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Gourdet v. Holder

United States Court of Appeals for the First Circuit

November 4, 2009, Decided

No. 08-2422


 [*2]  LIPEZ, Circuit Judge. Mackendy Gourdet, a native and citizen of Haiti, seeks review of a decision of the Board of Immigration Appeals (BIA) denying his application for relief from removal under the Convention Against Torture (CAT). In addressing claims for CAT relief based on substandard prison conditions, we have distinguished between generally substandard prison conditions, such as deprivation of adequate space, food, water, sanitation or exercise, and acts of mistreatment of individual prisoners by prison officials, such as "burning with cigarettes and use of electric shock." See Settenda v. Ashcroft, 377 F.3d 89, 96 (1st Cir. 2004) (citing In re J-E-, 23 I. & N. Dec. 291, 2002 WL 481156 (BIA 2002) (en banc)). Gourdet claims that he is entitled to CAT relief based on circumstances falling  [**2] into each of these two categories, and therefore argues that he has met his burden under the CAT of proving that he "is more likely than not to be tortured if removed to the proposed country of removal." Id. at 94 (internal quotation marks and citation omitted).

Relying on settled precedent, we conclude that the general detention conditions in Haiti, although grossly inadequate, are not sufficiently severe to rise to the level of torture. We likewise conclude that the acts of mistreatment that Gourdet will likely be subjected to in detention, such as rough treatment by police officers, do not amount to torture. Finally, we conclude that we lack jurisdiction to address Gourdet's remaining contentions that he has met his burden of proving that torture of criminal deportees in Haiti is widespread and that he is more likely to be singled out for mistreatment by Haitian authorities because of his personal characteristics. Therefore, we deny the petition.

Gourdet entered the United States at some time prior to 2002 and was granted  [*3]  legal permanent resident status on January 2, 2002. On February 2, 2007, federal authorities filed a Notice to Appear charging Gourdet with removability under section 237(a)(2)(B)(i) of the Immigration and Nationality Act  [**3] (INA), 8 U.S.C. § 1227(a)(2)(B)(i), as a person convicted of a controlled substance violation. Gourdet conceded removability and applied for asylum, withholding of removal, CAT relief, and voluntary departure.

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587 F.3d 1 *; 2009 U.S. App. LEXIS 24160 **

MACKENDY GOURDET, Petitioner, v. ERIC H. HOLDER, 1 Respondent.


torture, detention, substandard, conditions, prison conditions, severe, detainees, suffering, pain, mistreatment, inflicted, cell, degrading, deportees, inhuman, police officer, authorities, subjected, cruel, alien, food, intentionally, deference, contends, removal, struck

Immigration Law, Asylum, Refugees & Related Relief, Convention Against Torture, Grounds for Deportation & Removal, Criminal Activity, General Overview, Deportation & Removal, Judicial Review, Judicial Proceedings, Jurisdiction, Judicial Review, Scope of Review, Administrative Law, Standards of Review, Deference to Agency Statutory Interpretation, De Novo Standard of Review