immigration Judge (“IJ”), Pierre
conceded that he was subject to removal for his conviction,2 but
applied for relief under the CAT, asserting that he would not
survive in the Haitian prison for more than two or three weeks. In
his written CAT application, he explained that he feared that if he
was returned to Haiti he would “die for lack of medical care” while
in prison because of the Haitian detention policy. (App. 122.)
Pierre described the “expected failure of Haitian authorities . . . to
provide [him with] adequate medical attention” as “t[a]ntamount
to . . . torture.” (App. 123.)3 He did not attribute this expected


2
  At his initial hearing, where he appeared pro se, he testified
that he “d[id]n’t have any problem going back” to Haiti. (App.
41.)
3
 The government does not dispute that Haitian prison officials
would not be able to provide Pierre with his liquid diet and
regular medical attention while he remains in detention. It is not
clear from the record how long Pierre would remain imprisoned

                                  4
failure to any ill will on behalf of the Haitian authorities. Rather,
Pierre claimed that “Haiti does not have the means . . . to care for
[his] medical condition.” (App. 123.) He appealed to the IJ to
make a legal “exception” in his case, “notwithstanding any
statutory bar to relief, . . . for humanitarian reasons.” (App. 127.)

        The IJ found that Pierre was seeking relief for humanitarian
reasons based on his medical needs. The IJ concluded that under
the interpretation of the CAT in Auguste v. Ridge, 395 F.3d 123
(3d Cir. 2005), he did not have discretion to grant humanitarian
relief. Accordingly, the IJ denied Pierre’s application for deferral
of removal. A single member of the BIA affirmed the IJ’s decision
without opinion. Pierre appealed the BIA’s decision to this court.

        Subsequent to the initial briefing in this case, we decided
Lavira v. Attorney General, 478 F.3d 158 (3d Cir. 2007). In
Lavira, a panel of our court granted a CAT claim based on
evidence that severe pain was the “only plausible consequence” of
a petitioner’s imprisonment in a Haitian prison. Id. at 170. In that
case, the panel stated that a jailer’s “willful blindness” or
“deliberate indifference” might be enough to satisfy the specific
intent requirement of the CAT. Id. at 171. The original panel in
this case asked for supplemental letter briefs on the impact of
Lavira on Pierre’s case. After receiving the letter briefs and
hearing oral argument, we voted to hear the case en banc to resolve
any conflict between Auguste and Lavira.

                                 II.

       In this matter, Pierre petitions for review of the final order
of removal by the BIA. We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1). Because the basis for removal is Pierre’s conviction
for an aggravated felony, our jurisdiction is limited under the
REAL ID Act to “constitutional claims or questions of law.” Id. §
1252(a)(2)(C)-(D).

       Where, as here, the BIA affirms an IJ’s decision without



once returned to Haiti.

                                 5
opinion, we review the IJ’s decision as the final agency
determination. Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.
2004). We will review the IJ’s legal determinations de novo,
subject to the principles of deference articulated in Chevron v.
Natural Resources Defense Council, 467 U.S. 837, 844 (1984).
See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.
2007); Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). Under
the REAL ID Act, factual or discretionary determinations are
outside of our scope of review. Sukwanputra v. Gonzales, 434
F.3d 627, 634 (3d Cir. 2006).

                                III.

       The CAT was designed to acknowledge the obligation of
nations under the United Nations Charter to “promote universal
respect for, and observance of, human rights and fundamental
freedoms.” See Preamble to Convention, S. Treaty Doc. No.
100-20, 1465 U.N.T.S. 85. It was adopted by the United Nations
General Assembly on December 10, 1984, and entered into force
on June 26, 1987, to “make more effective the struggle against
torture and other cruel, inhuman or degrading treatment or
punishment throughout the world.” Id. Since opening for
signature in December 1984, 145 countries have signed and/or
become parties to the CAT. See Office of the High Commissioner
for Human Rights Page on the Status of the CAT (visited May 21,
2008) (http://www2.ohchr.org/english/bodies/ratification/9.htm).

      Article 1 of the CAT defines torture as:
      [A]ny act by which severe pain or suffering, whether
      physical or mental, is intentionally inflicted on a
      person for such purposes as obtaining from him or a
      third person information or a confession, punishing
      him for an act he or a third person has committed or
      is suspected of having committed, or intimidating or
      coercing him or a third person, or for any reason
      based on discrimination of any kind, when such pain
      or suffering is inflicted by or at the instigation of or
      with the consent or acquiescence of a public official
      or other person acting in an official capacity. It does
      not include pain or suffering arising only from,

                                 6
       inherent in or incidental to lawful sanctions.

Art. 1(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (emphasis
added). The CAT then commands that: “No State Party shall
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.” Art. 3(1), S. Treaty Doc.
No. 100-20, 1465 U.N.T.S. 85.

        President Reagan signed the CAT on April 18, 1988, in
accordance with the power granted to the President in Article II,
Section 2 of the United States Constitution, and reserved the
United States’ right “to communicate, upon ratification, such
reservations, interpretive understandings, or declarations as are
deemed necessary.” See Auguste, 395 F.3d at 130 (citation
omitted). President Reagan then transmitted the CAT to the Senate
for advice and consent on May 20, 1988, proposing a list of
reservations, understandings, and declarations, which were revised
and resubmitted by President George H. W. Bush in January 1990.
See Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, S. Exec. Rep. 101-30, at 2, 7-
8 (1990). Included in this list, was an understanding that “in order
to constitute torture, an act must be specifically intended to inflict
severe physical or mental pain or suffering.” Id. at 9, 36. In
addition, President Bush included an understanding that the CAT
prohibition on returning a person to a country “where there are
substantial grounds for believing that he would be in danger of
being subjected to torture,” Art. 3(1), S. Treaty Doc. No. 100-20,
1465 U.N.T.S. 85, would be interpreted to mean “if it is more
likely than not that he would be tortured.” See S. Exec. Rep.
101-30, at 10, 16, 36. President Bush also included a declaration
that the CAT is not self-executing, to clarify that implementation
of the CAT would be through separate legislation. See id. at 12,
37.

       In October 1990, the Senate adopted a resolution of advice
and consent that incorporated the understandings and declaration
discussed above. See 136 Cong. Rec. S17486-01, S17491-92 (Oct.
27, 1990) (“Senate Resolution”). Next, as required by Article 26
of the CAT, President Clinton deposited the instrument of

                                  7
ratification with the United Nations on October 21, 1994, and the
CAT became enforceable in the United States 30 days later.4 See
Regulations Concerning the Convention Against Torture, 64 Fed.
Reg. 8478, 8478 (Feb. 19, 1999). President Clinton included the
reservations, understandings, and declarations from the Senate
Resolution in the instrument of ratification. See 1830 U.N.T.S.
320, 320-22 (1994).

       Because the CAT did not self-execute, it needed to be
“implemented by legislation before [giving] rise to a private cause
of action.” Ogbudimkpa v. Ashcroft, 342 F.3d 207, 218 (3d Cir.
2003) (quoting Mannington Mills, Inc. v. Congoleum Corp., 595
F.2d 1287, 1298 (3d Cir. 1979)); see also Auguste, 395 F.3d at 133
n.7. Accordingly, in 1998, Congress passed legislation to
implement the United States’ obligations under the CAT: the
Foreign Affairs Reform and Restructuring Act (“FARRA”). See
Pub. L. No. 105-227, Div. G, Tit. XXII, § 2242, 112 Stat. 2681,
2681-761, 2681-822 (codified as a note to 8 U.S.C. § 1231).5

       The first section of FARRA, § 2242(a), announces that “[i]t
shall be the policy of the United States not to expel, extradite, or
otherwise effect the involuntary return of any person to a country
in which there are substantial grounds for believing the person
would be in danger of being subjected to torture,” thereby adopting
the obligation in Article 3 of the CAT. See id. Next, § 2242(b)
directed “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 CAT].” Id.


4
 Article 26 of the Convention states, in pertinent part:
“Accession shall be effected by the deposit of an instrument of
accession with the Secretary-General of the United Nations.”
See Art. 26, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.
5
 As discussed in Auguste v. Ridge, 395 F.3d 123, 133 n.7 (3d
Cir. 2005), technically Pierre’s claim is a FARRA claim, but we
will use the convention adopted in this circuit and refer to it as a
CAT claim.

                                 8
       In accordance with § 2242(b) of FARRA, the Department
of Justice (“DOJ”) promulgated regulations setting forth the
procedures by which individuals could seek relief under the CAT.
See 64 Fed. Reg. 8478 (Feb. 19, 1999), codified at 8 C.F.R. §§
208.16(c), .17, & .18(a) (2004). In § 208.18(a), the DOJ provided
a definition of torture, incorporating “the definition of torture
contained in Article 1 of [the CAT], subject to the reservations,
understandings, declarations, and provisos contained in the
[Senate] resolution of ratification of the Convention.” Section
208.18(a)(1) provides a definition of torture which mirrors Article
1 of the CAT. In addition, the DOJ included six additional
provisions, one of which is relevant to this case: “In 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 pain and suffering is not
torture.” Id. § 208.18(a)(5) (emphasis added). If a petitioner is
able to show that it is “more likely than not” that he or she will be
tortured, deferral of removal is mandatory. Id. § 208.17(a).

                                IV.

       This Circuit has previously addressed whether Haiti’s policy
of indefinitely imprisoning deportees who have been convicted in
other countries violates the CAT. We review that history now.

       Before we ever addressed this issue, in 2002, the BIA
considered whether indefinite detention, inhuman prison
conditions, and police mistreatment constitute torture under 8
C.F.R. § 208.18(a). Matter of J-E-, 23 I. & N. Dec. 291 (B.I.A.
2002). Relying on the understanding contained in the Senate
Resolution, the BIA determined that in order to obtain relief under
the CAT, a petitioner must show that the alleged torturous acts by
the government will be “specifically intended to inflict severe
physical or mental pain or suffering.” Id. at 298. Considering
Haiti’s policy of indefinitely detaining deportees who have been
convicted of crimes abroad, the BIA found that “there is 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. Rather, the BIA concluded that the “Haitian
prison conditions are the result of budgetary and management

                                 9
problems as well as the country’s severe economic difficulties.”
Id. at 301. Thus, the BIA concluded that the Haitian detention
policy did not constitute torture for purposes of the CAT.6

        Subsequently, in Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir.
2003), our Court considered the CAT claim of an immigrant
ordered removed to the Democratic Republic of the Congo
(“DNC”). In the context of Zubeda’s claim, we stated that the
“intentionally inflicted” language in the regulations did not impose
a “specific intent” requirement, but simply “exclude[d] severe pain
or suffering that is the unintended consequence of an intentional
act.” Id. at 473. However, the decision in Zubeda did not turn on
whether there is a specific intent requirement in the CAT; instead,
the court remanded the case primarily for a clarification of the IJ’s
basis for determining that Zubeda would be detained upon her
return to the DNC.

       The following year, in Auguste, we considered the CAT
claim of a Haitian citizen who had been imprisoned in the United
States. In Auguste, the petitioner “claim[ed] that he w[ould] be
indefinitely detained upon his arrival in Haiti in prisons that are
notorious for their brutal and deplorable conditions.” 395 F.3d at
128. We found the language from Zubeda discussed above to be
dicta, and followed Matter of J-E-, holding that Auguste was
unable to show the specific intent to torture required for relief
under the CAT. We determined that the definition of torture under
the CAT included a specific intent requirement as the court was
obligated to “apply the standard clearly stated in the ratification



6
 Matter of J-E-, 23 I. & N. Dec. 291, 297 (B.I.A. 2002) also
announced a test for determining if an act constitutes torture.
Citing to 8 C.F.R. § 208.18(a), the BIA announced that the act
“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.”



                                 10
record.” Id. at 140. We rejected Auguste’s argument that the
specific intent requirement could not be incorporated into United
States law because it was inconsistent with the accepted
international interpretation of the CAT. We clarified that “[a]
treaty that is ratified . . . with a statement of understanding becomes
effective in the domestic law subject to that understanding.” Id. at
142 (quoting Restatement (Third) of the Foreign Relations Law of
the United States § 314, cmt. d (2004)). Both the President and the
Senate indicated their understanding that Article 1 of the CAT
contains a specific intent requirement and that understanding has
domestic legal effect.

        Next, in Auguste we reviewed, with Chevron deference, the
BIA’s decision that specific intent should be interpreted with
reference to its ordinary meaning in American criminal law and we
determined that the BIA did not err in this determination. Citing
to Carter v. United States, 530 U.S. 255, 269 (2000), we held that,
in order to act with specific intent, an individual “must expressly
intend to achieve the forbidden act.” Id. at 145. More specifically,
we found that “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.” Id. at 145-46. Where
the “severe pain and suffering” is merely a “foreseeable
consequence” of the act, “the specific intent standard would not be
satisfied.” Id. at 146.

        Thus, where Auguste complained of the conditions in the
Haitian prison but not his particular vulnerability to them, we
determined that the BIA did not err by concluding that the Haitian
authorities would lack the requisite specific intent to inflict severe
pain and suffering on Auguste, as the prison conditions were the
result of “Haiti’s economic and social ills,” and did not derive from
any intent to torture detainees. Id. at 153. Nevertheless, we
cautioned that there is no “per se rule that brutal and deplorable
prison conditions can never constitute torture. . . . [I]f 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.” Id. at
154.

                                  11
        In our most recent case to address whether the deportation
of a Haitian ex-convict constitutes torture under the CAT, Lavira,
we granted the petition of an HIV positive, “above-the-knee
amputee with a lifelong political affiliation with exiled former
President Jean-Bertrand Aristide.” 478 F.3d at 159. Lavira
interpreted Auguste as prohibiting relief “where the petitioner
relied only on the general conditions of the Haitian detention
facility.” Id. at 167. In contrast, Lavira’s condition “set him apart
from the petitioner in Matter of J-E- [and] the general population
incarcerated at the facility.” Id. at 168. We held that Lavira had a
valid claim because he presented evidence that showed that he
would be targeted, such as being singled out by the guards because
of his HIV-positive status. Noting that “demonstrating proof of
intent is necessarily an inferential endeavor,” we concluded that
“Auguste demands no more.” Id. at 171.

       We also stated in Lavira, in dicta, that we could not “rule
out” that specific intent could be proven through “evidence of
willful blindness.” Id. As discussed below, we now rule out that
possibility.

        After Lavira was decided, the Second Circuit decided Pierre
v. Gonzales, 502 F.3d 109 (2d Cir. 2007). There, the government
sought to remove Franck Pierre, a Haitian citizen, because of his
aggravated felony and firearms convictions. Pierre sought relief
under the CAT, presenting evidence regarding Haiti’s prison
conditions and detention policies, and his diabetes, which could
lead to his death if he went without medication and a proper diet.
The IJ denied him relief, concluding that there was no evidence
that the Haitian authorities would detain him with the specific
intent to inflict severe pain and that his relatives would be able to
provide him with his medications while he was in detention. The
BIA affirmed and Pierre sought review from the Second Circuit.
The Second Circuit denied his petition, concluding that the CAT
has a specific intent requirement and that Pierre failed to meet that
standard. Calling Lavira a “wrinkle[],” the Second Circuit took
issue with our language in Lavira that suggests that a government
official’s “willful blindness” or “deliberate indifference,” which
bear on the official’s knowledge, could suffice to fulfill the specific

                                  12
intent requirement, which requires an official to “intend the actual
consequences of his conduct.” Id. at 118. In the specific case
before it, the Second Circuit found that the petitioner’s diabetic
condition did not “remove his case from the ambit of In re J-E-”
and, accordingly, denied his petition. Id. at 111. In order to obtain
relief based on individual circumstances, the petitioner would need
to be able to show that “petitioners with certain histories,
characteristics, or medical conditions are more likely to be
targeted.” Id. at 122.

                                 V.

        The specific issue on appeal concerns what degree of intent
Pierre must establish in order to obtain relief under the CAT. To
inform our analysis, we consider first the definition of torture in 8
C.F.R. § 208.18(a)(1). The regulation provides that an act is
torture only if it is:

       intentionally inflicted on a person for such purposes
       as obtaining from him or her or a third person
       information or a confession, punishing him or her for
       an act he or she or a third person has committed or is
       suspected of having committed, or intimidating or
       coercing him or her or a third person, or for any
       reason based on discrimination of any kind, when
       such pain or suffering is inflicted by or at the
       instigation of or with the consent or acquiescence of
       a public official or other person acting in an official
       capacity.

Id. Here, Pierre will not be imprisoned 1) to obtain information or
a confession from him, 2) to punish him for an act he committed or
is suspected of having committed, 3) to intimidate or coerce him or
someone else, or 4) for any discriminatory reason. Rather, Pierre
will be imprisoned because the Haitian government has a blanket
policy of imprisoning ex-convicts who are deported to Haiti in
order to reduce crime. The lack of medical care and likely pain that
Pierre will experience is an unfortunate but unintended
consequence of the poor conditions in the Haitian prisons, which
exist because of Haiti’s extreme poverty. We find that this

                                 13
unintended consequence is not the type of proscribed purpose
contemplated by the CAT. To the extent Lavira suggests that the
intentional infliction of severe pain need not be to accomplish one
of the proscribed purposes, Lavira is overruled.

        Given the ratification history of the CAT, we conclude that
the CAT requires a showing of specific intent before the court can
make a finding that a petitioner will be tortured. In this vein, we
note that Pierre does not dispute that the CAT includes a specific
intent requirement. Rather, Pierre argues that the specific intent
requirement can be satisfied by a showing that the Haitian officials
have knowledge that severe pain or suffering is the practically
certain outcome of his imprisonment. We disagree that proof of
knowledge on the part of government officials that severe pain or
suffering will be the practically certain result of Pierre’s detention
satisfies the specific intent requirement in the CAT. Rather, we are
persuaded by the discussion in Auguste that the specific intent
requirement, included in the ratification history of the CAT,
requires a petitioner to show that his prospective torturer will have
the motive or purpose to cause him pain or suffering. As in
Auguste, we hold that “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.” Auguste, 395
F.3d at 145-46. Specific intent requires not simply the general
intent to accomplish an act with no particular end in mind, but the
additional deliberate and conscious purpose of accomplishing a
specific and prohibited result. Mere knowledge that a result is
substantially certain to follow from one’s actions is not sufficient
to form the specific intent to torture. Knowledge that pain and
suffering will be the certain outcome of conduct may be sufficient
for a finding of general intent but it is not enough for a finding of
specific intent.

       As we discussed in Auguste, the BIA’s decision in Matter
of J-E- that specific intent means “the intent to accomplish the
precise criminal act that one is later charged with” is entitled to
Chevron deference. Id. at 144. Applying that deference, we
concluded in Auguste that the BIA had not erred. Id. at 145.
Fleshing out the definition of specific intent as it is used within
American criminal law, Auguste relied on Carter v. United States,

                                 14
530 U.S. at 269, in which the Supreme Court discussed the
difference between specific intent and general intent. In Carter, the
Supreme Court explained that an actor who knowingly commits an
act but does not intend the illegal outcome of that act, can only be
held liable for a general, not specific, intent crime.

        In addition, the Supreme Court discussed the concept of
specific intent in United States v. Bailey, 444 U.S. 394, 405 (1980),
finding that “‘purpose’ corresponds loosely with the common-law
concept of specific intent, while ‘knowledge’ corresponds loosely
with the concept of general intent.” This formulation of specific
intent is found repeatedly in United States law. See, e.g., 31 U.S.C.
§ 3729(b) (knowledge is sufficient for liability under the False
Claims Act, and “no proof of specific intent to defraud is
required”); Babbitt v. Sweet Home Chapter of Cmtys. for a Great
Oregon, 515 U.S. 687, 697 n.9 (1995) (Congress’s amendment to
a criminal statute outlawing certain activities related to endangered
species, in which “willfully” was replaced by “knowingly,” was
done in order “to make criminal violations of the act a general
rather than a specific intent crime”) (quoting H.R. Conf. Rep. No.
95-1804, p. 26 (1978)); Callahan v. A.E.V., Inc., 182 F.3d 237, 261
n.15 (3d Cir. 1999) (stating that “[a]lthough harm to the plaintiffs
may have been a probable ultimate consequence of the defendants’
actions, we do not think they specifically intended to cause such
harm”); United States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995)
(holding that “a specific intent crime is one in which the defendant
acts not only with knowledge of what he is doing, but does so with
the objective of completing some unlawful act”).

       In our view, a petitioner cannot obtain relief under the CAT
unless he can show that his prospective torturer will have the goal
or purpose of inflicting severe pain or suffering.7 Under this



7
  Judge Rendell proposes a hypothetical in her concurrence
which, she asserts, would not fit the majority’s definition of
specific intent. She posits that, under our definition, it would not
be torture for a jailer to use electric shock tactics to solicit
information where the “purpose in interrogating” is to obtain
information, not to cause pain and suffering. However, people

                                 15
standard, Pierre has failed to qualify for relief under the CAT
because he has failed to show that Haitian officials will have the
purpose of inflicting severe pain or suffering by placing him in
detention upon his removal from the United States.

        Finally, we reject Lavira’s discussion of willful blindness.
Willful blindness can be used to establish knowledge but it does
not satisfy the specific intent requirement in the CAT. See United
States v. Wasserson, 418 F.3d 225, 237 (3d Cir. 2005) (stating that
evidence of willful blindness satisfies the mental state of
knowledge). Moreover, to the extent that Lavira suggests that mere
knowledge is sufficient for a showing of specific intent, we
overrule that suggestion. In sum, because we have rejected the
knowledge standard discussed in Lavira, and because Lavira
contained no discussion of the illicit purpose requirement in the
CAT, Lavira’s CAT analysis is overruled.

                                 VI.

        In conclusion, we will deny Pierre’s petition. As the courts
in Matter of J-E- and Auguste found, there is no evidence that
Haitian authorities imprison ex-convicts upon their deportation to
Haiti in order to cause them severe pain or suffering. Rather, the
conditions prevalent in the Haitian prison are due to “Haiti’s
economic and social ills.” Auguste, 395 F.3d at 153. As Pierre is
unable to show that the Haitian authorities specifically intend to
cause him severe pain or suffering, he cannot fulfill the specific
intent requirement of the CAT.8


commonly have dual purposes. In her hypothetical, the reason a
jailer uses torture tactics is the jailer’s belief that the pain caused
will induce the prisoner to reveal information. Thus, under the
hypothetical, the jailer would have a purpose of inflicting serious
pain and suffering, satisfying the specific intent requirement, in
addition to a purpose of obtaining information.
8
 Nothing herein prevents the government from granting
discretionary relief to Pierre in the form of deferred action.
Though we are bound to the specific intent requirement
contained in the CAT, the government is not.

                                  16
RENDELL, Circuit Judge, concurring, joined by McKEE and
AMBRO, Circuit Judges.

       The majority is correct that a finding of torture requires an
examination of purpose. The examination occurs, however, not in
connection with “specific intent,” but, rather, in connection with
the element of “illicit purpose.” The majority conflates the two by
deciding that specific intent to inflict severe pain and suffering
only exists if the actor’s purpose is to inflict pain. In doing so, it
has obscured the meaning of specific intent and its proper contours
as developed in the criminal law jurisprudence.

       The definition of torture in CAT and its implementing
regulations contains an intent element and a purpose element. See
8 C.F.R. § 208.18(a)(1) (“Torture is defined as any act by which
severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as . . . .”). In
Matter of J-E-, the BIA summarized the test under 8 C.F.R. §
208.18(a) as requiring that the act 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.

23 I. & N. Dec. 291, 297 (B.I.A. 2002). The BIA’s decision in
Matter of J-E- also introduced the concept of using the criminal
law to interpret the term “specifically intend” in CAT’s
implementing regulations. Id. at 301 (citing the definition of
specific intent in Black’s Law Dictionary).




                                 17
        Our Court subsequently looked to the criminal law for
guidance in both Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005),
and Lavira v. Attorney General, 478 F.3d 158 (3d Cir. 2007). In
Auguste, we concluded that the BIA had correctly defined the
specific intent requirement by reference to domestic criminal law
as “the intent to accomplish the precise criminal act that one is
later charged with while general intent commonly takes the form
of recklessness.” 395 F.3d at 145. We did not require that a
would-be torturer have the purpose to inflict severe pain and
suffering, but, rather, simply concluded that mere recklessness was
insufficient to satisfy CAT’s “specific intent” requirement. Id. at
146. In Lavira, we similarly resorted to criminal law for guidance,
and concluded that the specific intent requirement was satisfied by
evidence that, given the petitioner’s “obvious vulnerability and its
nearly inevitable consequences” and the expert report submitted
regarding the treatment of HIV/AIDS patients, he would be
singled out and targeted by prison guards. 478 F.3d at 169-71. By
contrast to Auguste, the petitioner in Lavira alleged that “[s]evere
pain is not ‘a’ possible consequence that ‘may result from placing
Lavira in the facility, it is the only possible consequence given
what Haitian officials know about Lavira and about their own
facility.” Id. at 170. We held that he, therefore, had properly
demonstrated specific intent, in the form of the prison official’s
knowledge that severe pain and suffering would certainly result.
Neither case hinted at a need for a purpose to inflict pain, nor have
specific intent crimes historically included purpose as an element.9
Today, disregarding the weight of criminal authority, the majority
adds this requirement.


9
  At common law, specific intent crimes included burglary, false
pretenses, embezzlement, attempt, solicitation, and conspiracy.
See Black’s Law Dictionary 825 (8th ed. 2004). They required
intent in the form of knowledge or desire that the result will
occur–not “purpose.” General intent, according to Black’s Law
Dictionary, requires “the intent to perform an act even though
the actor does not desire the consequences that result.” Id. It
“usually takes the form of recklessness.” Id. It is readily agreed
that general intent crimes at common law, such as manslaughter,
require no more than a reckless state of mind.

                                 18
       The majority equates “intentionally inflicted” under CAT,
which requires specific intent, to “pain for pain’s sake.” This goes
beyond the meaning of intentional infliction under J-E-. The
specific intent aspect does not speak to, or require a finding as to,
the purpose; the illicit purpose element does. As discussed below,
“pain for pain’s sake” would be an illicit purpose.

        Specific intent, as it has been developed through the
criminal caselaw and treatises, is no more than intent to do the
prohibited act with knowledge or desire that it will cause a certain
result. Tison v. Arizona, 481 U.S. 137, 150 (1987); United States
v. Gypsum Co., 438 U.S. 422, 445 (1978); 1 Wayne R. LaFave,
Substantive Criminal Law § 5.2(e), at 354 (2d ed. 2003); see also
Carter v. United States, 530 U.S. 255, 268 (2000) (explaining that
general intent, as opposed to specific intent, requires “that the
defendant possessed knowledge [only] with respect to the actus
reus of the crime”).

        The source of the majority’s requirement of “purposeful
pain” is, therefore, somewhat curious. It is regrettable that an
errant sentence in a different context in United States v. Bailey,
suggesting that “[i]n a general sense, ‘purpose’ corresponds
loosely with the common-law concept of specific intent,” veered
from the historical meaning. 444 U.S. 394, 403 (1980). The
sentence is at best incomplete and misleading and certainly cannot
be relied upon to establish that “specific intent” must mean
“purpose.” If, as the government urges, Bailey does establish that
specific intent can only be proven where an individual acted with
the purpose of causing a particular consequence, it would also
mean that, since 1980, all prosecutions for specific intent crimes
either proved the defendant’s purpose as to consequences (and did
not rely on knowledge of the certainty of consequences) or resulted
in acquittals based on Bailey. We know this is not the case. Our
own jury instructions continue to define “intentionally”–the term
used in the CAT regulations–and “with intent” to mean: “Either
that (1) it was [defendant’s] conscious desire or purpose . . . to
cause a certain result, or that (2) [defendant] knew that (he)(she)
. . . would be practically certain to cause that result.” Third Circuit
Jury Instructions § 5.03 (Sept. 2006). This is the proper definition
of specific intent. Furthermore, Bailey purported only to

                                  19
summarize the state of the law, not to overrule precedent
interpreting the common law term. Indeed, the term “loosely”
used by the Bailey Court indicates that specific intent, in fact, has
meanings other than purpose. As a common law term, it retains its
traditional meaning–that urged by petitioner.

        The issue before us has been the subject of recent
commentary that is timely and persuasive. In an August 1, 2002
memo to the White House Counsel, Jay Bybee, Assistant Attorney
General, set forth an interpretation of “specific intent” that is
similar to that espoused by the majority. There, he stated that
“knowledge alone that a particular result is certain to occur does
not constitute specific intent.” Id. at 3-4. It concluded that “even
if a defendant knows that severe pain will result from his actions,
if causing such harm is not his objective, he lacks the requisite
specific intent even though the defendant did not act in good
faith.” Id. at 4. This is the interpretation that was relied upon in
defense of the abuse at Abu Ghraib and the torture of prisoners
during interrogations at facilities in Iraq and Afghanistan.

      However, this interpretation of “specific intent” has since
been soundly repudiated by the very office that promulgated it.
See Justice Department Dec. 30, 2004 Memo on U.S. Torture
Policy for Deputy Attorney General James B. Comey (“2004
Memo”). The 2004 Memo explained that:

               In the August 2002 Memorandum, this
               Office concluded that the specific intent
               element of the statute required that
               infliction of severe pain or suffering be
               the defendant's “precise objective” and
               that it was not enough that the defendant
               act with knowledge that such pain “was
               reasonably likely to result from his
               actions” (or even that that result “is
               certain to occur”). Id. at 3-4. We do not
               reiterate that test here.

Id. at n.27.


                                 20
The Memo then went on to state:

      It is well recognized that the term “specific
      intent” is ambiguous and that the courts do
      not use it consistently. See 1 Wayne R.
      LaFave, Substantive Criminal Law §
      5.2(e), at 355 & n.79 (2d ed. 2003).
      “Specific intent” is most commonly
      understood, however, “to designate a
      special mental element which is required
      above and beyond any mental state
      required with respect to the actus reus of
      the crime.” Id. at 354; see also Carter v.
      United States, 530 U.S. 255, 268 (2000)
      (explaining that general intent, as opposed
      to specific intent, requires “that the
      defendant possessed knowledge [only]
      with respect to the actus reus of the
      crime”).      As one respected treatise
      explains:

             With crimes which require that
             the defendant intentionally
             cause a specific result, what is
             meant by an “intention” to
             cause that result? Although the
             theorists have not always been
             in agreement . . . , the
             traditional view is that a person
             who acts . . . intends a result of
             his act . . . under two quite
             different circumstances: (1)
             when he consciously desires
             that result, whatever the
             likelihood of that result
             happening from his conduct;
             and (2) when he knows that that
             result is practically certain to
             follow from his conduct,
             whatever his desire may be as to

                        21
       that result.

1 LaFave, Substantive Criminal Law, §
5.2(a), at 341 (footnote omitted).

As noted, the cases are inconsistent.
Some suggest that only a conscious desire
to produce the proscribed result
constitutes specific intent; others suggest
that even reasonable foreseeability
suffices. In United States v. Bailey, 444
U.S. 394 (1980), for example, the Court
suggested that, at least “[i]n a general
sense,” id. at 405, “specific intent”
requires that one consciously desire the
result. Id. at 403-05. The Court
compared the common law’s mens rea
concepts of specific intent and general
intent to the Model Penal Code’s mens
rea concepts of acting purposefully and
acting knowingly. Id. at 404-05. “[A]
person who causes a particular result is
said to act purposefully,” wrote the Court,
“if ‘he consciously desires that result,
whatever the likelihood of that result
happening from his conduct.’” Id. at 404
(internal quotation marks omitted). A
person “is said to act knowingly,” in
contrast, “if he is aware ‘that that result is
practically certain to follow from his
conduct, whatever his desire may be as to
that result.’” Id. (internal quotation
marks omitted). The Court then stated:
“In a general sense, ‘purpose’
c o rresp o n d s lo o sely w i t h t h e
common-law concept of specific intent,
while ‘knowledge’ corresponds loosely
with the concept of general intent.” Id. at
405.


                      22
In contrast, cases such as United States v.
Neiswender, 590 F.2d 1269 (4th Cir.
1979), suggest that to prove specific
intent it is enough that the defendant
simply have “knowledge or notice” that
his act “would have likely resulted in” the
proscribed outcome.         Id. at 1273.
“Notice,” the court held, “is provided by
the reasonable foreseeability of the
natural and probable consequences of
one’s acts.” Id.

We do not believe it is useful to try to
define the precise meaning of “specific
intent” in section 2340. In light of the
President’s directive that the United
States not engage in torture, it would not
be appropriate to rely on parsing the
specific intent element of the statute to
approve as lawful conduct that might
otherwise amount to torture. Some
observations, however, are appropriate.
It is clear that the specific intent
element of section 2340 would be met if
a defendant performed an act and
“consciously desire[d]” that act to
inflict severe physical or mental pain or
suffering.      1 LaFave, Substantive
Criminal Law § 5.2(a), at 341.
Conversely, if an individual acted in
good faith, and only after reasonable
investigation establishing that his
conduct would not inflict severe
physical or mental pain or suffering, it
appears unlikely that he would have
the specific intent necessary to violate
sections 2340-2340A.            Such an
individual could be said neither
consciously to desire the proscribed
result, see, e.g., Bailey, 444 U.S. at 405,

                  23
              nor to have “knowledge or notice” that
              his act “would likely have resulted in”
              the proscribed outcome, Neiswender,
              590 F.2d at 1273.

              Two final points on the issue of specific
              intent: First, specific intent must be
              distinguished from motive. There is no
              exception under the statute permitting
              torture to be used for a “good reason.”
              Thus, a defendant’s motive (to protect
              national security, for example) is not
              relevant to the question whether he has
              acted with the requisite specific intent
              under the statute. See Cheek v. United
              States, 498 U.S. 192, 200-01 (1991).
              Second, specific intent to take a given
              action can be found even if the defendant
              will take the action only conditionally.
              Cf., e.g., Holloway v. United States, 526
              U.S. 1, 11 (1999) (“[A] defendant may
              not negate a proscribed intent by
              requiring the victim to comply with a
              condition the defendant has no right to
              impose.”). See also id. at 10-11 & nn.
              9-12; Model Penal Code § 2.02(6). Thus,
              for example, the fact that a victim might
              have avoided being tortured by
              cooperating with the perpetrator would
              not make permissible actions otherwise
              constituting torture under the statute.
              Presumably that has frequently been the
              case with torture, but that fact does not
              make the practice of torture any less
              abhorrent or unlawful.

Id. at 16-17 (emphases added). Thus, the 2004 memorandum both
affirmatively stated that the specific intent element is not tied to a
purpose or ‘precise objective’ to inflict severe pain and suffering,
and suggested that knowledge of ‘reasonably likely’ results could

                                 24
come within the definition of specific intent.

       Consistent with this, the specific intent requirement in
CAT’s implementing regulations excludes “unanticipated” or
“unintended” severity of pain and suffering. 8 C.F.R. §
208.18(a)(5). Again, I cannot emphasize enough, the mental
element is knowledge or desire that pain and suffering will result.
This is different from the underlying purpose of the act. The
distinction is subtle, but important. We should hold that if severe
pain and suffering is desired or known to result from the actor’s
conduct, the specific intent element is fulfilled.10 Only then does
the inquiry turn to the “purpose” element under CAT, as set forth
in J-E-.

       Under CAT, “illicit purposes” include, but are not limited
to, “such purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act he or
she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or a third
person, or for any reason based on discrimination of any kind”;
exempted from CAT is “pain or suffering arising only from,
inherent in or incidental to lawful sanctions,” defined to “include
judicially imposed sanctions and other enforcement actions
authorized by law, including the death penalty,” but to exclude


10
  To the extent that the majority fears that such a holding would
open the floodgates to CAT petitioners from places such as Haiti
where the petitioner will likely be subjected to deplorable
conditions, there remains an evidentiary burden of showing that
would-be torturers in such places know of or desire the resulting
infliction of severe pain and suffering. Furthermore, CAT’s
other requirements must also be met, such that a deportation to a
country with sub-par medical treatment will not constitute
torture because, among other things, there needs to be official
action in a custodial situation that subjects the petitioner to
inevitable pain and suffering. See 8 C.F.R. § 208.18(a)(6)
(requiring that an act of torture be performed by or at the
acquiescence of a public official and directed against a victim in
the torturer’s custody or physical control).

                                25
those “sanctions that defeat the object and purpose of the
Convention Against Torture to prohibit torture.” 8 C.F.R. §§
208.18(a)(1) & (3). This list sets forth examples and is not
exhaustive. (As a matter of statutory interpretation, the term “such
. . . as” does not designate a closed list). It is this “purpose”
element that will require a finding as to the actor’s motive. Pain
for pain’s sake would clearly be an illicit purpose–but is just one
of a number of possible proscribed motives.                     Each
element–specific intent and purpose, respectively–is analytically
separate.

       By conflating purpose with specific intent, the majority has
excluded from the definition of torture those acts that we all would
agree constitute torture. Imagine the following situation:

              A military official in Haiti desires
              information from a detained, suspected
              terrorist. His purpose in interrogating the
              detainee is to solicit information. In the
              course of the interrogation, he begins to
              use coercive tactics. The official’s only
              purpose and conscious desire is to receive
              information. He is indifferent as to
              whether his tactics (electric shock) cause
              severe pain and suffering; indeed, he had
              hoped that the detainee would give him
              information without the infliction of pain
              and suffering. The shock treatment is
              administered and does cause severe pain
              and suffering.

Is this not torture? Under the majority’s interpretation, it is not.
Although obtaining information is an illicit purpose satisfying that
prong of CAT’s implementing regulations, the official’s conduct
will not meet the standard the majority has set for the specific
intent requirement; his purpose is to obtain information, not to
inflict severe pain and suffering. By contrast, an interpretation that
adopts the criminal law definition of specific intent and
encompasses knowledge or desire that severe pain and suffering
will occur includes the above hypothetical in the definition of

                                 26
torture under CAT.

         Although I disagree with majority’s interpretation of
specific intent and its resulting conflation of the specific intent and
illicit purpose elements under the CAT statute, I concur in the
result. In this case, the petitioner simply failed to adduce adequate
evidence before the IJ from which we can conclude that there will
be intentional infliction of pain–i.e., with knowledge or desire on
the part of the prison officials. In this way, the present case is
distinguishable from Lavira. Here, the allegations made before the
IJ were not substantiated with proof of either intent or proscribed
purpose and were, at most, akin to a generalized challenge to
prison conditions rejected in Auguste. I therefore concur in the
result reached by the majority, but disagree with its conclusion that
the “intentional infliction” element of torture requires a finding
that the actor’s purpose is to cause severe pain and suffering.11




11
  I also agree that our discussion of willful blindness in Lavira
was dicta, referring as we did only to the possibility that it would
suffice to fulfill the “intent” prong. I conclude that while
“willful blindness” may permit a jury to conclude that someone
was aware of, for example, the illegal nature of an enterprise, its
application to satisfy the scienter requirement for torture is a
different matter which we need not now explore. I disagree with
the majority’s reason for rejecting “willful blindness” as a way
to prove the specific intent element in the torture context,
however, because it is based on its misconception that it is
“purpose,” not knowledge of a certain result, that must be
demonstrated.

                                  27
