The following synopsis is condensed from New York Law School Professor Art Leonard’s excellent discussion on Leonard Link: http://newyorklawschool.typepad.com/leonardlink/.
A Haitian man with AIDS who is subject to deportation from the U.S. because of his three drug convictions won a new hearing before the Board of Immigration Appeals, a unanimous panel of the 11th Circuit finding that the Board and the Immigration Judge (IJ) had failed to decide the crucial legal issue of his case. The petitioner is seeking refuge in the U.S. under the Convention Against Torture, under which the U.S. has committed itself to give refuge here to individuals who would more likely than not face torture if deported to their home country. The petitioner entered the U.S. in 1992 on a temporary visa and overstayed. Residing in Florida, he was convicted on drug offenses in 1995, 1997 and 2004. While he was serving time in a Florida jail on this third conviction, the Homeland Security Department began removal proceedings against him. There is no doubt that he is deportable due to his criminal record, so his only hope for refuge in the U.S. is the Convention Against Torture. The petitioner introduced evidence showing that under Haitian policy, he would be immediately sent to prison for an indefinite term and that in light of his medical condition, it was highly likely that he would be subjected to physical torture by prison guards. The basis for this assertion is a somewhat complicated chain of reasoning. The petitioner has AIDS and has already suffered consequences of toxoplasmosis, an opportunistic infection that can cause mental instability if not kept in check. All evidence indicates he would not receive treatment for this in a Haitian prison, and that his resulting abnormalities of behavior would provoke the guards to various depredations that would likely cause his death after intense suffering. The IJ, taking a very literal interpretation of the protections under the CAT, focused on the requirement of proof that “the Haitian government deliberately creates and maintains those conditions as a means of torturing inmates,” referring to the substandard conditions generally in Haitian prisons. The IJ accepted the argument that there was no evidence that the Haitian government specifically targets people with AIDS for torture in prison, or that this impoverished country provides substandard housing and healthcare in prisons in order to torture the prisoners. The BIA endorsed this ruling, relying on past 11th Circuit decisions that had denied relief to Haitian petitioners who had argued that sending them back to Haitian prisons would subject them to torture because of the substandard conditions in those prisons. The 11th Circuit panel concluded that the BIA had really missed the point of the case. It wasn’t just that there were substandard conditions in the Haitian prisons, but rather that because of the petitioner's particular medical condition, it was highly likely that he would attract the kind of retaliation from the guards for “acting out” that was well-documented to include physical assaults and mistreatment that clearly met the definition of torture—and after all, this would be at the hands of the guards, government agents, acting intentionally. The court concluded, however, that the matter would have to be remanded to the BIA for reconsideration rather than being disposed of by the court, since the BIA was entitled to first crack at the legal issues as reframed by the court.