F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

V I N H T A N N G U Y E N , AKA Armando Gile Lu at, AKA Van Duc Vo, P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 10-71050

Ag ency No. A027-359-701

V I N H T A N N G U Y E N , P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 10-72974

Ag ency No. A027-359-701

V I N H T A N N G U Y E N , AKA Van Duc B o, AKA Armando Gile L u at, P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 10-73904

Ag ency No. A027-359-701

OPI NI ONN G U Y E N V

. H O L D E R 2

O n Petition for Review of an Order of the

B oard of I

mmig ration Appeals

Arg ued and Submitted O ctober 8, 2013—Pasadena, California

F iled Aug ust 14, 2014

B efore: Harry

Preg erson, Kim McL ane W a rdlaw,

a nd Richard C. Tallman, Circuit J udg es.

Opinion by

J udg e Preg erson; Partial Concurrence and Partial Dissent by J udg e Tallman

SUMMARY *

Im m igration

The panel denied in part and g ranted in part Vinh Tan Ng uy en’s petition for review o f a B oard of I mmig r ation Appeals’ decision, which held that his conviction for misuse of a passport to facilitate an act o f international terrorism, in violation of 18 U.S.C. §§ 1 544, 2 3 3 1
, is a categ orical crime inv o l ving moral turpitude, and denied his application for deferral of removal under the Convention Ag ainst Torture.

The panel held that the “intent to facilitate an act o f international terrorism” is an element o f Ng uy en’s conviction because it increased the max imum criminal p enalty to which

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.N G U Y E N V

. H O L D E R 3

he was ex posed. The panel also h eld t h at the conviction is categ orically morally turpitudinou s, because it necessarily involves an intent to harm someone or necessarily targ ets “a protected class of victim.” The panel held that the B oard thus did not err in determining that N g uy e n’s conviction i s a categ orical crime involving moral turpitude.

Turning to the B oard’s denial of deferral of removal under the Convention Ag ainst T orture, the panel h eld that the evidence i n the record compels any reasonable factfinder to conclude that the Vietnamese g overnment is aware o f Ng uy en’ s a c t i vities on b ehalf o f the Government of F r ee Vietnam, and that the record likewise compels a ny reasonable factfinder to conclude that, if Ng uy en is removed to V ietnam, he is more likely than not to be tortured. The panel remanded with instructions that the a g ency g rant Nguy en deferral o f removal.

Concurring in part and dissenting in part, J udg e Tallman
wrote that, althoug h the case is close, the evi d ence does not compel the conclusion that N g uy en will more likely than not be tortured. J udg e T a llman w rote further t h a t e ven if he
ag reed with the majority as to the merits of the CAT claim, he would remand to the B o ard for additional in v e s t ig ation o r

e x planation, rather than ordering the g ranting of relief outrig ht.N G U Y E N V

. H O L D E R 4

COUNSEL

Gary Silbig er (arg

ued), Silbig er & Honig

, C ulver City

, California, for Petitioner.

L y le D. J entz er (arg

u ed), Senior Counsel fo r National Security a nd Christopher C. F uller, Senior L iti g a t i o n C o u n s e l, Office of I mmig ration L i t i gation; T ony W est, Assistant Attorney General, Civil D ivision, United States Department of J ustice, W ashing ton, D.C., for Respondent.

OP INION

PREGERSON, Circuit J udg e :

Vinh T a n Ng uy en (“Ng

uy en”), a native and citiz en o f Vietnam, petitions for r eview of a B o ard of I m m i g r ation A ppeals (“B I A”) decision dismissing his appeal from an order of removal entered by an I mmig ration J udg e ( “I J ”). Ng uy en arg ues, inter alia

, that the B I A err e d i n 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 Ag ainst Torture ( “CAT”). 1 W e conclude that the B I A did not e rr in d etermining that N g uy en

was convicted of a crime involving moral turpitude, because the crime of which Ng uy en w a s convicted — misuse of a passport to facilitate a

n act o f international terrori s m , 1 8 U.S.C. §§ 1544, 2 331 — is categ orically m o r a l l y turpitudinous. W e also conclude, h o w e v e r, that the record compels the conclusion that Ng u y en is more likely than not

1 W e ad d ress Ng u y en ’ s o th er claim s in a Mem o ran d u m d isp o sitio n f iled

co n cu rren t ly

w ith th is Op in io n

.N G U Y E N V

. H O L D E R 5

to be tortured if he is r emoved to Vi etnam. Thus, we g rant the p e tition with r espect to Ng uy en’s CAT claim, and remand with instructions to g rant him deferral of removal under CAT.

F ACTUAL BACK G ROUND

W h ateve r e l s e one can say about Ng uy en, one cannot doubt his enduring opposition to Vietnamese communism. I n 1983, eig ht y ears after his native So u t h Vietnam fell to the communists, Ng uy en fled V ietnam as a refug ee. He arrived in the United States in 1 984, and s o on became a leg al permanent resident. A decade later, in 1 995, Ng uy e n joined

a g roup of V ietnamese e x iles seeking to overthrow Vietnam’s

c o m m u n i s t go v e r n m e n t , w h o s t y le themselves t h e “Government of F ree Vietnam.”

Ng uy en became a prominent member of the Government of F ree Vietnam. B etween 1995 and 1 99 7
, N guy en traveled throug hout t h e United States to prosthely tiz e o n the
org aniz ation’s behalf. B etween 1998 and 2001, N g u y en also spread the g roup’s messag e to Vietnamese communities in Australia and Canada. Not all of N g uy en’s trave l w a s s o mundane

, h o w ever. I n 1997, Ng uy en traveled to Thailand and Cambodia; from Cambodia, h e infiltrated V ietnam, sneaking across the border throug h t h e jung le. T h ere, Ng uy en served as “vice commander” of a jung le camp run b y t h e G o v er n m e n t o f Free V i e t n a m , s p r ea d i n g t h e org aniz ation’s political messag e and training sy mpathetic Vietnamese in “self-defense.”

Ng uy en’s nex t tri p t o Southeast Asia was even more dramatic. I

n April 2001, Ng uy en traveled to the Philippines

on a U .S. passport belong ing to his brother, Van Duc Vo. Two mon t h s l a t e r, on J u ne 1 9, 2 001, the real Van Duc VoN G U Y E N V

. H O L D E R 6

t ried to bomb the Vietnamese Embassy in B ang k ok, Thailand

. Two months a fter that, on Aug u st 30, 2001, Philippine police
caug ht Ng uy en himself “ i n t h e a ct of assembling ex plosive devices” u sing ammonium nitrate. I t was widely re p orted that Ng uy en, following in his b rother’s footsteps, planned to bomb the Vietnamese Embassy in Manila.

P h i l i p p i n e a u t h o r i t i e s c h a r g e d N g u ye n w i t h

“ m a n u f a c t u r [ i n g ]
, a s s e m b l [ i n g ]
, a n d p o s s e s s [ i n g ]

ex p losives.” Ng uy en u ltimately pled g uilty to a les s er

ex p losives-related o ffense. I n November 2004, a Philippine
court s e ntenced Ng uy en to between fifty and seventy -two months in prison.

B u t Ng uy en soon escaped from p rison and fle d the Philippines. Using y e t another false passport, Ng uy en made his way to Ghana. After spending several months in Ghana, Ng uy en left for Saipan

, in the Commonwealth of the Northern Mariana I slands.

T he F ederal B ureau of I nvestig ation was on Ng uy en ’s trail. A federal judg e had issued a warr a n t for Ng uy en’s arrest: Ng

u y e n was wanted by

U.S. authorities for using his brother’s U.S. passport to travel to the Philippines. The F B I found Ng uy en in Saipan, and arrested h im there on December 12, 2006. Accompanied by law e nforcement, Ng uy en was paroled into the United States at A g ana, Guam, on December 14, 2006. 2

2 “ P rio r to p assag e o f th e [Co n s o lid ated N atu ral Reso u rces A ct o f 2 0 0 8
, P u b

. L

. No

. 1 1 0

– 2 2 9
, 1 2 2 Stat. 75 4 (co d if ied in relev an t p art at 4 8 U.S.C. § § 1 8 0 6

– 1 8 0 8 )], th e [Co m m o n w ealth o f th e No rth ern Marian a Islan d s]

w as co n sid ered t o b e o u tsid e th e Un ited States f o r im m ig ratio n p u

rp o ses.” Un ited S ta tes v. Li , 6 4 3 F.3 d 1 1 8 3 , 1 1 84 (9 th Cir. 2 0 1 1).N G U Y E N V

. H O L D E R 7

Ng uy en was broug ht b efore the U.S. D istrict Court for the Central District of California, wh e r e an indictment charg ed him with violating 18 U.S.C. § 1544, misuse of p a s s p ort. Section 1544 provides, in relevant part:

W h oever willfully and knowing ly u s e s, o r attempts to use, any pa s s p ort issued o r desig ned for the use of another . . . .

Shall b e fined under this title, imprisoned not

more th a n 2 5 y ears (if the offense was committed to facilitate an act of international terrorism (as def

i n e d in section 2331 of this title)

. . . or 15 y ears (in the case of any other offense) . . . .

1 8 U

. S.C. § 1544. Specifically

, the Grand J ury alleg ed t h at Ng uy en “willfully and knowing ly used a passport issued a nd desig ned for the use of another, to fac i l i t a t e an act o f international terrorism, as defined in Title 18, Unite d States Code, Section 2331( 1 ) .” On N ovember 14, 2 007, N g uy en pled g u ilty to “ MI SUSE OF PA SSPORT in violation of 18 U

. S.C. § 1544, as charg ed in Count 1 of the Sing le- C o u n t I ndictment.” N g uy en w as sentenced to fourteen months in prison.

P ROCEDURAL BACK G R OUND

Ng uy en’s immig ration parole e x pired on J une 13, 2007. On December 2 1, 2007, the Department of Homeland Security served Ng uy en w ith a Notice to Appear. The Notice
to Appear alleg ed that Ng uy en was inadmissible as a n arriving alien n ot in possession of a valid entry document, see 8 U.S.C. § 1 182(a)(7)(A)(i)(I ), a n d a l s o as an alien who hasN G U Y E N V

. H O L D E R 8

been convicted of a crime involving moral t u r p itude, see 8 U.S.C. § 1 1 8 2 ( a)(2)(A)(i)(I ). Specifically

, the Notice to Appear alleg ed that Ng uy en had been convict e d o f two crimes involving moral turpitude — “Misuse of Passport to F acilitate an Act of I nternational Terrorism” under 18 U .S.C. § 1544, and “I nflict[ ing ] Corporal I njury on Spouse,” in violation of California Penal Code § 273.5. Ng uy en admitted both convictions, without c onceding that either constituted a crime involving moral turpitude

. An I J sustained both charg es of inadmissibility ag ainst Ng uy en, c oncl u d i n g that Ng uy en was inadmissib l e a s a n arriving a lien not in possession of a valid entry document, and also as a n alien who has been convicted of a crime involving moral turpitude.

Ng uy en applied for deferral of removal unde r t h e Convention Ag ainst Torture. S ee 8 C.F .R. § 1208.17(a).

I n support of his CAT claim, N g uy en t e s tified a nd presented six other witnesses at a h earing b e fo r e a n ew I J

. Two of N g u y en’s witnesses testified tha t t hey knew people who h ad b e e n political prisoners in Vietnam, and these political prisoners had been phy s i c al l y mistreated. N g uy en also presented two wi t n e sses w ho h ad, themselves, been political prisoners in Vietnam. B oth of these witness e s testified that they were phy sically mistreated during their imprisonment. The first witness testified that he was deprived of adequate food and w a t e r, and that he watched a fellow prisoner starve to death u nder similar conditions. The second witness wa s f

orcibly injected with an unknown substance, which apparently caused her t o l o s e c o n s c iousness; it later left her feeling daz ed and numb. This s a m e w i t n ess

was also beaten so badly that her leg was broken, and she was left permanently

disabled.N G U Y E N V

. H O L D E R 9

The Government presented one witness, a retired Harvard L aw School r esearch fellow who testified about country conditions in Vietnam. The research fellow concluded t h at Ng uy en was unlikely to be tortured because Vietnam does not eng ag e in torture: torture is ag ainst the law in Vietnam, and the Vietnamese g overnmen t w o uld not risk harming its domestic o r international r eputation by torturi n g p risoners. L ikewise, the research fellow opined that — thoug h N g uy en

was sure to be taken into custody in Vietnam, and sure to be in terrog ated — h e was likely to cooperate with his interrog ators, and so the Viet n a m ese g overnment would not “need” to torture him.

The I J also c o n sidered a wide rang e of documentary evidence detailing Vietnam’ s dismal human rig hts record. F or ex ample, the I J c onsidered a 2008 Human Rig hts Watch report, which confirmed that “there is compelling evidence o f
t o r ture and ill-treatment of political prisoners” in V ietnam,

“ including beating s a

nd electric shock.” The I J also considered the State Department’s 2008 Human Rig hts Report on Vietnam, which ag reed that — thoug h “ [ t] he law
pr o h ibits phy sical abuse” — “ p olice commonly phy sically mistreated suspects during arrest or detention.”

After the hearing

, the I J denied Ng uy en’s application for protection under CAT and ordered him removed to V ietnam.

Ng uy en appealed to the B I A
, which dismissed Ng uy en’s appeal in a reasoned, n on-precedential decision. T h e B I A concluded tha t N gu y e n h ad been convicted of a crime involving moral turpitude, r easoning ( inter alia ) that — g iven Ng uy en’s “intention to f acilitate an act of interna t i o n al terrorism” — his offense was “morally reprehensible.” W ith respect to N g uy en’s CAT claim, t h e B I A concluded thatN G U Y E N V

. H O L D E R 10

Ng uy en “does not point to a ny substantial evidence corroborating his fear that the Vi et namese authorities have become aware of his conviction in the Philippines or his other public activities in opposition to the V ietnamese reg i m e ”; thu s , t h e B I A reasoned, Ng uy en could not show that the Vietnamese g overnment was likely to tortur e h i m in connection with those activities. The B I A recog niz ed that the record “certainly demonstrates that torture sometimes occurs in Vietnam, but it does not establish that such severe phy sical mistreatment is a common occurrence, or that it would more likely than not be inflicted on the respondent personally .”

W e now consider Ng uy en’s arg uments that the B I A erred in finding him inadmissible and inelig ible for CAT relief.

D ISCUSSION

I. Whether Nguyen Was Convicted of a Crim e Involving Moral Turpitude

“A crime involving m o ra l turpitude is either o ne that involves fraud or one that involves g rave acts of baseness or depravi ty , such that its commission ‘offend[ s] the most fundamental [ moral] values of society .’” Ro b les-Urrea v

. Holder

, 678 F .3d 702, 705 (9th Cir. 2012) (quoting NavarroLopez v. Gonzales

, 503 F .3d 1063, 1074–75 (9th Cir. 2 007) (en ban c) (Reinhardt, J
., concurring for the majority)). Thoug h we g e nerally lack jurisdiction to review o rders o f removal based o n a conviction of a c rime involving moral turpitude, 8 U.S.C. § 1252(a)(2)(C), “we have jurisdiction to review the [ B I A’s] d etermination that [ P e t itioner’s] convictions are, in f

act, crimes involving moral turpitude” in the first place, Marmolejo-Campos v

. Holder , 558 F .3d 903,N G U Y E N V

. H O L D E R 11

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

“The determination whether a conviction under a criminal
statute is categ orically a crime of moral turpitude invol v e s two steps, to which d iffe r e n t standards of review apply

. ” Castrijon-Garcia v

. H

older

, 704 F .3d 1205, 1208 ( 9th Cir. 2013) (alteration omitted). F irst, we identify the elements o f the statute of c onviction, reviewing the B I A’s conclusions on this point de novo. Id

. Second, w e “compare the elements o f the statute o f c o nviction to the g eneric d efinition of a crime of moral turpitude a

n d decide whether the conv i c t i on meets that definition.” Id

. On this poi n t , we g ive some deg ree o f deference to the B I A. S

e e M a r m olejo-Campos

, 558 F .3d at 907–11. Here, in the absence o f a precedential B I A decision

on p o i n t , w e defer to the B I A “to the ex tent that [ the B I A ’s decision] has the power to persuade.” Latter-Singh v. H older

, 668 F .3d 1156, 1160 (9th Cir. 2012); see also Skidmore v

. Swift & Co. , 323 U.S. 134, 140 (1944).

Apply in g these principles to Ng uy en’s case, we find no

error in the B I A’s determination that Ng uy en is inadmissible for h aving been convicted of a crime involving moral turpitude. O n t h e c o n trary , we ag ree with the B I A that Ng uy en’s conviction for misuse of a passport to facilitate an act of inter n ational terrorism, under 1 8 U.S.C. § 1544, is a conviction for a crime involving moral turpitude. 3

3 B ecau se Ng u y en ’ s § 1 5 4 4 co n v ict io n ren d ers h im in ad m issib le, w e

n eed n o t decid e w

h eth er t h e B IA altern ativ ely f

o u n d Ng u y en in ad m issib le d u e t o h is co n v ictio n f

o r sp o us a l a b u se u n der Calif o rn ia P en al Co d e § 2 7 3 .5 (a).N G U Y E N V

. H O L D E R 12

The B I A did not e rr in identify ing the elements o f Ng uy en’s § 1 544 conviction. Thoug h Ng uy en arg ues otherwise, the intent to facili t a t e an act of international terrorism is an element of his offense. “Any fact that, by law, i n c reases the penalty for a crime is an ‘element’

. . . . ” Alleyne v. United S

tat es , 1 3 3 S. Ct. 2151, 2155 (2013); see also Apprendi v. N

e w Jersey
, 530 U .S. 466, 490 (2000). B ecaus e Ngu y en p led g u ilty “as charg ed in Count 1 of the Sing le-Count I ndictment,” he p led g u ilty to mis u s e of a passport “ to facilitate an a c t of international terroris m , a s defined in Title 18, United States Code, Sectio n 2 3 31(1).” See United States v. Vidal

, 504 F .3d 1072, 1087 (9th Cir. 2 0 0 7 ) ( e n banc). T his intent to f acilitate an act of international ter r o ri sm, in turn, increased the max imum criminal penalty t o which Ng uy en was ex posed: § 1544 prescribes a max imum fifteen-year prison term in most cases, but a max imum twenty -five y ear p rison term “if the offense

w as committed to facilitate an act of international terrorism (as d e fined in section 2331 of this title).” B ecause the intent
to facilitate an act of international terrorism i n c r e ased the criminal penalty to w hich Ng uy en was ex posed, the B I A was correct that the intent to facili t a te an act o f international terrorism is an element of Ng uy e n’s conviction.

The nex t question is whethe r 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 c ateg o rically morally turpitudinous. W e are.

Misuse of a passport to fac i l i t ate an act of international terrorism is categ orical ly a crime involving moral turpitude. “[ N] on-fraudulent c r imes of moral turpitude almost a l w ay s i n v o l ve a n intent to harm someone, the actual infliction o fN G U Y E N V

. H O L D E R 13

harm u pon someone, or an action that affects a protected class of victim.” Nunez v. Holder

, 594 F. 3 d 1 1 2 4
, 1131 (9th Cir. 2010). Misuse o f a p a s s p o rt “to facilitate an a ct o f international terrorism (as d e f i ned in section 2 331 of this tit l e )” categ orically involves at least the first a nd third o f these criteria. Section 2331 defines “ international terrorism”
to require “violent a cts or acts d a n g e r ous to human l i fe,” § 2 331(1 )( A ) — making it clear that any one misusing a passport w ith the intent to fa c i l i t a te an act of international terrorism ne c e ssarily holds “an intent to harm someone,” Nunez
, 5 94 F .3d a t 1 1 31. L ikewise, § 2331 defines international terrorism to r equire the intent “to intimidate o r

coerce a civilian p o p ulation,” “to influence the policy of a g overnment by intimidation or c o ercion,” or “to affect the conduct of a g o vernment b y mass destruction, assassination,

or kidnapping

, ” § 2331(1)(B ) (i)–(iii). F rom this, it is clear that any one misusing a passport t o f acilitate an act o f internatio n a l terrorism necessarily targ e ts “a protected class of victim,” Nunez
, 594 F .3d at 1131 — e i ther a v ulnerable civilian population, or that civilian p o p u l ation’s lawful government. A nd, like other crimes involving mor al
tu r p i t u d e, misuse of a passport to facilitate an act o f international terrorism “shocks the conscience.” Id

. at 1136. I ndeed, shocking the public c o n science is the whole point o f using terrorism as a tool of political coercion.

I n short, the B I A was correct that Ng uy en is inadmissible because he h a s been convicted of a c rime involving moral turpitude: Ng uy en has been c onvicted of misuse o f a passport to facilitate an act of international terrorism, and misuse of aN G U Y E N V

. H O L D E R 14

passport to facilitate an a c t of inte rnational terrorism is categ orically

a crime involving moral turpitude. 4

II. Whether Nguyen Is Entitled to P rotection Under CAT

Thoug h we g enerally lack jurisdiction to review orders o f

remova l b ased on a conviction of a c rime involving moral turpitude, 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review denials of deferral of removal u nder CAT, Lem u sGalvan v. Mukasey

, 518 F .3d 1081, 1083 (9th Cir. 2008). W e review the factual finding s underly ing the B I A ’ s denial o f CAT relief for substantial evidence. Zheng v. Ashcroft

, 332 F .3d 1 1 86, 11 9 3 ( 9 t h Cir. 2003). “The ‘substantial evidence’ standard of review means w e must be deferential
to the B I A’s conclusions. B ut deference does not mean blindness.” Li v. Ashcroft

, 356 F .3d 115 3
, 1 1 5 8 (9th Cir. 2004) (en banc). W e will reverse, u n d e r the substantial evidence standard, if “the evidence in the record c ompels a reasonable factfinder to c onclude that the BI A’s decision is incorrect.” Tampubolon v. Holder

, 610 F .3d 1056, 1059 (9th Cir. 2010) (alteration and internal q uotation marks omitted); see also 8 U.S.C § 1252(b)(4)(B ).

I n deny ing Ng uy e n’s CAT claim, the B I A contended that Ng uy en “does not point to any substantial evidence corroborating his f

e ar that the Vietnamese authorities have become aware of his conviction in the Philippines or his other public activities in o pposition to the V ietnames e r e g ime;

4 W e n eed n o t an d d o n ot d ecid e w h et h e r a § 1 5 4 4 co n

v ictio n w i th d if f eren t elem en ts — w ith o u t t h e in ten t “ to f acilitate an act of in tern atio n al terro rism ” p res e n t h ere — w o u ld co n stitu

te a crim e in v o lv in g

m o ral tu rp itu d e.N G U Y E N V

. H O L D E R 15

rather, [ Ng uy en] seems to assume such awa r e n e ss.” Thus, the B I A discounted “the fact that many political d issidents a re imprisoned under harsh c o n ditions” in Vietn a m : if the Vi et n a m ese g overnment c ould not identify Ng uy en as a political d is s i d e n t, it would not matter whether the Vietnamese g overnment tortured p olitical dissidents. I n this lig ht, the B I A concluded t h at — thoug h country conditions evidence “certainly demonstrates that torture sometimes

occurs in Vietnam”

— the evidence “does n o t establish that such severe phy sical mistreatment is a common occurrence,

or that it would more likely than not be inflicted on [ N g uy en] personally

. ”

These aspects of the B I A’s decision are not supported b y substantial evidence. On the contrary , the evidence i n t he record compels any reasonable factfinder to conclude that the Vietnamese g o vernment is a ware of N g uy en’s activities on behalf of the Government of F ree Vietnam

. Be c ause the Vietnamese g o vernment is a ware of N g uy e n ’ s activities on behalf o f the Governme n t of F ree Vietnam, the record likewise compels any reasonable factfinder to conclude that, if Ng uy e n is removed to Vietnam, he is more likely than not to be tortured.

The B I A’s doubts “ that the V ietname se authorities have become aware of [ Ng uy en’s] conviction in the Philippines o r his other public a c t i v i t ies in opposition to the Vietnamese
reg ime” a

re not supported by sub s tantial evidence. The record leaves no room to doubt that t h e Vietnamese
g overnment knows who Ng uy en is, and what he has done in the name of the Government of F ree Vietnam. F or ex ample, the record contains a r eport from the Vietnamese g overnment to I nterpol describing the circumstances of Ng uy en’s arrest in the Philippines, and providing detailed information a b outN G U Y E N V

. H O L D E R 16

Ng uy en’s p ersonal history

. L ikewise, the record contains an F B I ag ent’s sworn statement that the details o f N g uy en’s alleg ed bomb plot were “ o btained f rom the Government o f Vietnam.” I n fact, during Ng uy en’s removal proceeding s, the U.S. Government’s own ex pert recog niz ed that Ng uy en’s

case “h a s b e e n so widely known” that the Vietnamese
g overnment w ould be a

ble to recog niz e Ng uy en as soon a s he arrived in Vietnam. I n the face of this u n c ontroverted evidence, no reasonable factfinder could doubt that the Vietnamese g overnment has actual knowl e d ge o f Ng uy en’s activities in opposit ion to the Vietnamese reg ime

— including

, for ex ample, N g uy e n ’s a l l e g ed plot to bomb the Vietnamese embassy

in the Philippines. 5

B e cause the Vietnamese g ove rnment is familiar with Ng uy en and his activities on b e h a l f of the Government o f F ree Vietnam, the record also compels the conclusion that, if Ng uy en is removed to V ietnam, he is more likely than not to be tortured.

The r ecord shows that the Vietnamese g overnment routinely arrests and imprisons members of the Government of F ree Vietnam. A s a h i gh

- profile member of the

5 It w ou ld h av e b een v ery su rp risin g i f th e Vietn am ese g o v ern m en t w ere

n o t aw are o f th e circu m stan ces su rro u n d in g Ng u y en ’ s arrest in t h e P h ilip p in es. A s o n e w o u ld ex p ect, th e Vietn am ese g o v ern m en t h as sh o w n

an in ten se i n terest in th e Go v ern m en t o f Free Vietn am ’ s attack s ag ain st Vietn am ese targ ets: th e reco r d s h o w s th at Han o i h as m ad e su ch attack s a p ro m in en t stick in g p o in t in Vietn am ’ s relatio n s w ith th e Un ited States,

an d h as rep e a t ed ly ask ed f o reig n co u n tries to ex trad ite m em b ers of th e Go v ern m en t o f F ree Vietn am w h o w ere accu s ed o f in v o lv em en t in th ose

a t t a c k s. T h e reco rd also sh o w s th at Ng u y en ’ s alleg ed b o m

b p lo t, in
p articu lar, attra c t e d w id esp read atten tio n f ro m th e in tern atio n al n ew s

m ed i a.N G U Y E N V

. H O L D E R 17

Government of F ree Vietnam — k n o wn, in particular, for alleg edly plotting to b omb a V ietnamese embassy — N g uy en is thus likely

to be imprisoned if he is removed to Vietnam.

Once Ng uy en is imprisoned in Vietnam, the r ec o r d

c o m pels the conclusion that he is likely to be tortured. Thoug h the B I A was skeptical that “severe phy sical mistreatment is a common occurrence” in Vietnam, the State Department’s 2008 Human Rig hts Report on Vietnam makes clear that severe phy sical mistreatment is not u n c o mmon in Vi etnamese c ustody at all: “ p o lice commonly phy sically mistreated suspects during arrest or detention

. ” Phy sical mistreatment of the k ind d ocumented in Vietnamese c ustody

— for ex ample, “beating s and electric shock” — constitutes
torture. S

ee 8 C.F

. R. § 208.18(a)(4)(i) (“The intentional infliction

. . . of severe p ain or suffering ” constitutes torture.). The political nature of Ng uy en’s off e n s e s underscores the likelihood that Ng uy en will be tortured in cu s t o d y : as the 2008 Human Rig hts W atch r eport in the record notes, “there is compelling evidence of torture and ill-treatment of political prisoners” in Vietnam, in particular.

Thoug h “[ 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 o r suffering that Vietnam is likely to inflict on Ng uy en would n o t constitute a lawful sanction. According to the State Department’s 2008 Human Rig hts Report, Vietnamese l a w “prohibits phy sical abuse.”

Such documentary evidence of country conditions, alone, is sufficient to show th a t N guy en is likely to be tortured in Vietnam. See Kamalthas v

. I N S
, 2 51 F .3d 1 279, 1280 (9th Cir. 2 001) (“[ C] ountry conditions alone can play a decis iveN G U Y E N V

. H O L D E R 18

role in g r anting [ CAT] relief.”). B ut Ng uy en does not r ely on documentary

evidence alone.

I n addition to Ng uy en’s country conditions evidence, the wit ness testimony that Ng u y en p resented during removal proceeding s underscores that he is likely to be tortured i f he is removed to Vietnam. Ng uy en presen ted testimony from
two witnesses who k

new political prisoners in V ietnam. B oth witnesses testified that these political prison e r s were deliberately subjected to phy sical harm. I n at least two cases, Vietnam ese officials subjected these political prisoners to phy sical harm in an effort to coerce them into offering false confessions — a p ractice that certainly constitutes torture. See 8 C.F .R. § 208.18(a) ( 1 )

. Moreover, Ng uy e n presented testimony from two w itnesses who were actually f ormer political p risoners in Viet n am — and who, ag ain, were d e liberately subjected to severe phy sical harm r ising to t h e level of torture. O ne of these witne s s e s w a s deprived o f adequate food and w ater, and watched a fellow p r i soner starve to death under similar c onditions. 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 o f a reasonable factfinder, rebut Ng uy en’s evidence that he is likely to be tortured. The Government’s sole witness in the removal p roceedi n gs , a r etired Harvard L a w School research fellow

, offered three reasons for his opinion that Ng uy en was unlikely to be tortured in V i etnam. N one o f these rea s o n s, however, is actually responsive to the other record evidence showing that the V ietnamese g overnment tortures political opponents like Ng uy en. At most, t h e

re s e arch fellow offered reasons that Vietnam should not torture political o pponents like Ng uy en; he did not contradictN G U Y E N V

. H O L D E R 19

the record e vidence showing t h a t Vietnam actually does torture its political opponents.

F irst, the r esearch fello w a r gued that the Vietnamese
g overnment is unlikely to t o r ture Ng u y en because torture is
ag ainst the law in Vietnam. B ut the fact that a country ’s laws formally prohibit torture say s nothing about whether that country actually tortures people. See Hos s e ini v. G onzales

, 471 F .3d 953, 960 (9th Cir. 2006) (noting that th e I r an i an constitution p rohibits torture, and that the I ranian g overnment tortures people).

Second, the research fellow concluded that the Vietnamese g overnment would not “need” to torture Ng uy en, because N g uy en would n ot wi t h hold information when interrog ated by the Vietnamese g overnment. This conclusion is stri king

, in the first place, for the implication that the V i e tnamese g overnment would torture Ng uy en if he did withhold in fo r m ation — or if he w ere perceived to be withholding information. B ut, more to the point, evidence in the record shows that the Vietnamese g overnme n t actually does torture p olitical prisoners — without reg ard f or whether the Vietnamese g overnment “ needs” to torture those political prisoners. I ndeed, the record shows that the Vietname s e g overnment tortur es political prisoners for multiple reasons — for ex ample, to obtain false confessions and to punish its
p o litical opponents

— that have n othing to do w it h a n y “need” to ex tract information about potential threats to Vietnamese security

.
Third, the research fellow noted that torture mig ht sully the Vietnamese g overnment’s do m e s tic and international reputation. B ut here ag ain, speculat ion that the Vietnamese
g overnment has reasons not to eng ag e in tort u r e cannotN G U Y E N V

. H O L D E R 20

counter the V ietnamese g overnment’s actual practice o f torturing people. T he sug g estion that tortu r e is not in Vietnam’s best interest does nothing to contradict evidence

s howing that Vietnam actually does torture people, whe t h e r that decision is in Vietnam’s best interest or not.

I n short, there is no evidence that Vietnam will not torture Ng uy en upon his arrest ther e, w h i ch is virtually certain. There is substantial documentary and testimonial evidence

— including

, by neg ative implication, te s t imony from the
g overnment’s own ex pert — that he most likely w o uld be tortured. (Notwithstanding the B I A’s cont r ary determination, the record c o mpels the conclusion that “severe phy sical mistreatment” rising to the level o f t o r ture “ is a common occurrence” in Vietnamese custody

, particularly where the V i e t n a m e s e g o v ernment’s political opponents a re con c e r n e d

. ) Therefore, the record c ompels the conclus i o n that, because “the Vietnamese authorities have become a ware o f [ Ng uy en’s]

. . . public activities in oppo s i tion to the Vietnamese r eg ime,” Ng uy en is likely to be arrested, detained and tortured in V ietnam. B ecause the record c o m p el s the conclusion that the V ietnamese g overnment will r ecog niz e Ng uy en a s o ne of its politi c a l opponents, and that it tortures its political opponents, the record c ompels the conclusion that Ng uy en is more likely than not to be tortured if he is removed to Vietnam.

I ndeed, Ngu y en’s c ase is very similar to a previous case in which we ordered CAT relief. I n Hosseini v. G onzales

, we considered wheth er a member of the Mujahedin-e Khalq

—
a terrorist g roup opposed to the I ranian g overnment — could be removed to I ran, or whether he was instead entit l ed to de fe rral of removal under CAT. 4 71 F .3d at 9 59–61. I n Hosseini
, there was no direct evidence that

— t o q u oteN G U Y E N V

. H O L D E R 21

lang uag e from the B I A’s d ecision in N g uy en’s c ase

— torture “would more likely than not b e inflicted on the responde nt personally

. ” Nev e r t h e less, there was evidence that the I ranian g o vernment was likely to identify Hosseini as a member of the Mujahedin-e Khalq, a nd that the I ranian
g overnment tortured its p olitica l o pponents — including members of the Mujahedin-e Khalq. Id

. at 959–60. W e thus concluded that H o s s e i n i was entitled to deferral of removal under CAT. Id . at 960–61.

W e see little to d isting uish Ng uy en’s case from Hosseini

. I n Hosseini
, it seemed likely that the I ranian g overnment

w o u l d discover H osseini’s activities on behalf of the Mujahedin-e Khalq. Id

. at 960. Here, there is no doubt that the Vietnamese g ove r n m e nt is already aware of Ng uy en’s activities on behalf of the Government o f F ree Viet n a m

. I n Hossein i
, there was evidence that I r an tortures its political opponents

— like members of the Mujah e din-e Khalq. Id

. Here, there is evidence that Vietnam tortu r e s its political
op p onents — like members of the G overnment of F r ee Vietnam. ( I f any

thing

, Ng u y en offers more evidence than

was of fered in Hosseini : Ng uy en corroborates his documentary evidence of Vietnam’s country conditions with live witness testimony i l l u strating the plig ht of Vietnamese political prisoners. Hosseini, b y c ontrast, relied on documentary evidence alone. See id

. a t 9 59–60.) Here, a s in Hosseini
, the country of removal will recog niz e the Petitioner

as one o f its political opponents. Here, as in H oss e i n i
, the country o f r e m oval tortures its political opponents. Thus, here — as in Hosseini — we co n c l u de that the Petitioner is entitled to deferral of removal under CAT.

W e r espec t t h e dissent’s concern for the proper application of INS v. Ventura
, 537 U.S. 12 ( 2 0 02) (perN G U Y E N V

. H O L D E R 22

curiam), but we believe that concern is misplaced h ere. W e reach o n l y questions that the B I A has already f ully considered in the first instance: we have “g iv[ e n] the B I A the opportunity to address the matter in the first instance in lig ht

o f i t s own ex pertise.” Ventura
, 537 U.S. at 17. T ha t t h e B I A’s rejection of Ng uy en’s CAT c l a i m is unsupported b y substantial evidence does not c hang e the fact that the B I A has fully considered Ng

uy en’s CAT claim on the merits.

This is not a case where the B I A previously evaluated the record evidence u nder the wrong leg al standard, and must be
g iven an opportuni t y t o e valuate that evidence under the
correct standa rd in the first instance. Cf

. Lopez v. Ashcroft

, 366 F .3d 799, 805–07 (9th Cir. 2004). The issue here is not whether the B I A’s l eg al r easoning was erroneous, but whether the factual finding s underly ing th e B I A’s decision

are supported by substantial evidence. W here the B I A g ot the law r ig ht, but failed to recog niz e that the record compels a particular finding of fact, we need not remand for further factfinding

. See, e.g.
, Hosseini , 471 F .3d at 961.

“B ecause the ag ency has already broug ht ‘its ex pertise to bear upon the matter’ and ‘evaluate[ d ] the evidence,’ this case

r e q u ires no further remand for the a pplication of ag en c y

ex p ertise or for ag ency e v aluation.” Smolniakova v

. Gonzales

, 4 22 F .3d 103 7
, 1052 (9th Cir. 2005) (internal citation omitted) (quoting Ventura
, 537 U.S. at 1 7). According ly

, w e remand only s o that Ng uy en be g ranted deferral of removal under CAT.

CONCLUSION

T h e B I A did not err in determining that Ng uy e n w a s convicted of a crime involving moral turpitude: Ng uy en wasN G U Y E N V

. H O L D E R 23

convicted of misuse of a passport to facilitate a n act o f international terrorism, and misuse of a passport to facilitate

an act of international terrorism is categ orically morally turpitudinous. Thus, we DENY Ng uy en’s petition for r eview of the B I A’s decision in that respect.

Nevertheless, the record compels th e c onclusion that Ng uy en is more likely than not to be tortured if he is removed
to Vietna m

. Thus, we GRANT the petition for review with

r e s p e ct to Ng uy en’s CAT claim, a n d REMAND wi t h instructions that Ng uy en be g ranted deferral of removal under CAT.

The parties shall bear their own costs.

P etition No. 10-71050 DENIED in part; G RANTED in part; REMANDED w ith instructions.

TAL L MAN, Circuit J udg e, c oncurring in part a nd dissenting in part:

I respectfully

dissent from Part I I of today ’s opinion.

The I mmig ration J udg e conducted a two-day evidentiary hearing o n the merits of V inh Tan N g uy e n’s CAT protection claim. After considering the e v i d e n c e, he issued a 35-pag e decision deny ing relief. T h e B oard of I mmig ration Appeals, in its own leng thy order

, also concluded that Ng uy en failed
to prove that h e would more likely than no t b e tortured if returned to V i e t nam. This is an unusually thoroug h a nd carefully ex plicated ag ency decision.N G U Y E N V

. H O L D E R 24

My colleag ues d isag r e e with the I J and B I A. I think it’s close. B ut, under the substantial e vidence standard of review, close isn’t g ood enoug h. Rather, we may part way s with the B I A only if the record e v i d ence would compel a reasonable adjudicator to do so. S

e e T a m p ubolon v. Holder

, 610 F .3d 1056, 1059 (9th Cir. 2010); 8 U.S.C. § 1252(b)(4)(B ).

The majority believes that the Vietnamese g ove r n ment knows about Ng uy en’s a c tivities w ith the Government o f Fr e e V ietnam ( GF VN). Even if V ietnam is aware o f Ng uy en’s opposi t i on activities, the B I A provided several persuasive r easons why N g uy en failed to show that he would more likely

than not be tortured.

F irst, the B I A o bserved that the I J found “ little evidence that Vietnam considers the GF VN to be a sig nificant threat.” I ndeed, a Harvard-trained ex pert on V i e tnam’s country conditions and leg a l sy stem testified that V ietnam viewed Ng uy en’s org aniz ation as “a joke” and woul d n o t torture Ng uy en. That is certainly substantial evidence.

Second, the B I A relied on the I J ’s findin g that, althoug h

some GF VN members have been arrested a n d s u bjected to harsh prison conditions in Vietnam

, t hose individuals were detained for reasons other than the i r GF VN membership. They were arrested, for e x ample, for eng agi n g in human rig hts ad v o c acy while in Vietnam on behalf of the United States I nternational Mission. The majority ig nores the

reasons why these GF VN members were arrested. B y doing
so, the m aj o rity makes it seem more likely that N g u y en will be detained because of his involvement with the GF VN. Maj. Op. at 16–17 ( concluding that because “the Vietnamese
g overnment routinely arrests and imprisons members o f the [ GF VN]
, ” and Ng uy en is a known member of the GF VN,N G U Y E N V

. H O L D E R 25

“Ng uy en is [ ] likely t o b e imprisoned if he is removed to Vietnam.”). As the B I A and I J ex p l ai n , that causal link is simply not supported by the record.

F inally

, the B I A ag reed w i t h t h e I J ’s conclusion that the harsh treatment ex p erienced by some political prisoners in Vietnam “did not s o f

r equently rise to the level o f ‘ torture’ that [ Ng uy e n] c ould b e presumed to face such e x treme treatment” in Vietnam. T he m a j o r i t y disag rees. I t cites evidence tha t certainly indicates that torture sometimes

occurs in Vietn a m

. B ut the B I A r ecog n iz ed as much. The B I A concluded, h owever, that the r ecord evidence “does not establish that such severe phy sical mistreatment is a common occurrence, or that it would more likely than not be inflicted

on [ Ng uy en] p ersonally .” The ex istence of occasional a cts o f
torture d oes not compel the co n c l u s ion that Ng uy en would more likely

than not be tortured. 1

I n post-REAL I D Act cas e s like this one, we must be particularly dilig ent in a ccording appropriate deference to the B I A by limiting our review to substantial evi d e n ce. The immig ration courts of the Ex ecutive B ranch e arn that

1 Ev en if I ag reed w ith m

y co lleag u es o n th e m erits, I d isag ree w i th th eir d ecisio n to rem an d w ith in s tru ctio n s t o g ran t Ng u y en CA T relief

. Rath er,

“ t h e pro p er co u r s e , e x cep t i n rare circu m stan ces, is to rem an d to th e ag en cy f o r ad d itio n al in v estig atio n o r ex p l a n a t io n .” INS v. Ven tu ra , 5 3 7 U.S. 1 2
, 1 6 (2 0 0 2 ) (q u o tatio n s an d citatio n s o m itted ). T h is is
p articu larly ap p ro p riate h ere w h ere t h e m aj o ri ty su

p p o rts its co n clu sio n

w ith co u n t

ry rep o rt d ata th at is n early six y ears o ld

. S ee Lo p ez v. Ash cro

ft

, 3 6 6 F.3 d 7 9 9
, 8 0 6 (9 th Cir. 2 0 0 4 ) (“ [R]em an d co u ld l ead to th e p resen t atio n

o f f u rth er ev id en ce o f

cu rren t circu m stan ces in [th e co u n try

o f rem o v al]

– ev id en ce th at m ay w ell p ro v e en lig h ten in g

. . . in lig h t of th e

m o re th an f

iv e y ear s th at h av e p assed sin ce t h e 1 9 9 8 S tate Dep artm en t Co u n try Rep o rt, relied o n

b y th e B IA , w as w

ritten .”).N G U Y E N V

. H O L D E R 26

deference with their u nique ex pertise “in evaluating torture claims, particularly those arising under CAT

. ” H uang v

. Ashcroft

, 390 F .3d 111 8
, 1 1 23 (9th Cir. 2004). T h ey also bear responsibility “for ens u r ing that decisions about [ CAT relief] are uniform and consistent.” Id

. F or this reason, we have been cautioned not t o “intrude upon the domain which Cong r ess has ex c lusively entrusted to a n administrative
ag ency .” Ventura
, 537 U

. S

. at 1 6 (internal quotations omitted). Here, the leng thy decisions on review demonstrate that the a g ency c arefully consid ered the relief soug ht under the Treaty

. I am unwilling to assume the Ex ecu t i v e Br a n ch is derelict in its d

uties when such a full and complete

ex p lanation evaluating all of the evidence ac c o m p anies the decision to deny relief.

The petition as to CAT relief should be denied.