Tuesday, June 10, 2008

Pierre: Willful Blindness Inadequate for CAT (probably mere dicta)

Pierre v. Mukasey
No. 06-2496
Heard en banc
June 9, 2008

As an en banc case, it was heard by Judges Scirica, Sloviter, McKee, Rendell, Barry, Ambro, Fuentes, Smith, Fisher, Chagares, Jordan, Hardiman, and Garth.

Majority opinion written by Judge Fuentes and joined by nine judges. Concurrence written by Judge Rendell, joined by Judges McKee and Ambro.

Note: due to illness, I am offering a mini-summary, read the entire opinion for a more complete understanding of the case. My health is recovering steadily at this point, although there still is the potential for a setback in my recovery.

At first glance, I see three big issues in this case:
  1. Can willful blindness to someone's torturous pain qualify as specific intent to torture, which is required for CAT relief (under the Convention Against Torture)? (The Third Circuit says willful blindness is not enough.)
  2. Is what the Third Circuit said merely dicta? (The Third Circuit will address that in a future case, but there is a strong argument it is mere dicta.)
  3. Can the US ignore the international interpretation of CAT by focusing instead on a limitation the President and Senate imposed that contradicts the international view? (The Third Circuit said yes, if your claim relies on the US law, then you must follow what the President and Senate said in the law, even if that contradicts how the rest of the world implements the international convention.)
First, the Third Circuit turned to the definition of specific intent and gave deference to the BIA's choice to focus on how specific intent is defined in criminal law (rather than how it is interpreted by other countries in international law). The Third Circuit said that willful blindness would not be enough to satisfy specific intent, overruling any suggestion otherwise in Lavira v. Att'y Gen., 478 F.3d 158 (3d Cir. 2007).

Second, it is unclear whether the Third Circuit's statement about willful blindness is itself mere dicta. This returns the Third Circuit to the Zubeda/Auguste chaotic pair of cases. In Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003), the Third Circuit stated that on remand, there was no specific intent requirement. Ordinarily, it would seem that statement was the holding and not mere dicta. However, in Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005), the Third Circuit said that its statement in Zubeda about the legal standard to apply in the future was mere dicta. In doing this, the Third Circuit seemed to adopt a position that clear statements of legal standards to apply in the future in the case are mere dicta, not holdings. Using this same approach in this case, the Third Circuit's clear statement of the legal standard to apply in the future is arguably mere dicta, not a holding, regardless of how clearly the Third Circuit intended to make its statement. There is no indication that Mr. Pierre would have been able to prove willful blindness on the facts of the case -- therefore, it is not clear that the statement is a holding and it appears it was mere dicta.

There is no question the Third Circuit wants it statement to be a holding, not mere dicta. It accepted the case en banc to issue a clarification about that point. But try as it might, the Third Circuit's intent is swallowed up in the Zubeda/Auguste chaos. One view is that the chaotic pair of cases has so weakened a court's ability to issue language that is a holding that the Third Circuit's own attempt to clarify this area is itself arguably mere dicta.

The Third Circuit had a chance in this case to clarify the Zubeda/Auguste chaos and ensure its own opinion would be a holding, but it did not make any clarification. It merely stated that in Auguste, the Third Circuit interpreted the key language in Zubeda to be dicta.

Third, the Third Circuit ruled that if you rely on the CAT statute, you are stuck with any limitations the President and Senate imposed, even if the limitations violate internationally-accepted standards under CAT. Perhaps the next step is to rely not just on the US's statutory version of CAT (US-CAT), but to ask the federal courts also to enforce the internationally-accepted CAT (real CAT)?

Rebecca Sharpless at Florida International University, College of Law, in Miami, FL argued the case. Steven A. Morley of Morley, Surin & Griffin in Philadelphia, PA argued for amicus curiae (with Thomas M. Griffin also helping). Thomas H. Dupree, Jr. argued the case for the government.


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