Huyen Nguyen v. Eric H. Holder Jr. , 494 F. App'x 727 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUYEN THI NGUYEN, AKA Mama, No. 08-72789
AKA Mama Tu,
Agency No. A028-103-919
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued May 16, 2012
Submission withdrawn May 17, 2012
Re-submitted August 17, 2012
San Francisco, California
Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.
Petitioner Huyen Thi Nguyen petitions for review of several decisions of the
Board of Immigration Appeals that ordered Nguyen removed as a result of her
conviction for transfer or unauthorized use of food stamps, which the BIA
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
determined was an aggravated felony. Nguyen petitions for review of the
aggravated felony determination, and alternatively, seeks review of the BIA’s
denial of her application for withholding of removal.1 We dismiss the petition in
part and remand to the BIA in part.
We dismiss the petition in part for lack of jurisdiction because Nguyen’s
conviction for transfer or unauthorized use of food stamps under 7 U.S.C.
§ 2024(b) was an offense involving fraud or deceit with a loss exceeding $10,000
and was thus an aggravated felony subjecting Nguyen to removal. 8 U.S.C.
§ 1101(a)(43)(M)(I). Under the categorical approach, a conviction under §
2024(b) does not necessarily involve fraudulent or deceitful conduct. See Liparota
v. United States, 471 U.S. 419, 434 (1985) (noting that proof of a § 2024(b)
violation does not require introduction of “any extraordinary evidence that would
conclusively demonstrate petitioner’s state of mind”). We thus apply the modified
categorical approach. United States v. Aguila-Montes de Oca, 655 F.3d 915, 940
(9th Cir. 2011) (en banc).
In reviewing Nguyen’s record of conviction under the modified categorical
approach, specifically her plea agreement, Nguyen pled guilty to a crime of deceit.
1
At oral argument, counsel for petitioner conceded that Nguyen was not
seeking review of the BIA’s denial of relief under the Convention against Torture.
2
In specifically pleading guilty to the § 2024(b) conviction, Nguyen admitted to
“acting with the knowledge that the transaction is designed in whole and in part to
disguise the nature, location, source, ownership, and control of the proceeds of
food stamp trafficking.” This intent to disguise falls squarely within the definition
of a crime of deceit. Kawashima v. Holder, 132 S. Ct. 1166, 1172 (2012).
Additionally, the loss to the government exceeded $10,000. Nguyen
admitted in the plea agreement related to her § 2024(b) conviction that the
restitution amount represented the amount of profit she was directly involved with
acquiring as a part of the food stamp scheme. Thus, that amount was properly
considered as the loss to the government that exceeded $10,000. See Ferreira v.
Ashcroft, 390 F.3d 1091, 1098 (9th Cir. 2004). Accordingly, Nguyen’s conviction
satisfied the relevant definition of aggravated felony and we lack jurisdiction to
review that determination further. 8 U.S.C. § 1252(a)(2)(C).
As the government recently requested, we remand in part to the BIA for
further consideration of the BIA’s denial of withholding of removal on the basis
that the government satisfied its burden of rebutting the presumption of future
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persecution by showing a fundamental change in circumstances.2 8 C.F.R.
§ 1208.16(b)(1)(i)(A). The BIA relied on Nguyen’s return visit to Vietnam as
evidence of changed circumstances. However, although “return trips can be
considered as one factor, among others,” to rebut the presumption of future
persecution, “[w]e have never held that the existence of return trips standing alone
can rebut this presumption.” Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th
Cir. 2005). The BIA noted that Nguyen may have simply gone undetected by the
government during that brief trip and the BIA gave no indication it considered the
evidence relied on by the IJ in granting withholding of removal to Nguyen. We
therefore remand to the BIA to make the required individualized analysis of
country conditions, Ali v. Holder, 637 F.3d 1025, 1030-31 (9th Cir. 2011), in
considering further whether the government has overcome the presumption of
future persecution by showing changed circumstances.
PETITION DISMISSED IN PART FOR LACK OF JURISDICTION;
PETITION GRANTED IN PART; REMANDED FOR FURTHER
PROCEEDINGS.
2
Following oral argument, the government filed a motion to remand to the
BIA for further consideration of the denial of Nguyen’s withholding of removal
and CAT claims. Nguyen opposed that motion but did not identify a more
appropriate alternative course. We deny the government’s motion as moot, in light
of this disposition, which grants the requested remand in part.
4