Tran v. Gonzales

Quang Ly Tran (plaintiff) was a Vietnamese citizen of Chinese ethnicity whose family fled Vietnam and the torture they experienced under Communist rule. One of Tran’s brothers served the United States Army as an informant and was later imprisoned and tortured. Tran’s father and brother had both served in the South Vietnamese Army during the Vietnam War and were also imprisoned, beaten, and sent to reeducation camps. The property that belonged to Tran’s family was confiscated by the Communists. When Tran was notified that he was being drafted to serve in Vietnam’s military, he and his family fled at the risk of being killed, eventually gained refugee status in the United States (defendant), and adjusted to lawful permanent-resident status. Unfortunately, Tran was charged and found guilty of aggravated murder and robbery in Ohio. Despite initially appealing, Tran entered a plea agreement to serve 20 years in prison for the prosecution’s decision not to pursue the death penalty. Tran accepted the plea agreement, aware of the immigration consequences because he had been informed that the United States did not deport people to Vietnam for lack of diplomatic relations between the countries. However, the Immigration and Naturalization Service sought Tran’s deportation to Vietnam. Tran presented testimony and the unrebutted testimony of an expert who both testified and presented documentary evidence that the likelihood of Tran being tortured upon return to Vietnam was greater than 50 percent. Despite Tran’s conviction, an immigration judge (IJ) granted Tran withholding of removal under the Convention against Torture (the convention). Under the convention, an applicant must demonstrate that it is more likely than not that the applicant would experience torture on return to the country of nationality. The Board of Immigration Appeals (BIA) reversed. The BIA was required to review an IJ’s factual findings for clear error. The BIA based its decision on what it viewed as deficiencies in the record. However, the BIA did not indicate what standard of review it used, and the standard was not clear from its reasoning. Tran petitioned for review and argued that the BIA had used an incorrect standard of review and an incorrect burden of proof.