R‑A‑F‑
27 I. & N. Dec. 778 (2020)
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Rule of Law:
The Board of Immigration Appeals (BIA) must review de novo the application of law to facts, specifically whether predicted harm constitutes 'torture' under Convention Against Torture (CAT) regulations, which requires specific intent by a public official to inflict severe physical or mental pain or suffering for a proscribed purpose, and does not cover harm stemming from negligent acts or a lack of resources.
Facts:
- R-A-F- was convicted of the attempted sexual abuse of a child.
- The Department of Homeland Security (DHS) seeks to remove R-A-F- to Mexico.
- R-A-F- contends that upon his return to Mexico, he would be sent to a Mexican mental health care facility.
- R-A-F- asserts that the poor conditions within this Mexican mental health care facility would rise to the level of 'torture' under CAT regulations.
Procedural Posture:
- The Department of Homeland Security (DHS) sought to remove R-A-F- to Mexico.
- An Immigration Judge (IJ) granted R-A-F-'s application for deferral of removal under the Convention Against Torture (CAT) regulations.
- DHS appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA).
- The BIA dismissed DHS's appeal, concluding that there was no clear error in the Immigration Judge’s determination that R-A-F- established he would likely be tortured.
- The Attorney General, pursuant to 8 C.F.R. § 1003.1(h)(1)(i), directed the Board of Immigration Appeals to refer this case to him for review of its decision.
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Issue:
Does the Board of Immigration Appeals (BIA) review de novo the application of law to facts when determining if predicted deprivations upon removal constitute 'torture' under the Convention Against Torture (CAT) regulations, and do conditions resulting from negligent acts or a lack of resources meet the 'specific intent' and 'purpose' requirements for torture?
Opinions:
Majority - Attorney General
Yes, the Board of Immigration Appeals must review de novo whether predicted deprivations constitute 'torture' under CAT regulations, and harm stemming from negligent acts or lack of resources does not meet the specific intent or purpose requirements for torture. The Attorney General vacated the Board's decision, finding it contrary to law because the Board improperly merged factual and legal questions and failed to apply the correct de novo standard of review. While the Immigration Judge's factual prediction of what would likely happen to R-A-F- is reviewed for clear error, the determination of whether that predicted outcome legally satisfies the definition of 'torture' is a legal judgment subject to de novo review by the BIA. To constitute 'torture' under 8 C.F.R. § 1208.18(a)(5), an act must be 'specifically intended to inflict severe physical or mental pain or suffering.' Precedent from Matter of J-R-G-P- and various circuit courts (e.g., Villegas v. Mukasey, Oxygene v. Lynch, Auguste v. Ridge, Pierre v. Gonzales) confirms that 'torture' does not encompass negligent acts or harm arising from a lack of resources, even if conditions are deplorable. The Attorney General further emphasized that 'torture' also requires motivation by specific purposes, such as obtaining information or punishment, or discrimination, and must be inflicted by or with the acquiescence of a public official, as per 8 C.F.R. § 1208.18(a)(1).
Analysis:
This case significantly clarifies the BIA's standard of review for mixed questions of law and fact in CAT claims, mandating a de novo review for the application of the legal definition of torture to established facts. It reinforces the stringent 'specific intent' requirement for torture, distinguishing severe harm resulting from state actor negligence or resource scarcity from deliberate, purposeful infliction of severe pain. This interpretation restricts the availability of CAT deferral of removal by requiring claimants to demonstrate a higher degree of culpability—deliberate intent and proscribed purpose—from state actors, rather than merely deplorable conditions or generalized neglect, impacting future asylum and removal cases where torture claims are based on poor governmental conditions.
