Dang v. Gonzales

Citation: 215 F. App'x 699Docket: Nos. 04-74235, 05-74752

Court: Court of Appeals for the Ninth Circuit; December 27, 2006; Federal Appellate Court

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Tai Anh Dang is facing deportation due to a 1996 conviction for lewd and lascivious acts with a child under 14, categorized as an aggravated felony. The Immigration Judge (IJ) deemed him ineligible for asylum and withholding of removal based on the seriousness of his crime and found that he was not likely to face torture if returned to Vietnam. Following the Board of Immigration Appeals (BIA)'s summary affirmation of the IJ’s decision, Dang, now represented by a different attorney, filed a motion to reopen his case, claiming ineffective assistance from his previous attorney, Robert Coughlon. The BIA denied this motion, prompting Dang to file petitions for review regarding both the BIA’s denial and the IJ’s initial refusal of his Convention Against Torture (CAT) claim.

The review process involves de novo consideration of legal questions and evaluation of factual questions for substantial evidence. It was concluded that Dang suffered constitutional prejudice due to his attorney's failure to appeal the IJ’s "particularly serious crime" determination. To succeed in his ineffective assistance claims, Dang must demonstrate both deficient performance and prejudice. If an attorney's shortcomings prevent an appeal, prejudice is found if there are plausible grounds for relief. In Dang’s case, the IJ classified his crime as particularly serious based on multiple factors, including the nature of the offense and the victim's vulnerability. The failure of Coughlon to challenge this determination was deemed constitutionally inadequate, as he did not consider potential grounds for appeal. Factors that could have supported Dang's position included his short prison sentence, the granting of probation, and observations indicating a desire for behavioral assistance. The discretionary nature of the "particularly serious" determination allows for de novo review by the BIA.

No tactical justification existed for not raising the appeal issue, as established in Magallanes-Damian v. INS. Coughlon's decision to forgo the appeal was prejudicial, denying Dang an opportunity to contest his withholding claim. The evaluation centered on whether Dang had a plausible claim for relief, which was concluded to be affirmative. Dang was eligible for withholding of removal and provided credible evidence regarding his family's political views and potential persecution by the Vietnamese government, which could have supported his case. If the Immigration Judge (IJ) had dismissed this evidence regarding his withholding claim, Dang could have appealed on different grounds, as persecution is less stringent than torture.

In contrast, the argument for Section 212(c) relief was deemed not sufficiently colorable to warrant an attorney's argument. At the time of Dang's criminal actions in February 1996, Section 212(c) permitted discretionary relief for certain legal permanent residents, but subsequent legislation—the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996—eliminated this relief for aggravated felonies and defined sexual abuse of a minor as such. The Supreme Court's ruling in INS v. St. Cyr clarified that the elimination of Section 212(c) relief does not apply to aliens who pled guilty before the enactment of these statutes. However, Dang was ineligible for Section 212(c) relief as his offense was classified as an aggravated felony at the time of his plea. Although Dang argued his attorney should have pursued Section 212(c) relief, claiming that the retroactive application of AEDPA was impermissible, this argument was likely undermined by two Ninth Circuit decisions—Armendariz-Montoya and Magana-Pizano—indicating such a position lacks merit.

The BIA's use of 8 C.F.R. 1212.3(f) to assert that the date of an offense is irrelevant to a respondent's eligibility for a Section 212(c) waiver was deemed improper, as the regulation was established after the relevant proceedings. The Ninth Circuit noted it has not addressed the BIA's interpretation of its regulation in light of St. Cyr or the Landgraf decision. Furthermore, the court refrained from endorsing the BIA's reasoning that aliens deportable for sexual abuse crimes are ineligible for Section 212(c) relief, as the validity of In re Blake remains unexamined. Despite this, the court found that Coughlon's choice not to pursue Section 212(c) relief on behalf of Dang was constitutionally sound, leading to the denial of Dang's ineffective assistance claim on this point.

Additionally, Dang claimed Coughlon should have argued against his deportation based on his refugee status, but the court determined that Coughlon's failure to raise this defense did not prejudice Dang, especially since subsequent decisions by the BIA and the court have ruled against him. As a result, this aspect of Dang's ineffective assistance claim was also denied.

Regarding CAT claims, despite Dang's aggravated felony conviction, the court confirmed its jurisdiction over the legal and constitutional issues raised. It rejected Dang's assertion that the IJ applied the wrong standard in evaluating his CAT claim, clarifying that no 'nexus' requirement exists in the CAT context, contrary to Dang's belief. The IJ's mention of Dang's father's political opinion was treated as factual context rather than a legal obligation. The court dismissed Dang's challenge to the IJ's factual findings due to lack of jurisdiction.

The court's final decision included granting and remanding in part Petition 05-74752, while denying and dismissing in part Petition 04-74235 regarding CAT relief. The opinion was designated as not suitable for publication, adhering to Ninth Circuit Rule 36-3. Dang met the procedural requirements for raising claims of ineffective assistance of counsel as outlined in Matter of Lazada.