Tam Pham v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1023

TAM DUY PHAM,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals

Submitted: July 7, 2011 Decided: August 5, 2011

Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Petition denied by unpublished per curiam opinion.

Dev A. Kayal, WEBB & KAYAL, Chartered, Silver Spring, Maryland,
for Petitioner. Tony West, Assistant Attorney General, Richard
M. Evans, Assistant Director, Jeffrey J. Bernstein, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Tam Duy Pham, a native and citizen of Viet Nam,

petitions for review an order of the Board of Immigration

Appeals (“Board”) dismissing his appeal from the immigration

judge’s order finding him removable for having been convicted of

an aggravated felony, under Immigration and Nationality Act

(“INA”) § 237(a)(2)(A)(iii), 8 U.S.C.A. § 1227(a)(2)(A)(iii)

(West 2005 & Supp. 2011), as aggravated felony is defined under

INA §§ 101(a)(43)(B), 101(a)(43)(U), and for having been

convicted of a controlled substance offense, under INA

§ 237(a)(2)(B)(i), 8 U.S.C.A. § 1227(a)(2)(B)(i). We deny the

petition for review.

Under INA § 237(a)(2)(A)(iii), 8 U.S.C.A.

§ 1227(a)(2)(A)(iii), an alien is removable for having been

convicted of an aggravated felony at any time after admission.

Under INA § 101(a)(43)(B), 8 U.S.C.A. § 1101(a)(43)(B) (West

2005 & Supp. 2011), an aggravated felony includes “illicit

trafficking in a controlled substance . . . including a drug

trafficking crime (as defined in section 924(c) of Title 18)[.]”

In addition, a conviction for a conspiracy to commit a drug

trafficking crime is also an aggravated felony. See INA

§ 101(a)(43)(U); 8 U.S.C.A. § 1227(a)(43)(U). Under 18 U.S.C.

§ 924(c)(2) (2006), a drug trafficking crime means any felony

punishable under the Controlled Substances Act. Under INA

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§ 237(a)(2)(B)(i), 8 U.S.C.A. § 1227(a)(2)(B)(i), an alien is

removable for having been convicted of a controlled substance

offense at any time after admission.

Although this court lacks jurisdiction to review a

final removal order based on a finding that the alien was

convicted of an aggravated felony, this court retains

jurisdiction to determine whether Pham is an alien and whether

he stood convicted of an aggravated felony. See Ramtulla v.

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). We do not defer to

the Board’s determination that a particular state conviction

qualifies as an aggravated felony. See Soliman v. Gonzales, 419

F.3d 276, 281 (4th Cir. 2005) (recognizing that an

interpretation of a state criminal statute is not within the

Board’s authority or expertise).

We conclude that in this instance, Pham’s conviction

for conspiracy to distribute less than ½ ounce of marijuana, in

violation of Va. Code Ann. § 18.2–256 (2009), qualifies as both

an aggravated felony and a controlled substance offense. *

Accordingly, because Pham was removable for having been

convicted of an aggravated felony, we deny the petition for

review. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

*
Pham acknowledged he was a native and citizen of Viet Nam.

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before the court and argument would not aid the decisional

process.

PETITION DENIED

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