Torturous Intent: Refoulment of Haitian National and U.S. Obligations under the Convention against Torture


This paper argues that the Board of Immigration Appeals (BIA) erred when it strictly limited the scope of Convention Against Torture (CAT) protection for deportees facing inhumane treatment in Haitian jails. The authors examine In re J-E-, in which the BIA narrowed the definition of torture under CAT to acts undertaken by governmental officials with the purpose of causing the detainee to suffer, thereby excluding governmental acts undertaken simply with the knowledge that the detainee would suffer.In J-E-, the BIA assumed that Congressional language of “specific intent”compelled a requirement of purpose by the governmental actor. This paper provides a careful analysis of how the term “specific intent” has been used in criminal law and finds that, contrary to the BIA’s analysis, there is significant doctrinal support for interpreting CAT to require only a knowledge mens rea on the part of governmental actors. A knowledge requirement is also consistent with the language of CAT, the language of the Senate’s reservations to its signing, and the spirit and purpose of CAT. The authors argue that the BIA’s cursory analysis is not entitled to deference by the Circuit Courts, and they provide recommendations for legislators and practitioners.

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