Vinh Nguyen v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VINH TAN NGUYEN, AKA Armando No. 10-71050
Gile Luat, AKA Van Duc Vo,
Petitioner, Agency No.
A027-359-701
v.

ERIC H. HOLDER, JR., Attorney
General,
Respondent.

VINH TAN NGUYEN, No. 10-72974
Petitioner,
Agency No.
v. A027-359-701

ERIC H. HOLDER, JR., Attorney
General,
Respondent.

VINH TAN NGUYEN, AKA Van Duc No. 10-73904
Bo, AKA Armando Gile Luat,
Petitioner, Agency No.
A027-359-701
v.

ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
2 NGUYEN V. HOLDER

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
October 8, 2013—Pasadena, California

Filed August 14, 2014

Before: Harry Pregerson, Kim McLane Wardlaw,
and Richard C. Tallman, Circuit Judges.

Opinion by Judge Pregerson;
Partial Concurrence and Partial Dissent by Judge Tallman

SUMMARY*

Immigration

The panel denied in part and granted in part Vinh Tan
Nguyen’s petition for review of a Board of Immigration
Appeals’ decision, which held that his conviction for misuse
of a passport to facilitate an act of international terrorism, in
violation of 18 U.S.C. §§ 1544, 2331, is a categorical crime
involving moral turpitude, and denied his application for
deferral of removal under the Convention Against Torture.

The panel held that the “intent to facilitate an act of
international terrorism” is an element of Nguyen’s conviction
because it increased the maximum criminal penalty to which

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 NGUYEN V. HOLDER 3

he was exposed. The panel also held that the conviction is
categorically morally turpitudinous, because it necessarily
involves an intent to harm someone or necessarily targets “a
protected class of victim.” The panel held that the Board thus
did not err in determining that Nguyen’s conviction is a
categorical crime involving moral turpitude.

Turning to the Board’s denial of deferral of removal
under the Convention Against Torture, the panel held that the
evidence in the record compels any reasonable factfinder to
conclude that the Vietnamese government is aware of
Nguyen’s activities on behalf of the Government of Free
Vietnam, and that the record likewise compels any reasonable
factfinder to conclude that, if Nguyen is removed to Vietnam,
he is more likely than not to be tortured. The panel remanded
with instructions that the agency grant Nguyen deferral of
removal.

Concurring in part and dissenting in part, Judge Tallman
wrote that, although the case is close, the evidence does not
compel the conclusion that Nguyen will more likely than not
be tortured. Judge Tallman wrote further that even if he
agreed with the majority as to the merits of the CAT claim, he
would remand to the Board for additional investigation or
explanation, rather than ordering the granting of relief
outright.
4 NGUYEN V. HOLDER

COUNSEL

Gary Silbiger (argued), Silbiger & Honig, Culver City,
California, for Petitioner.

Lyle D. Jentzer (argued), Senior Counsel for National
Security and Christopher C. Fuller, Senior Litigation Counsel,
Office of Immigration Litigation; Tony West, Assistant
Attorney General, Civil Division, United States Department
of Justice, Washington, D.C., for Respondent.

OPINION

PREGERSON, Circuit Judge:

Vinh Tan Nguyen (“Nguyen”), a native and citizen of
Vietnam, petitions for review of a Board of Immigration
Appeals (“BIA”) decision dismissing his appeal from an
order of removal entered by an Immigration Judge (“IJ”).
Nguyen argues, inter alia, that the BIA erred in concluding
that he was inadmissible for having been convicted of a crime
involving moral turpitude, and that he is entitled to protection
under the Convention Against Torture (“CAT”).1 We
conclude that the BIA did not err in determining that Nguyen
was convicted of a crime involving moral turpitude, because
the crime of which Nguyen was convicted — misuse of a
passport to facilitate an act of international terrorism,
18 U.S.C. §§ 1544, 2331 — is categorically morally
turpitudinous. We also conclude, however, that the record
compels the conclusion that Nguyen is more likely than not

1
We address Nguyen’s other claims in a Memorandum disposition filed
concurrently with this Opinion.
 NGUYEN V. HOLDER 5

to be tortured if he is removed to Vietnam. Thus, we grant
the petition with respect to Nguyen’s CAT claim, and remand
with instructions to grant him deferral of removal under CAT.

FACTUAL BACKGROUND

Whatever else one can say about Nguyen, one cannot
doubt his enduring opposition to Vietnamese communism. In
1983, eight years after his native South Vietnam fell to the
communists, Nguyen fled Vietnam as a refugee. He arrived
in the United States in 1984, and soon became a legal
permanent resident. A decade later, in 1995, Nguyen joined
a group of Vietnamese exiles seeking to overthrow Vietnam’s
communist government, who style themselves the
“Government of Free Vietnam.”

Nguyen became a prominent member of the Government
of Free Vietnam. Between 1995 and 1997, Nguyen traveled
throughout the United States to prosthelytize on the
organization’s behalf. Between 1998 and 2001, Nguyen also
spread the group’s message to Vietnamese communities in
Australia and Canada. Not all of Nguyen’s travel was so
mundane, however. In 1997, Nguyen traveled to Thailand
and Cambodia; from Cambodia, he infiltrated Vietnam,
sneaking across the border through the jungle. There,
Nguyen served as “vice commander” of a jungle camp run by
the Government of Free Vietnam, spreading the
organization’s political message and training sympathetic
Vietnamese in “self-defense.”

Nguyen’s next trip to Southeast Asia was even more
dramatic. In April 2001, Nguyen traveled to the Philippines
on a U.S. passport belonging to his brother, Van Duc Vo.
Two months later, on June 19, 2001, the real Van Duc Vo
6 NGUYEN V. HOLDER

tried to bomb the Vietnamese Embassy in Bangkok, Thailand.
Two months after that, on August 30, 2001, Philippine police
caught Nguyen himself “in the act of assembling explosive
devices” using ammonium nitrate. It was widely reported
that Nguyen, following in his brother’s footsteps, planned to
bomb the Vietnamese Embassy in Manila.

Philippine authorities charged Nguyen with
“manufactur[ing], assembl[ing], and possess[ing]
explosives.” Nguyen ultimately pled guilty to a lesser
explosives-related offense. In November 2004, a Philippine
court sentenced Nguyen to between fifty and seventy-two
months in prison.

But Nguyen soon escaped from prison and fled the
Philippines. Using yet another false passport, Nguyen made
his way to Ghana. After spending several months in Ghana,
Nguyen left for Saipan, in the Commonwealth of the
Northern Mariana Islands.

The Federal Bureau of Investigation was on Nguyen’s
trail. A federal judge had issued a warrant for Nguyen’s
arrest: Nguyen was wanted by U.S. authorities for using his
brother’s U.S. passport to travel to the Philippines. The FBI
found Nguyen in Saipan, and arrested him there on December
12, 2006. Accompanied by law enforcement, Nguyen was
paroled into the United States at Agana, Guam, on December
14, 2006.2

2
“Prior to passage of the [Consolidated Natural Resources Act of 2008,
Pub. L. No. 110–229, 122 Stat. 754 (codified in relevant part at 48 U.S.C.
§§ 1806–1808)], the [Commonwealth of the Northern Mariana Islands]
was considered to be outside the United States for immigration purposes.”
United States v. Li, 643 F.3d 1183, 1184 (9th Cir. 2011).
 NGUYEN V. HOLDER 7

Nguyen was brought before the U.S. District Court for the
Central District of California, where an indictment charged
him with violating 18 U.S.C. § 1544, misuse of passport.
Section 1544 provides, in relevant part:

Whoever willfully and knowingly uses, or
attempts to use, any passport issued or
designed for the use of another . . . .

Shall be fined under this title, imprisoned not
more than 25 years (if the offense was
committed to facilitate an act of international
terrorism (as defined in section 2331 of this
title) . . . or 15 years (in the case of any other
offense) . . . .

18 U.S.C. § 1544. Specifically, the Grand Jury alleged that
Nguyen “willfully and knowingly used a passport issued and
designed for the use of another, to facilitate an act of
international terrorism, as defined in Title 18, United States
Code, Section 2331(1).” On November 14, 2007, Nguyen
pled guilty to “MISUSE OF PASSPORT in violation of 18
U.S.C. § 1544, as charged in Count 1 of the Single-Count
Indictment.” Nguyen was sentenced to fourteen months in
prison.

PROCEDURAL BACKGROUND

Nguyen’s immigration parole expired on June 13, 2007.
On December 21, 2007, the Department of Homeland
Security served Nguyen with a Notice to Appear. The Notice
to Appear alleged that Nguyen was inadmissible as an
arriving alien not in possession of a valid entry document, see
8 U.S.C. § 1182(a)(7)(A)(i)(I), and also as an alien who has
8 NGUYEN V. HOLDER

been convicted of a crime involving moral turpitude, see
8 U.S.C. § 1182(a)(2)(A)(i)(I). Specifically, the Notice to
Appear alleged that Nguyen had been convicted of two
crimes involving moral turpitude — “Misuse of Passport to
Facilitate an Act of International Terrorism” under 18 U.S.C.
§ 1544, and “Inflict[ing] Corporal Injury on Spouse,” in
violation of California Penal Code § 273.5. Nguyen admitted
both convictions, without conceding that either constituted a
crime involving moral turpitude. An IJ sustained both
charges of inadmissibility against Nguyen, concluding that
Nguyen was inadmissible as an arriving alien not in
possession of a valid entry document, and also as an alien
who has been convicted of a crime involving moral turpitude.

Nguyen applied for deferral of removal under the
Convention Against Torture. See 8 C.F.R. § 1208.17(a).

In support of his CAT claim, Nguyen testified and
presented six other witnesses at a hearing before a new IJ.
Two of Nguyen’s witnesses testified that they knew people
who had been political prisoners in Vietnam, and these
political prisoners had been physically mistreated. Nguyen
also presented two witnesses who had, themselves, been
political prisoners in Vietnam. Both of these witnesses
testified that they were physically mistreated during their
imprisonment. The first witness testified that he was
deprived of adequate food and water, and that he watched a
fellow prisoner starve to death under similar conditions. The
second witness was forcibly injected with an unknown
substance, which apparently caused her to lose consciousness;
it later left her feeling dazed and numb. This same witness
was also beaten so badly that her leg was broken, and she was
left permanently disabled.
 NGUYEN V. HOLDER 9

The Government presented one witness, a retired Harvard
Law School research fellow who testified about country
conditions in Vietnam. The research fellow concluded that
Nguyen was unlikely to be tortured because Vietnam does not
engage in torture: torture is against the law in Vietnam, and
the Vietnamese government would not risk harming its
domestic or international reputation by torturing prisoners.
Likewise, the research fellow opined that — though Nguyen
was sure to be taken into custody in Vietnam, and sure to be
interrogated — he was likely to cooperate with his
interrogators, and so the Vietnamese government would not
“need” to torture him.

The IJ also considered a wide range of documentary
evidence detailing Vietnam’s dismal human rights record.
For example, the IJ considered a 2008 Human Rights Watch
report, which confirmed that “there is compelling evidence of
torture and ill-treatment of political prisoners” in Vietnam,
“including beatings and electric shock.” The IJ also
considered the State Department’s 2008 Human Rights
Report on Vietnam, which agreed that — though “[t]he law
prohibits physical abuse” — “police commonly physically
mistreated suspects during arrest or detention.”

After the hearing, the IJ denied Nguyen’s application for
protection under CAT and ordered him removed to Vietnam.

Nguyen appealed to the BIA, which dismissed Nguyen’s
appeal in a reasoned, non-precedential decision. The BIA
concluded that Nguyen had been convicted of a crime
involving moral turpitude, reasoning (inter alia) that — given
Nguyen’s “intention to facilitate an act of international
terrorism” — his offense was “morally reprehensible.” With
respect to Nguyen’s CAT claim, the BIA concluded that
10 NGUYEN V. HOLDER

Nguyen “does not point to any substantial evidence
corroborating his fear that the Vietnamese authorities have
become aware of his conviction in the Philippines or his other
public activities in opposition to the Vietnamese regime”;
thus, the BIA reasoned, Nguyen could not show that the
Vietnamese government was likely to torture him in
connection with those activities. The BIA recognized that the
record “certainly demonstrates that torture sometimes occurs
in Vietnam, but it does not establish that such severe physical
mistreatment is a common occurrence, or that it would more
likely than not be inflicted on the respondent personally.”

We now consider Nguyen’s arguments that the BIA erred
in finding him inadmissible and ineligible for CAT relief.

DISCUSSION

I. Whether Nguyen Was Convicted of a Crime
Involving Moral Turpitude

“A crime involving moral turpitude is either one that
involves fraud or one that involves grave acts of baseness or
depravity, such that its commission ‘offend[s] the most
fundamental [moral] values of society.’” Robles-Urrea v.
Holder, 678 F.3d 702, 705 (9th Cir. 2012) (quoting Navarro-
Lopez v. Gonzales, 503 F.3d 1063, 1074–75 (9th Cir. 2007)
(en banc) (Reinhardt, J., concurring for the majority)).
Though we generally lack jurisdiction to review orders of
removal based on a conviction of a crime involving moral
turpitude, 8 U.S.C. § 1252(a)(2)(C), “we have jurisdiction to
review the [BIA’s] determination that [Petitioner’s]
convictions are, in fact, crimes involving moral turpitude” in
the first place, Marmolejo-Campos v. Holder, 558 F.3d 903,
 NGUYEN V. HOLDER 11

907 (9th Cir. 2009) (en banc) (internal quotation marks
omitted).

“The determination whether a conviction under a criminal
statute is categorically a crime of moral turpitude involves
two steps, to which different standards of review apply.”
Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.
2013) (alteration omitted). First, we identify the elements of
the statute of conviction, reviewing the BIA’s conclusions on
this point de novo. Id. Second, we “compare the elements of
the statute of conviction to the generic definition of a crime
of moral turpitude and decide whether the conviction meets
that definition.” Id. On this point, we give some degree of
deference to the BIA. See Marmolejo-Campos, 558 F.3d at
907–11. Here, in the absence of a precedential BIA decision
on point, we defer to the BIA “to the extent that [the BIA’s
decision] has the power to persuade.” Latter-Singh v. Holder,
668 F.3d 1156, 1160 (9th Cir. 2012); see also Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944).

Applying these principles to Nguyen’s case, we find no
error in the BIA’s determination that Nguyen is inadmissible
for having been convicted of a crime involving moral
turpitude. On the contrary, we agree with the BIA that
Nguyen’s conviction for misuse of a passport to facilitate an
act of international terrorism, under 18 U.S.C. § 1544, is a
conviction for a crime involving moral turpitude.3

3
Because Nguyen’s § 1544 conviction renders him inadmissible, we
need not decide whether the BIA alternatively found Nguyen inadmissible
due to his conviction for spousal abuse under California Penal Code
§ 273.5(a).
12 NGUYEN V. HOLDER

The BIA did not err in identifying the elements of
Nguyen’s § 1544 conviction. Though Nguyen argues
otherwise, the intent to facilitate an act of international
terrorism is an element of his offense. “Any fact that, by law,
increases the penalty for a crime is an ‘element’ . . . .”
Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013); see
also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Because Nguyen pled guilty “as charged in Count 1 of the
Single-Count Indictment,” he pled guilty to misuse of a
passport “to facilitate an act of international terrorism, as
defined in Title 18, United States Code, Section 2331(1).”
See United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir.
2007) (en banc). This intent to facilitate an act of
international terrorism, in turn, increased the maximum
criminal penalty to which Nguyen was exposed: § 1544
prescribes a maximum fifteen-year prison term in most cases,
but a maximum twenty-five year prison term “if the offense
was committed to facilitate an act of international terrorism
(as defined in section 2331 of this title).” Because the intent
to facilitate an act of international terrorism increased the
criminal penalty to which Nguyen was exposed, the BIA was
correct that the intent to facilitate an act of international
terrorism is an element of Nguyen’s conviction.

The next question is whether we are persuaded, see
Latter-Singh, 668 F.3d at 1160, that misuse of a passport with
the intent “to facilitate an act of international terrorism (as
defined in section 2331 of this title)” is categorically morally
turpitudinous. We are.

Misuse of a passport to facilitate an act of international
terrorism is categorically a crime involving moral turpitude.
“[N]on-fraudulent crimes of moral turpitude almost always
involve an intent to harm someone, the actual infliction of
 NGUYEN V. HOLDER 13

harm upon someone, or an action that affects a protected class
of victim.” Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir.
2010). Misuse of a passport “to facilitate an act of
international terrorism (as defined in section 2331 of this
title)” categorically involves at least the first and third of
these criteria. Section 2331 defines “international terrorism”
to require “violent acts or acts dangerous to human life,”
§ 2331(1)(A) — making it clear that anyone misusing a
passport with the intent to facilitate an act of international
terrorism necessarily holds “an intent to harm someone,”
Nunez, 594 F.3d at 1131. Likewise, § 2331 defines
international terrorism to require the intent “to intimidate or
coerce a civilian population,” “to influence the policy of a
government by intimidation or coercion,” or “to affect the
conduct of a government by mass destruction, assassination,
or kidnapping,” § 2331(1)(B)(i)–(iii). From this, it is clear
that anyone misusing a passport to facilitate an act of
international terrorism necessarily targets “a protected class
of victim,” Nunez, 594 F.3d at 1131 — either a vulnerable
civilian population, or that civilian population’s lawful
government. And, like other crimes involving moral
turpitude, misuse of a passport to facilitate an act of
international terrorism “shocks the conscience.” Id. at 1136.
Indeed, shocking the public conscience is the whole point of
using terrorism as a tool of political coercion.

In short, the BIA was correct that Nguyen is inadmissible
because he has been convicted of a crime involving moral
turpitude: Nguyen has been convicted of misuse of a passport
to facilitate an act of international terrorism, and misuse of a
14 NGUYEN V. HOLDER

passport to facilitate an act of international terrorism is
categorically a crime involving moral turpitude.4

II. Whether Nguyen Is Entitled to Protection Under
CAT

Though we generally lack jurisdiction to review orders of
removal based on a conviction of a crime involving moral
turpitude, 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to
review denials of deferral of removal under CAT, Lemus-
Galvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008). We
review the factual findings underlying the BIA’s denial of
CAT relief for substantial evidence. Zheng v. Ashcroft,
332 F.3d 1186, 1193 (9th Cir. 2003). “The ‘substantial
evidence’ standard of review means we must be deferential
to the BIA’s conclusions. But deference does not mean
blindness.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.
2004) (en banc). We will reverse, under the substantial
evidence standard, if “the evidence in the record compels a
reasonable factfinder to conclude that the BIA’s decision is
incorrect.” Tampubolon v. Holder, 610 F.3d 1056, 1059 (9th
Cir. 2010) (alteration and internal quotation marks omitted);
see also 8 U.S.C § 1252(b)(4)(B).

In denying Nguyen’s CAT claim, the BIA contended that
Nguyen “does not point to any substantial evidence
corroborating his fear that the Vietnamese authorities have
become aware of his conviction in the Philippines or his other
public activities in opposition to the Vietnamese regime;

4
We need not and do not decide whether a § 1544 conviction with
different elements — without the intent “to facilitate an act of
international terrorism” present here — would constitute a crime involving
moral turpitude.
 NGUYEN V. HOLDER 15

rather, [Nguyen] seems to assume such awareness.” Thus,
the BIA discounted “the fact that many political dissidents are
imprisoned under harsh conditions” in Vietnam: if the
Vietnamese government could not identify Nguyen as a
political dissident, it would not matter whether the
Vietnamese government tortured political dissidents. In this
light, the BIA concluded that — though country conditions
evidence “certainly demonstrates that torture sometimes
occurs in Vietnam” — the evidence “does not establish that
such severe physical mistreatment is a common occurrence,
or that it would more likely than not be inflicted on [Nguyen]
personally.”

These aspects of the BIA’s decision are not supported by
substantial evidence. On the contrary, the evidence in the
record compels any reasonable factfinder to conclude that the
Vietnamese government is aware of Nguyen’s activities on
behalf of the Government of Free Vietnam. Because the
Vietnamese government is aware of Nguyen’s activities on
behalf of the Government of Free Vietnam, the record
likewise compels any reasonable factfinder to conclude that,
if Nguyen is removed to Vietnam, he is more likely than not
to be tortured.

The BIA’s doubts “that the Vietnamese authorities have
become aware of [Nguyen’s] conviction in the Philippines or
his other public activities in opposition to the Vietnamese
regime” are not supported by substantial evidence. The
record leaves no room to doubt that the Vietnamese
government knows who Nguyen is, and what he has done in
the name of the Government of Free Vietnam. For example,
the record contains a report from the Vietnamese government
to Interpol describing the circumstances of Nguyen’s arrest in
the Philippines, and providing detailed information about
16 NGUYEN V. HOLDER

Nguyen’s personal history. Likewise, the record contains an
FBI agent’s sworn statement that the details of Nguyen’s
alleged bomb plot were “obtained from the Government of
Vietnam.” In fact, during Nguyen’s removal proceedings, the
U.S. Government’s own expert recognized that Nguyen’s
case “has been so widely known” that the Vietnamese
government would be able to recognize Nguyen as soon as he
arrived in Vietnam. In the face of this uncontroverted
evidence, no reasonable factfinder could doubt that the
Vietnamese government has actual knowledge of Nguyen’s
activities in opposition to the Vietnamese regime —
including, for example, Nguyen’s alleged plot to bomb the
Vietnamese embassy in the Philippines.5

Because the Vietnamese government is familiar with
Nguyen and his activities on behalf of the Government of
Free Vietnam, the record also compels the conclusion that, if
Nguyen is removed to Vietnam, he is more likely than not to
be tortured.

The record shows that the Vietnamese government
routinely arrests and imprisons members of the Government
of Free Vietnam. As a high-profile member of the

5
It would have been very surprising if the Vietnamese government were
not aware of the circumstances surrounding Nguyen’s arrest in the
Philippines. As one would expect, the Vietnamese government has shown
an intense interest in the Government of Free Vietnam’s attacks against
Vietnamese targets: the record shows that Hanoi has made such attacks
a prominent sticking point in Vietnam’s relations with the United States,
and has repeatedly asked foreign countries to extradite members of the
Government of Free Vietnam who were accused of involvement in those
attacks. The record also shows that Nguyen’s alleged bomb plot, in
particular, attracted widespread attention from the international news
media.
 NGUYEN V. HOLDER 17

Government of Free Vietnam — known, in particular, for
allegedly plotting to bomb a Vietnamese embassy — Nguyen
is thus likely to be imprisoned if he is removed to Vietnam.

Once Nguyen is imprisoned in Vietnam, the record
compels the conclusion that he is likely to be tortured.
Though the BIA was skeptical that “severe physical
mistreatment is a common occurrence” in Vietnam, the State
Department’s 2008 Human Rights Report on Vietnam makes
clear that severe physical mistreatment is not uncommon in
Vietnamese custody at all: “police commonly physically
mistreated suspects during arrest or detention.” Physical
mistreatment of the kind documented in Vietnamese custody
— for example, “beatings and electric shock” — constitutes
torture. See 8 C.F.R. § 208.18(a)(4)(i) (“The intentional
infliction . . . of severe pain or suffering” constitutes torture.).
The political nature of Nguyen’s offenses underscores the
likelihood that Nguyen will be tortured in custody: as the
2008 Human Rights Watch report in the record notes, “there
is compelling evidence of torture and ill-treatment of political
prisoners” in Vietnam, in particular.

Though “[t]orture does not include pain or suffering
arising only from, inherent in or incidental to lawful
sanctions,” 8 C.F.R. § 208.18(a)(3), the pain or suffering that
Vietnam is likely to inflict on Nguyen would not constitute a
lawful sanction. According to the State Department’s 2008
Human Rights Report, Vietnamese law “prohibits physical
abuse.”

Such documentary evidence of country conditions, alone,
is sufficient to show that Nguyen is likely to be tortured in
Vietnam. See Kamalthas v. INS, 251 F.3d 1279, 1280 (9th
Cir. 2001) (“[C]ountry conditions alone can play a decisive
18 NGUYEN V. HOLDER

role in granting [CAT] relief.”). But Nguyen does not rely on
documentary evidence alone.

In addition to Nguyen’s country conditions evidence, the
witness testimony that Nguyen presented during removal
proceedings underscores that he is likely to be tortured if he
is removed to Vietnam. Nguyen presented testimony from
two witnesses who knew political prisoners in Vietnam. Both
witnesses testified that these political prisoners were
deliberately subjected to physical harm. In at least two cases,
Vietnamese officials subjected these political prisoners to
physical harm in an effort to coerce them into offering false
confessions — a practice that certainly constitutes torture.
See 8 C.F.R. § 208.18(a)(1). Moreover, Nguyen presented
testimony from two witnesses who were actually former
political prisoners in Vietnam — and who, again, were
deliberately subjected to severe physical harm rising to the
level of torture. One of these witnesses was deprived of
adequate food and water, and watched a fellow prisoner
starve to death under similar conditions. The other witness
was beaten so badly that she was left permanently disabled.
Such severe pain and suffering constitutes torture. See id.

The Government presented no evidence that could, in the
mind of a reasonable factfinder, rebut Nguyen’s evidence that
he is likely to be tortured. The Government’s sole witness in
the removal proceedings, a retired Harvard Law School
research fellow, offered three reasons for his opinion that
Nguyen was unlikely to be tortured in Vietnam. None of
these reasons, however, is actually responsive to the other
record evidence showing that the Vietnamese government
tortures political opponents like Nguyen. At most, the
research fellow offered reasons that Vietnam should not
torture political opponents like Nguyen; he did not contradict
 NGUYEN V. HOLDER 19

the record evidence showing that Vietnam actually does
torture its political opponents.

First, the research fellow argued that the Vietnamese
government is unlikely to torture Nguyen because torture is
against the law in Vietnam. But the fact that a country’s laws
formally prohibit torture says nothing about whether that
country actually tortures people. See Hosseini v. Gonzales,
471 F.3d 953, 960 (9th Cir. 2006) (noting that the Iranian
constitution prohibits torture, and that the Iranian government
tortures people).

Second, the research fellow concluded that the
Vietnamese government would not “need” to torture Nguyen,
because Nguyen would not withhold information when
interrogated by the Vietnamese government. This conclusion
is striking, in the first place, for the implication that the
Vietnamese government would torture Nguyen if he did
withhold information — or if he were perceived to be
withholding information. But, more to the point, evidence in
the record shows that the Vietnamese government actually
does torture political prisoners — without regard for whether
the Vietnamese government “needs” to torture those political
prisoners. Indeed, the record shows that the Vietnamese
government tortures political prisoners for multiple reasons
— for example, to obtain false confessions and to punish its
political opponents — that have nothing to do with any
“need” to extract information about potential threats to
Vietnamese security.

Third, the research fellow noted that torture might sully
the Vietnamese government’s domestic and international
reputation. But here again, speculation that the Vietnamese
government has reasons not to engage in torture cannot
20 NGUYEN V. HOLDER

counter the Vietnamese government’s actual practice of
torturing people. The suggestion that torture is not in
Vietnam’s best interest does nothing to contradict evidence
showing that Vietnam actually does torture people, whether
that decision is in Vietnam’s best interest or not.

In short, there is no evidence that Vietnam will not torture
Nguyen upon his arrest there, which is virtually certain.
There is substantial documentary and testimonial evidence —
including, by negative implication, testimony from the
government’s own expert — that he most likely would be
tortured. (Notwithstanding the BIA’s contrary determination,
the record compels the conclusion that “severe physical
mistreatment” rising to the level of torture “is a common
occurrence” in Vietnamese custody, particularly where the
Vietnamese government’s political opponents are concerned.)
Therefore, the record compels the conclusion that, because
“the Vietnamese authorities have become aware of
[Nguyen’s] . . . public activities in opposition to the
Vietnamese regime,” Nguyen is likely to be arrested, detained
and tortured in Vietnam. Because the record compels the
conclusion that the Vietnamese government will recognize
Nguyen as one of its political opponents, and that it tortures
its political opponents, the record compels the conclusion that
Nguyen is more likely than not to be tortured if he is removed
to Vietnam.

Indeed, Nguyen’s case is very similar to a previous case
in which we ordered CAT relief. In Hosseini v. Gonzales, we
considered whether a member of the Mujahedin-e Khalq —
a terrorist group opposed to the Iranian government — could
be removed to Iran, or whether he was instead entitled to
deferral of removal under CAT. 471 F.3d at 959–61. In
Hosseini, there was no direct evidence that — to quote
 NGUYEN V. HOLDER 21

language from the BIA’s decision in Nguyen’s case — torture
“would more likely than not be inflicted on the respondent
personally.” Nevertheless, there was evidence that the
Iranian government was likely to identify Hosseini as a
member of the Mujahedin-e Khalq, and that the Iranian
government tortured its political opponents — including
members of the Mujahedin-e Khalq. Id. at 959–60. We thus
concluded that Hosseini was entitled to deferral of removal
under CAT. Id. at 960–61.

We see little to distinguish Nguyen’s case from Hosseini.
In Hosseini, it seemed likely that the Iranian government
would discover Hosseini’s activities on behalf of the
Mujahedin-e Khalq. Id. at 960. Here, there is no doubt that
the Vietnamese government is already aware of Nguyen’s
activities on behalf of the Government of Free Vietnam. In
Hosseini, there was evidence that Iran tortures its political
opponents — like members of the Mujahedin-e Khalq. Id.
Here, there is evidence that Vietnam tortures its political
opponents — like members of the Government of Free
Vietnam. (If anything, Nguyen offers more evidence than
was offered in Hosseini: Nguyen corroborates his
documentary evidence of Vietnam’s country conditions with
live witness testimony illustrating the plight of Vietnamese
political prisoners. Hosseini, by contrast, relied on
documentary evidence alone. See id. at 959–60.) Here, as in
Hosseini, the country of removal will recognize the Petitioner
as one of its political opponents. Here, as in Hosseini, the
country of removal tortures its political opponents. Thus,
here — as in Hosseini — we conclude that the Petitioner is
entitled to deferral of removal under CAT.

We respect the dissent’s concern for the proper
application of INS v. Ventura, 537 U.S. 12 (2002) (per
22 NGUYEN V. HOLDER

curiam), but we believe that concern is misplaced here. We
reach only questions that the BIA has already fully
considered in the first instance: we have “giv[en] the BIA the
opportunity to address the matter in the first instance in light
of its own expertise.” Ventura, 537 U.S. at 17. That the
BIA’s rejection of Nguyen’s CAT claim is unsupported by
substantial evidence does not change the fact that the BIA has
fully considered Nguyen’s CAT claim on the merits.

This is not a case where the BIA previously evaluated the
record evidence under the wrong legal standard, and must be
given an opportunity to evaluate that evidence under the
correct standard in the first instance. Cf. Lopez v. Ashcroft,
366 F.3d 799, 805–07 (9th Cir. 2004). The issue here is not
whether the BIA’s legal reasoning was erroneous, but
whether the factual findings underlying the BIA’s decision
are supported by substantial evidence. Where the BIA got the
law right, but failed to recognize that the record compels a
particular finding of fact, we need not remand for further fact-
finding. See, e.g., Hosseini, 471 F.3d at 961.

“Because the agency has already brought ‘its expertise to
bear upon the matter’ and ‘evaluate[d] the evidence,’ this case
requires no further remand for the application of agency
expertise or for agency evaluation.” Smolniakova v.
Gonzales, 422 F.3d 1037, 1052 (9th Cir. 2005) (internal
citation omitted) (quoting Ventura, 537 U.S. at 17).
Accordingly, we remand only so that Nguyen be granted
deferral of removal under CAT.

CONCLUSION

The BIA did not err in determining that Nguyen was
convicted of a crime involving moral turpitude: Nguyen was
 NGUYEN V. HOLDER 23

convicted of misuse of a passport to facilitate an act of
international terrorism, and misuse of a passport to facilitate
an act of international terrorism is categorically morally
turpitudinous. Thus, we DENY Nguyen’s petition for review
of the BIA’s decision in that respect.

Nevertheless, the record compels the conclusion that
Nguyen is more likely than not to be tortured if he is removed
to Vietnam. Thus, we GRANT the petition for review with
respect to Nguyen’s CAT claim, and REMAND with
instructions that Nguyen be granted deferral of removal under
CAT.

The parties shall bear their own costs.

Petition No. 10-71050 DENIED in part; GRANTED in
part; REMANDED with instructions.

TALLMAN, Circuit Judge, concurring in part and dissenting
in part:

I respectfully dissent from Part II of today’s opinion.

The Immigration Judge conducted a two-day evidentiary
hearing on the merits of Vinh Tan Nguyen’s CAT protection
claim. After considering the evidence, he issued a 35-page
decision denying relief. The Board of Immigration Appeals,
in its own lengthy order, also concluded that Nguyen failed
to prove that he would more likely than not be tortured if
returned to Vietnam. This is an unusually thorough and
carefully explicated agency decision.
24 NGUYEN V. HOLDER

My colleagues disagree with the IJ and BIA. I think it’s
close. But, under the substantial evidence standard of review,
close isn’t good enough. Rather, we may part ways with the
BIA only if the record evidence would compel a reasonable
adjudicator to do so. See Tampubolon v. Holder, 610 F.3d
1056, 1059 (9th Cir. 2010); 8 U.S.C. § 1252(b)(4)(B).

The majority believes that the Vietnamese government
knows about Nguyen’s activities with the Government of
Free Vietnam (GFVN). Even if Vietnam is aware of
Nguyen’s opposition activities, the BIA provided several
persuasive reasons why Nguyen failed to show that he would
more likely than not be tortured.

First, the BIA observed that the IJ found “little evidence
that Vietnam considers the GFVN to be a significant threat.”
Indeed, a Harvard-trained expert on Vietnam’s country
conditions and legal system testified that Vietnam viewed
Nguyen’s organization as “a joke” and would not torture
Nguyen. That is certainly substantial evidence.

Second, the BIA relied on the IJ’s finding that, although
some GFVN members have been arrested and subjected to
harsh prison conditions in Vietnam, those individuals were
detained for reasons other than their GFVN membership.
They were arrested, for example, for engaging in human
rights advocacy while in Vietnam on behalf of the United
States International Mission. The majority ignores the
reasons why these GFVN members were arrested. By doing
so, the majority makes it seem more likely that Nguyen will
be detained because of his involvement with the GFVN. Maj.
Op. at 16–17 (concluding that because “the Vietnamese
government routinely arrests and imprisons members of the
[GFVN],” and Nguyen is a known member of the GFVN,
 NGUYEN V. HOLDER 25

“Nguyen is [] likely to be imprisoned if he is removed to
Vietnam.”). As the BIA and IJ explain, that causal link is
simply not supported by the record.

Finally, the BIA agreed with the IJ’s conclusion that the
harsh treatment experienced by some political prisoners in
Vietnam “did not so frequently rise to the level of ‘torture’
that [Nguyen] could be presumed to face such extreme
treatment” in Vietnam. The majority disagrees. It cites
evidence that certainly indicates that torture sometimes
occurs in Vietnam. But the BIA recognized as much. The
BIA concluded, however, that the record evidence “does not
establish that such severe physical mistreatment is a common
occurrence, or that it would more likely than not be inflicted
on [Nguyen] personally.” The existence of occasional acts of
torture does not compel the conclusion that Nguyen would
more likely than not be tortured.1

In post-REAL ID Act cases like this one, we must be
particularly diligent in according appropriate deference to the
BIA by limiting our review to substantial evidence. The
immigration courts of the Executive Branch earn that

1
Even if I agreed with my colleagues on the merits, I disagree with their
decision to remand with instructions to grant Nguyen CAT relief. Rather,
“the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.” INS v. Ventura,
537 U.S. 12, 16 (2002) (quotations and citations omitted). This is
particularly appropriate here where the majority supports its conclusion
with country report data that is nearly six years old. See Lopez v. Ashcroft,
366 F.3d 799, 806 (9th Cir. 2004) (“[R]emand could lead to the
presentation of further evidence of current circumstances in [the country
of removal] – evidence that may well prove enlightening . . . in light of the
more than five years that have passed since the 1998 State Department
Country Report, relied on by the BIA, was written.”).
26 NGUYEN V. HOLDER

deference with their unique expertise “in evaluating torture
claims, particularly those arising under CAT.” Huang v.
Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004). They also
bear responsibility “for ensuring that decisions about [CAT
relief] are uniform and consistent.” Id. For this reason, we
have been cautioned not to “intrude upon the domain which
Congress has exclusively entrusted to an administrative
agency.” Ventura, 537 U.S. at 16 (internal quotations
omitted). Here, the lengthy decisions on review demonstrate
that the agency carefully considered the relief sought under
the Treaty. I am unwilling to assume the Executive Branch
is derelict in its duties when such a full and complete
explanation evaluating all of the evidence accompanies the
decision to deny relief.

The petition as to CAT relief should be denied.