Brue v. Gonzales

• Decision Date: 05 October 2006
• Docket Number: No. 05-9569.,05-9569.
• Citation: 464 F.3d 1227
• Parties: Jeffrey BRUE, also known as Hung Van Liederbach, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

464 F.3d 1227

Jeffrey BRUE, also known as Hung Van Liederbach, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-9569.

United States Court of Appeals, Tenth Circuit.

October 5, 2006.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^* Laura L. Lichter, Lichter and Associates, P.C., Denver, CO, for Petitioner.

Peter D. Keisler, Assistant Attorney General; Mark C. Walters, Assistant Director; Stephen J. Flynn, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before BRISCOE, McKAY, and BRORBY, Circuit Judges.

McKAY, Circuit Judge.

Petitioner Jeffrey Brue, also known as Hung Van Liederbach, petitions for review of a final order of removal issued by the Board of Immigration Appeals (BIA), which affirmed the decision of an immigration judge (IJ), that he is an alien and removable because he committed an aggravated felony. Exercising jurisdiction under 8 U.S.C. § 1252, we DENY the petition for review.

I.

Petitioner was born in Vietnam in 1968. He has been told that his mother abandoned him at an early age because of his Amerasian characteristics. In 1973, he emigrated to the United States and was admitted as a lawful permanent resident. He was placed with a foster family, the Van Liederbachs, and lived with them until 1977. Petitioner alleges that he was physically, sexually, and emotionally abused by Mr. Van Liederbach and an older adopted sister.

Petitioner was next placed with Keith and Madonna Brue, who adopted him in 1978. Petitioner lived with the Brues in Wisconsin until approximately 1982 when he was placed for a year in a juvenile facility known as Ladd Lake due to behavioral problems including fights at school and temper tantrums at home. He received medication and therapy at Ladd Lake, but was exposed to other troubled youth and sexual advances. Petitioner then returned to the Brues, attempted suicide after his best friend was killed, and was placed at a juvenile residential treatment facility, Odyssey House, where he received therapy. In connection with this placement, the Brues surrendered legal custody to the Dane County Department of Human Services.

The Brues filed Form N-402, titled "Application to File Petition for Naturalization in Behalf of Child" (Application), Admin. R. at 330, with the former Immigration and Naturalization Service (INS).¹ The Brues' signatures on the Application are dated April 21, 1985. According to the Application, Mr. Brue indicated that petitioner was mentally disturbed, was not in the Brues' legal custody, had been living at Odyssey House since May 1983, and would not return to live with the Brues at any time in the future. The Application contains a "Nonfiled" box, in which was written "not residing with parents in legal custody." Id. at 332.

After his discharge from Odyssey House, petitioner engaged in a series of criminal acts in Wisconsin resulting in a variety of arrests, charges, and sentences. In 1990, he moved to Colorado and, in 1992, pleaded guilty to a violation of Colo. Rev.Stat. § 18-3-403 (repealed 2000), sexual assault in the second degree, based on a sexual encounter with a twelve-year-old girl. Petitioner claims the girl told him she was sixteen and that the encounter was consensual. He was sentenced to eight years' confinement and served approximately five years, receiving counseling and therapy for his diagnosed bipolar disorder and his sexual misconduct. In 2000, petitioner pleaded guilty to a violation of Colo.Rev.Stat. § 18-6-701, contributing to the delinquency of a minor, based on offering drugs to a minor male in exchange for sex. He was sentenced to four years' confinement.²

Upon his release in 2003, the Department of Homeland Security served petitioner with a Notice to Appear (NTA), charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii) based on his convictions of two separate crimes involving moral turpitude and on his conviction of an aggravated felony, sexual abuse of a minor. Petitioner denied the majority of the charges in the NTA, asserted that he was a United States citizen, and requested a variety of forms of relief from removal, including, as relevant here, restriction on removal under 8 U.S.C. § 1231(b)(3).

II.

Initially, David Cordova was the IJ assigned to the administrative proceeding. The record reflects that he held two preliminary hearings, one in December 2003 and one on June 17, 2004, at which petitioner's counsel argued that petitioner lacked the mental competency to understand the nature of the charges against him or assist in his own defense. Immigration Judge Cordova expressed concern about petitioner's competency and indicated that he would sign an order for an evaluation if counsel for both parties could agree on its contents and petitioner's counsel provided a proposed order. See, e.g., Admin. R. at 65-66. The record contains a proposed order that accompanies an unsigned copy of a motion requesting the Immigration Court to order a mental health evaluation. See Admin. R. at 621-24. It is unclear whether the motion or the proposed order were ever filed.

Immigration Judge Cordova then stopped hearing cases, and a new immigration judge assigned to the case, J.P. Vandello, held five hearings between June 30 and December 7, 2004. Petitioner testified about his history at length, including many of the details set forth above, in particular those surrounding the 1992 and 2000 felony offenses. Petitioner also called a psychologist, Dr. Kim, as a witness. Dr. Kim had reviewed petitioner's records and conducted a two-hour mental status exam in July 2004. He testified that petitioner has an IQ score in the mild mental retardation range and a gamut of psychiatric symptoms, including transitory suicidal thoughts; depression; bizarre thinking and behavior, including persecutory ideation psychotic or formal thought disorder symptoms such as auditory and visual hallucinations on an intermittent basis; and bipolar and post-traumatic stress disorders. Dr. Kim also testified that petitioner believes someone had put a chip in his ear and something in his food. Dr. Kim opined that petitioner would benefit from treatment in a residential group home and is not a threat to physically assault others.

Immigration Judge Vandello issued a written decision in which he found that petitioner was not a United States citizen, was removable because his 1992 and 2000 offenses were aggravated felonies or crimes involving moral turpitude, and was not eligible for or entitled to any of the requested relief. He did not make any finding concerning petitioner's competency, but did note that petitioner has a "serious mental illness," Admin. R. at 57. He ordered petitioner removed to Vietnam. The BIA declined to administratively close the proceedings due to petitioner's alleged incompetence, substantially agreed with the IJ's decision, and dismissed the appeal. This petition for review followed.

III.

In this court, petitioner does not challenge the categorization of his 1992 and 2000 offenses as aggravated felonies. Instead, he raises the following arguments: (1) because he met the statutory requirements for naturalization when the Brues tendered the 1985 Application on his behalf, he automatically acquired citizenship and is therefore not subject to removal; (2) the removal proceedings violated his Fifth Amendment due process rights because he is mentally incompetent; and (3) the agency failed to consider the appropriate factors when finding that he had committed a "particularly serious crime" and therefore was not eligible for restriction on removal pursuant to 8 U.S.C. § 1231(b)(3).

We have limited jurisdiction under 8 U.S.C. § 1252 to review a final order of removal. Ordinarily, we may review citizenship claims provided there are no disputed issues of material fact. See 8 U.S.C. § 1252(b)(5). In contrast, we lack jurisdiction if, as here, a petitioner is subject to removal for commission of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). See id. § 1252(a)(2)(C). However, through the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005), Congress expressly granted us jurisdiction to review constitutional claims and questions of law raised in a petition for review notwithstanding statutory limitations such as § 1252(a)(2)(C). See 8 U.S.C. § 1252(a)(2)(D). As Congress explained:

[T]he purpose of [§ 1252(a)(2)(D)] is to permit judicial review over those issues that were historically reviewable on habeas — constitutional and statutory-construction questions, not discretionary or factual questions. When a court is presented with a mixed question of law and fact, the court should analyze it to the extent there are legal elements, but should not review any factual elements.

H.R.Rep. No. 109-72, at 175 (2005).

We conclude that, notwithstanding the aggravated felony bar, we have jurisdiction over the entirety of the petition in this case pursuant to 8 U.S.C. § 1252(a)(2)(D). To the extent petitioner claims he automatically acquired citizenship because he met the statutory requirements at the time the Brues filed the 1985 Application on his behalf, we have jurisdiction to review this as a question of law because the facts are undisputed and resolution turns on interpretation of the applicable statutory section. See Abiodun v. Gonzales, 461 F.3d 1210, 1215-16 (10th Cir.2006) (exercising jurisdiction to consider whether, on undisputed material facts, a petitioner who filed a naturalization application satisfied the public ceremony requirement of 8 U.S.C. § 1448 by signing an oath of allegiance and so became a United States national).³ To the extent that petitioner makes a due process argument, he raises constitutional and statutory-construction issues that clearly fall within § 1252(a)(2)(D). See Morgan v. Attorney General, 432 F.3d 226, 229 (3d Cir. 2005). And as for the agency's determination that...