Brue v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 5, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JEFFR EY BRUE, also known as
Hung Van Liederbach,

Petitioner,

v. No. 05-9569

ALBERTO R. GONZA LES,
Attorney General,

Respondent.

ON PE TIT ION FOR REVIEW FROM THE BOARD
OF IM M IGR ATION APPEALS
(BIA No. A31-272-715)

Submitted on the briefs: *

Laura L. Lichter, Lichter and Associates, P.C., Denver, Colorado, for Petitioner.

Peter D. Keisler, Assistant Attorney General; M ark C. W alters, Assistant
Director; Stephen J. Flynn, Senior Litigation Counsel, Office of Immigration
Litigation, United States Department of Justice, W ashington, D.C., for
Respondent.

Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
M cK A Y, Circuit Judge.

Petitioner Jeffrey Brue, also known as Hung Van Liederbach, petitions for

review of a final order of removal issued by the Board of Immigration Appeals

(BIA), which affirmed the decision of an immigration judge (IJ), that he is an

alien and removable because he committed an aggravated felony. Exercising

jurisdiction under 8 U.S.C. § 1252, we DENY the petition for review.

I.

Petitioner was born in Vietnam in 1968. He has been told that his mother

abandoned him at an early age because of his Amerasian characteristics. In 1973,

he emigrated to the United States and was admitted as a lawful permanent

resident. He was placed with a foster family, the Van Liederbachs, and lived with

them until 1977. Petitioner alleges that he was physically, sexually, and

emotionally abused by M r. V an Liederbach and an older adopted sister.

Petitioner was next placed with Keith and M adonna Brue, who adopted him

in 1978. Petitioner lived with the Brues in W isconsin until approximately 1982

when he was placed for a year in a juvenile facility known as Ladd Lake due to

behavioral problems including fights at school and temper tantrums at home. H e

received medication and therapy at Ladd Lake, but was exposed to other troubled

youth and sexual advances. Petitioner then returned to the Brues, attempted

suicide after his best friend was killed, and was placed at a juvenile residential

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treatment facility, Odyssey House, where he received therapy. In connection with

this placement, the Brues surrendered legal custody to the Dane County

Department of Human Services.

The Brues filed Form N-402, titled “Application to File Petition for

Naturalization in Behalf of Child” (Application), Admin. R. at 330, with the

former Immigration and Naturalization Service (INS). 1 The Brues’ signatures on

the Application are dated April 21, 1985. According to the Application, M r. Brue

indicated that petitioner was mentally disturbed, was not in the Brues’ legal

custody, had been living at Odyssey House since M ay 1983, and would not return

to live w ith the Brues at any time in the future. The A pplication contains a

“Nonfiled” box, in which was written “not residing with parents in legal custody.”

Id. at 332.

After his discharge from Odyssey House, petitioner engaged in a series of

criminal acts in W isconsin resulting in a variety of arrests, charges, and

sentences. In 1990, he moved to Colorado and, in 1992, pleaded guilty to a

violation of Colo. Rev. Stat. § 18-3-403 (repealed 2000), sexual assault in the

second degree, based on a sexual encounter w ith a tw elve-year-old girl.

Petitioner claims the girl told him she was sixteen and that the encounter was

1
“O n M arch 1, 2003 the IN S ceased to exist, and its responsibilities were
divided among three distinct agencies formed within the new Department of
Homeland Security.” Berrum-Garcia v. Com fort, 390 F.3d 1158, 1160 n.1
(10th Cir. 2004).

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consensual. He was sentenced to eight years’ confinement and served

approximately five years, receiving counseling and therapy for his diagnosed

bipolar disorder and his sexual misconduct. In 2000, petitioner pleaded guilty to

a violation of Colo. Rev. Stat. § 18-6-701, contributing to the delinquency of a

minor, based on offering drugs to a minor male in exchange for sex. He was

sentenced to four years’ confinement. 2

Upon his release in 2003, the Department of Homeland Security served

petitioner w ith a Notice to Appear (N TA), charging him with removability

pursuant to 8 U .S.C . § 1227(a)(2)(A)(ii) and (iii) based on his convictions of tw o

separate crimes involving moral turpitude and on his conviction of an aggravated

felony, sexual abuse of a minor. Petitioner denied the majority of the charges in

the NTA, asserted that he was a United States citizen, and requested a variety of

forms of relief from removal, including, as relevant here, restriction on removal

under 8 U.S.C. § 1231(b)(3).

II.

Initially, David Cordova was the IJ assigned to the administrative

proceeding. The record reflects that he held two preliminary hearings, one in

December 2003 and one on June 17, 2004, at which petitioner’s counsel argued

2
As a result of a motion for postconviction relief, petitioner’s eight-year
sentence for the 1992 offense was vacated in 2004 based on ineffective assistance
of counsel and replaced with a sentence of ten months with credit for time served.
His four-year sentence for the 2000 offense was not altered.

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that petitioner lacked the mental competency to understand the nature of the

charges against him or assist in his own defense. Immigration Judge Cordova

expressed concern about petitioner’s competency and indicated that he would sign

an order for an evaluation if counsel for both parties could agree on its contents

and petitioner’s counsel provided a proposed order. See, e.g., Admin. R. at 65-66.

The record contains a proposed order that accompanies an unsigned copy of a

motion requesting the Immigration Court to order a mental health evaluation. See

Admin. R. at 621-24. It is unclear whether the motion or the proposed order were

ever filed.

Immigration Judge Cordova then stopped hearing cases, and a new

immigration judge assigned to the case, J.P. Vandello, held five hearings between

June 30 and December 7, 2004. Petitioner testified about his history at length,

including many of the details set forth above, in particular those surrounding the

1992 and 2000 felony offenses. Petitioner also called a psychologist, Dr. Kim, as

a witness. Dr. Kim had reviewed petitioner’s records and conducted a two-hour

mental status exam in July 2004. He testified that petitioner has an IQ score in

the mild mental retardation range and a gamut of psychiatric symptoms, including

transitory suicidal thoughts; depression; bizarre thinking and behavior, including

persecutory ideation; psychotic or formal thought disorder symptoms such as

auditory and visual hallucinations on an intermittent basis; and bipolar and

post-traumatic stress disorders. Dr. Kim also testified that petitioner believes

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someone had put a chip in his ear and something in his food. Dr. Kim opined that

petitioner w ould benefit from treatment in a residential group home and is not a

threat to physically assault others.

Immigration Judge Vandello issued a written decision in which he found

that petitioner was not a United States citizen, was removable because his 1992

and 2000 offenses were aggravated felonies or crimes involving moral turpitude,

and was not eligible for or entitled to any of the requested relief. He did not

make any finding concerning petitioner’s competency, but did note that petitioner

has a “serious mental illness,” A dmin. R. at 57. He ordered petitioner removed to

Vietnam. The BIA declined to administratively close the proceedings due to

petitioner’s alleged incompetence, substantially agreed with the IJ’s decision, and

dismissed the appeal. This petition for review followed.

III.

In this court, petitioner does not challenge the categorization of his 1992

and 2000 offenses as aggravated felonies. Instead, he raises the following

arguments: (1) because he met the statutory requirements for naturalization when

the Brues tendered the 1985 Application on his behalf, he automatically acquired

citizenship and is therefore not subject to removal; (2) the removal proceedings

violated his Fifth Amendment due process rights because he is mentally

incompetent; and (3) the agency failed to consider the appropriate factors when

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finding that he had committed a “particularly serious crime” and therefore was

not eligible for restriction on removal pursuant to 8 U.S.C. § 1231(b)(3).

W e have limited jurisdiction under 8 U.S.C. § 1252 to review a final order

of removal. Ordinarily, we may review citizenship claims provided there are no

disputed issues of material fact. See 8 U.S.C. § 1252(b)(5). In contrast, we lack

jurisdiction if, as here, a petitioner is subject to removal for commission of an

aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). See id. § 1252(a)(2)(C).

However, through the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231

(2005), Congress expressly granted us jurisdiction to review constitutional claims

and questions of law raised in a petition for review notwithstanding statutory

limitations such as § 1252(a)(2)(C). See 8 U .S.C. § 1252(a)(2)(D). As Congress

explained:

[T]he purpose of [§ 1252(a)(2)(D)] is to permit judicial review over
those issues that were historically reviewable on habeas—
constitutional and statutory-construction questions, not discretionary
or factual questions. W hen a court is presented with a mixed
question of law and fact, the court should analyze it to the extent
there are legal elements, but should not review any factual elements.

H.R. Rep. No. 109-72, at 175 (2005).

W e conclude that, notwithstanding the aggravated felony bar, we have

jurisdiction over the entirety of the petition in this case pursuant to 8 U.S.C.

§ 1252(a)(2)(D). To the extent petitioner claims he automatically acquired

citizenship because he met the statutory requirements at the time the Brues filed

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the 1985 A pplication on his behalf, we have jurisdiction to review this as a

question of law because the facts are undisputed and resolution turns on

interpretation of the applicable statutory section. See Abiodun v. Gonzales,

___ F.3d ___, Nos. 05-9585 and 05-9603, 2006 W L 2501425, at * 4-5 (10th Cir.

Aug. 30, 2006) (exercising jurisdiction to consider whether, on undisputed

material facts, a petitioner who filed a naturalization application satisfied the

public ceremony requirement of 8 U.S.C. § 1448 by signing an oath of allegiance

and so became a United States national). 3 To the extent that petitioner makes a

due process argument, he raises constitutional and statutory-construction issues

that clearly fall w ithin § 1252(a)(2)(D). See Morgan v. Attorney General,

3
W e note that the terminology associated with the naturalization procedure
in 1985 has led to some confusion on this issue. Prior to the Immigration Act of
1990, those seeking naturalization were required to file two documents, an
application and a separate petition for naturalization. See 7 Charles Gordon et al.,
Immigration Law and Procedure § 96.02[3] (2006) (ILP). Indeed, this is reflected
in the name of the form the Brues filed, “Application to File Petition for
Naturalization in Behalf of Child.” Admin. R. at 330. The application was a
“necessary antecedent” to filing a petition. ILP § 96.02[3]. The fact that the
“Nonfiled” box was filled in on the Application that the Brues filed, therefore,
indicates that a petition was not filed, not that the INS considered the Application
to be “nonfiled” or that the IN S denied the Application or a petition.
Accordingly, this case does not involve the denial of a naturalization petition,
which now is termed simply an “Application for Naturalization,” see id.
§ 96.03[2]. If B rue’s claim of automatic citizenship arose from such a denial, w e
would lack jurisdiction. See Abiodun, 2006 W L 2501425, at * 5 (holding that
§ 1252(a)(2)(D) is of questionable relevancy because § 1252(b)(5) does not
permit consideration of a claim that an application for naturalization was
unlawfully denied in a petition for review of removal orders; such a claim “must
be brought before the United States district court for the district in which the
petitioner resides”).

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432 F.3d 226, 229 (3d Cir. 2005). And as for the agency’s determination that

petitioner committed a particularly serious crime, we conclude that it does not

present, as respondents argue, a completely unreviewable discretionary decision.

“W hile we cannot reweigh evidence to determine if the crime was indeed

particularly serious, we can determine [under the REAL ID Act] whether the BIA

applied the correct legal standard in making its determination.” Afridi v.

Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006). W e review each of the issues

raised in the petition de novo. See Niang v. Gonzales, 422 F.3d 1187, 1196

(10th Cir. 2005) (legal questions); Agosto v. INS, 436 U.S. 748, 753 (1978)

(citizenship).

Petitioner argues that, w hen the Brues presented the Application to the IN S

in 1985, he met all the conditions of 8 U.S.C. § 1434 permitting the naturalization

of adopted children; therefore, he argues, he automatically became a United States

citizen. As respondents correctly point out, however, § 1434 was repealed in

1978, and Congress amended 8 U.S.C. § 1433 so that it applied to adopted

children instead. See Pub. L. No. 95-417, §§ 6-7, 92 Stat. 917 (1978). At the

time the Brues presented the Application to the INS in 1985, § 1433 permitted

naturalization of an adopted child “only if the child is residing in the United

States, in the custody of the adoptive parent or parents, pursuant to a lawful

admission for permanent residence.” 8 U.S.C. § 1433(b) (1982) (amended 1986,

1990, 1994, 1999, 2000, 2002). This condition clearly was not met here because

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petitioner was residing at Odyssey House, not in the legal or physical custody of

the Brues. Accordingly, petitioner could not automatically have become a United

States citizen by virtue of simply tendering the Application to file a petition to

naturalize even if automatic acquisition of citizenship would be permissible under

the statute, an issue on which we express no opinion.

Petitioner next argues that the removal proceedings violated his due process

rights because Immigration Judge Vandello elected to ignore the issue of

petitioner’s mental competency, which he contends prevented him from

understanding the nature of the proceedings and assisting in his defense. W e

disagree. 4 Aliens are not necessarily entitled to the full range of due process

protections afforded to criminal defendants. See INS v. Lopez-M endoza, 468 U.S.

1032, 1038 (1984); Nee Hao Wong v. INS, 550 F.2d 521, 523 (9th Cir. 1977).

“Rather, the procedural safeguards are minimal because aliens do not have a

constitutional right to enter or remain in the United States.” Schroeck v.

Gonzales, 429 F.3d 947, 951-52 (10th Cir. 2005) (quotation omitted).

Accordingly, we have held that, “w hen facing removal, aliens are entitled only to

procedural due process, which provides the opportunity to be heard at a

4
W e consider this issue fully aware that, although the IJ did not make any
competency findings, the BIA found insufficient evidence to establish that
petitioner could not comprehend the nature of the proceedings against him. This
appears to run afoul of 8 C.F.R. § 1003.1(d)(3)(iv), which provides that the B IA
“w ill not engage in factfinding in the course of deciding appeals.” H owever,
neither party has raised this issue, and our disposition does not require us to
address it.

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meaningful time and in a meaningful manner.” Id. at 952 (quotations omitted).

Thus, contrary to the substantive due process protection from trial and conviction

to which a mentally incompetent criminal defendant is entitled, see Smith v.

M ullin, 379 F.3d 919, 930 (10th Cir. 2004), removal proceedings may go forward

against incompetent aliens, Nee Hao Wong, 550 F.2d at 523.

Removal proceedings against mentally incompetent aliens, however, are not

without constraint. Congress has provided that, “[i]f it is impracticable by reason

of an alien’s mental incompetency for the alien to be present at the proceeding,

the Attorney General shall prescribe safeguards to protect the rights and

privileges of the alien.” 8 U.S.C. § 1229a(b)(3). Pursuant to this statutory

directive, the Attorney General has prescribed the following:

W hen it is impracticable for the respondent to be present at the
hearing because of mental incompetency, the attorney, legal
representative, legal guardian, near relative, or friend who was
served with a copy of the notice to appear shall be permitted to
appear on behalf of the respondent. If such a person cannot
reasonably be found or fails or refuses to appear, the custodian of the
respondent shall be requested to appear on behalf of the respondent.

8 C.F.R. § 1240.4. The regulation suggests that, when mental incompetence

makes an alien’s presence at a removal proceeding impracticable, an IJ may

conduct the proceeding provided that the alien is represented by an attorney or

other person; a custodian is required only when the alien has no other

representative.

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 As respondents point out, the statute and the regulation facially appear to

require no procedural safeguards if an unrepresented, mentally incompetent alien

is nevertheless able to be present at his removal proceeding. W e need not delve

into this issue because, even assuming petitioner was incompetent at the time of

his removal proceedings, an issue we expressly do not decide, he was represented

by counsel. Accordingly, the IJ had no obligation under either the statute or the

regulation to consider petitioner’s mental competency because the procedural

safeguards they envision were already in place.

Additionally, petitioner received the process he is due under the Fifth

Amendment because he has not shown that the removal proceedings caused him

prejudice, a requirement for a successful due process challenge, see

Berrum-Garcia v. Com fort, 390 F.3d 1158, 1165 (10th Cir. 2004). Petitioner’s

counsel asserts that, due to petitioner’s mental status, petitioner was unable to

identify facts, evidence, or potential witnesses that would support his applications

for relief. However, petitioner’s claim of citizenship and most of his requests for

relief from removal turned on undisputed facts or legal issues unaffected by his

competence. Although his testimony occasionally drifted off point, he largely

was able to answ er the questions posed to him and provide his version of the facts

surrounding his past, particularly the details of his conviction for the 1992

offense, second degree sexual assault. The details of that conviction are central

to his argument, discussed below, that it was not a “particularly serious crime”

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because, according to him, the twelve-year-old victim consented and no force was

involved. How ever, his mental state did not preclude him from relating these

details, and the IJ specifically recounted them in his decision. Accordingly, we

conclude that the removal proceedings provided petitioner with the opportunity to

be heard at a meaningful time and in a meaningful manner.

Petitioner’s final argument concerns his request for restriction on removal,

which he is entitled to if he can show that removal to Vietnam would threaten his

life or freedom based on his race, religion, nationality, membership in a particular

social group, or political opinion, see 8 U.S.C. § 1231(b)(3)(A ). However, this

relief is not available to an alien who has committed a “particularly serious

crime.” Id. § 1231(b)(3)(B)(ii). The IJ determined that petitioner’s 1992 and

2000 offenses each qualify as a “particularly serious crime.” 5

The statute provides no helpful guidance in defining “particularly serious

crime” as it relates to petitioner. 6 In M atter of Frentescu, the BIA set forth

5
W e normally review the BIA’s decision when, as here, it is authored by one
Board member pursuant to 8 C.F.R. § 1003.1(e)(5). See Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006). However, we may look to the IJ’s decision
to understand the BIA’s decision better if the BIA’s decision “explicitly
incorporates or references an expanded version of the same reasoning” that the IJ
gave, id., and we do so here.
6
Although a “particularly serious crime” includes aggravated felonies for
which an alien has been sentenced to an aggregate term of imprisonment of five
years or more, this does not “preclude the Attorney General from determining
that, notwithstanding the length of the sentence imposed, an alien has been
convicted of a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B). The
(continued...)

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factors to which it looks in judging the seriousness of a crime: (1) the nature,

circumstances, and underlying facts of the conviction, (2) the type of sentence,

and (3) “most importantly, whether the type and circumstances of the crime

indicate that the alien will be a danger to the community.” M atter of Frentescu,

18 I. & N. Dec. 244, 247 (BIA 1982), superseded in part on other grounds by

statute, The Immigration Act of 1990, Pub. L. No. 101-649, § 515, 104 Stat.

4978, 5053 (1990).

The IJ, fully aware of the facts of the 1992 offense, concluded that it was a

particularly serious crime because the victim of the sexual assault was a child of

twelve and petitioner was a danger to the community. The BIA, also aware of the

full factual background of that offense, recited two of the Frentescu factors,

including the most important one, danger to the community, and agreed with the

IJ. W e are satisfied that both the IJ and the BIA considered the appropriate

factors in reaching their conclusions as to the 1992 offense. The BIA did not

reach the question of whether the 2000 offense was a particularly serious crime.

As the statute requires a conviction of only one particularly serious crime in order

to render an alien ineligible for restriction on removal, this w as an appropriate

disposition.

For the foregoing reasons, we DENY the petition for review.

6
(...continued)
aggregate sentence for petitioner’s two aggravated felonies was, after his
post-conviction motion, four years and ten months.

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