FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 19, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-13359

________________________

BIA No. A97-134-139

JEAN HEROLD JEAN-PIERRE, 

a.k.a. Jean Harold Pierre, 

a.k.a. Martina Jean Pierre, 

a.k.a. Jean Pierre Jeanherold, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(September 19, 2007)

Before ANDERSON, MARCUS and COX, Circuit Judges.

MARCUS, Circuit Judge:

More than fifty years ago, Justice Frankfurter wrote that, when it comes to
 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or 1

Punishment art. 3, § 1, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85.

 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 302 (codified in scattered 2

sections of 8 U.S.C.).

2

torture, “there comes a point where this Court should not be ignorant as judges of

what we know as men.” Watts v. Indiana, 338 U.S. 49, 52 (1949). Today, we

decide not whether our humanity should inform our understanding of torture, but

whether, in the context of this claim, Congress has eliminated the jurisdiction of

the federal courts to address this issue in the first place. We conclude that the

question at the heart of this appeal -- whether a particular course of conduct

amounts to torture under the Convention Against Torture and the accompanying 1

legislation -- is a legal one, and accordingly falls squarely within our limited

jurisdiction under the REAL ID Act of 2005.2

Petitioner Jean Herold Jean Pierre (“Jean Pierre”), a gravely ill AIDS

patient, claims that he will be tortured in jail if he is removed to Haiti as a criminal

alien. He has consistently said, without any dispute, that he will be beaten with

metal rods, confined for weeks in a tiny crawl space, and subjected to the Haitian

practice of “kalot marassa” (severe boxing of the ears). This conduct, he argues, is

torture. Because the Board of Immigration Appeals failed to consider the heart of

these claims, we grant his petition for review, vacate the BIA’s decision, and

remand for further proceedings.
 Jean Pierre pled guilty to cocaine possession on April 11, 1995. He was sentenced to 3

five days in jail and two years of probation. R. 1488–93. On June 16, 1997, he was convicted of

cocaine possession and sale and sentenced to six months in prison. R. 1464–66. Finally, on

March 26, 2004, Jean Pierre was charged with possession with intent to sell or deliver cocaine,

use or possession of drug paraphernalia, and possession of 20 grams or less of cannabis. R. 1314.

Following a plea of nolo contendere, he was sentenced by the state court to 24 months

imprisonment. R. 1316. 

3

I.

A.

Jean Herold Jean Pierre, a Haitian citizen, entered the United States in

August 1992 on a temporary visa that expired in 1993. Thereafter, Jean Pierre was

convicted of violating Florida’s drug laws in 1995, 1997, and again in 2004. In 3

2005, while Jean Pierre was serving a two-year sentence in a St. Lucie County jail

on his third controlled substance conviction, the Department of Homeland Security

began removal proceedings against him pursuant to 8 U.S.C. § 1227. This section

of the immigration laws provides that any alien convicted of certain crimes,

including the drug crimes committed by Jean Pierre, is deportable upon the order

of the Attorney General. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is

convicted of an aggravated felony at any time after admission is deportable.”); id.

§ 1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted

of a violation of . . . any law or regulation of a State . . . relating to a controlled

substance . . . is deportable.”). Claiming that he will be tortured if he is sent to

Haiti, Jean Pierre sought withholding of removal under the Convention Against
4

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”) art. 3, § 1, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465

U.N.T.S. 85.

These basic facts are undisputed. Jean Pierre has AIDS. While in United

States custody, he has received life-saving medication, but the virus continues to

ravage his body. He is infected with cytomegalovirus, an infection dangerous in

immunocompromised individuals. The infection has caused him to go blind in his

left eye. He frequently suffers from headaches, fevers, and memory impairment; he

often becomes terrified when he awakens to hallucinatory visions of big snakes or

walls falling over. Jean Pierre claims that being deported to Haiti will amount to a

death sentence, and will be the same as if someone “put a gun to his head and shot

him.” R. at 188. In fact, he testified that he would prefer this quick death to being

deported.

Although Jean Pierre has served his sentence for violating Florida’s drug

laws, criminal deportees from the United States are subject to indefinite detention

in Haitian prisons upon their return to Haiti. R. at 190. No one disputes that the

conditions in Haitian prisons are appalling. According to the State Department,

prisoners in Haiti suffer from a lack of basic hygiene, malnutrition, and inadequate

or nonexistent health care. U.S. State Dep’t, Country Reports on Human Rights

Practices - 2004 - Haiti (Feb. 28, 2005). Infectious disease flourishes in the
5

overcrowded facilities, and even basic supplies such as water are limited. Id. In no

small measure, the prisoners’ suffering is undoubtedly a consequence of the fact

that Haiti is the poorest country in the Western Hemisphere. See In re J-E-, 23 I. &

N. Dec. 291, 301 (BIA 2002) (en banc) (“The record establishes that Haitian prison

conditions are the result of budgetary and management problems as well as the

country’s severe economic difficulties.”). 

Poverty is not, however, the only problem. According to the State

Department, Haitian prison guards sometimes beat prisoners with fists, sticks, and

belts, and we have previously acknowledged that “certain isolated, vicious and

deliberate acts, such as burning with cigarettes, choking, hooding, kalot marassa

[severe boxing of the ears, sometimes leading to eardrum damage], and electric

shock do occur in Haitian prisons.” Cadet v. Bulger, 377 F.3d 1173, 1194 (11th

Cir. 2004).

Jean Pierre argues that Haitian jailors will single him out for especially harsh

treatment because of his HIV infection and accompanying mental illness. In

support of this claim, Jean Pierre presented materials specific to the treatment of

AIDS-infected persons in Haiti, including information from the U.S. Centers for

Disease Control and Prevention, reports from public health organizations,

newspaper articles describing the stigmatization of AIDS patients, and testimony

from a number of experts. Thus, for example, Jean Pierre pointed to the State
6

Department’s Country Report on Haiti, which says that “[s]ocietal discrimination

occurred against persons with HIV/AIDS.” 2004 Country Report. Jean Pierre also

produced an affidavit from Dr. Paul Farmer, a professor at Harvard Medical School

and founder of Partners in Health, an international public health organization with

extensive operations in Haiti. Farmer’s affidavit describes “the terrible social

stigma associated with the virus” and the fact that “discrimination and abuse

against poor Haitians with HIV/AIDS is a strong reality in Haiti.” R. at 424–26.

Jean Pierre also presented testimony from Chandra Kantor, a nurse

practitioner who estimated that, if deported to a Haitian prison, Jean Pierre would

likely develop a life-threatening disease within a month or two and die shortly

thereafter. This testimony was supported by Stacy Graziosi, an “intensive

adherence specialist” in HIV/AIDS who began monitoring Jean Pierre’s treatment

regimen in 2002. She opined that Jean Pierre’s AIDS-related complications would

worsen upon his return to Haiti and that his infection, left unmedicated, “will cross

[his] blood-brain barrier and will cause him to exhibit various neuropsychological

illnesses such as neurosyphilis, herpes encephalitis, or general paresis of the

insane.” R. at 194.

Dr. Francis Cournos, professor of clinical psychiatry at Columbia University

and deputy director of the New York State Psychiatric Institute, is an expert on the

mental consequences associated with HIV/AIDS. Her affidavit averred that
7

individuals like Jean Pierre with late-stage AIDS are often “unable to function

mentally, delirious, hallucinatory, or even psychotic,” and that they are also prone

to infection. R. at 192. In particular, she testified that cytomegalovirus -- an

infection that has already caused Jean Pierre to go blind in one eye -- “infects the

brain of an AIDS patient, causing rapid personality changes.” R. at 193.

Finally, Michelle Karshan, the director of Alternative Chance, a Haiti-based

program providing assistance to criminal deportees from the U.S., testified

regarding the link between conditions in Haitian prisons, stigmatization of AIDS

patients, and the treatment of mentally ill prisoners. Notably, Karshan said that

prisoners with mental health issues are more likely to act out, and that the officers

in a prison she visited used extended confinement in a tiny crawl space to deal with

these difficult patients:

[I]f they have mental health problems, and they act out, which a lot of

them do . . . . people think that they[] . . . have a spell, that they’re

possessed, . . . and when the officers cannot handle them, . . . they use

a crawl space under the stairs. It’s a tiny space where you can’t even

stand up, and they just lock them in there and sometimes for months

on end, and there’s no process to see them, either. They have to rely

on some compassionate fellow prisoner to bring them food. So, you

know, people can just die in the crawl space. I’m talking about just,

you know, that little space under the stairwell, and they’re just locked

in there. It’s a closet, and they can’t stand, and they don’t have a bed

or anything, and that’s where they stay for months, and I’ve

personally witnessed that. You know, we fought very hard against that

crawl space process, and they’re still using it right this second.

R. at 290. 
8

Karshan further testified that food inside the prisons is distributed by other

inmates, and that sick or mentally ill prisoners were often unable to get any food.

R. at 189. Finally, she said that criminal deportees from the United States are

treated especially harshly, and that they are sometimes “beaten with metal wands

because the prison guards perceive them to be professional criminals deserving of

the punishment.” R. at 190. The government offered no facts in response to this

record.

B.

The Immigration Judge (“IJ”) denied Jean Pierre’s application for

withholding of removal under the Convention Against Torture on January 3, 2006.

Notably, he found that Jean Pierre’s testimony was “clear, believable, and

sufficiently detailed” and called him a credible witness. R. at 196–197. The IJ

ultimately decided, however, that Jean Pierre had “not met his burden of proof and

established that it is more likely than not that he will be tortured by the Haitian

government if he is returned to Haiti.” R. at 197. Following the reasoning of an

earlier Board of Immigration Appeals case, In re J-E-, 23 I. & N. Dec. 291, 301

(BIA 2002) (en banc), he said that there was “no evidence in the Record of

Proceedings that the Haitian government deliberately creates and maintains those

conditions as a means of torturing inmates.” R. at 197; see also R. at 198 (“To state

that the Haitian government, the poorest in the Western Hemisphere, intends to
9

torture its prisoners when it merely is incapable of remedying its prison system

unfairly twists the meaning of protection under the Convention Against Torture.”).

As for the fact that Jean Pierre has AIDS, the IJ concluded that there is “no

evidence that the government specifically targets [people with HIV/AIDS] for

mistreatment or lack of medical treatment.” R. at 198. Finally, he observed, “the

treatment the Respondent will encounter in the Haitian jail, while horrendous, does

not rise to the level of torture as contemplated by the Convention Against Torture.”

R. at 198.

Jean Pierre appealed the IJ’s decision to the Board of Immigration Appeals

(“BIA”), which affirmed the Immigration Judge in a short opinion. The BIA

“acknowledge[d], as did the Immigration Judge, that the respondent’s advanced

and untreated HIV illness would likely lead to delirium and other psychotic

symptoms,” and it could not “dispute the logical conclusion that prisoners who

suffer from such symptoms are likely to be less cooperative with the prison guards’

administration of their duties.” R. at 26 (emphases added). However, the BIA

concluded, 

despite some evidence in the record indicating that those, like the

respondent, who are mentally ill or afflicted with HIV may endure

harsher circumstances as a result of their medical condition than the

average criminal deportee, the evidence does not support a finding

that it is more likely than not that the respondent will be tortured upon

his return to Haiti. See 8 C.F.R. § 1208.18(a)(1) (defining torture as

“any act by which severe pain or suffering, whether physical or
10

mental, is intentionally inflicted . . . .”) (emphasis added); 8 C.F.R.

§ 1208.18(a)(5) (the torturous act “must be specifically intended to

inflict severe physical or mental pain or suffering”) (emphasis added)

(“An act that results in unanticipated or unintended severity of pain

and suffering is not torture”); 8 C.F.R. § 1208.18(a)(3) (stating

“[t]orture does not include pain or suffering arising only from,

inherent [in] or incidental to lawful sanction[s]”); 8

C.F.R. § 1208.18(a)(2) (stating torture “does not include lesser forms

of cruel, inhuman[] or degrading [treatment or] punishment”).

R. at 26–27 (first two alterations in original; subsequent alterations added to

indicate the correct text of the regulations). Jean Pierre timely appealed the BIA’s

decision. On appeal, we review only the BIA opinion. See Al Najjar v. Ashcroft,

257 F.3d 1262, 1284 (11th Cir. 2001) (“We review only the Board’s decision,

except to the extent that it expressly adopts the IJ’s opinion.”).

II.

First, the government argues that we are without jurisdiction to consider

Jean Pierre’s claim because of the jurisdictional limits found in the REAL ID Act

of 2005, Pub. L. No. 109-13, 119 Stat. 231, 302 (codified in scattered sections of 8

U.S.C.). The REAL ID Act limits federal court jurisdiction in cases involving

certain criminal aliens to “constitutional claims or questions of law raised upon a

petition for review filed with an appropriate court of appeals in accordance with

this section.” 8 U.S.C. § 1252(a)(2)(D); see also id. § 1252(a)(2)(C) (“[E]xcept as

provided in subparagraph (D), no court shall have jurisdiction to review any final

order of removal against an alien who is removable by reason of having committed
11

a criminal offense covered in [the enumerated sections].”).

Under the REAL ID Act, we have jurisdiction over “questions of law.” See

id. § 1252(a)(2)(D). Because the statute presents the jurisdictional provision in

§ 1252(a)(2)(D) as an exception to the general rule barring appellate review of

final removal orders in cases involving criminal aliens in § 1252(a)(2)(C),

moreover, we have jurisdiction only to the extent that Jean Pierre raises such

“constitutional claims or questions of law.” In other words, the REAL ID Act

prevents us from reviewing factual determinations made by the IJ or BIA in cases

involving aliens who have committed a listed criminal offense. Cf. Chacon-Botero

v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam) (holding, in a

case involving a related provision of the REAL ID Act, that “discretionary or

factual determinations continue to fall outside the jurisdiction of the court of

appeals entertaining a petition for review”). 

According to the government, Jean Pierre’s claim does not raise a “question

of law” because he is really attempting to challenge a factual determination

concerning the likelihood that he will be subjected to torture. In other words, the

government asserts, Jean Pierre is really trying to circumvent the unambiguous

limitations Congress has placed on our jurisdiction by dressing up a purely factual

challenge as a question of law. We are unpersuaded. 

We begin with Cadet, an immigration case involving a criminal alien
 The Supreme Court has defined such questions as those “in which the historical facts 4

are admitted or established, the rule of law is undisputed, and the issue is whether the facts

satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the

established facts is or is not violated.” Pullman-Standard v. Swint, 456 U.S. 273, 290 n.19

(1982). Mixed questions are generally held to fall within the jurisdiction of the reviewing court

even when the court’s jurisdiction to review the facts themselves has been limited or eliminated.

See, e.g., Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963) (“By ‘issues of fact’ we mean to refer

to what are termed basic, primary, or historical facts: facts ‘in the sense of a recital of external

events and the credibility of their narrators . . . .’ Brown v. Allen, 344 U.S. 443, 506 (opinion of

Mr. Justice Frankfurter). So-called mixed questions of fact and law, which require the

application of a legal standard to the historical-fact determinations, are not facts in this sense.”).

12

decided shortly before Congress passed the REAL ID Act. There, a panel of this

Court held that habeas corpus jurisdiction extends to the adjudication of mixed

questions of law and fact, including the question of whether a particular course of 4

conduct (fact) constitutes torture (law). See 377 F.3d at 1184 (“[T]he scope of

habeas review available in § 2241 petitions by aliens challenging removal

orders . . . includes constitutional issues and errors of law, including both statutory

interpretations and application of law to undisputed facts or adjudicated

facts . . . .”); see also INS v. St. Cyr, 533 U.S. 289, 302 (2001) (“[T]he issuance of

the writ [of habeas corpus] was not limited to challenges to the jurisdiction of the

custodian, but encompassed detentions based on errors of law, including the

erroneous application or interpretation of statutes.”). Having found jurisdiction, we

reviewed the BIA’s legal conclusions de novo, according Chevron deference to the

BIA’s interpretation of the immigration laws. See Cadet, 377 F.3d at 1185–86
13

(“Thus, where a statute or regulation is silent or ambiguous, we are obliged to defer

to the BIA’s interpretation and application of statutes and regulations if that

interpretation is reasonable.”).

The REAL ID Act changed the basic mechanism of federal judicial review;

criminal aliens seeking review of an unsuccessful CAT claim may no longer

proceed in habeas. Rather, the exclusive mechanism for judicial review is a petition

for review filed with the appropriate court of appeals. 8 U.S.C. § 1252(a)(5); see

also Balogun v. United States AG, 425 F.3d 1356, 1359–60 (11th Cir. 2005)

(explaining how the REAL ID Act altered “double-layered review for criminal

aliens”). While the mechanism changed, however, the scope of our review of the

law did not. As we observed recently in Alexandre v. United States Attorney

General, 452 F.3d 1204 (11th Cir. 2006) (per curiam), the REAL ID Act “offers

the same scope of review as a habeas remedy” in a case involving a criminal

alien’s appeal of a removal order. Id. at 1206. Alexandre was not a CAT case, but

it did construe the same generally applicable jurisdictional limitations imposed by

the REAL ID Act. See id. We can see no reason why the result should be different

in the context of reviewing a CAT claim. Indeed, Alexandre specifically cited to

Cadet, the CAT case in which we determined that review of the application of law

to undisputed facts falls well within the scope of the court’s jurisdiction. See id.

(citing Cadet, 377 F.3d at 1184). 
14

The necessary conclusion we draw from our precedent and from the

language found in the REAL ID Act is that we have jurisdiction to review Jean

Pierre’s claim in so far as he challenges the application of an undisputed fact

pattern to a legal standard. This conclusion is fully consonant with the decisions

reached by the other courts of appeal that have considered the issue. See Ramadan

v. Gonzales, 479 F.3d 646, 654 (9th Cir. 2007) (per curiam) (“We therefore

conclude that the phrase ‘questions of law’ as it is used in . . . the Real ID Act

includes review of the application of statutes and regulations to undisputed

historical facts. This construction is amply supported by the statute and legislative

history, and a narrower interpretation would pose a serious Suspension Clause

issue.” (footnote omitted)); id. at 650 (“‘[Q]uestions of law,’ as it is used in [the

REAL ID Act], extends to questions involving the application of statutes or

regulations to undisputed facts, sometimes referred to as mixed questions of fact

and law.”); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326–27 (2d Cir.

2006) (“We construe the intent of Congress’s restoration under the REAL ID Act

rubric of ‘constitutional claims or questions of law’ to encompass the same types

of issues that courts traditionally exercised in habeas review over Executive

detentions.”); Kamara v. Att’y Gen. of the U.S., 420 F.3d 202, 211 (3d Cir. 2005)

(holding that the scope of review under the REAL ID Act “mirrors our previously

enunciated standard of review over an alien’s habeas petition”). 
15

This analysis is also fully consistent with the legislative history of the REAL

ID Act. The Conference Report for the Act specifically says that when “presented

with a mixed question of law and fact, the court should analyze it to the extent

there are legal elements, but should not review any factual elements.” Conference

Report for the REAL ID Act, H.R. Rep. No. 109-72, at 175 (2005), as reprinted in

2005 U.S.C.C.A.N. 240, 300; see also id. (“[W]hile the reforms in [8

U.S.C. § 1252] would preclude criminals from obtaining review over nonconstitutional, non-legal claims, it would not change the scope of review that

criminal aliens currently receive . . . .”).

Whether a particular fact pattern amounts to “torture” requires a court to

apply a legal definition to a set of undisputed or adjudicated historical facts. Our

resolution of this issue in Cadet could not have been clearer: “whether the

conditions in Haitian prisons constitute torture is a mixed question of law and fact

as we must apply CAT’s legal definition of ‘torture’ to the facts of what happens in

Haiti’s prisons.” 377 F.3d at 1192. Jean Pierre’s claim squarely and

unambiguously raises this question. In light of our binding precedent in Cadet and

Alexandre, the persuasive authority of the other courts of appeal, and the plain

language and legislative history of the REAL ID Act, we have little difficulty in

concluding that this Court has jurisdiction to entertain whether a fact pattern

constitutes torture.
 Properly speaking, the Convention itself provides no legal protection. Because the 5

Convention is not self-executing, a petitioner raising a CAT claim is actually seeking relief

under the Convention’s implementing legislation, the Foreign Affairs Reform and Restructuring

Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822 (codified at 8 U.S.C. § 1231

note). This Act states 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.” Id.; see also

Cadet, 377 F.3d at 1179–80 & n.3 (discussing the ratification and implementation of the CAT).

For convenience, we refer to Jean Pierre’s claim as a “CAT claim.”

16

III.

Plainly, Jean Pierre is subject to removal from the United States as a

criminal alien under 8 U.S.C. § 1227. Claiming that he would be tortured if

returned to his native Haiti, Jean Pierre applied for relief under the United Nations

Convention Against Torture. As a signatory to the Convention, the United States 5

has agreed not to “expel, return . . . 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.” Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment art. 3, § 1, Dec. 10, 1984, S. Treaty Doc. No.

100-20 (1988), 1465 U.N.T.S. 85. An alien is entitled to CAT protection if he is

“more likely than not to be tortured in the country of removal.” 8

C.F.R. § 208.16(c)(4). The petitioner bears the burden of proof on this point. See

Cadet v. Bulger, 377 F.3d 1173, 1180 (11th Cir. 2004).

 The legislation and regulations implementing the CAT provide that torture

is an “extreme form of cruel and inhuman treatment and does not include lesser
17

forms of cruel, inhuman or degrading treatment or punishment that do not amount

to torture.” 8 C.F.R. § 208.18(a)(2); see also Cadet, 377 F.3d at 1181. Moreover,

the actor must have specifically intended to inflict such severe pain or suffering, 8

C.F.R. § 208.18(a)(5), and the act must be inflicted for a proscribed purpose,

including “for any reason based on discrimination of any kind,” id. § 208.18(a)(1).

Public officials or other persons acting in an official capacity must be involved,

and the treatment must be directed at a person within their custody or physical

control. See id. (referring to “pain or suffering . . . 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. § 208.18(a)(7) (“Acquiescence of a public official

requires that the public official, prior to the activity constituting torture, have

awareness of such activity and thereafter breach his or her legal responsibility to

intervene to prevent such activity.”); id. § 208.18(a)(6) (“In order to constitute

torture an act must be directed against a person in the offender’s custody or

physical control.”).

Jean Pierre’s argument for CAT relief was based on the claim that he will

likely be tortured in a Haitian prison when his AIDS infection, unchecked by

lifesaving medication, infects his mind and causes him to behave inappropriately or

erratically. He claims that the Haitian prison guards, acting out of fear or prejudice,

will likely beat him with metal rods, strike him about the head and ears (kalot
18

marassa), and, perhaps most disturbingly, lock him in a tiny crawl space for weeks

or months without food or even room to stand upright. The BIA, like the IJ, did not

directly address this central claim. 

The BIA seems to have thought that two earlier cases, In re J-E-, 23 I. & N.

Dec. 291 (BIA 2002) (en banc), and Cadet v. Bulger, 377 F.3d 1173, disposed of

Jean Pierre’s claim. The BIA cited to both cases in observing that:

The mere fact that the Haitian government does not exempt those

criminal deportees who suffer from severe medical conditions from

their detention policy, a policy we have found to be a legitimate and

lawful sanction, does not constitute torture. See Matter of J-E, supra.

In addition, as noted by the Immigration Judge, nothing in the record

supports the notion that the Haitian government deliberately creates or

maintains the unhygienic conditions for purposes of torturing its

detainees. (I.J. at 21). See 8 C.F.R. §§ 1208.18(a)(1) and (5). Further,

the United States Court of Appeals for the Eleventh Circuit, the

jurisdiction in which this case arises, has deferred to our reasonable

interpretation that police brutality in Haiti, including “beatings, with

fists, sticks, and belts,” does not rise to the level of torture pursuant to

CAT. Cadet v. Bulger, 377 F.3d 1173, 1195 (11th Cir. 2004). Even if

intentional, none of the harm the respondent might face rises above

that which is characterized in the regulations as “lesser forms of cruel,

inhuman or degrading punishment,” and, therefore, it cannot be

deemed torture.

R. at 27 (footnote omitted). Cadet and In re J-E- held, among other things, that

Haiti is a poor country, and that its inability to maintain better prisons did not mean

that it tortures those it holds, even when it indefinitely confines criminals deported

from the United States and may subject them to mistreatment short of torture. See

In re J-E, 23 I. & N. Dec. at 301–04 (holding that poor prison conditions, indefinite
 Both Cadet and In re J-E- acknowledge that some of the abuses discussed in the State 6

Department Country Reports on Haiti would, in fact, constitute torture. See Cadet, 377 F.3d at

1195 (“[W]e read the BIA’s decision in J-E as acknowledging that certain isolated, vicious and

deliberate acts, such as burning with cigarettes, choking, hooding, kalot marassa, and electric

shock do occur in Haitian prisons and that such acts constitute CAT-prohibited ‘torture.’”).

While we deferred to the BIA’s determination that “[b]eating[s] with the fists, sticks, and belts,”

were not torture but rather “lesser forms of cruel, inhuman or degrading treatment or

punishment,” we were unpersuaded by the argument that such misconduct was somehow not

intentional. See Cadet, 377 F.3d at 1195 n.20 (“We note that these types of physical abuse in

Haitian prisons are intentional acts, as opposed to inescapable results of Haiti’s economic

hardship. Accordingly, unlike the prison conditions addressed above, these types of physical

abuse cannot be described as ‘incident to’ a lawful sanction.”).

19

detention of criminal deportees, and police mistreatment such as “[b]eating with

the fists, sticks, and belts,” were not torture); Cadet, 377 F.3d at 1193 (deferring to

this interpretation).

Those cases are different. In both cases, the petitioners failed because,

among others, they could not establish that they would be individually and

intentionally singled out for harsh treatment. Although both petitioners produced

evidence of generalized mistreatment and some isolated instances of torture, the 6

evidence was insufficient to meet the petitioners’ burdens of showing that they

were individually “more likely than not to be tortured in the country of removal.” 8

C.F.R. § 208.16(c)(4); see In re J-E-, 23 I. & N. at 304 (“[W]e find that the

respondent has failed to establish that these severe instances of mistreatment are so

pervasive as to establish a probability that a person detained in a Haitian prison

will be subject to torture, as opposed to other acts of cruel, inhuman, or degrading

punishment or treatment.”); Cadet, 377 F.3d at 1195 (focusing on the petitioner’s
20

failure to make an individualized showing); see also Lavira v. Att’y Gen. of the

U.S., 478 F.3d 158, 164 (3d Cir. 2007) (“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 . . . . 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- . . . .”).

Jean Pierre’s claim, at both stages of the administrative process and on

appeal, was not limited to the assertion that placing a man with AIDS in a Haitian

prison amounts to a death sentence. Instead, as a thorough review of the 1,500-

page record reveals, Jean Pierre’s central claim has always been that placing this

man in a Haitian prison, with guards who beat mentally ill patients with metal rods

and lock them in small crawl spaces, would violate the commitment of the United

States not to remove a person who is “more likely than not to be tortured in the

country of removal,” 8 C.F.R. § 208.16(c)(4). See, e.g., R. at 1364 (“People with

mental health problems are singled out for torture in the prisons. . . . Jean Pierre

will act in deviant ways because of the mental health complications of his AIDS

and this will cause him to be singled out in the jails of Haiti and tortured.”); R. at

1372 (“The increased attention of Haitian prison guards [caused by deviant

behavior] is especially dangerous because country conditions reports confirm that
21

torture occurs in Haitian prisons.”); R. at 1373 (“[T]he general practice in the

National Penitentiary where Mr. Jean Pierre will be sent is to lock individuals with

mental illness into a crawl space under the stairs. People locked in the crawl space

are not given food to eat and are unable to stand for lack of room.” (citations

omitted)); R. at 1376 (“Violence has been directed particularly toward the mentally

ill in Haitian prisons. . . . People with mental illness are given the worst conditions

in prison.” (citations omitted)); R. at 1380 (“With the high likelihood of psychiatric

complications and consequent deviant behaviors, Mr. Jean Pierre is highly likely to

become a target of violence from prison guards . . . and be confined to the crawl

space under the stairs.”); R. at 1368 (kalot marassa); R. at 1369 (kalot marassa); R.

at 1375 (crawl space confinement); R. at 1378 (physical violence and crawl-space

confinement). 

The government did not in any way dispute the facts underlying Jean

Pierre’s claim, and the IJ found him to be a credible witness. In his disposition of

the claim, however, the IJ did not discuss the harsher forms of mistreatment

detailed by Jean Pierre. More importantly, the BIA decision, the subject of our

review, makes no mention of kalot marassa, confinement in a crawl space, or

beatings with metal rods. These details are omitted despite the fact that the BIA has

itself recognized kalot marassa as an example of “mistreatment in Haitian prisons

that rise[s] to the level of torture.” In re J-E-, 23 I. & N. Dec. at 302; see also
22

Cadet, 377 F.3d at 1194–1195. 

At best, the BIA opinion can be read as obliquely referencing Jean Pierre’s

argument that he would face harsher treatment as a result of mental illness. See R.

at 26 (referencing “some evidence in the record indicating that those, like the

respondent, who are mentally ill or afflicted with HIV may endure harsher

circumstances as a result of their medical condition”). In our view, the BIA omitted

from its analysis any review of the most important facts presented in this case. 

There is, of course, an important difference between considering the evidence and

reciting it; the BIA need not mechanically list every piece of evidence in the record

on its way to rendering a decision. See Tan v. U.S. Att’y Gen., 446 F.3d 1369,

1376–77 (11th Cir. 2006) (observing that, although the IJ must consider all the

evidence before him, he is not required to discuss every piece of evidence

presented). But in this case, the BIA erred in apparently omitting from its review

the central and undisputed facts that drive this petition.

Moreover, the BIA erred in failing to address the petitioner’s essential legal

arguments -- arguments so central to Jean Pierre’s claim that we are unable to

review the issue presented by this appeal. Jean Pierre was not rearguing In re J-Eand Cadet. Instead, he presented a new and different legal question: whether a

petitioner is entitled to withholding of removal under the Convention Against

Torture when the undisputed evidence seems to show that he likely will be singled
23

out for crawl-space confinement, kalot marassa, and beatings with metal rods as a

result of AIDS-related mental illness. As best as we can tell, the BIA did not

answer this question. 

Accordingly, we are constrained to agree with Jean Pierre that the BIA failed

to give reasoned consideration to his claims. See 8 C.F.R. § 208.16(c)(3) (“In

assessing whether it is more likely than not that an applicant would be tortured in

the proposed country of removal, all evidence relevant to the possibility of future

torture shall be considered . . . .” (emphasis added)); see, e.g., Lavira v. Att’y Gen.

of the U.S., 478 F.3d 158, 164 (3d Cir. 2007) (holding, in a case involving an HIVpositive criminal alien who claimed that he would be singled out for torture if

returned to Haiti, that a “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”); see also, e.g., Tan v.

U.S. Att’y Gen., 446 F.3d 1369, 1375–77 (11th Cir. 2006) (granting a petition for

review of an application for withholding of removal when the absence of a

reasoned decision and adequate factual findings left the court unable to review the

claim); Mezvrishvili v. U.S. Att’y Gen., 467 F.3d 1292, 1297 (11th Cir. 2006) (per

curiam) (same result in an asylum case); Enwonwu v. Gonzales, 438 F.3d 22, 35

(1st Cir. 2006) (remanding a CAT determination to the BIA because it was

“insufficiently reasoned as a matter of law”); Antipova v. U.S. Att’y Gen., 392
24

F.3d 1259, 1265 (11th Cir. 2004) (remanding a petition for asylum to the BIA

because the court could not “undertak[e] meaningful judicial review of the

merits”).

The BIA is obliged to resolve the basic questions raised in this CAT petition

in the first instance. See Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per

curiam) (“A court of appeals ‘is not generally empowered to conduct a de novo

inquiry into the matter being reviewed and to reach its own conclusions based on

such an inquiry.’” (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam));

see also Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1236 (11th Cir. 2007)

(“The Supreme Court has instructed that, when the IJ or BIA has not made findings

of fact or has not applied the law to those facts, appellate courts should remand to

allow the IJ to make such determinations in the first instance.”); Lopez v. U.S.

Att’y Gen., 490 F.3d 1312, 1316 (11th Cir. 2007) (discussing the “ordinary remand

rule”). 

Indeed, in a motion filed with us following oral argument in this case, the

government “agree[d] that a remand to the Board would be appropriate with

instructions that the agency consider and address the factual allegations concerning

whether Jean Pierre, upon his return to Haiti, would be subject to physical abuse

amounting to torture (to include kalot marassa, confinement in crawl spaces and

beatings with metal rods), as that term has been defined by regulations, Board
25

decisions, and this Court, as to warrant deferral of removal under the Convention

Against Torture . . . . Given the importance of this issue, the Board should have an

opportunity to address this claim in the first instance.” Respondent’s Motion to

Remand at 1–2.

On remand, the BIA must squarely address Jean Pierre’s claim that he likely

will be singled out for crawl-space confinement, beatings with metal rods, and

kalot marassa in light of the five-part analysis employed by this Court in Cadet.

See 377 F.3d at 1192 (“[F]or an act to constitute ‘torture’ under CAT and its

implementing regulations, it must be: (1) an act causing severe physical or mental

pain or suffering; (2) intentionally inflicted; (3) for an illicit or 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.”); id. at 1195 (focusing on whether the petitioner presented

evidence “qualitatively different than or superior to the J-E- record”).

The essential problem we face is that we are unable to meaningfully review

the application of the law of torture to the basic facts of the case without first

having the benefit of the BIA’s review and resolution of Jean Pierre’s central

claim. Accordingly, we are required to GRANT Jean Pierre’s petition for review,

VACATE the BIA’s decision, and REMAND for further proceedings consistent

with this opinion.
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VACATED AND REMANDED.