Tian v. Holder

• Decision Date: 19 August 2009
• Docket Number: No. 08-3391.,08-3391.
• Parties: Tim TIAN, also known as Tian Hongguo, also known as Hongguo Tian, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

576 F.3d 890

Tim TIAN, also known as Tian Hongguo, also known as Hongguo Tian, Petitioner, v. Eric H. HOLDER, Jr.,¹ Attorney General of the United States, Respondent.

No. 08-3391.

United States Court of Appeals, Eighth Circuit.

Submitted: June 10, 2009.

Filed: August 19, 2009.

Robert Bradford Jobe, argued, Sara E. Coppin, on the brief, San Francisco, CA, for petitioner.

Christina Bechak Parascandola, argued, Office of Immigration Litigation, Michael F. Hertz, Acting Assistant Attorney General, Richard M. Evans, Assistant Direction, on the brief, Washington, DC, for respondent.

Before MURPHY, ARNOLD and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Tim Tian, a native and citizen of the People's Republic of China, petitions for review of a decision of the Board of Immigration Appeals ("BIA") finding that he is removable as an aggravated felon and denying his application for asylum, withholding of removal, and protection under Article 3 of the Convention Against Torture ("CAT"). For the following reasons, we deny Tian's petition.

I. BACKGROUND

Tian first entered the United States in September 1996 to attend graduate school at the University of Minnesota. In January 2000, Tian began working for Parametric Technology Corporation as a software engineer at Parametric's offices in Arden Hills, Minnesota.

In September 2005, Tian informed Parametric that he needed to return to China to deal with a family emergency. There was no such emergency, and Tian did not return to China. Instead, Tian remained in Minnesota and began working for Medtronic Corporation. Over the next three months, Tian communicated with Parametric employees on several occasions by e-mail and telephone, claiming all the while that he was in China. In the meantime, Tian collected paychecks from Parametric, which had granted him a leave of absence, and from his new employer, Medtronic. In early November 2005, Parametric told Tian that if he did not return to work he would be fired on December 5, 2005. On December 6, Parametric notified Tian that his employment was terminated, effective immediately.

On December 9, 2005, at about 11:00 p.m., and again on December 10, at about 1:00 a.m., Tian entered Parametric's offices in Arden Hills using his employee security badge, which Parametric had not yet deactivated. Tian logged in to Parametric's computer network and downloaded the source code for a software product on which he had worked, called "QA Link." Tian then sent the source code for QA Link from his workstation at Parametric to two of his personal e-mail accounts. Tian also copied files containing the QA Link source code and other data to a server that he could access from an off-site location. On December 11, Tian accessed the server and saved the relevant files to his personal computer.

Parametric reported Tian's unauthorized access to its computer network to law enforcement. Tian was eventually arrested and charged with one count of unauthorized access to a computer in violation of 18 U.S.C. § 1030(a)(4) and five counts of wire fraud in violation of 18 U.S.C. § § 1343 and 1346. Tian agreed to plead guilty to the charge of unauthorized access to a computer in exchange for the dismissal of the other charges. On December 20, 2006, the district court² sentenced Tian to 11 months' imprisonment and ordered him to pay $47,015 in restitution to Parametric and $96,099.38 in restitution to Medtronic. The amount of restitution that Tian was ordered to pay to Parametric included $29,800 that Parametric spent on an internal investigation to assess the damage caused by Tian's unauthorized access to its computer network.

On February 14, 2007, U.S. Immigration and Customs Enforcement took Tian into custody and issued a notice to appear before an immigration judge ("IJ") for removal proceedings. The notice to appear charged that Tian was removable because he had been convicted of an "aggravated felony," a term that is defined by statute to include "an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." See 8 U.S.C. § 1101(a)(43)(M)(i). Tian contested the charge, arguing that although his crime involved fraud or deceit, it did not result in any loss to the victim. Tian also applied for asylum, withholding of removal, and protection under Article 3 of the CAT.

The administrative review in this case was unusually convoluted, requiring two remands to the IJ before the BIA finally dismissed all of Tian's claims. Initially, the IJ found that Tian was removable as an aggravated felon because the total loss to the victims, including the amount of restitution that Tian was ordered to pay to Parametric and Medtronic, exceeded $10,000. Based on this finding, the IJ held that Tian was statutorily ineligible for asylum. Next, the IJ found that Tian's conviction qualified as a "particularly serious crime," which made him statutorily ineligible for withholding of removal. Finally, the IJ denied Tian's application for deferral of removal under Article 3 of the CAT on the merits.

The BIA reversed the IJ's decision in part and remanded for further proceedings. In particular, the BIA indicated that removability under § 1101(a)(43)(M)(i) depends on "evidence [of] a connection between the loss suffered by the aggrieved party and the specific conduct that led to [the] alien's conviction." The BIA found that a remand was necessary because the IJ in calculating the amount of the loss "appears to have mistakenly relied on the restitution order," which by agreement included losses that were not tied to Tian's unauthorized access to a computer, "rather than relying on the charge to which [Tian] pleaded guilty."

On remand, the IJ again found that Tian was removable as an aggravated felon because the total loss to Parametric exceeded $10,000. This time, the IJ specifically noted that "at a minimum, the investigative costs incurred by [Parametric], in the amount of $29,800, are properly considered a loss to the victim[ ]." Accordingly, the IJ held that Tian was statutorily ineligible for asylum. Next, the IJ reconsidered its previous finding that Tian's conviction qualified as a particularly serious crime, concluding that the "economic offense" of unauthorized access to a computer did not meet the standard set out by the BIA in In re N-A-M-, 24 I. & N. Dec. 336 (B.I.A.2007). On the merits, the IJ found that Tian met his burden of showing that it was "more likely than not" that he would face persecution in China on account of his religion and therefore granted Tian's application for withholding of removal. The IJ went on to deny Tian's application for protection under Article 3 of the CAT.

The BIA affirmed the IJ's finding that Tian was removable as an aggravated felon and the IJ's holding that Tian was statutorily ineligible for asylum. The BIA reasoned that because "the investigative costs alone, incurred by [Parametric], are more than $10,000, and these costs were incurred because of [Tian's] unauthorized computer use, . . . [Tian's] crime constitutes an aggravated felony." Turning to Tian's application for withholding of removal, the BIA suggested that the IJ misinterpreted its decision in In re N-A-M-. The BIA noted in this regard that In re N-A-M- did not overturn BIA precedent "holding that a crime involving property alone may be a particularly serious one." The BIA also noted that the IJ's most recent decision lacked a full analysis of the nature of Tian's conviction, the type of sentence imposed by the district court, the circumstances of the offense, and other relevant factors. As a result, the BIA again remanded the case for further proceedings concerning Tian's application for withholding of removal. The BIA went on to dismiss Tian's appeal insofar as it related to the denial of his application for protection under Article 3 of the CAT.

On remand, the IJ determined that "the elements of [Tian's] offense potentially bring it within the ambit of a particularly serious crime." The IJ then considered in detail "all reliable information" about the sentence imposed by the district court and the circumstances of Tian's offense. The IJ found that Tian's conviction qualified as a particularly serious crime and concluded that Tian was therefore statutorily ineligible for withholding of removal. Nevertheless, the IJ made a conditional finding that Tian failed to meet his burden of showing that it was "more likely than not" that he would face persecution in China on account of his religion or any other ground.

The BIA affirmed the IJ's finding that Tian's conviction qualified as a particularly serious crime. Because Tian was therefore statutorily ineligible for withholding of removal, the BIA dismissed Tian's appeal without addressing the merits of his claim that he would face persecution in China. The BIA summarily rejected Tian's arguments relating to issues that were raised and decided in his previous appeals, including the denial of his application for protection under Article 3 of the CAT.

Tian's petition for review raises two principal issues: first, whether the IJ and the BIA erroneously determined that his conviction qualifies as an aggravated felony; and second, whether the IJ and the BIA failed to apply the correct legal standard in determining that his conviction qualifies as a particularly serious crime.³

II. DISCUSSION

Our jurisdiction to consider Tian's petition for review is limited by 8 U.S.C. § 1252(a)(2)(C) and (D). Subparagraph (C) generally precludes judicial review in cases involving aliens who are removable as aggravated felons. See id. § 1252(a)(2)(C) (cross-referencing id. § 1227(a)(2)(A)(iii)); Xiong v. Gonzales, 484 F.3d 530, 534 (8th Cir.2007). But subparagraph (D) provides that subparagraph (C) does not preclude judicial review "of constitutional claims or questions of law." Id. § 1252(a)(2)(D); see Xiong, 484 F.3d at 534. To the extent Tian raises questions of law about whether his...