United States Court of Appeals
For the First Circuit
No. 99-1656
PHUC MINH NGUYEN,
Petitioner, Appellant,
v.
JANET RENO, ATTORNEY GENERAL
OF THE UNITED STATES, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Chief Judge,
Lynch and Lipez, Circuit Judges.
Randy Olen for appellant.
Lyle D. Jentzer, Attorney, Office of Immigration Litigation, David
W. Ogden, Acting Assistant Attorney General, Civil Division, and Terri
J. Scadron, Senior Litigation Counsel, Office of Immigration
Litigation, for appellees.
May 16, 2000
LYNCH, Circuit Judge. Phuc Minh Nguyen appeals from the
dismissal of his habeas corpus petition, a petition that
challenges an August 14, 1997, Board of Immigration Appeals
(BIA) final order of deportation. The BIA found that Nguyen had
been convicted in state court for a crime of moral turpitude
within five years of his entry to this country and thus was
deportable under former Immigration and Naturalization Act (INA)
§ 241(a)(2)(A)(i), 8 U.S.C. § 1251(a)(2)(A)(i) (1994).1 The
order also denied Nguyen withholding of deportation. Nguyen was
ordered deported to Australia, where he has two sisters, and if
Australia does not accept him, to his native land of Vietnam.
We affirm and lift the stay of deportation.
The first question presented is whether assault in the
second degree under Connecticut General Statutes § 53a-60, the
state crime involved, is a crime of moral turpitude. That is a
question we review de novo, with consideration given to the
agency’s view. See Herrera-Inirio v. INS, No. 99-1852, 2000 WL
340543, at *2 (1st Cir. April 5, 2000); Cabral v. INS, 15 F.3d
1 INA § 241(a)(2)(A)(i), 8 U.S.C. § 1251(a)(2)(A)(i) (1994)
has been renumbered as INA § 237(a)(2)(A)(i), 8 U.S.C.
§ 1227(a)(2)(A)(i). See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, § 305(a)(2), 110 Stat.
3009-546.
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193, 194 (1st Cir. 1994). Nguyen was convicted in 1993 for an
assault on his wife that left her bloodied and sent her to the
hospital. He was sentenced to three years of imprisonment,
suspended after one year, and two years of probation. His
conviction was under subsection (a) of § 53a-60, which
provides:
A person is guilty of assault in the second degree
when: (1) With intent to cause serious physical
injury to another person, he causes such injury to
such person or to a third person.
Conn. Gen. Stat. § 53a-60(a).
The focus of the moral turpitude analysis is on the
inherent nature of the crime of conviction, as opposed to the
particular circumstances of the actual crime committed (subject
to some wrinkles as to the types of documentation that may be
consulted). See Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir.
1999). The definition of "moral turpitude" is established and
accepted by both parties, and we quote only a portion:
Moral turpitude refers generally to conduct . . .
contrary to the accepted rules of morality and the
duties owed between persons or to society in general
. . . . an act which is per se morally reprehensible
and intrinsically wrong.
Id. (citations omitted).
Nguyen’s argument is that BIA precedent requires that
the assault have some aggravating dimension, and he correctly
relies for this proposition on In re Fualaau, Int. Dec. 3285,
1996 WL 413576 (BIA 1996). He also correctly says that an
assault may or may not be a crime of moral turpitude and that
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the dividing line is the aggravating element. See id.; Matter
of Danesh, 19 I. & N. Dec. 669, 670-73 (BIA 1988). His core
argument is that there was no aggravating dimension to the
assault he committed because there was no weapon involved, the
assault did not result in death, and the victim did not belong
to any specially protected category (such as a prison guard).
There was, however, an aggravating dimension to the
assault, one that is explicit in the statute of conviction.
Assault in the second degree requires that the defendant
intended to cause and did in fact cause "serious physical
injury" to the victim. Conn. Gen. Stat. § 53a-60(a)(1).
"Serious physical injury," in turn, is defined as "physical
injury which creates a substantial risk of death, or which
causes serious disfigurement, serious impairment of health or
serious loss or impairment of the function of any bodily organ."
Id. § 53a-3(4). That is sufficient for the statutory crime to
meet the definition of a crime of moral turpitude. It is
intrinsically wrong to cause serious injury intentionally to
another person. We know of no civilian moral code, secular or
religious, that permits one to seriously injure another person
by assault while intending to do so.
Even if he was properly deportable, Nguyen argues that
he should not be deported because he met the criteria for
withholding of deportation under former INA § 243(h), 8 U.S.C.
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§ 1253(h) (1994),2 and that the IJ and BIA erred in finding that
he had not established eligibility for this relief. Withholding
of deportation is available where the Attorney General finds
that the "alien’s life or freedom" would be threatened upon
return to his home country "on account of race, religion,
nationality, membership in a particular social group, or
political opinion." INA § 243(h)(1), 8 U.S.C. § 1253(h) (1994);
Meguenine v. INS, 139 F.3d 25, 26 (1st Cir. 1998). The burden
is on the alien seeking withholding of deportation to show a
clear probability of persecution upon deportation.3 See INS v.
Stevic, 467 U.S. 407, 413 (1984). We review the BIA's decision
that Nguyen is not eligible for withholding of deportation to
determine if it is supported by substantial evidence.4
Meguenine, 139 F.3d at 27. Under former INA § 243(h)(2), an
alien convicted of an aggravated felony is not eligible for
withholding of deportation. Congress expanded the definition of
aggravated felony in the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, § 321(a)(3),
110 Stat. 3009-546, to include a crime of violence for which the
2 A similar form of relief is now available under INA
§ 241(b)(3), 8 U.S.C. § 1231(b)(3).
3 A different standard applies to refugees seeking asylum. See
INS v Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987).
4 The BIA did not rest on the IJ's alternative ground that,
even if Nguyen were eligible for withholding, he would exercise his
discretion against Nguyen. If that had been the basis for the BIA's
decision, review would have been for abuse of discretion. See
Meguenine, 139 F.3d at 27 n.1.
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term of imprisonment is at least one year. See INA
§ 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Arguably, Nguyen is
not eligible for withholding of deportation as a result. Like
the BIA, however, we will assume, arguendo, that Nguyen
nonetheless remained eligible for this relief, and we evaluate
his case under the pre-IIRIRA, more lenient standards.
Nguyen’s argument, which the BIA rejected on a variety
of grounds,5 was that he fled his home rather than report for
induction into the Vietnamese military when he was seventeen
years old and that he did so because of his opposition to the
communist regime. He testified that he engaged in no overt
political activities to express his views because he feared to
do so and that the Vietnamese police continue to search for him
and to create problems for his parents. He emigrated to the
United States in 1991. If he returns to Vietnam, he fears he
would be jailed. Three of his brothers failed to appear for
military duty after they received induction notices and were
sent to labor camps.
5 The BIA did not rely on the IJ's determination that Nguyen
was not particularly credible and that he may never have received an
induction notice. To the extent that the IJ's credibility
determinations turned on Nguyen’s failure (a decade later and after
having emigrated to the United States) to produce the induction notice
or other draft papers, we think the BIA was wise to rely on other
grounds. That is an unrealistic burden to place on an alien. Cf.
Gailius v. INS, 147 F.3d 34, 45 (1st Cir. 1998) (rejecting requirement
that asylum applicants identify their persecutors where their fear is
of clandestine groups). In any event, the IJ also found that even if
Nguyen's claims were true, he still had not made out a case of
eligibility.
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Under the precedent, it is difficult, but not
impossible, for a claimant to make a case for withholding of
deportation based on a history of draft evasion in his native
country. "[A] person may qualify as a refugee if he is singled
out for [military] service because he is a member of an
enumerated group or if -- where he refuses service -- he is
subject to disproportional punishment on account of his group
membership." Foroglou v. INS, 170 F.3d 68, 71 (1st Cir.), cert.
denied, 120 S. Ct. 60 (1999). However, "[i]t is not persecution
for a government to require military service of its citizens."
Id. That is because "punishment for refusing to serve would not
be persecution . . . on account of the objector's religious or
political opinion, but instead would be because of his refusal
to fight for the government." Foroglou, 170 F.3d at 71
(internal quotation marks and citations omitted). There is no
claim that Nguyen was subjected to Vietnam's universal
conscription on account of his beliefs or affiliations.
Viewing the entire record, there is substantial
evidence to support the BIA’s determination that Nguyen failed
to make his case and so the order must be affirmed. The BIA did
not ignore Nguyen’s evidence of the repressiveness of the
Vietnamese regime or of the harsh punishment imposed there on
draft evaders. Even accepting that evidence, the BIA could
reasonably conclude that Nguyen had nothing more to fear than
prosecution for violating the country’s draft laws, and this
prosecution would not be "on account of" one of the five
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categories Congress has chosen to protect. Nor would it be
"persecution." See id. at 71.
We affirm the dismissal of the petition for habeas
corpus and vacate the stay of deportation.6
6 Nguyen has filed a motion to reopen with the BIA. The BIA,
apparently, has not yet acted on that motion.
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