FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VINH TAN NGUYEN, AKA Armando

Gile Luat, AKA Van Duc Vo,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 10-71050

Agency No.

A027-359-701

VINH TAN NGUYEN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 10-72974

Agency No.

A027-359-701

VINH TAN NGUYEN, AKA Van Duc

Bo, AKA Armando Gile Luat,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 10-73904

Agency No.

A027-359-701

OPINION
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

Securityand Christopher C. Fuller, Senior LitigationCounsel,

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 Embassyin 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 apparentlycaused herto 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 NavarroLopez 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, LemusGalvan 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 documentaryand testimonial evidence —

including, by negative implication, testimony from the

government’s own expert — that he most likely would be

tortured. (Notwithstanding the BIA’s contrarydetermination,

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 factfinding. 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.