Dung Phan v. Holder
2012 U.S. App. LEXIS 1865
| 4th Cir. | 2012Background
- Phan, a Vietnam native, became a lawful permanent resident of the United States in 1995.
- On June 18, 2001, Phan was arrested for distribution of cocaine in a drug-free zone and convicted by a D.C. Superior Court jury.
- Under the DC Youth Rehabilitation Act, Phan received probation after a two-year term and was later set aside on December 16, 2003, under DC Code § 24-906(e).
- In 2008, Phan applied for naturalization; USCIS denied, determining the 2002 conviction was an aggravated felony under the INA, thus bar to good moral character.
- Phan challenged in district court; the government moved for summary judgment, arguing the conviction remained for immigration purposes.
- The Fourth Circuit affirmed, holding that the DCYRA set-aside does not erase the 2002 conviction for immigration purposes and that Phan remains ineligible for citizenship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a DCYRA set-aside affects immigration conviction | Phan argues set-aside nullifies citizenship relevance | Government argues set-aside does not affect immigration status | Set-aside does not erase conviction for immigration purposes |
| Whether the 2002 conviction qualifies as an aggravated felony | Phan does not dispute underlying offense; focuses on set-aside | Conviction remains an aggravated felony under INA regardless of set-aside | The 2002 conviction satisfies aggravated felony for INA purposes |
| Effect of DCYRA rehabilitative goal on naturalization | Rehabilitative set-aside should remove immigration consequence | Rehabilitation grounds do not control immigration eligibility | Rehabilitative set-aside does not negate immigration consequence |
Key Cases Cited
- Acosta v. Ashcroft, 341 F.3d 218 (3d Cir.2003) (state conviction can remain conviction for immigration purposes despite contrary state labeling)
- Cruz-Garza v. Ashcroft, 396 F.3d 1125 (10th Cir.2005) (state rehab/immigration distinction supports immigration conviction preservation)
- Sandoval v. I.N.S., 240 F.3d 577 (7th Cir.2001) (BIA approach to vacated convictions respected for immigration purposes)
- Alim v. Gonzales, 446 F.3d 1239 (11th Cir.2006) (courts defer to BIA distinction on vacated convictions and immigration status)
- McDonald v. United States, 991 F.2d 866 (D.C.Cir.1993) (set aside for rehabilitation, not expungement, can impact sentencing history)
- Pickering v. Gonzales, 465 F.3d 263 (6th Cir.2006) (BIA vacatur grounds distinguishable for immigration purposes)