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Quang Ly Tran v. Gonzales

United States Court of Appeals for the Sixth Circuit

April 25, 2006, Argued ; May 17, 2006, Decided ; May 17, 2006, Filed

File Name: 06a0165p.06

Nos. 04-3800; 05-3734

Opinion

 [*938]  RALPH B. GUY, JR., Circuit Judge. Petitioner seeks review of a decision from the Board of Immigration Appeals (BIA) ordering that petitioner, Quang Ly Tran, an ethnic Chinese from Vietnam, be removed to Vietnam. The BIA reversed the decision of the immigration judge (IJ), who had found Tran removable because he had been convicted of an aggravated felony, but deferred his deportation because Tran qualified for protection [**2]  under the Convention Against Torture (CAT). In two appeals consolidated for our review, Tran argues that the BIA erred by retroactively applying the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) to Tran's pre-IIRIRA felony convictions and by concluding that Tran is not eligible for protection under the CAT. We conclude that the IIRIRA's provision allowing for the deportation of aliens convicted of an aggravated felony was properly applied to Tran's pre-IIRIRA conviction, but we remand Tran's

CAT claim to the BIA for clarification of the standards and burdens of proof it employed in reviewing Tran's appeal.

Tran was born in South Vietnam to Chinese parents who had immigrated to Vietnam [*939]  during French colonization. The family never assimilated into Vietnamese culture, and Tran does not speak Vietnamese. In 1978, Tran's family fled Vietnam to Hong Kong. Tran and his family entered the United States in 1980 as refugees and later adjusted their status to lawful permanent residents. Several of his immediate family members became United States citizens.

Tran was charged in Ohio state court in 1987 of aggravated murder and robbery. A jury found Tran guilty [**3]  and, in May 1988, during the appeals process, he entered into a plea agreement in which he agreed to plead guilty to the charged crimes and serve a term of 20 years in exchange for the prosecution dropping its request for the death penalty. At the hearing on the plea agreement, the trial court asked the defense counsel if Tran had been advised of the immigration consequences of his plea. Tran's counsel responded that Tran had been advised that the INS's practice was not to deport people to Vietnam because there were no diplomatic relations between the two countries. The trial court approved the plea agreement in May 1988. INS officials visited Tran in prison shortly after he began serving his sentence and asked him to sign a paper agreeing to his deportation. Tran refused.

The INS filed an Order to Show Cause charging Tran with being deportable as an alien convicted of two crimes involving moral turpitude not arising out of the same criminal scheme. 8 U.S.C. § 1251(a)(4) (1988) (repealed). Tran appealed the removal order to the BIA, arguing that the INS had failed to meet its burden to show that the two crimes did not arise out of the same criminal scheme. The [**4]  Board sustained Tran's appeal and terminated the deportation proceedings because the evidence suggested that Tran's two crimes occurred in the course of a single criminal episode. The Board did not terminate the removal proceedings "without prejudice," and the INS has never sought reconsideration or reopening of that case.

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447 F.3d 937 *; 2006 U.S. App. LEXIS 12078 **; 2006 FED App. 0165P (6th Cir.)

QUANG LY TRAN, Petitioner, v. ALBERTO R. GONZALES, Attorney General, Respondent.

Prior History:  [**1]  On Petition for Review of a Decision of the Board of Immigration Appeals. No. A25 153 243.

Disposition: Petition for review DENIED in part, GRANTED in part, and REMANDED.

CORE TERMS

torture, communists, convicted, aggravated felony, deportation, aliens, returnees, burden of proof, Immigration, removal, ethnic, deportation proceedings, standard of review, immigration judge, proceedings

Immigration Law, Grounds for Deportation & Removal, Criminal Activity, General Overview, Aggravated Felonies, Judicial Proceedings, Jurisdiction, Governments, Legislation, Interpretation, Asylum, Refugees & Related Relief, Convention Against Torture, Judicial Review, Scope of Review, Deportation & Removal, Administrative Appeals, US Board of Immigration Appeals