Nguyen v. Holder

An alien’s petition for deferral of removal under the Convention Against Torture may be reviewed when there is substantial evidence tending to prove that the individual would be tortured in their land of origin.

Vinh Nguyen (“Nguyen”) is a Vietnamese immigrant, and a member of the Free Vietnam group who stood in opposition to Vietnam’s Communist ideologies. In an attempt to spread the group’s political message, Nguyen traveled to various countries. To travel, Nguyen stole his brother’s passport, and while overseas “manufactured, assembled, and possessed explosives.” As a result, he was convicted of “misus[ing] a passport to facilitate an act of international terrorism. After the Department of Homeland Security issued a Notice to Appear, Nguyen “applied for a deferral of removal under the Convention Against Torture (“CAT”)”. The deferral was denied because his crime involved that of moral turpitude. On appeal, Nguyen argues that the Board of Immigration Appeals erred in finding him ineligible for the deferral of removal. The Ninth Circuit was presented with establishing if Nguyen committed a crime of moral turpitude and whether his petition for review should be granted. In order for a crime reach that of moral turpitude the court must find: (1) the elements of the crime must be fulfilled; and (2) after comparing the crime with a generic definition of moral turpitude the crime can be classified as such. The panel held that Nguyen’s conviction of the misuse of a passport in order to facilitate terrorism should be classified into the legal concept of moral turpitude. Next, the panel analyzed whether Nguyen was entitled to protection under the CAT. In order for Nguyen to be protected there must be substantial evidence proving he would be tortured if he were returned to Vietnam. The panel held that based on the documentary evidence and the witness testimony presented to the court, this burden has been met. Accordingly, the panel held that Nguyen petition qualified for review. petition for review GRAN TED, and REMANDED with instructions.