On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A073-910-930, A073-910-932, A073-910-933 & A073-910-931.
Argued and Submitted April 8, 2010 -- Pasadena, California
Before: Daniel M. Friedman,*fn1 Dorothy W. Nelson, and Stephen Reinhardt, Circuit Judges.
Concurrence by Judge Reinhardt
Petitioners Trung Van Truong ("Mr. Truong") and his wife, Nga Thi Lu, are natives and citizens of Vietnam. Their children, Martina and Paolo Truong, who are also petitioners in this case, were born in Italy, but are not citizens of that country. All four family members have lived in the United States for almost 20 years.
Throughout their immigration proceedings, the Truongs have consistently been found to be credible. In his asylum application and in a hearing before an Immigration Judge (IJ), Mr. Truong established that he fought as a sergeant in the anti-communist South Vietnamese army in the Vietnam War. During the War, he was captured and tortured by communist guerrillas. After the North Vietnamese victory, he went into hiding and became an active member of an underground anti-communist organization. In April 1979, he and his wife escaped Vietnam. They stayed for a year in a United Nations-sponsored refugee camp in Malaysia before being admitted to Italy as refugees. They lived in Italy from 1980 until 1991, when they were granted non-immigrant visas and entered the United States, where they have remained ever since.
In 1995, the Truongs were charged with overstaying their visas, and were subsequently placed in deportation proceedings. They applied for asylum. The IJ granted their application. He was influenced in part by his finding that deportation would be "extremely traumatic" for the Truongs' two children, particularly Martina, whom the IJ described, after hearing her testimony, as "totally Americanized." The IJ was also concerned that, although the Truongs had been granted temporary refugee status in Italy, "the truth is that they cannot return to Italy." He found, and this court subsequently agreed, that by staying in the United States beyond the period permitted by the Italian government, the Truongs had lost their refugee status in that country. Finally, the IJ was moved by the fact that Mr. Truong had fought on behalf of the United States-backed South Vietnamese Army. The IJ understood Mr. Truong's service on behalf of the United State's South Vietnamese allies to place some responsibility on the United States government to remedy, if possible, his family's subsequent statelessness.
The government appealed the IJ's decision. After the appeal had been pending for almost six years, Martina wrote to the BIA to inquire as to the status of her family's case. She asked that the BIA issue a final, favorable decision, so that she could regularize her immigration status in order to pursue an education at the University of California at Riverside, where she had been accepted as an undergraduate student. Shortly after receiving Martina's letter, in August of 2001, the BIA reversed the IJ's decision. It held that the Truongs were ineligible for asylum because they had firmly resettled in Italy, and ordered them to depart the United States within thirty days.
In 2003, this court granted the Truongs' petition for review of the BIA decision. Truong v. INS, No. 01-71507, 58 Fed. Appx. 315, 2003 WL 677843 (9th Cir. 2003) (unpublished disposition). We observed that the Truongs' credible testimony at their initial hearing had established that, about five years after arriving in Italy, they had begun receiving threats from Vietnamese communists living in the area. Id. Late at night, unidentified individuals had called their home and threatened to shoot them if they left the house. Id. On two separate occasions in 1991, Mr. Truong was shot at while driving his car at night. Id. He filed police reports on both occasions, but the police did nothing. Id. Shortly thereafter, fearing for their safety, the Truongs left Italy for the United States. Id. This court found that the foregoing facts "support[ed] a persecution claim" and remanded to the BIA "to consider whether the Truongs ha[d] shown persecution or a well-founded fear of persecution in Italy." Id.
On remand, a new IJ observed that the Truongs' case was "extremely sympathetic," and stated that he "would do anything in [his] power to grant their asylum case." At the conclusion of the hearing, the IJ offered to grant the Truongs a continuance so that they could accumulate additional evidence supporting their persecution claims, but the Truongs' counsel declined and requested an immediate decision.*fn2 The IJ granted the Truongs' application for withholding of removal to Vietnam, but found that the Truongs had failed to establish that the Italian government was unable or unwilling to protect them and, accordingly, denied their asylum application. The BIA affirmed.
As both of the IJs who have considered this case have concluded, the equities overwhelmingly favor the Truongs. In particular, Martina and Paolo, who were ten and two years old respectively when they entered the United States, are now twenty-nine and twenty-one years old. Moreover, the record shows that the Truongs are not able to return to Italy or Vietnam, the only countries - apart from the United States - to which they have any ties. When asked at oral argument whether the government had a country in mind to which they could be sent, counsel for the respondent stated that they would be sent to "whatever country would be willing" to have them. In light of these circumstances, we referred the case to mediation for exploration of any possibilities that would allow the Truongs to remain in the United States. Unfortunately, mediation has proven unsuccessful, and the parties have asked the panel to issue a decision on the merits. We do so now, and we DENY.
We first reject the Truongs' contention that this court held in 2003 that the family suffered past persecution in Italy. In our prior disposition, we remanded the Truongs' persecution claims so that the BIA could "make the initial eligibility determination" - i.e., "consider whether the Truongs have shown persecution or a well-founded fear of persecution in Italy." 58 Fed. App. at 318 (citing INS v. Ventura, 537 U.S. 12 (2002) (noting that "[g]enerally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency ...