## Facts

- Quang Ly Tran, an ethnic Chinese native of Vietnam, entered the United States as a refugee in 1980 and became a lawful permanent resident.
- In Ohio, Tran was convicted by a jury of aggravated murder and robbery; during appellate proceedings he entered a plea agreement resulting in a 20-year sentence in exchange for the state dropping the death penalty.
- In early deportation proceedings, the government charged Tran as deportable for two crimes involving moral turpitude; an immigration judge ordered deportation.
- The Board of Immigration Appeals (BIA) terminated those proceedings, concluding the evidence suggested the offenses arose from a single criminal episode.
- After IIRIRA’s enactment, the government initiated new removal proceedings charging Tran as removable for having been convicted of an aggravated felony.
- The immigration judge found Tran removable but granted deferral of removal under the Convention Against Torture (CAT) based on a finding that Tran would more likely than not be tortured if returned to Vietnam.
- The Department of Homeland Security appealed the CAT grant, and the BIA reversed the CAT relief and ordered Tran removed to Vietnam.

## Issues

1. Whether IIRIRA’s aggravated-felony removal provisions could be applied to Tran’s pre-IIRIRA conviction, including when earlier deportation proceedings based on related convictions were terminated in his favor.
2. Whether the BIA properly denied CAT protection, including whether it applied and articulated the correct standards of review and burdens of proof when reversing the immigration judge’s CAT determination.

## Decision

- The Sixth Circuit upheld the BIA’s determination that Tran was removable as an aggravated felon under IIRIRA, notwithstanding that the conviction predated IIRIRA and earlier deportation proceedings had been terminated.
- The court remanded the CAT claim to the BIA for clarification of the standards and burdens of proof it used in reviewing and reversing the immigration judge’s CAT decision.

## Legal Principles

- IIRIRA’s aggravated-felony removal provisions may apply to convictions entered before IIRIRA, absent a statutory limitation barring such application.
- Courts will not create an implied exception from removability for convictions that were previously the subject of deportation proceedings that did not result in deportation when the statute contains no such exception.
- CAT relief requires proof that it is more likely than not the applicant would be tortured if removed, and that torture would be inflicted by, or with the consent or acquiescence of, a public official.
- When the BIA’s reasoning does not clearly state the standards of review and burdens of proof applied in a CAT determination, a court of appeals may remand for the agency to clarify and apply the correct framework.

## Conclusion

The Sixth Circuit affirmed Tran’s removability under IIRIRA based on his pre-IIRIRA aggravated felony conviction, rejecting an argument that earlier terminated deportation proceedings barred later removal, and remanded for the BIA to clarify the standards and burdens it applied in denying CAT protection.


Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006)