Vong Xiong v. Alberto Gonzales ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2007
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Vong Xiong, *
*
Petitioner, *
* Petition for Review of a
v. * Final Decision of the Board
* of Immigration Appeals.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: February 14, 2007
Filed: April 12, 2007
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Before WOLLMAN, BYE, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Vong Xiong, a citizen of Laos, petitions for review of a final order of removal
by the Board of Immigration Appeals (BIA). The BIA affirmed the decision of the
immigration judge (IJ) denying Xiong's applications for withholding of removal and
relief under the Convention Against Torture (CAT). For the reasons discussed below,
we deny Xiong's petition.
I. Background
Xiong, a 29-year-old male native and citizen of Laos, entered the United States
on June 18, 1993, as a refugee. He subsequently adjusted his status to that of a lawful
permanent resident pursuant to 8 U.S.C. § 1159(a).
On October 22, 1997, Xiong was convicted in state court of third-degree
criminal sexual conduct in violation of Minnesota law. At the time of the sexual
assault, the victim was 14 years old. The state court sentenced Xiong to 60 days in a
workhouse and 5 years probation.
As a result of his conviction, the Immigration and Naturalization Service (INS)
commenced removal proceedings against Xiong, charging him with being removable
for having been convicted of a crime involving moral turpitude and an aggravated
felony.1 In response to the charges, Xiong filed a motion to terminate the removal
proceedings, arguing that he was not removable from the United States because he
continued to hold the refugee status granted to him in June 1993 and did not meet the
requirements for termination of refugee status as outlined in the United Nations
Convention Relating to the Status of Refugees. The IJ, however, denied Xiong's
motion.
The IJ found Xiong removable as both an aggravated felon and an alien
convicted of a crime involving moral turpitude. Because the IJ found that Xiong
committed an aggravated felony, he was ineligible for asylum. Therefore, Xiong
applied only for withholding of removal and protection under CAT. The INS asserted
that Xiong was ineligible for these forms of relief because he had been convicted of
a "particularly serious crime" under 8 U.S.C. § 1231(b)(3)(B)(ii).
1
The INS additionally charged Xiong with being removable for having been
convicted of a crime of child abuse; however, INS subsequently withdrew that charge.
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At the removal hearing, Xiong testified that his family left Laos and came to the
United States when he was approximately 16 years old because of poverty and
because his elders aided America in the Vietnam War. According to Xiong, his father,
his father's brothers, his grandfather, and his brother were involved in the war. Xiong
claimed a fear, in part, because of the closeness of his "uncle" Vang Xiong to General
Vang Pao. According to Xiong, he feared returning to Laos because his family's
involvement in the war might lead to his being killed, even though he was not
personally involved in the war.
The IJ found Xiong's testimony concerning his father's involvement in the war
to be "generally credible, but meager." Additionally, the IJ determined that Xiong's
claim that he would be targeted because of his relation to Vang Xiong was undercut
by Vang Xiong's admission that he was only a distant relative to Xiong, not the
brother of Xiong's father. Therefore, the IJ concluded that the testimony of Xiong and
his witnesses was insufficient to meet the burden of proof on his claims for relief.
The IJ also determined that Xiong's state conviction constituted a "particularly
serious crime," disqualifying him for withholding of removal. While acknowledging
that Xiong was not convicted under a statute section involving force or coercion, the
IJ relied on the facts and circumstances of the offense as set forth in the criminal
complaint.2 In addition, the IJ had previously admitted, over Xiong's objection, the
presentence report (PSR) from the state conviction, which set forth both Xiong and
the victim's version of the circumstances underlying Xiong's conviction.
2
Initially, when the IJ asked Xiong whether there was an objection to "Exhibit
No. 2," which contained the criminal complaint, Xiong's counsel responded, "Just a
minute, Your Honor. No, no objection." Thereafter, at the merits hearing on Xiong's
application for withholding and protection under CAT, Xiong's counsel objected to
the admission of the criminal complaint. In response, the IJ stated that it had already
been received into the record and that it would remain in the record because it formed
the basis for Xiong's state conviction.
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After determining that Xiong was ineligible for withholding of removal based
on his commission of a "particularly serious crime," the IJ made an alternative ruling.
The IJ found that even if Xiong was eligible for such relief, he failed to show that he
had been persecuted in the past and that it was more likely than not that he would be
persecuted in the future. The IJ recounted the country information contained in the
Department of State's September 1998 report "Laos—Profile of Asylum Claims and
Country Conditions." This report noted that the government of Laos had formally
stated that it would accept all overseas Laotians except for a "small number of high
officials of the former Royal Lao government and those active in insurgency after
1975." In addition, the report stated that "[o]ver 27,000 [Laotians] had been
repatriated since 1988" under the United Nations High Commissioner for Refugees
and that "[a]s many as 30,000 others are estimated to have returned without official
involvement." Finally, the report noted that "a Laos citizen generally can return to
Laos without fear of retribution" unless the citizen held high status in the former
government or was closely associated with General Pao. The IJ reiterated its finding
that Xiong's testimony was "general and meager" regarding his family's involvement
in the war and that Vang Xiong, who was allegedly "close" to General Pao, was a
distant blood relative to Xiong, not his uncle. Because Xiong failed to satisfy his
burden of proof as to withholding of removal, the IJ also denied his application for
relief under CAT.
The BIA adopted and affirmed the IJ's decision and supplemented the opinion.
As to Xiong's argument that the IJ should have terminated the removal proceedings
because his refugee status was never revoked, the BIA relied on In re Smriko, 23 I&N
Dec. 836 (BIA 2005), in which the BIA determined that refugees who entered the
United States and subsequently adjusted their status to permanent lawful residents
were subject to removal on the basis of their subsequent criminal convictions without
first terminating their refugee status.
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The BIA then addressed the IJ's admission of the criminal complaint and the
PSR into evidence. The BIA noted Xiong's failure to initially object to the admission
of the criminal complaint. Additionally, the BIA found that Xiong failed to establish
that consideration of the PSR was "fundamentally unfair." Thus, the BIA concurred
with the IJ's determination that Xiong was not eligible for withholding of removal and
protection under CAT because he committed a "particularly serious crime."
Finally, the BIA agreed with the IJ's conclusion that Xiong failed to establish
that it is more likely than not that he would either be persecuted or tortured upon his
return to Laos.
II. Discussion
Xiong petitions for review, arguing that (1) this court must dismiss the removal
proceeding against him because, as a refugee, he cannot be placed in removal
proceedings unless his refugee status is terminated or until an immigration official has
inspected him and deemed him inadmissible; (2) both the BIA and the IJ violated his
due process rights in deciding that his conviction for third-degree criminal sexual
conduct constituted a "particularly serious crime" because they relied upon the
criminal complaint and the PSR; and (3) because the IJ and the BIA concluded that
he committed a "particularly serious crime," they gave "short shrift" to his claims for
withholding of removal.
A. Termination of Removal Proceedings
Xiong's first argument—that we must dismiss removal proceedings against him
because his refugee status was never terminated—is without merit.3
3
"Whether an alien who entered the country as a refugee and subsequently
acquired LPR status may be placed in removal proceedings even though his refugee
status was never terminated under 8 U.S.C. § 1157(c)(4), is a question of law" within
the jurisdiction of this court on petition for review. Romanishyn v. Atty. Gen. of the
United States, 455 F.3d 175, 180 (3d Cir. 2006).
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The BIA, the Third Circuit, and the Ninth Circuit have all held that an alien who
enters the United States as a refugee, subsequently adjusts his status to a permanent
lawful resident, and is thereafter convicted of an aggravated felony or a crime of moral
turpitude may be placed in removal proceedings, even though his refugee status was
never terminated. Smriko, 23 I&N Dec. at 837 ("[A]n alien who has been admitted as
a refugee and has adjusted his or her status to that of a lawful permanent resident may
be placed in removal proceedings for acts or conduct amounting to grounds for
removal under section 237(a) of the Act."); Romanishyn, 455 F.3d at 185 ("We thus
hold that an alien who . . . entered the United States as a refugee pursuant to 8 U.S.C.
§ 1157, subsequently adjusted his status to become an LPR pursuant to 8 U.S.C. §
1159(a), and then was convicted of an aggravated felony and/or two or more crimes
of moral turpitude, not arising out of a single scheme of criminal conduct, may be
placed into removal proceedings pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) and
1227(a)(2)(A)(ii), though his refugee status was never terminated pursuant to 8 U.S.C.
§ 1157(c)(4)"); Kaganovich v. Gonzales, 470 F.3d 894 (9th Cir. 2006) ("We join the
Third Circuit in concluding that an alien who arrives in the United States as a refugee
may be removed even if refugee status has never been terminated pursuant to 8 U.S.C.
§ 1157(c)(4).").
Therefore, given the thorough opinions authored by the BIA and our sister
circuits, and seeing no reason to deviate from such opinions, we reject Xiong's
argument.
B. Jurisdiction To Review Finding of Ineligibility
for Withholding of Removal
As to Xiong's argument that the IJ and BIA violated his constitutional right to
due process by admitting and considering the criminal complaint and the PSR in
determining that Xiong committed a "particularly serious crime," the government
asserts that this court need not reach this legal claim because the IJ and the BIA made
an alterative dispositive finding that this court lacks jurisdiction to review. We agree.
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This court lacks jurisdiction to review "any final order of removal against an
alien who is removable by reason of having committed a criminal offense covered in
section . . . 1227(a)(2)(A)(iii) [of 8 U.S.C.]. . . ." 8 U.S.C. § 1252(a)(2)(C). Therefore,
we do not have jurisdiction to review a final order against an alien who was found
removable for having committed an "aggravated felony." See id. However, this court
retains jurisdiction to review "constitutional claims or questions of law." 8 U.S.C. §
1252(a)(2)(D).
Xiong raises a constitutional claim that the IJ and the BIA violated his due
process rights in concluding that he was ineligible for withholding of removal because
he committed a "particularly serious crime." However, the IJ and BIA decision rested
on alternative grounds. Xiong fails to raise a colorable constitutional or legal
challenge to the IJ and BIA's alternative finding that, even if he were eligible for
withholding of removal, he failed to meet his burden of proof for withholding of
removal.
Therefore, even if we considered and ruled on Xiong's constitutional claim,
such a ruling would be merely advisory, as we lack jurisdiction to review the IJ and
the BIA's alternative finding. Xiong failed to show that he had been persecuted in the
past or that it was more likely than not that he would be persecuted in the future based
on a protected ground. See Hanan v. Gonzales, 449 F.3d 834, 836–37 (8th Cir. 2006)
(holding that, under REAL ID Act, court lacked jurisdiction over habeas claim
brought by alien, who was member of Pashtun ethnic group and citizen of
Afghanistan, alleging that the BIA wrongly denied him relief under CAT, inasmuch
as claim came down to challenges to IJ's factual determination that it was not likely
that current government in Afghanistan would seek to torture alien if he was returned,
and thus did not depend upon any constitutional issue or question of law).
III. Conclusion
Accordingly, we deny Xiong's petition for review.
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