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Vinh Tan Nguyen v. Holder

The Ninth Circuit upheld a Board of Immigration Appeals decision that a conviction for misuse of a passport to facilitate an act of international terrorism in violation of 18 U.S.C. §§ 1544, 2331, is a categorical crime involving moral turpitude.

The conviction resulted from the petitioner's involvement in efforts to overthrow the communist government of Vietnam, specifically an apprehension in the Philippines as he allegedly was assembling explosive devises for use against the Vietnamese Embassy in Manila.

First, the court held that because section 2331 (intent to facilitate an act of international terrorism) increases the statutory maximum penalty for simple misuse of a passport under section 1544, it is an element of the offense and is to be considered under the categorical analysis of a conviction.

Second, the court agreed with the BIA that intent to facilitate international terrorism is categorically turpitudinous, since it necessarily involves an intent to harm someone and a protected class of victim.  In this case, the court found that the protected class of victim could be either a vulnerable civilian population or a lawful government.  The court's analysis on this point, however, seems thin.  Typically, a protected class of victim would be something like a child, spouse, or elderly person.  Does the government of a country really fit that definition?  It is particularly incongruous here, since the opinion acknowledges the despicable actions of the Government of Vietnam in addressing the petitioner's Convention Against Torture claim.  Also, defining an entire civilian population as a protected class of victim seems broad too.  Doubtless, though, the classification of the offense as "terrorism" compelled the court decide that it necessarily involved moral turpitude.  The opinion would have been sounder if it had dropped "protected class of victim" as a basis for the decision and instead focused on the intended harm required by the statute.