Vong Xiong v. Gonzales
| Decision Date | 12 April 2007 |
| Docket Number | No. 06-2007.,06-2007. |
| Citation | 484 F.3d 530 |
| Parties | VONG XIONG, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Nathaniel J. Zylstra, argued, Minneapolis, MN (Colette Routel, Minneapolis, MN, on the brief), for petitioner.
David E. Dauenheimer, U.S. Dept. of Justice, Washington, DC, for respondent.
Before WOLLMAN, BYE, and SMITH, Circuit Judges.
Vong Xiong, a citizen of Laos, petitions for review of a final order of removal by the Board of Immigration Appeals (BIA). The BIA affirmed the decision of the immigration judge (IJ) denying Xiong's applications for withholding of removal and relief under the Convention Against Torture (CAT). For the reasons discussed below, we deny Xiong's petition.
Xiong, a 29-year-old male native and citizen of Laos, entered the United States on June 18, 1993, as a refugee. He subsequently adjusted his status to that of a lawful permanent resident pursuant to 8 U.S.C. § 1159(a).
On October 22, 1997, Xiong was convicted in state court of third-degree criminal sexual conduct in violation of Minnesota law. At the time of the sexual assault, the victim was 14 years old. The state court sentenced Xiong to 60 days in a workhouse and 5 years probation.
As a result of his conviction, the Immigration and Naturalization Service (INS) commenced removal proceedings against Xiong, charging him with being removable for having been convicted of a crime involving moral turpitude and an aggravated felony.1 In response to the charges, Xiong filed a motion to terminate the removal proceedings, arguing that he was not removable from the United States because he continued to hold the refugee status granted to him in June 1993 and did not meet the requirements for termination of refugee status as outlined in the United Nations Convention Relating to the Status of Refugees. The IJ, however, denied Xiong's motion.
The IJ found Xiong removable as both an aggravated felon and an alien convicted of a crime involving moral turpitude. Because the IJ found that Xiong committed an aggravated felony, he was ineligible for asylum. Therefore, Xiong applied only for withholding of removal and protection under CAT. The INS asserted that Xiong was ineligible for these forms of relief because he had been convicted of a "particularly serious crime" under 8 U.S.C. § 1231(b)(3)(B)(ii).
At the removal hearing, Xiong testified that his family left Laos and came to the United States when he was approximately 16 years old because of poverty and because his elders aided America in the Vietnam War. According to Xiong, his father, his father's brothers, his grandfather, and his brother were involved in the war. Xiong claimed a fear, in part, because of the closeness of his "uncle" Vang Xiong to General Vang Pao. According to Xiong, he feared returning to Laos because his family's involvement in the war might lead to his being killed, even though he was not personally involved in the war.
The IJ found Xiong's testimony concerning his father's involvement in the war to be "generally credible, but meager." Additionally, the IJ determined that Xiong's claim that he would be targeted because of his relation to Vang Xiong was undercut by Vang Xiong's admission that he was only a distant relative to Xiong, not the brother of Xiong's father. Therefore, the IJ concluded that the testimony of Xiong and his witnesses was insufficient to meet the burden of proof on his claims for relief.
The IJ also determined that Xiong's state conviction constituted a "particularly serious crime," disqualifying him for withholding of removal. While acknowledging that Xiong was not convicted under a statute section involving force or coercion, the IJ relied on the facts and circumstances of the offense as set forth in the criminal complaint.2 In addition, the IJ had previously admitted, over Xiong's objection, the presentence report (PSR) from the state conviction, which set forth both Xiong and the victim's version of the circumstances underlying Xiong's conviction.
After determining that Xiong was ineligible for withholding of removal based on his commission of a "particularly serious crime," the IJ made an alternative ruling. The IJ found that even if Xiong was eligible for such relief, he failed to show that he had been persecuted in the past and that it was more likely than not that he would be persecuted in the future. The IJ recounted the country information contained in the Department of State's September 1998 report "Laos — Profile of Asylum Claims and Country Conditions." This report noted that the government of Laos had formally stated that it would accept all overseas Laotians except for a "small number of high officials of the former Royal Lao government and those active in insurgency after 1975." In addition, the report stated that "[o]ver 27,000 [Laotians] had been repatriated since 1988" under the United Nations High Commissioner for Refugees and that "[a]s many as 30,000 others are estimated to have returned without official involvement." Finally, the report noted that "a Laos citizen generally can return to Laos without fear of retribution" unless the citizen held high status in the former government or was closely associated with General Pao. The IJ reiterated its finding that Xiong's testimony was "general and meager" regarding his family's involvement in the war and that Vang Xiong, who was allegedly "close" to General Pao, was a distant blood relative to Xiong, not his uncle. Because Xiong failed to satisfy his burden of proof as to withholding of removal, the IJ also denied his application for relief under CAT.
The BIA adopted and affirmed the IJ's decision and supplemented the opinion. As to Xiong's argument that the IJ should have terminated the removal proceedings because his refugee status was never revoked, the BIA relied on In re Smriko, 23 I & N Dec. 836 (BIA 2005), in which the BIA determined that refugees who entered the United States and subsequently adjusted their status to permanent lawful residents were subject to removal on the basis of their subsequent criminal convictions without first terminating their refugee status.
The BIA then addressed the IJ's admission of the criminal complaint and the PSR into evidence. The BIA noted Xiong's failure to initially object to the admission of the criminal complaint. Additionally, the BIA found that Xiong failed to establish that consideration of the PSR was "fundamentally unfair." Thus, the BIA concurred with the IJ's determination that Xiong was not eligible for withholding of removal and protection under CAT because he committed a "particularly serious crime."
Finally, the BIA agreed with the IJ's conclusion that Xiong failed to establish that it is more likely than not that he would either be persecuted or tortured upon his return to Laos.
Xiong petitions for review, arguing that (1) this court must dismiss the removal proceeding against him because, as a refugee, he cannot be placed in removal proceedings unless his refugee status is terminated or until an immigration official has inspected him and deemed him inadmissible; (2) both the BIA and the IJ violated his due process rights in deciding that his conviction for third-degree criminal sexual conduct constituted a "particularly serious crime" because they relied upon the criminal complaint and the PSR; and (3) because the IJ and the BIA concluded that he committed a "particularly serious crime," they gave "short shrift" to his claims for withholding of removal.
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...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 questi......