Dung Phan v. Holder, No. 10-1794

Decided: February 1, 2012

Dung Phan, a native of Vietnam and permanent U.S. resident since 1995, was convicted in 2001 for distribution of cocaine. Though he was convicted and sentenced, Dung Phan underwent court-supervised “rehabilitation” and later had his conviction set aside. Nonetheless, his 2008 citizenship application was denied for having an aggravated felony conviction. Dung Phan unsuccessfully argued that having his conviction set aside barred immigration officials from using it against him during his citizenship determination.

On appeal, the Fourth Circuit affirmed the use of the conviction. While the court recognized that some convictions, once “set aside,” could not be used for immigration purposes, this only applied when there was a defect in the underlying criminal proceedings. Conversely, when a conviction is set aside for other purposes, such as successfully completing a rehabilitation program, the conviction is predicated still upon a valid finding of guilt and is still on record for the purposes of naturalization. With a criminal record containing an aggravated felony, Dung Phan was incapable of demonstrating the moral character necessary to become a citizen of the United States.

Full Opinion

-C. Alexander Cable

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