Truong v. Holder (PUB)

**Asy, wh,  persecution, gov’t control, firm resettlement** 

The BIA reversed the IJ’s asylum favorable decision, holding that theTruongs were ineligible for asylum from Vietnam because they had firmly resettled in Italy.  On its first petition for review, this court found that the facts supported a “persecution claim” in Italy, and remanded to the agency to consider in the first instance whether the Truongs had shown persecution or a well-founded fear of persecution in Italy.  On remand to a different  IJ, 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. 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.  Substantial evidence supports the IJ and BIA’s conclusion that the harassment the Truongs faced in Italy was not committed either by the government or by forces that the government was unable or unwilling to control.  Although the Truongs contend that their harassment came at the hands of communist forces, the record suggests that this contention is speculative. The Truongs do not know who their assailants were and what motivations they may have had.  The Truongs’ professed belief that the Italian government was complicit in or unwilling to stop their harassment is undermined by the fact that the Truongs repeatedly sought assistance from the Italian police, who dutifully made reports after each incident and indicated that they would investigate. The few pieces of documentary evidence that the Truongs produced before the IJ are unavailing. At best, they show that ethnic minorities and immigrants living in Italy face sporadic violence and discrimination; they do not suggest that the Italian government is complicit in or unwilling to combat such discrimination. 

Concurring, Reinhardt: “Under current Supreme Court law, we have no choice but to agree that the government has the legal authority to deport a young college student, who was brought to this country as a child by her parents and raised here in the same manner as all other law-abiding young people. . . Although we as judges do not have the authority to grant the Truongs’ petition for review, immigration officials retain considerable discretion to achieve a just result for the Truong family and others in their situation . . . .I would hope, and I’m sure that my colleagues would join me, that immigration officials will take into account the priorities essential to the orderly implementation of the law and the equitable considerations that fairness demands when determining how to proceed in the wake of the decision we are compelled to issue today.” 

http://www.ca9.uscourts.gov/datastore/opinions/2010/07/27/05-74666.pdf