Nam Quoc Nguyen v. Immigration and Naturalization Service
Docket: 94-9517
Court: Court of Appeals for the Tenth Circuit; April 26, 1995; Federal Appellate Court
Mr. Nguyen appeals a Board of Immigration Appeals (BIA) decision that ordered his deportation to Vietnam based on his conviction for aggravated felony, which rendered him ineligible for asylum and withholding of deportation. He entered the U.S. in 1989, became a legal permanent resident in 1990, and was convicted of aggravated assault in Kansas in 1993, receiving a prison sentence of three to eight years. The Immigration Judge (IJ) ruled him deportable, citing his conviction as both a crime involving moral turpitude and an aggravated felony under 8 U.S.C. § 1101(a)(43), due to the maximum term of his sentence being eight years. Nguyen argued that his sentence did not meet the aggravated felony criteria, which requires a minimum five-year sentence. However, the BIA interprets an indeterminate sentence by the maximum term, aligning with its permissible construction of the law. The court affirmed the BIA's decision, concluding it did not err in classifying Nguyen as an aggravated felon, thus upholding his deportation order. The court's jurisdiction is established under 8 U.S.C. § 1105a(a)(1). The term "sentence of imprisonment" in the Sentencing Guidelines refers to the maximum sentence imposed, as clarified in U.S.S.G. Sec. 4A1.2(b)(1), where an indeterminate sentence of one to five years has a maximum of five years. Therefore, the Board of Immigration Appeals (BIA) correctly considered Mr. Nguyen's sentence to be eight years when defining "aggravated felon." As Mr. Nguyen is classified as an aggravated felon, he is barred from applying for asylum under 8 U.S.C. Sec. 1158(d). Although he argues that this status should not prevent him from receiving withholding of deportation under 8 U.S.C. Sec. 1253(h)(2)(B), recent case law establishes that an aggravated felon is disqualified from such relief. The court does not need to evaluate the moral turpitude of Mr. Nguyen's conviction since his status as an aggravated felon alone renders him deportable. The ruling is affirmed.