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Cherichel v. Holder

January 12, 2010


Petition for Review from the Board of Immigration Appeals.

The opinion of the court was delivered by: Shepherd, Circuit Judge.

Submitted: October 21, 2009

Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.

Shoodley Cherichel, a native and citizen of Haiti, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his application for deferral of removal under the Convention Against Torture (CAT) and ordering him removed to Haiti. Cherichel argues that the BIA erred in applying a more onerous definition of specific intent under the CAT than was used by the Immigration Judge (IJ). For the following reasons, we deny the petition.


A. Factual Background

Shoodley Cherichel was born in Haiti on November 23, 1979. Although he does not remember coming to the United States, it appears that he entered the United States without inspection sometime between 1982 and 1984. Since that time, Cherichel has never returned to Haiti. He does not speak Creole, Haiti's official language, and understands very little Creole when it is spoken to him. His mother, Meprisena Themistol, is a naturalized U.S. citizen, and he believes his siblings are also U.S. citizens. To his knowledge, Cherichel has no family members currently living in Haiti.

On April 18, 2000, Cherichel pled guilty to possession of marijuana in a Kentucky state court. On January 13, 2005, he was convicted in a Minnesota state court of criminal vehicular homicide and criminal vehicular operation resulting in substantial bodily harm, for which he received and served a 48-month sentence. The Immigration and Naturalization Service (INS)*fn1 served Cherichel with a Notice to Appear (NTA) on September 3, 2002. The NTA charged that Cherichel was subject to removal for being an alien present in the United States without being admitted or paroled, in violation of section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i). Removal proceedings commenced on November 1, 2002. In 2005, DHS also charged Cherichel with removability under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), as being an alien who has been convicted of violating a law relating to a controlled substance, based on his Kentucky conviction.*fn2

B. Immigration Judge's Decision

Between January 23, 2003, and March 19, 2007, Cherichel had various removal hearings before Immigration Judge Kristin Olmanson.*fn3 Cherichel asserted three arguments before the IJ: (1) that he should be granted asylum under INA § 208, 8 U.S.C. §1158; (2) that he was eligible for withholding of removal under INA § 241(b)(3), 8 U.S.C. §1231; and (3) that his removal should be deferred under Article 3 of the CAT. At his final hearing on March 19, 2007, Cherichel testified that he was afraid to return to Haiti because he has no family there, and that he feared persecution in Haiti based on his "American" physical characteristics and English-speaking ability. Additionally, Cherichel submitted extensive evidence concerning country and prison conditions in Haiti.

In an opinion dated May 3, 2007, the IJ found Cherichel removable on two of the three grounds charged. Specifically, the IJ found that Cherichel was not eligible for asylum under INA § 208 because he failed to file for asylum within one year of his arrival or within a reasonable period of time after reaching the age of 18, see INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), and that he was not eligible for withholding of removal because his Minnesota convictions constituted particularly serious crimes under the INA, see INA § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii). However, the IJ granted Cherichel's application for deferral of removal under the CAT, finding that he had met his burden of proving that, as a criminal deportee, it is more likely than not that he would be tortured if removed to Haiti.*fn4

First, the IJ noted that Cherichel provided extensive evidence-42 reports and articles-documenting country conditions in Haiti and the deplorable conditions in Haitian prisons and police stations where uncharged detainees are often held. This included a lack of basic hygiene, lack of food and water, a large number of malnourished prisoners, and severe overcrowding in cells with no toilet or sink. Second, the IJ noted that in the previous five years, prison conditions in Haiti had not improved, but in fact had worsened. Third, criminal deportees who had not broken any Haitian laws were held by authorities despite a 2006 Haitian court ruling prohibiting such detention. Fourth, unless a family member was able to claim responsibility for them, criminal deportees could be detained indefinitely. Fifth, the IJ noted that Cherichel had been in the United States for 25 years and could be identified in Haiti as an "American" because of his physical appearance, mannerisms, and inability to speak Creole. Based on this evidence, the IJ found that it was more likely than not that Cherichel would be tortured if removed to Haiti, and therefore granted Cherichel's application for deferral of removal.

C. BIA Decisions

The BIA granted DHS's appeal from the IJ's decision, vacated the grant of deferral under the CAT, and ordered Cherichel removed to Haiti. In re Shoodley Lee Cherichel, File No. A95 204 110 (BIA Sept. 14, 2007). The BIA held that the IJ erred in finding that Cherichel had met his burden of establishing CAT relief. Specifically, although it found no clear error in the IJ's findings regarding abysmal prison conditions in Haiti, the BIA held that those conditions do not "rise[] to the level of torture [because] the record does not reflect that Haitian authorities specifically intend to inflict severe physical or mental pain or suffering to criminal deportees such as [Cherichel]." Id. at 3 (quotation omitted). The BIA also held that "the circumstances presented here are not significantly distinct from those we considered in [In re J-E-, 23 I. & N. Dec. 291 (BIA 2002), overruled on other grounds by Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004)]." Id. at 4.

Cherichel appealed the BIA's decision to this court. In lieu of issuing a formal opinion, we granted the government's motion to remand the case back to the BIA "for reconsideration in light of its scope of review."*fn5 Cherichel v. Mukasey, No. 07-3313, slip op. at 1 (8th Cir. Mar. 26, 2008). On remand, the BIA again ordered Cherichel removed to Haiti. In re Shoodley Lee Cherichel, File No. A95 204 110 (BIA Oct. 29, 2008). After holding that no additional fact-finding was required, the BIA reviewed de novo the IJ's findings regarding eligibility for relief under the CAT. Id. at 1-2. The BIA held that none of the facts found by the IJ, including those that differentiated Cherichel from the petitioner in In re J-E-, "show[ed] that Haitian authorities, in their treatment of criminal deportees, specifically intend to inflict torture." Id. at 2. Therefore, the BIA held that Cherichel had failed to meet his burden of proof under the CAT and ordered him removed to Haiti.


Cherichel appeals, arguing that the BIA applied an incorrect definition of specific intent to the CAT's intent requirement. In deciding the correct legal definition to apply, we first review the history and codification of the CAT, as well as how the CAT and its implementing regulations have been subsequently interpreted.

A. History of the CAT

The ratification history of the CAT and its subsequent enactment into domestic law have been thoroughly examined. See Auguste v. Ridge, 395 F.3d 123,129-34 (3d Cir. 2005); In re J-E-, 23 I. & N. Dec. at 294-99; see generally J. Herman Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988). While we see no need to repeat that examination here, some discussion of the history of the CAT is necessary to our analysis.

The CAT was adopted by the United Nations General Assembly on December 10, 1984.*fn6 See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. It has as its stated purpose "to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world." Id. pmbl. To accomplish this goal, Article 2 of the CAT requires "[e]ach State Party [to] take effective legislative, administrative, judicial or other measures to prevent such acts of torture in any territory under its jurisdiction." Id. Art. 2(1). Additionally, Article 3 provides that "[n]o 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." Id. Art. 3(1). The CAT defines torture as:

any 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, whether such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other ...

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