Tran v. Gonzales

• Citation: 447 F.3d 937
• Decision Date: 17 May 2006
• Docket Number: No. 05-3734.,No. 04-3800.,04-3800.,05-3734.
• Parties: Quang Ly TRAN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

447 F.3d 937

Quang Ly TRAN, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-3800.

No. 05-3734.

United States Court of Appeals, Sixth Circuit.

Argued: April 25, 2006.

Decided and Filed: May 17, 2006.

ARGUED:

Alice E. Loughran, Steptoe & Johnson, Washington, D.C., for Petitioner. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Respondent.

ON BRIEF:

Alice E. Loughran, Jack R. Hayes, Steptoe & Johnson, Washington, D.C., Stephen W. Funk, Roetzel & Andress, Akron, Ohio, for Petitioner. Christopher R. Yates, Assistant United States Attorney, Columbus, Ohio, Aviva L. Poczter, Emily A. Radford, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: GUY, DAUGHTREY, and CLAY, Circuit Judges.

GUY, Circuit Judge.

Petitioner seeks review of a decision from the Board of Immigration Appeals (BIA) ordering that petitioner, Quang Ly Tran, an ethnic Chinese from Vietnam, be removed to Vietnam. The BIA reversed the decision of the immigration judge (IJ), who had found Tran removable because he had been convicted of an aggravated felony, but deferred his deportation because Tran qualified for protection under the Convention Against Torture (CAT). In two appeals consolidated for our review, Tran argues that the BIA erred by retroactively applying the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to Tran's pre-IIRIRA felony convictions and by concluding that Tran is not eligible for protection under the CAT. We conclude that the IIRIRA's provision allowing for the deportation of aliens convicted of an aggravated felony was properly applied to Tran's pre-IIRIRA conviction, but we remand Tran's CAT claim to the BIA for clarification of the standards and burdens of proof it employed in reviewing Tran's appeal.

I.

Tran was born in South Vietnam to Chinese parents who had immigrated to Vietnam during French colonization. The family never assimilated into Vietnamese culture, and Tran does not speak Vietnamese. In 1978, Tran's family fled Vietnam to Hong Kong. Tran and his family entered the United States in 1980 as refugees and later adjusted their status to lawful permanent residents. Several of his immediate family members became United States citizens.

Tran was charged in Ohio state court in 1987 of aggravated murder and robbery. A jury found Tran guilty and, in May 1988, during the appeals process, he entered into a plea agreement in which he agreed to plead guilty to the charged crimes and serve a term of 20 years in exchange for the prosecution dropping its request for the death penalty. At the hearing on the plea agreement, the trial court asked the defense counsel if Tran had been advised of the immigration consequences of his plea. Tran's counsel responded that Tran had been advised that the INS's practice was not to deport people to Vietnam because there were no diplomatic relations between the two countries. The trial court approved the plea agreement in May 1988. INS officials visited Tran in prison shortly after he began serving his sentence and asked him to sign a paper agreeing to his deportation. Tran refused.

The INS filed an Order to Show Cause charging Tran with being deportable as an alien convicted of two crimes involving moral turpitude not arising out of the same criminal scheme. 8 U.S.C. § 1251(a)(4) (1988) (repealed). Tran appealed the removal order to the BIA, arguing that the INS had failed to meet its burden to show that the two crimes did not arise out of the same criminal scheme. The Board sustained Tran's appeal and terminated the deportation proceedings because the evidence suggested that Tran's two crimes occurred in the course of a single criminal episode. The Board did not terminate the removal proceedings "without prejudice," and the INS has never sought reconsideration or reopening of that case.

In 1996, Congress enacted the IIRIRA to restructure the removal process for deportable aliens. Title III-A of the IIRIRA streamlined the removal process for criminal aliens by mandating detention pending removal proceedings, eliminating the principal forms of relief from deportation, eliminating direct judicial review, and mandating that the Attorney General shall remove aliens within 90 days. 8 U.S.C. §§ 1101(f)(3) and (8); 1158(b)(2)(B); 1226(c) and (e); 1229; 1231(a), (b)(1)(A) and (C); 1252(a)(2)(C) (2000). The IIRIRA provided that these changes would be applied only to aliens placed in deportation proceedings after April 1, 1997. IIRIRA, Pub.L. No. 104-208, § 309(a), 110 Stat. 3009-625 (1996) (8 U.S.C. § 1101 note).

Section 321 of the IIRIRA amended the term "aggravated felony" as it appears in the general definition provisions at the start of the Immigration and Naturalization Act. 8 U.S.C. § 1101(a)(43)(F) (2000). That amendment carries two effective date provisions. Section 321(b) made the expanded definition applicable "regardless of whether [a] conviction was entered before, on, or after" September 30, 1996. 8 U.S.C. § 1101(a)(43) (2000). Section 321(c) provides that "[t]he amendments made by this section shall apply to action taken on or after the date of the enactment of this Act [September 30, 1996] regardless of when the conviction occurred." Pub.L. No. 104-208, 110 Stat. 3009-546.¹

In December 2000, the INS initiated the new streamlined removal process against Tran. The INS relied on 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable," and which provision was now available to pre-1988 crimes per § 321(b) of the IIRIRA. The INS relied on the same 1988 convictions that were the subject of the first deportation proceedings.²

II.

Our review of Tran's appeals is limited by 8 U.S.C. § 1252(a)(2)(C) and (D). Paragraph (C) precludes courts from reviewing any "final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii) [convicted of an aggravated felony]." Paragraph (D), added by Congress in 2005, provides an exception: "Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D).

Notwithstanding paragraph (C), this court retains the authority to review jurisdictional facts on which removal proceedings are based by ascertaining whether Tran is covered by paragraph (C)'s bar on reviewability by virtue of being an alien convicted of an aggravated felony. See Drakes v. Zimski, 240 F.3d 246, 247 (3rd Cir.2001). If "`the statute is silent or ambiguous with respect to the specific issue,'" we must decide "`whether the agency's answer is based on a permissible construction of the statute.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

A. Application of the IIRIRA to Tran's 1988 Convictions

Tran argues that Congress did not intend for the IIRIRA's changes to the aggravated felony provision to include convictions that were previously the subject of closed deportation proceedings. Our resolution of this issue is governed by established rules of statutory construction. "In all cases of statutory construction, the starting point is the language employed by Congress. Where the statute's language is plain, the sole function of the courts is to enforce it according to its terms." Vergos v. Gregg's Enters., Inc., 159 F.3d 989, 990 (6th Cir.1998) (internal quotation marks and citations omitted.) "The court must look beyond the language of the statute, however, when the text is ambiguous or when, although the statute is facially clear, a literal interpretation would lead to internal inconsistencies, an absurd result, or an interpretation inconsistent with the intent of Congress." Id.

Here, the statute's language is plain, and Tran's interpretation would force us to read into it an exception Congress did not provide. Tran admits that § 321(b) is an explicit statement of congressional intent to apply the aggravated felony provision to convictions entered before the law's enactment. In fact, in a Supreme Court case in which the Court was called upon to determine if Congress intended another section of the IIRIRA to apply retroactively, the Court used § 321(b) as an example of an unambiguous statement of Congress's retroactive intent. INS v. St. Cyr, 533 U.S. 289, 318-19, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

Tran's argument that we should construe an exception for convictions that previously served as the factual basis for an unsuccessful deportation attempt relies on § 321(c). Section 321(c) explicitly limits the application of the revised definition of "aggravated felony" to proceedings initiated after September 30, 1996. Section 321(c) is a restriction on Section 321(b). As the agency itself has held, even though § 321(b) established that the revised definition of an aggravated felony can encompass any conviction regardless of when it occurred, "Section 321(c). . . limit[s] the definition . . . by stating that the amendments will apply only to `actions taken' after the date of the IIRIRA's enactment, September 30, 1996." Matter of Truong, 22 I. & N. Dec. 1090, 1096 (BIA 1999). We need not go through a lengthy statutory analysis to conclude that § 321(c) is not retroactive since the language of the section speaks for itself. Section 321(c) explicitly limits the expanded definition of "aggravated felony" to prospective deportation proceedings. The problem with Tran's position is that this proceeding began in December 2000...