FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUNG VAN TRUONG; NGA THI LU; No. 05-74666
MARTINA MY VAN TRUONG; PAOLO
VINH TUAN TRUONG, Agency Nos.
Petitioners, A073-910-930
v. A073-910-931
A073-910-932
ERIC H. HOLDER JR., Attorney A073-910-933
General,
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 8, 2010—Pasadena, California
Filed July 27, 2010
Before: Daniel M. Friedman,* Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Reinhardt
*The Honorable Daniel M. Friedman, United States Circuit Judge for
the Federal Circuit, sitting by designation.
10835
TRUONG v. HOLDER 10837
COUNSEL
Garish Sarin, Law Offices of Garish Sarin, Los Angeles, Cali-
fornia, for the petitioners.
Peter Keisler, Mary Jane Candaux, and Patricia M. Bowman
(on the brief), Jennifer L. Lightbody (argued), United States
Department of Justice, Washington, D.C., for the respondent.
10838 TRUONG v. HOLDER
OPINION
PER CURIAM:
Petitioners Trung Van Truong (“Mr. Truong”) and his wife,
Nga Thi Lu, are natives and citizens of Vietnam. Their chil-
dren, Martina and Paolo Truong, who are also petitioners in
this case, were born in Italy, but are not citizens of that coun-
try. All four family members have lived in the United States
for almost 20 years.
Throughout their immigration proceedings, the Truongs
have consistently been found to be credible. In his asylum
application and in a hearing before an Immigration Judge (IJ),
Mr. Truong established that he fought as a sergeant in the
anti-communist South Vietnamese army in the Vietnam War.
During the War, he was captured and tortured by communist
guerrillas. After the North Vietnamese victory, he went into
hiding and became an active member of an underground anti-
communist organization. In April 1979, he and his wife
escaped Vietnam. They stayed for a year in a United Nations-
sponsored refugee camp in Malaysia before being admitted to
Italy as refugees. They lived in Italy from 1980 until 1991,
when they were granted non-immigrant visas and entered the
United States, where they have remained ever since.
In 1995, the Truongs were charged with overstaying their
visas, and were subsequently placed in deportation proceed-
ings. They applied for asylum. The IJ granted their applica-
tion. He was influenced in part by his finding that deportation
would be “extremely traumatic” for the Truongs’ two chil-
dren, particularly Martina, whom the IJ described, after hear-
ing her testimony, as “totally Americanized.” The IJ was also
concerned that, although the Truongs had been granted tem-
porary refugee status in Italy, “the truth is that they cannot
return to Italy.” He found, and this court subsequently agreed,
that by staying in the United States beyond the period permit-
ted by the Italian government, the Truongs had lost their refu-
TRUONG v. HOLDER 10839
gee status in that country. Finally, the IJ was moved by the
fact that Mr. Truong had fought on behalf of the United
States-backed South Vietnamese Army. The IJ understood
Mr. Truong’s service on behalf of the United State’s South
Vietnamese allies to place some responsibility on the United
States government to remedy, if possible, his family’s subse-
quent statelessness.
The government appealed the IJ’s decision. After the
appeal had been pending for almost six years, Martina wrote
to the BIA to inquire as to the status of her family’s case. She
asked that the BIA issue a final, favorable decision, so that
she could regularize her immigration status in order to pursue
an education at the University of California at Riverside,
where she had been accepted as an undergraduate student.
Shortly after receiving Martina’s letter, in August of 2001, the
BIA reversed the IJ’s decision. It held that the Truongs were
ineligible for asylum because they had firmly resettled in
Italy, and ordered them to depart the United States within
thirty days.
In 2003, this court granted the Truongs’ petition for review
of the BIA decision. Truong v. INS, No. 01-71507, 58 Fed.
Appx. 315, 2003 WL 677843 (9th Cir. 2003) (unpublished
disposition). We observed that the Truongs’ credible testi-
mony at their initial hearing had established that, about five
years after arriving in Italy, they had begun receiving threats
from Vietnamese communists living in the area. Id. Late at
night, unidentified individuals had called their home and
threatened to shoot them if they left the house. Id. On two
separate occasions in 1991, Mr. Truong was shot at while
driving his car at night. Id. He filed police reports on both
occasions, but the police did nothing. Id. Shortly thereafter,
fearing for their safety, the Truongs left Italy for the United
States. Id. This court found that the foregoing facts “sup-
port[ed] a persecution claim” and remanded to the BIA “to
consider whether the Truongs ha[d] shown persecution or a
well-founded fear of persecution in Italy.” Id.
10840 TRUONG v. HOLDER
On remand, a new IJ observed that the Truongs’ case was
“extremely sympathetic,” and stated that he “would do any-
thing in [his] power to grant their asylum case.” At the con-
clusion of the hearing, the IJ offered to grant the Truongs a
continuance so that they could accumulate additional evi-
dence supporting their persecution claims, but the Truongs’
counsel declined and requested an immediate decision.1 The
IJ granted the Truongs’ application for withholding of
removal to Vietnam, but found that the Truongs had failed to
establish that the Italian government was unable or unwilling
to protect them and, accordingly, denied their asylum applica-
tion. The BIA affirmed.
As both of the IJs who have considered this case have con-
cluded, the equities overwhelmingly favor the Truongs. In
particular, Martina and Paolo, who were ten and two years old
respectively when they entered the United States, are now
twenty-nine and twenty-one years old. Moreover, the record
shows that the Truongs are not able to return to Italy or Viet-
nam, the only countries — apart from the United States — to
which they have any ties. When asked at oral argument
whether the government had a country in mind to which they
could be sent, counsel for the respondent stated that they
would be sent to “whatever country would be willing” to have
them. In light of these circumstances, we referred the case to
mediation for exploration of any possibilities that would allow
the Truongs to remain in the United States. Unfortunately,
mediation has proven unsuccessful, and the parties have asked
the panel to issue a decision on the merits. We do so now, and
we DENY.
1
It is inexplicable to us that the Truongs’ counsel chose not to accept
the IJ’s offer, especially when the IJ suggested that supplementing the
record “would help the Court and the Court would move most likely —
if you persuade the Court, the Court would grant the asylum case.” In
denying the Truongs’ asylum application, the IJ took special note that
“[t]he respondent is unwilling to take the time to get the evidence” neces-
sary to show past persecution.
TRUONG v. HOLDER 10841
We first reject the Truongs’ contention that this court held
in 2003 that the family suffered past persecution in Italy. In
our prior disposition, we remanded the Truongs’ persecution
claims so that the BIA could “make the initial eligibility
determination” — i.e., “consider whether the Truongs have
shown persecution or a well-founded fear of persecution in
Italy.” 58 Fed. App. at 318 (citing INS v. Ventura, 537 U.S.
12 (2002) (noting that “[g]enerally speaking, a court of
appeals should remand a case to an agency for decision of a
matter that statutes place primarily in agency hands.”)). The
Truongs’ assertion that we found past persecution, and that
the IJ and BIA were powerless to subsequently find other-
wise, is meritless.
We also find meritless the Truongs’ assertion that the IJ
found past persecution. Though the IJ did state that the Tru-
ongs suffered harassment in Italy rising to the level required
to establish persecution, he clearly found the Truongs failed
to show that “[t]he persecution [was] by the hands of the gov-
ernment or other group or person whose actions the govern-
ment is unable or unwilling to control.”
[1] We turn now to this finding and hold that it was sup-
ported by substantial evidence. “To establish past persecution,
[aliens] must demonstrate that: (1) their experiences rise to
the level of persecution; (2) the persecution was on account
of one or more of the five protected grounds; and (3) the per-
secution was committed either by the government or by forces
that the government was unable or unwilling to control.” Gor-
mley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004). Sub-
stantial evidence supports the IJ and BIA’s conclusion that the
harassment the Truongs faced in Italy was not “committed
either by the government or by forces that the government
was unable or unwilling to control.” Id. Although the Truongs
contend that their harassment came at the hands of communist
forces, the record suggests that this contention is speculative.
The Truongs simply cannot and do not know who their assail-
ants were and what motivations they may have had. We also
10842 TRUONG v. HOLDER
note that the Truongs’ professed belief that the Italian govern-
ment was complicit in or unwilling to stop their harassment
is undermined by the fact that the Truongs repeatedly sought
assistance from the Italian police, who dutifully made reports
after each incident and indicated that they would investigate.
Without more, we are reluctant to infer government complic-
ity or indifference from the mere fact that Italian police were
unable to locate the Truongs’ unknown assailants. Cf. Singh
v. I.N.S., 134 F.3d 962, 968 (9th Cir. 1998) (“[T]he police in
the case at bar responded to Petitioner’s location when she
called them, but they took no further action. As the immigra-
tion judge noted, this could have been due to a lack of sus-
pects, few leads, etc.”).
[2] The few pieces of documentary evidence that the Tru-
ongs produced before the IJ are unavailing. At best, they show
that ethnic minorities and immigrants living in Italy face spo-
radic violence and discrimination; they do not suggest that the
Italian government is complicit in or unwilling to combat
such discrimination. To the contrary, the 2003 State Depart-
ment Country Report for Italy states that “[t]he Government
generally respected the human rights of its citizens . . . [and]
the law and judiciary provided effective means of dealing
with individual instances of abuse.” We, thus, hold that the
record before us is not so overwhelming that “a reasonable
factfinder would be compelled to conclude,” Gormley, 364
F.3d at 1176, that the Truongs faced past persecution at the
hands of the Italian government or forces that the Italian gov-
ernment was unable or unwilling to control.
DENIED.
REINHARDT, Circuit Judge, concurring:
I concur in the per curiam opinion. It is most unfortunate,
however, that we are compelled to affirm the Board of Immi-
TRUONG v. HOLDER 10843
gration Appeals in this case. Under current Supreme Court
law, we have no choice but to agree that the government has
the legal authority to deport a young college student, who was
brought to this country as a child by her parents and raised
here in the same manner as all other law-abiding young peo-
ple. To all appearances, she was an ordinary American child
seeking a good education. When, in order to continue her edu-
cation at the University of California, she wrote to the BIA
and asked what had happened to the appeal that the govern-
ment had taken from the Immigration Judge’s ruling in her
parents’ favor six years earlier, the BIA ordered her and her
family deported. She was twenty years old at the time. Her
brother, who was two years old when he entered this country,
was then twelve. He had also grown up in this country as a
law-abiding youth, with law-abiding parents who fought on
our side during the Vietnam War. The only mistake made by
anyone in the family was committed by the parents who had
fled Vietnam after we lost the war, had gone to Italy, which
they then fled after being harassed and shot at by people they
suspected of being Communists, and finally had come to the
United States with their young children. Their mistake was in
overstaying their visas in the belief that they had finally found
peace and freedom for their family.
The prospect of deporting Martina Truong, a college stu-
dent who was described by the Immigration Judge as “totally
Americanized” and “a highly sensitive child of superior intel-
ligence,” and who according to the judge would be “ex-
tremely traumati[zed]” by the government’s proposed action
must be highly offensive to those who adhere to America’s
fundamental values. So must the prospect of deporting her
brother who was a baby when the Truongs arrived here and
who, at twelve, knew life in no other country. Martina and her
brother are not the only young people who face such harsh
treatment at the hands of our immigration authorities. A num-
ber of college students and others with spotless records who
grew up in this country will, if treated justly, remain here and
10844 TRUONG v. HOLDER
make significant contributions to what they consider to be
their homeland. If they are deported, we will be the losers.
The per curiam opinion clearly explains why the equities in
this case overwhelmingly favor the Truongs. I write sepa-
rately to emphasize that although we as judges do not have
the authority to grant the Truongs’ petition for review, immi-
gration officials retain considerable discretion to achieve a
just result for the Truong family and others in their situation.
It is neither possible nor desirable to deport every person in
this country who is undocumented, and it is difficult to under-
stand the government’s decision to appeal the initial Immigra-
tion Judge’s grant of asylum in order to vindicate a position
that, while technically justified, leads to a wholly unfair and
undesirable result. The first Immigration Judge to hear the
case unhesitatingly granted relief to the entire Truong family.
The second — the first had moved to another state — said,
“This Court is extremely sympathetic to the Truongs and this
Court would do anything in its power to grant their asylum
case.”
The Truongs have been granted withholding of deportation
from Vietnam. Although that form of relief does not prevent
the government from deporting them to a country other than
Vietnam, it also does not require that the government do so,
especially when, as the government acknowledged at oral
argument, it has no idea where to send them and, if it finally
figures it out, it will have to be a country in which none of the
Truongs has ever previously resided and in which, almost cer-
tainly, none knows how to speak the language (unless once
again Palau comes to the rescue). Any Department charged
with the responsibility of enforcing or administering the law
must understand the importance of establishing priorities, and
any such decision must be implemented not just at the top, but
throughout the Department. There are many undocumented
individuals, especially those who have committed serious
crimes, who are far more deserving of deportation by the
TRUONG v. HOLDER 10845
immigration authorities than are the young members of the
Truong family, or even their parents. I would hope, and I’m
sure that my colleagues would join me, that immigration offi-
cials will take into account the priorities essential to the
orderly implementation of the law and the equitable consider-
ations that fairness demands when determining how to pro-
ceed in the wake of the decision we are compelled to issue
today.