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Nguyen v. Holder

United States Court of Appeals, Ninth Circuit

August 14, 2014

VINH TAN NGUYEN, AKA Armando Gile Luat, AKA Van Duc Vo, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent. VINH TAN NGUYEN, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent. VINH TAN NGUYEN, AKA Van Duc Bo, AKA Armando Gile Luat, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued and Submitted October 8, 2013, Pasadena, California

Page 1023

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A027-359-701.

SUMMARY[*]

Immigration

The panel denied in part and granted in part Vinh Tan Nguyen's petition for review of a Board of Immigration Appeals' decision, which held that his conviction for misuse of a passport to facilitate an act of international terrorism, in violation of 18 U.S.C. § § 1544, 2331, is a categorical crime involving moral turpitude, and denied his application for deferral of removal under the Convention Against Torture.

The panel held that the " intent to facilitate an act of international terrorism" is an element of Nguyen's conviction because it increased the maximum criminal penalty to which he was exposed. The panel also held that the conviction is categorically morally turpitudinous, because it necessarily involves an intent to harm someone or necessarily targets " a protected class of victim." The panel held that the Board thus did not err in determining that Nguyen's conviction is a categorical crime involving moral turpitude.

Turning to the Board's denial of deferral of removal under the Convention Against Torture, the panel held that the evidence in the record compels any reasonable factfinder to conclude that the Vietnamese government is aware of Nguyen's activities on behalf of the Government of Free Vietnam, and that the record likewise compels any reasonable factfinder to conclude that, if Nguyen is removed to Vietnam, he is more likely than not to be tortured. The panel remanded with instructions that the agency grant Nguyen deferral of removal.

Concurring in part and dissenting in part, Judge Tallman wrote that, although the case is close, the evidence does not compel the conclusion that Nguyen will more likely than not be tortured. Judge Tallman wrote further that even if he agreed with the majority as to the merits of the CAT claim, he would remand to the Board for additional investigation or explanation, rather than ordering the granting of relief outright.

Gary Silbiger (argued), Silbiger & Honig, Culver City, California, for Petitioner.

Lyle D. Jentzer (argued), Senior Counsel for National Security and Christopher C. Fuller, Senior Litigation Counsel, Office of Immigration Litigation; Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: Harry Pregerson, Kim McLane Wardlaw, and Richard C. Tallman, Circuit Judges.

OPINION

Page 1024

PREGERSON, Circuit Judge:

Vinh Tan Nguyen (" Nguyen" ), a native and citizen of Vietnam, petitions for review of a Board of Immigration Appeals (" BIA" ) decision dismissing his appeal from an order of removal entered by an Immigration Judge (" IJ" ). Nguyen argues, inter alia, that the BIA erred in concluding that he was inadmissible for having been convicted of a crime involving moral turpitude, and that he is entitled to protection under the Convention Against Torture (" CAT" ).[1] We conclude that the BIA did not err in determining that Nguyen was convicted of a crime involving moral turpitude, because the crime of which Nguyen was convicted -- misuse of a passport to facilitate an act of international terrorism, 18 U.S.C. § § 1544, 2331 -- is categorically morally turpitudinous. We also conclude, however, that the record compels the conclusion that Nguyen is more likely than not to be tortured if he is removed to Vietnam. Thus, we grant the petition with respect to Nguyen's CAT claim, and remand

Page 1025

with instructions to grant him deferral of removal under CAT.

FACTUAL BACKGROUND

Whatever else one can say about Nguyen, one cannot doubt his enduring opposition to Vietnamese communism. In 1983, eight years after his native South Vietnam fell to the communists, Nguyen fled Vietnam as a refugee. He arrived in the United States in 1984, and soon became a legal permanent resident. A decade later, in 1995, Nguyen joined a group of Vietnamese exiles seeking to overthrow Vietnam's communist government, who style themselves the " Government of Free Vietnam."

Nguyen became a prominent member of the Government of Free Vietnam. Between 1995 and 1997, Nguyen traveled throughout the United States to prosthelytize on the organization's behalf. Between 1998 and 2001, Nguyen also spread the group's message to Vietnamese communities in Australia and Canada. Not all of Nguyen's travel was so mundane, however. In 1997, Nguyen traveled to Thailand and Cambodia; from Cambodia, he infiltrated Vietnam, sneaking across the border through the jungle. There, Nguyen served as " vice commander" of a jungle camp run by the Government of Free Vietnam, spreading the organization's political message and training sympathetic Vietnamese in " self-defense."

Nguyen's next trip to Southeast Asia was even more dramatic. In April 2001, Nguyen traveled to the Philippines on a U.S. passport belonging to his brother, Van Duc Vo. Two months later, on June 19, 2001, the real Van Duc Vo tried to bomb the Vietnamese Embassy in Bangkok, Thailand. Two months after that, on August 30, 2001, Philippine police caught Nguyen himself " in the act of assembling explosive devices" using ammonium nitrate. It was widely reported that Nguyen, following in his brother's footsteps, planned to bomb the Vietnamese Embassy in Manila.

Philippine authorities charged Nguyen with " manufactur[ing], assembl[ing], and possess[ing] explosives." Nguyen ultimately pled guilty to a lesser explosives-related offense. In November 2004, a Philippine court sentenced Nguyen to between fifty and seventy-two months in prison.

But Nguyen soon escaped from prison and fled the Philippines. Using yet another false passport, Nguyen made his way to Ghana. After spending several months in Ghana, Nguyen left for Saipan, in the Commonwealth of the Northern Mariana Islands.

The Federal Bureau of Investigation was on Nguyen's trail. A federal judge had issued a warrant for Nguyen's arrest: Nguyen was wanted by U.S. authorities for using his brother's U.S. passport to travel to the Philippines. The FBI found Nguyen in Saipan, and arrested him there on December 12, 2006. Accompanied by law enforcement, Nguyen was paroled into the United States at Agana, Guam, on December 14, 2006.[2]

Nguyen was brought before the U.S. District Court for the Central District of California, where an indictment charged him with violating 18 U.S.C. § 1544, misuse of passport. Section 1544 provides, in relevant part:

Page 1026

Whoever willfully and knowingly uses, or attempts to use, any passport issued or designed for the use of another . . . .
Shall be fined under this title, imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title) . . . or 15 years (in the case of any other offense) . . . .

18 U.S.C. § 1544. Specifically, the Grand Jury alleged that Nguyen " willfully and knowingly used a passport issued and designed for the use of another, to facilitate an act of international terrorism, as defined in Title 18, United States Code, Section 2331(1)." On November 14, 2007, Nguyen pled guilty to " MISUSE OF PASSPORT in violation of 18 U.S.C. § 1544, as charged in Count 1 of ...


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