By Anthony Biraglia

In the civil case of Oxygene v. Lynch, the Fourth Circuit denied in part and dismissed in part a petition for review of orders denying Wilerms Oxygene’s (“Oxygene”) application for deferral of removal under the Convention Against Torture (“CAT’) and a subsequent motion to reopen his removal proceedings. In a published opinion released on February 22, 2016, the Court found that it lacked jurisdiction to review the motion to reopen based on Oxygene’s status as aggravated felon under the Immigration and Nationality Act, and agreed with the Board of Immigration Appeals (“BIA”) decision to deny Oxygene’s application for deferral of removal under the CAT because Oxygene had not proven that Haitian officials had a specific intent to torture him upon his return. The Court thus dismissed Oxygene’s petition for review of the order denying his motion to reopen his removal proceedings, and denied his petition for review of the order denying his deferral of the removal under the CAT.

State Crime Convictions, Removal Proceedings, and Attempted CAT Deferral

Oxygene obtained lawful permanent resident status in the United States in 1996, two years after fleeing political violence in his native Haiti. Five years later, in 2001, Oxygene was convicted of several state crimes in Virginia, including burglary, grand larceny, robbery, and using a firearm to commit a felony. The Department of Homeland Security (“DHS”) commenced removal proceedings against Oxygene under 8 U.S.C. § 1227(a)(2), which provides that, among other things, aliens convicted of aggravated felonies or firearm offense are deportable. Oxygene conceded that his Virginia convictions made him removable under the statute, but applied for deferral of removal under the CAT.

Oxygene had a removal hearing in front of an Immigration Judge (“IJ”) to consider his application for deferral. During this hearing, Oxygene submitted evidence, including State Department reports, nongovernmental organization reports, and news articles, about the deplorable prison conditions in Haiti. Oxygene expressed a fear that he would face indefinite detention if deported, and that that detention would result in the activation of his latent tuberculosis without access to sufficient medical care. Despite finding the conditions of the Haitian prisons horrid and noting that some instances of mistreatment in Haitian prisons could constitute torture, the IJ denied Oxygene’s application for deferral because he had failed to prove that it was more likely than not that he would suffer torture upon his return to Haiti. He also failed to prove that Haitian authorities intentionally and deliberately detain deportees to inflict torture, which is required under the Foreign Affairs Reform and Restructuring Act (“FARRA”) that implemented the directives of the CAT.

Oxygene appealed to the BIA, asking it both to reverse the IJ’s denial and, alternatively, to remand the case to the IJ to consider whether of Oxygene’s recent diagnoses of post-traumatic stress disorder and depression affected the IJ’s ruling. The BIA affirmed the IJ’s decision and denied the motion for remand. Oxygene’s motion for reconsideration, which the BIA treated as a petition to reopen, was subsequently denied. Oxygene filed two appeals to the Fourth Circuit challenging both the BIA’s denial of the application for deferral and its denial of his motion to reopen. The Court consolidated the questions.

Jurisdictional Question

The Fourth Circuit explained that because Oxygene was an aggravated felon for the purposes of removal, its jurisdiction was limited by Congress through 8 U.S.C. § 1252 (a)(2)(C) to legal and constitutional questions. Therefore, the Court had to determine whether Oxygene’s arguments raised legal or constitutional questions, rather than factual questions, before it proceeded with any analysis of those arguments. Oxygene presented two arguments with respect to the BIA’s denial of his application for deferral, only one of which, namely that the precedent on which the BIA relied stated the incorrect legal test for the intent necessary to establish torture, raised legal issues. The Court retained jurisdiction over this question. The Court found that Oxygene’s challenge to the motion to reopen his removal proceedings raised factual issues over which it did not have jurisdiction. As a result, the Court addressed only Oxygene’s argument that In re J-E, the precedent upon which the BIA relied, incorrectly stated the legal test for the intent necessary to establish torture under the CAT.

CAT and FARRA Require that Torture be Specifically Intended

Congress implemented the CAT through the FARRA legislation in 1998. FARRA did not define torture, but rather instructed the Justice Department to promulgate regulations that reflected the Presidential and Senate understanding of the CAT. This understanding, which was reflected in the Justice Department regulations, included a specific intent requirement for torture. More specifically, the acts in question must be perpetrated with an intent to cause severe mental or physical injury. Acts do not constitute torture if mental or physical injury is an unintended consequence. In re J-E, the BIA adopted the specific intent requirement that each entity responsible for interpreting the CAT understood to be inherent in the definition of torture for the purposes of FARRA.

In re J-E also addressed the issue of the poor conditions in Haitian prisons. The BIA found that although Haitian officials were detaining deportees with knowledge of the poor conditions, the officials did not intentionally keep the prisons in poor condition to inflict torture on the deportees. The BIA concluded that the poor conditions were the result of a lack of resources and severe economic difficulties in the country rather than a delicate effort to torture prisoners.

The Court agreed with the BIA’s reasoning in In re J-E, finding that the specific intent requirement as the BIA had interpreted was consistent with the President’s and Congress’s understanding of torture under the CAT. It therefore afforded it deference in applying the same principles in Oxygene’s case.

Denied in Part and Dismissed in Part

For the reasons stated above, the Fourth Circuit denied Oxygen’s petition for review of an order to deny his application for deferral under the CAT, and dismissed his petition for review of the BIA’s denial of his motion to reopen his removal proceedings.

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