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March 31, 2016
  Oxygene v. Lynch -- Fourth Circuit
To Stay or Not to Stay: Removal of Haitian Refugee under Convention Against Torture Act Contingent on Showing of Specific Intent to Torture

Areas of Law: Immigration Law

Issue Presented: Whether a Haitian refugee who committed four felonies in the United States should be granted deferral of removal under the Convention Against Torture ("CAT").

Brief Summary: In a published opinion written by Judge Motz, the United States Court of Appeals for the Fourth Circuit ("the court") held that Wilerms Oxygene ("Oxygene") failed to establish that Haitian authorities would detain him (if deported) with the specific intent to inflict torture--a showing required under CAT. As a result, the court denied Oxygene's application for deferral of removal under CAT.

Extended Summary:
In 1994, Oxygene and his family fled political violence in Haiti and were admitted to the United States as refugees. In 2001, five years after he became a Legal Permanent Resident, Oxygene was convicted in a Virginia court of burglary, grand larceny, robbery, and use of a firearm to commit a felony. In 2011, the Department of Homeland Security commenced a removal proceeding against him. Shortly thereafter, Oxygene applied for deferral of removal under the Convention Against Torture Act ("CAT"). His application was heard by an Immigration Judge ("IJ").

Relying on U.S. Department of State country reports, the IJ found that "on several occasions police 'allegedly beat or otherwise abused detainees and suspects' and 'corrections officers use[d] physical punishment and psychological abuse to mistreat prisoners.'" The IJ further found that "approximately seventy percent [of prisoners] 'suffered from a lack of basic hygiene, malnutrition, poor quality health care, and water-borne illness.'" Notwithstanding these findings, the IJ, relying heavily on In re J-E, 23 I. & N. Dec. 291 (BIA 2002), ultimately denied Oxygene's application. The IJ found that Oxygene had failed to demonstrate it was "more likely than not" that he would suffer torture upon removal to Haiti.

Oxygene timely appealed this denial to the BIA and included new medical evidence regarding his PTSD and depression that he alleged impacted his CAT claim. The BIA affirmed the removal order, indicating that Oxygene failed to show how the new evidence would change the result of the case.

Oxygene appealed to the United States Court of Appeals for the Fourth Circuit. First, the Fourth Circuit explained that it had limited jurisdiction over Oxygene's appeal due to his prior aggravated felony conviction. The sole issue considered by the court on appeal was whether In re J-E states the correct legal standard for intent in CAT claims.

The Fourth Circuit ultimately held that In re J-E's "specific intent" standard for CAT claims is correct and, as a result, denied Oxygene's application for deferral of removal under CAT. In reaching this conclusion, the court first looked to the specific language of the original CAT treaty, which defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The court explained that this is an express understanding of how the United States wished executive and judicial bodies to later interpret this treaty when it was implemented into domestic law. In 1998, Congress enacted the Foreign Affairs Reform and Restructuring Act ("Act") to implement CAT. In that Act, Congress defined torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The Act also said that "in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering." The court emphasized that this statutory language indicated specific intent was meant to be the standard under which CAT is assessed. Lastly, the court turned to In re J-E, explaining that the decision is consistent with the prior legislative history regarding the "specific intent" standard and is almost identical to Oxygene's. As a result, the court stated that In re J-E should be given deference and Oxygene's application for deferral of removal under CAT should be denied because he only offered evidence of general, rather than specific, intent that the Haitian government would torture him upon his deportation to Haiti.

To read the full opinion, click here.

Panel: Judges Motz, King, and Keenan.

Argument Date:
12/08/2015

Date of Issued Opinion: 02/22/2016

Docket Number: Case No. 14-2380

Decided: Denied in part and dismissed in part by published opinion.

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

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

Author of Opinion: Judge Motz

Dissenting Opinion: None

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/31/2016 09:21 AM     4th Circuit  

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