Nguyen v. Holder

• Decision Date: 14 August 2014
• Docket Number: Nos. 10–71050,10–72974,10–73904.,s. 10–71050
• Citation: 763 F.3d 1022
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

763 F.3d 1022

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.

Nos. 10–71050, 10–72974, 10–73904.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 2013.

Filed Aug. 14, 2014.

Gary Silbiger (argued), Silbiger & Honig, Culver City, CA, 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.

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

Before: HARRY PREGERSON, KIM McLANE WARDLAW, and RICHARD C. TALLMAN, Circuit Judges.

OPINION

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 remandwith 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:

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 the Single–Count Indictment.” Nguyen was sentenced to fourteen months in prison.

PROCEDURAL BACKGROUND

Nguyen's immigration parole expired on June 13, 2007. On December 21, 2007, the Department of Homeland Security served Nguyen with a Notice to Appear. The Notice to Appear alleged that Nguyen was inadmissible as an arriving alien not in possession of a valid entry document, see8 U.S.C. § 1182(a)(7)(A)(i)(I), and also as an alien who has been convicted of a crime involving moral turpitude, see8 U.S.C. § 1182(a)(2)(A)(i)(I). Specifically, the Notice to Appear alleged that Nguyen had been convicted of two crimes involving moral turpitude—“Misuse of Passport to Facilitate an Act of International Terrorism” under 18 U.S.C. § 1544, and “Inflict[ing] Corporal Injury on Spouse,” in violation of California Penal Code § 273.5. Nguyen admitted both convictions, without conceding that either constituted a crime involving moral turpitude. An IJ sustained both charges of inadmissibility against Nguyen, concluding that Nguyen was inadmissible as an arriving alien not in possession of a valid entry document, and also as an alien who has been convicted of a crime involving moral turpitude.

Nguyen applied for deferral of removal under the Convention Against Torture. See8 C.F.R. § 1208.17(a).

In support of his CAT claim, Nguyen testified and presented six other witnesses at a hearing before a new IJ. Two of Nguyen's witnesses testified that they knew people who had been political prisoners in Vietnam, and these political prisoners had been physically mistreated. Nguyen also presented two witnesses who had, themselves, been political prisoners in Vietnam. Both of these witnesses testified that they were physically mistreated during their imprisonment. The first witness testified that he was deprived of adequate food and water, and that he watched a fellow prisoner starve to death under similar conditions. The second witness was forcibly injected with an unknown substance, which apparently caused her to lose consciousness; it later left her feeling dazed and numb. This same witness was also beaten so badly that her leg was broken, and she was left permanently disabled.

The Government presented one witness, a retired Harvard Law School research fellow who testified about country conditions in Vietnam. The research fellow concluded that Nguyen was unlikely to be tortured because Vietnam does not engage in torture: torture is against the law in Vietnam, and the Vietnamese government would not risk harming its domestic or international reputation by torturing prisoners. Likewise, the research fellow opined that—though Nguyen was sure to be taken into custody in Vietnam, and sure to be interrogated—he was likely to cooperate with his interrogators, and so the Vietnamese government would not “need” to torture him.

The IJ also considered a wide range of documentary evidence detailing Vietnam's dismal human rights record. For example, the IJ considered a 2008 Human Rights Watch report, which confirmed that “there is compelling evidence of torture and ill-treatment of political prisoners” in Vietnam, “including beatings and electric shock.” The IJ also considered the State Department's 2008 Human Rights Report on Vietnam, which agreed that—though “[t]he law prohibits physical abuse”—“police commonly physically mistreated suspects during arrest or detention.”

After the hearing, the IJ denied Nguyen's application for protection under CAT and ordered him removed to Vietnam.

Nguyen appealed to the BIA, which dismissed Nguyen's appeal in a reasoned, non-precedential decision. The BIA concluded that Nguyen had been convicted of a crime involving moral turpitude, reasoning ( inter alia ) that—given Nguyen's “intention to facilitate an act of international terrorism”—his offense was “morally reprehensible.” With respect to Nguyen's CAT claim, the BIA concluded that Nguyen “does not point to any substantial evidence corroborating his fear that the Vietnamese authorities have become aware of his conviction in the Philippines or his other public activities in opposition to the Vietnamese regime”; thus, the BIA reasoned, Nguyen could not show that the Vietnamese government was likely to torture him in connection with those activities....