PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DUNG PHAN,
Plaintiff - Appellant,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States; NEIL
H. MACBRIDE, U.S. Attorney No. 10-1794
Eastern District of Virginia;
ALEJANDRO MAYORKAS, U.S.
Citizenship & Immigration
Services; JANET NAPOLITANO,
Department of Homeland Security,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Senior District Judge.
(1:10-cv-00114-TSE)
Argued: September 21, 2011
Decided: February 1, 2012
Before GREGORY, WYNN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion,
in which Judge Gregory and Judge Wynn joined.
2 PHAN v. HOLDER
COUNSEL
ARGUED: Daniel K. Dorsey, LAW OFFICE OF DANIEL
K. DORSEY, Washington, D.C., for Appellant. Monika L.
Moore, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellees. ON BRIEF: Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellees.
OPINION
DIAZ, Circuit Judge:
In 2008, Dung Phan’s application for naturalization was
denied by the U.S. Citizenship and Immigration Services
("USCIS"). USCIS determined that Phan’s 2002 conviction in
the District of Columbia Superior Court for distribution of
cocaine in a drug-free zone qualified as an aggravated felony
under the Immigration and Nationality Act ("INA"), which
prevented Phan from establishing his good moral character
and thus from obtaining citizenship.
Before us, Phan contends that because his 2002 conviction
was set aside pursuant to D.C. law, it has no operative effect,
and thus USCIS should not have considered it. We hold, how-
ever, that Phan’s conviction remains unchanged for immigra-
tion purposes despite the fact that the conviction was set aside
on rehabilitative grounds. Because Phan’s conviction is an
absolute bar to obtaining citizenship, his naturalization appli-
cation was properly denied. We therefore affirm.
I.
A.
On June 18, 2001, Phan, then eighteen years old, was
PHAN v. HOLDER 3
arrested by Washington, D.C. police and charged with distri-
bution of cocaine in a drug-free zone. A jury convicted Phan
of that offense in D.C. Superior Court. Pursuant to the District
of Columbia Youth Rehabilitation Act ("DCYRA"),1 D.C.
Code §§ 24-901-24-907, Phan was sentenced to two years’
imprisonment, five years’ supervised release, and a fine of
$200. The court, however, suspended Phan’s sentence and
placed him on 18 months of supervised probation, during
which time he was to continue his education and full-time
employment, undergo any requested mental health evaluation,
and submit to random drug testing. Phan successfully com-
pleted his probation, and on December 16, 2003, his convic-
tion was "set aside" under D.C. Code § 24-906(e).2
B.
A native of Vietnam, Phan became a lawful permanent resi-
dent of the United States on February 22, 1995. On June 9,
2008, Phan filed a naturalization application to become a U.S.
citizen. USCIS denied Phan’s application following an inter-
1
The DCYRA is designed "to provide rehabilitation opportunities for
deserving youth adult offenders between the ages of 18 and 22 while
incarcerated, and at the same time fully protect the public safety by
enabling the court to impose a maximum penalty where warranted." Smith
v. United States, 597 A.2d 377, 380 n.5 (D.C. 1991) (citing Council of the
District of Columbia, Committee on the Judiciary, Report on Bill 6-47,
Youth Rehabilitation Act of 1985, 2).
2
The DCYRA enables the court to "set aside" the conviction of a youth
offender on probation:
Where a youth offender has been placed on probation by the
court, the court may, in its discretion, unconditionally discharge
the youth offender from probation before the end of the maxi-
mum period of probation previously fixed by the court. The dis-
charge shall automatically set aside the conviction. If the
sentence of a youth offender who has been placed on probation
by the court expires before unconditional discharge, the court
may, in its discretion, set aside the conviction.
D.C. Code § 24-906(e).
4 PHAN v. HOLDER
view and affirmed that denial upon rehearing. USCIS con-
cluded that Phan’s 2002 conviction was an aggravated felony3
under the INA, and thus precluded Phan from establishing his
good moral character—a requirement for obtaining U.S. citi-
zenship. See 8 C.F.R. § 316.10(b)(1)(ii). Relying on the defi-
nition of "conviction" in the immigration context, USCIS
found that Phan was convicted in 2002 because the D.C.
Superior Court found him guilty of the offense and imposed
a restraint on his liberty. That the conviction was subse-
quently set aside, USCIS determined, was not legally relevant
when passing on Phan’s naturalization application.
Phan contested USCIS’s denial of his naturalization appli-
cation in the district court. The government moved for sum-
mary judgment, maintaining that Phan’s 2002 conviction, and
subsequent adjudication and sentence under the DCYRA, was
a conviction for purposes of the INA. The district court
agreed, finding that (1) Phan had been convicted of an aggra-
vated felony and (2) the conviction "remained intact for immi-
gration purposes notwithstanding the [D.C.] court’s set-
aside." J.A. 84.4
3
An "aggravated felony" includes illicit trafficking in a controlled sub-
stance. 8 U.S.C. § 1101(a)(43)(B).
4
Phan argued before the district court that he was not "convicted" in
2002, but rather was adjudicated a juvenile delinquent under the DCYRA.
Immigration law has long considered juvenile delinquency adjudications
not to be convictions. See In re Devison-Charles, 22 I. & N. Dec. 1362,
1365 (BIA 2000) ("We have consistently held that juvenile delinquency
proceedings are not criminal proceedings, that acts of juvenile delinquency
are not crimes, and that findings of juvenile delinquency are not convic-
tions for immigration purposes."). Phan’s appellate brief, however, does
not address the juvenile delinquency exception, although (curiously) the
government’s brief does. Because Phan did not raise this alternative argu-
ment on appeal, it is waived. See United States v. Al-Hamdi, 356 F.3d 564,
571 n.8 (4th Cir. 2004) ("It is a well settled rule that contentions not raised
in the argument section of the opening brief are abandoned."); Yousefi v.
I.N.S., 260 F.3d 318, 326 (4th Cir. 2001) (finding that argument not raised
in opening appellate brief was "abandoned").
PHAN v. HOLDER 5
Phan has never suggested that his underlying
offense—distribution of cocaine in a drug-free zone—is not
an aggravated felony. Rather, Phan’s sole contention on
appeal is that the conviction was nullified when it was subse-
quently set aside. For the reasons that follow, we reject this
argument.
II.
Courts review a decision denying a naturalization applica-
tion de novo. 8 U.S.C. § 1421(c); Etape v. Chertoff, 497 F.3d
379, 390-91 (4th Cir. 2007) (Hamilton, J., dissenting). Simi-
larly, we review a district court’s decision to grant a motion
for summary judgment de novo and, in so doing, view the
facts in the light most favorable to, and draw all reasonable
inferences in favor of, the nonmoving party. See Robinson v.
Clipse, 602 F.3d 605, 607 (4th Cir. 2010). "If there is a genu-
ine issue of material fact or if [the government] is not entitled
to judgment as a matter of law on [the] record, then summary
judgment is inappropriate." Id. (citations omitted).
III.
To qualify for naturalization, an applicant bears the burden
of showing that he "is a person of good moral character." 8
U.S.C. § 1427(a)(3); 8 C.F.R. § 316.10(a)(1). Under 8 U.S.C.
§ 1101(f)(8), "[n]o person shall be regarded as . . . a person
of good moral character who, . . . at any time has been con-
victed of an aggravated felony." Section 1101 of the INA
defines "conviction" for immigration purposes as follows:
a formal judgment of guilt of the alien entered by a
court or, if adjudication of guilt has been withheld,
where (i) a judge or jury has found the alien guilty
or the alien has entered a plea of guilty or nolo con-
tendere or has admitted sufficient facts to warrant a
finding of guilt, and (ii) the judge has ordered some
6 PHAN v. HOLDER
form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A).
Phan’s 2002 conviction satisfies this statutory definition.
First, the D.C. Superior Court entered "a formal judgment of
guilt[,]" which is all that the statute requires for a conviction.
Id. Although Phan was given an opportunity to have the judg-
ment set aside if he complied with the terms of his probation-
ary sentence, his judgment was not withheld. And even if we
assume that a "set aside" results in a judgment "withheld" for
purposes of § 1101(a)(48)(A), a jury found Phan guilty, id.
§ 1101(a)(48)(A)(i), and "the judge . . . ordered some form of
punishment, penalty, or restraint" on his liberty, id.
§ 1101(a)(48)(A)(ii). That Phan’s prison sentence was sus-
pended in favor of probation is irrelevant because the condi-
tions of probation, backed by the specter of a suspended
prison sentence, are most certainly a form of punishment or
penalty and a restraint on one’s liberty. Thus, on its face,
Phan’s 2002 conviction in D.C. Superior Court satisfies the
requirements for a "conviction" under 8 U.S.C.
§ 1101(a)(48)(A).
IV.
The plain meaning of the statute alone, as applied to Phan’s
2002 conviction, would normally end our analysis. The Board
of Immigration Appeals ("BIA"), however, recognizes that
some vacated convictions may not be used for immigration
purposes, and Phan argues that the D.C. Superior Court’s
decision to set aside his conviction means that USCIS may
not consider it in this instance. We disagree.
A.
In the context of removal proceedings, the BIA distin-
guishes between vacated convictions based on the reason for
PHAN v. HOLDER 7
the vacatur to determine whether the noncitizen has been
"convicted" of a qualifying offense. Where a conviction is
vacated "based on a defect in the underlying criminal pro-
ceedings," the conviction is "no longer." In re Pickering, 23
I. & N. Dec. 621, 624 (BIA 2003) (rev’d on other grounds
sub nom., Pickering v. Gonzalez, 465 F.3d 263 (6th Cir.
2006)). Where a conviction is "vacate[d] . . . for reasons unre-
lated to the merits of the underlying criminal proceedings,"
however, the conviction "remains" for immigration purposes.
Id. See Pickering, 465 F.3d at 266 ("A conviction vacated for
rehabilitative or immigration reasons remains valid for immi-
gration purposes, while one vacated because of procedural or
substantive infirmities does not.").
The BIA’s distinction enjoys broad support among our sis-
ter circuits. See Alim v. Gonzales, 446 F.3d 1239, 1250 (11th
Cir. 2006) ("join[ing] those circuits that have found the BIA’s
approach [distinguishing between the grounds for vacated
convictions] to be reasonable and entitled to deference");
Cruz v. Att’y Gen., 452 F.3d 240, 245 (3d Cir. 2006) ("[I]f a
court vacates a conviction for reasons unrelated to the merits
of the underlying criminal proceedings, such as for rehabilita-
tion purposes or to avoid immigration hardships, the alien
remains ‘convicted’ for immigration purposes"); Cruz-Garza
v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005) (adopt-
ing this "consensus view"); Sandoval v. I.N.S., 240 F.3d 577,
582-83 (7th Cir. 2001) ("The BIA has held that state rehabili-
tative statutes . . . are of no effect in determining whether an
alien is considered convicted for immigration purposes.")
(internal quotation marks omitted). And we too have found
this distinction persuasive. See Parikh v. Gonzales, 155 F.
App’x 635, 638 (4th Cir. 2005) (unpublished) (per curiam)
(joining our sister courts in finding the BIA’s approach in
Pickering reasonable and entitled to deference).
We recognize that this case is not before us on direct appeal
from a BIA decision, nor could it be given that the BIA does
not have jurisdiction to consider naturalization applications.
8 PHAN v. HOLDER
In re Hidalgo, 24 I. & N. Dec. 103, 105-06 (BIA 2007). Nev-
ertheless, we think it equally appropriate for USCIS to con-
sider the ground on which a noncitizen’s conviction was set
aside in determining fitness to be a citizen. In that regard,
although the BIA’s distinction between convictions has its
genesis in removal proceedings, the burden on a person peti-
tioning to become a naturalized citizen is at least as high as
that imposed on a person seeking to avoid removal. It is for
this reason that doubts regarding eligibility for citizenship are
resolved in favor of the government and against the applicant.
See Berenyi v. District Director, I.N.S., 385 U.S. 630, 637
(1967) (emphasizing that the applicant "is the moving party,
affirmatively asking the Government to endow him with all
the advantages of citizenship").
B.
Applying the relevant distinction here, we hold that the "set
aside" of Phan’s 2002 conviction has no implication for pur-
poses of considering Phan’s application for naturalization. In
that regard, we note that the DCYRA offers certain "sentenc-
ing alternatives" for a "youth offender"—"a person less than
22 years old convicted of a crime other than" murder or ter-
rorism offenses. D.C. Code §§ 24-903, 24-901(6). Specifi-
cally, "[i]f the court is of the opinion that the youth offender
does not need commitment, it may suspend the imposition or
execution of sentence" in lieu of probation. Id. § 24-903(a)(1).
Before the probationary period is complete, the court may—in
its discretion—unconditionally discharge a youth offender
from probation. Such an unconditional discharge "automati-
cally set[s] aside the conviction." Id. § 24-906(e). Addition-
ally, if the sentence of a youth offender expires while the
youth offender is on probation, the court "may, in its discre-
tion, set aside the conviction." Id.
As the statute’s name implies, a conviction is set aside
under the DCYRA on rehabilitative grounds having nothing
to do with the merits of the underlying criminal judgment.
PHAN v. HOLDER 9
This rehabilitative purpose was key to the finding in United
States v. McDonald, 991 F.2d 866 (D.C. Cir. 1993), that a
DCYRA "set aside" conviction could be counted for criminal
history purposes under the U.S. Sentencing Guidelines. In
McDonald, the court distinguished an expungement, which
results from innocence or legal error, from a "set aside,"
which results from "social policy goal[s]." Id. at 871. DCYRA
convictions are set aside "because the juvenile’s post-offense
conduct has persuaded the court to terminate his sentence,"
and thus "reflect[ ] the social objective of encouraging the
rehabilitation of juvenile offenders." Id. at 872. Because that
is precisely what occurred when the D.C. Superior Court
acted in Phan’s case, USCIS correctly considered Phan’s con-
viction when assessing his fitness to be a citizen.
In arguing otherwise, Phan notes that the DCYRA contem-
plates specific future uses of "set aside" convictions. See D.C.
Code § 24-906(f)(1)-(8) (providing that set aside convictions
"may be used" for certain reasons, such as determining
whether a person has committed a subsequent offense for
enhanced sentencing purposes, impeachment or cross-
examination, or sex-offender and gun-offender registration
laws). Notable in its absence from this list, argues Phan, is
any mention of immigration proceedings. However, that the
DCYRA does not expressly authorize the use of set aside con-
victions in immigration proceedings is neither surprising nor
dispositive. As noted by the government, "it makes sense"
that the D.C. Council would not attempt to dictate immigra-
tion policy in drafting its youth offender law. Appellee’s Br.
19 n.4.
Indeed, the Third Circuit rejected a similar argument in
Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. 2003). There, the
noncitizen contended that his Pennsylvania conviction was
not a "conviction" for immigration purposes because the state
law specified that the offense would "not constitute a convic-
tion for any purpose whatever." Id. at 223. The court dis-
agreed, noting that the state legislature "obviously cannot
10 PHAN v. HOLDER
dictate how the term ‘conviction’ is to be construed under fed-
eral law" and thus the state statutory language "cannot on its
own rescue [the noncitizen] from the definition of ‘convic-
tion’ in INA § 101(a)(48)(A) [codified at 8 U.S.C.
§ 1101(a)(48)(A)]." Id.
We agree, and hold that because Phan’s 2002 conviction
was set aside on rehabilitative grounds, USCIS properly con-
sidered it when passing on Phan’s application for naturaliza-
tion.
V.
In 2002, Phan was convicted by a jury in D.C. Superior
Court of distribution of cocaine in a drug-free zone. Follow-
ing the verdict, the court entered judgment and imposed a sen-
tence. Although the D.C. Superior Court subsequently set
aside Phan’s conviction, it acted pursuant to the rehabilitative
goals of the DCYRA, which do not control the use of Phan’s
conviction in the immigration context. As a result, Phan
remains "convicted" of an aggravated felony under the INA,
and thus, cannot satisfy the statutory requirements for citizen-
ship.
The judgment of the district court is affirmed.
AFFIRMED