Phong Thanh Nguyen v. Chertoff

• Citation: 501 F.3d 107
• Decision Date: 13 September 2007
• Docket Number: Docket No. 05-3250-ag.
• Court: U.S. Court of Appeals — Second Circuit
• Parties: PHONG THANH NGUYEN, Petitioner, v. Michael CHERTOFF,<SMALL><SUP>1</SUP></SMALL> Secretary of the Department of Homeland Security, Alberto Gonzales, United States Attorney General, Respondents.

501 F.3d 107

PHONG THANH NGUYEN, Petitioner, v. Michael CHERTOFF,¹ Secretary of the Department of Homeland Security, Alberto Gonzales, United States Attorney General, Respondents.

Docket No. 05-3250-ag.

United States Court of Appeals, Second Circuit.

Argued: January 31, 2007.

Decided: September 13, 2007.

Eric W. Schultz, Sacks, Kolken & Schultz, Buffalo, NY, for Petitioner.

Russell Verby, Assistant United States Attorney, for Terrance P. Flynn, United States Attorney, Western District of New York, Buffalo, NY, for Respondents.

Before: POOLER and RAGGI, Circuit Judges, and SAND, District Judge.²

REENA RAGGI, Circuit Judge:

Vietnamese national Phong Thanh Nguyen is a legal permanent resident of the United States who, in 1989, two years after entering this country, pleaded guilty to a disturbing crime: the rape of a five-year-old child. Although Nguyen's rape conviction did not then render him deportable as an aggravated felon pursuant to 8 U.S.C. § 1251(a)(4) (1988), it did render him deportable for the commission of a crime of moral turpitude, see id.³ A state sentencing judge, however, effectively shielded Nguyen from removal on either ground by issuing a judicial recommendation against deportation ("JRAD") pursuant to then existing 8 U.S.C. § 1251(b)(2) (1988) (repealed 1990).⁴

Subsequent to these events, Congress both prospectively repealed the JRAD statute, see Immigration Act of 1990 ("IMMACT"), Pub.L. No. 101-649, § 505, 104 Stat. 4978, 5050, and retroactively expanded the definition of aggravated felony to include, inter alia, the rape of a minor and crimes of violence resulting in a term of imprisonment of at least one year, see Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, § 321(a), 110 Stat. 3009-546, 627-28 (codified at 8 U.S.C. § 1101(a)(43)(A) & (F)). Against the backdrop of these legislative developments, Immigration Judge ("IJ") Phillip J. Montante, Jr., in a decision rendered January 16, 2003, concluded that Nguyen's JRAD did not preclude his deportation as an aggravated felon. Nguyen now petitions for review of the April 28, 2004 order of the Board of Immigration Appeals ("BIA") affirming this ruling, as well as the IJ's denial of Nguyen's applications for waiver of deportation under former § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996); asylum; withholding of removal; and relief under the Convention Against Torture ("CAT"). See In re Phong Thanh Nguyen, No. A 27 847 596 (B.I.A. Apr. 28, 2004), aff'g No. A 27 847 596 (Immig.Ct.Buffalo, Jan. 16, 2003).

For the reasons stated herein, we conclude that, while Nguyen is certainly now deportable as an aggravated felon, the relevant statutory texts support his JRAD defense. Accordingly, we grant Nguyen's petition for review, and we remand his case to the BIA with directions that, consistent with this opinion, it give effect to the JRAD. In light of this ruling, we need not discuss Nguyen's other challenges to removal.

I. Factual Background

A. Nguyen's State Conviction and the Grant of a JRAD

Phong Thanh Nguyen entered the United States as a refugee from Vietnam in 1987. In 1988, he became a legal permanent resident. By guilty plea entered on April 5, 1989, Nguyen was convicted in Massachusetts of the forcible rape of a minor child, the five-year-old daughter of a family friend, in violation of Mass. Gen. Laws Ann. ch. 265 § 22A (1989), and indecent assault and battery of a minor child in violation of Mass. Gen. Laws Ann. ch. 265 § 13B (1989). Because these crimes involved moral turpitude, they rendered Nguyen deportable pursuant to 8 U.S.C. § 1251(a)(4) (1988). In sentencing Nguyen to a ten-year term of imprisonment for the rape and a suspended two-and-one-half-year term of imprisonment for the indecent assault and battery, the presiding state court judge, apparently acting at the behest of the victim's mother, issued a formal judicial recommendation against Nguyen's deportation, in accordance with 8 U.S.C. § 1251(b)(2). The record affords us little further insight into this decision, and this proceeding presents us with no occasion to question the JRAD's merits. Similarly, the record offers no explanation for the fact that Nguyen served only one year of his state prison sentence before being paroled.

B. Nguyen's Immigration Proceedings

In 1990, Congress repealed the JRAD statute. See IMMACT § 505(a), 104 Stat. at 5050. While the legislation precluded the award of future JRADs, see United States v. Koziel, 954 F.2d 831, 834-35 (2d Cir.1992) (holding that, after repeal of JRAD statute, sentencing court could not recommend against deportation of alien whose criminal conduct occurred prior to repeal), it did not revoke JRADs such as Nguyen's entered before the statutory repeal, see 8 C.F.R. § 1240.10(d) (providing for continued effectiveness of JRADs entered before November 29, 1990).

Congress subsequently broadened the definition of aggravated felony to include, inter alia, the rape or sexual abuse of a minor and crimes of violence resulting in a term of imprisonment of at least one year. See IIRIRA § 321(a), 110 Stat. at 3009-627-28 (codified at 8 U.S.C. § 1101(a)(43)(A) & (F)). As a result of the retroactive application of this expanded definition, see id. § 1101(a)(43) (discussed infra at 113-14), the Immigration and Naturalization Service ("INS")⁵ initiated removal proceedings against Nguyen, alleging that his Massachusetts conviction now qualified him for deportation as an aggravated felon. Nguyen moved to terminate the removal proceedings as precluded by his JRAD. Alternatively, he applied for a waiver of removal under former INA § 212(c), as well as for asylum, withholding of removal, and CAT protection.

The IJ denied Nguyen's requested relief, finding that the IIRIRA amendments rendered him deportable as an aggravated felon despite his JRAD. The BIA affirmed this decision, holding that, while Nguyen's JRAD remained effective to bar his deportation for a crime of moral turpitude, IIRIRA's retroactive expansion of the definition of aggravated felony effectively created a new ground for removal not covered by the JRAD.

C. Nguyen's Federal Court Action

In May 2004, Nguyen attempted to challenge the INS order of removal by filing a petition for a writ of habeas corpus in the United States District Court for the Western District of New York. Pursuant to the REAL ID Act of 2005, Pub.L. No. 109-13, § 106(a), 119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(5)), the district court transferred the petition to this court, where we converted it to the pending petition for review.

II. Discussion

A. Jurisdiction and Standard of Review

Jurisdiction in this case depends on 8 U.S.C. § 1252. While that statute generally strips federal courts of jurisdiction to review final orders of removal based on an alien's commission of an aggravated felony, see id. § 1252(a)(2)(C), it maintains their jurisdiction to resolve constitutional challenges and questions of law, see id. § 1252(a)(2)(D); Xiao Ji Chen v. United States Dep't of Justice, 471 F.3d 315, 324 (2d Cir.2006), including "questions of law raised in petitions for review of removal orders based on aggravated felony convictions," Vargas-Sarmiento v. United States Dep't of Justice, 448 F.3d 159, 164 (2d Cir.2006). The phrase "questions of law" encompasses, inter alia, questions of statutory interpretation. See De La Rosa v. United States Dep't of Homeland Sec., 489 F.3d 551, 554 n. 2 (2d Cir.2007); Bugayong v. INS, 442 F.3d 67, 72 (2d Cir. 2006). Among such questions are an alien's statutory eligibility for removal and relief from removal. See Lewis v. Gonzales, 481 F.3d 125, 128 (2d Cir.2007); Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005). Nguyen's petition presents such a question of law because his claim to JRAD relief depends entirely on the interpretation of various provisions of the INA.

We apply de novo review to questions of law raised in petitions for review of removal orders. See, e.g., Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir.2004). Although we generally accord substantial deference to the BIA's reasonable interpretation of the INA, a statute that it is charged with administering, see Abimbola v. Ashcroft, 378 F.3d 173, 175 (2d Cir.2004), see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), no such deference is warranted where, as in this case, the challenged BIA decision is unpublished, see Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir.2007) (noting that "unpublished BIA decisions do not constitute agency interpretations of law warranting Chevron deference"), and, in any event, the text of the statute is clear, see Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 55 (2d Cir.2004).

B. Nguyen's JRAD Bars His Deportation on the Ground that His Massachusetts Conviction Now Qualifies as an Aggravated Felony

The resolution of this petition turns on the scope of protection afforded by Nguyen's 1989 JRAD. Nguyen submits that his JRAD absolutely shields him from the use of his Massachusetts conviction as a ground for deportation, either as a crime of moral turpitude or an aggravated felony. Respondents assert that Nguyen's JRAD precludes deportation only "on any applicable ground[ ] for deportation in effect in 1989, to wit, moral turpitude" or an "aggravated felony conviction as defined in 1989." Respondents' Br. at 22 & n. 8 (emphasis added). Because Nguyen's crime of conviction was not defined as an aggravated felony in 1989, respondents insist that the expanded 1996 definition of aggravated felony created a new ground of deportability from which the JRAD cannot shield him. In support of this argument, respondents point us to United States v. Yacoubian, 24 F.3d 1, 7 (9th Cir.1994). For the reasons stated herein, we conclude that neither the statutory text nor Yacoubian supports respond...