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Duc Cao Nguyen v. Bureau of Professional and Occupational Affairs

July 12, 2012

DUC CAO NGUYEN, PETITIONER
v.
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF COSMETOLOGY, RESPONDENT



The opinion of the court was delivered by: P. Kevin Brobson, Judge

Submitted: January 27, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BROBSON

Petitioner Duc Cao Nguyen (Nguyen) petitions for review of the August 10, 2011 Final Adjudication and Order (Adjudication) of the Pennsylvania State Board of Cosmetology (Board), revoking Nguyen's license to practice as a nail technologist. For the reasons that follow, we will vacate the Adjudication and remand this matter to the Board for further proceedings.

On or about October 6, 2009, Nguyen pled guilty to a two-count superseding felony indictment in the United States District Court for the Middle District of Pennsylvania. (Reproduced Record (R.R. at 142a.) Count I of the indictment provided:

Beginning in approximately 2000 and continuing through on or about August 19, 2008, in York County and Dauphin County, Pennsylvania; New York, New York; San Francisco, California; Tennessee; and Vietnam, within the Middle District of Pennsylvania and elsewhere, the defendant, DUC CAO NGUYEN, aided and abetted by by [sic] others known and unknown to the United States, knowingly entered into a marriage with "T.V." for the purpose of evading provisions of the immigration law, said marriage occurring on or about August 3, 2005.

All in violation of Title 8, United States Code, Section 1325 (c) and Section 2. (R.R. at 139a.) Count II of the indictment sought forfeiture of certain property traceable to the offense outlined in Count I, including (a) $134,682 in currency seized from Nguyen's last known address on file with the Department of State, Bureau of Professional and Occupational Affairs (Bureau); (b) a 2008 Toyota Highlander registered to Nguyen; (c) the contents of a bank account held in the name of "Da Vi Nails"; and (d) the contents of a bank account held in the names of Lynda and Tony Phan. On or about February 12, 2010, the federal court sentenced Nguyen to probation for a term of one (1) year, forfeiture of the property identified in Count II of the indictment, a $100 assessment, and a $1,000 fine. (R.R. at 4a.)

The underlying administrative proceeding began on June 8, 2010, when the Bureau caused the Board to issue an Order to Show Cause, wherein the Bureau contended that, based on Nguyen's conviction of the felony offense, the Board is authorized under Section 9124(c)(1) of the Criminal History Record Information Act (CHRIA),*fn1 to suspend, revoke, or otherwise restrict Nguyen's license. (Reproduced Record (R.R.) at 4a.) In his Answer to Order to Show Cause (R.R. at 29a-52a), Nguyen admitted all of the factual allegations set forth in the Order to Show Cause. He included one paragraph of New Matter, which provided:

[Nguyen] was extended an extraordinarily lenient binding plea agreement by the United States Attorneys Office based upon mitigating factors that existed in his case and made such a binding agreement advisable in lieu of trial and determination by a jury. Accordingly, [Nguyen] requests a hearing at which he can bring to the attention of the Board, through testimony and evidence, the mitigating factors that motivated the prosecution to enter into a plea agreement calling for a probationary sentence so that an appropriate penalty can be assessed by the . . . Board. (R.R. at 31a.)

At or around the same time that the Bureau took the above-referenced administrative action against Nguyen, the Bureau took similar action against one of Nguyen's co-defendants in the federal criminal action, Lynda Dieu Phan (Phan). Like Nguyen, Phan was a licensee of the Board and pled guilty in the federal criminal action to the felony of conspiracy to enter into a "sham" marriage for the purposes of evading immigration law. She also, by way of guilty plea, forfeited the same property Nguyen forfeited as a result of his guilty plea. But Phan also pled guilty to the additional federal crimes of conspiracy relating to trafficking and forced labor. (R.R. at 264a-65a, 272a-75a.) Phan's sentence, therefore, was more severe. The federal court sentenced her to ninety (90) days imprisonment, followed by probation for a term of one (1) year with restrictions. The federal court also sentenced Phan to pay a $100 assessment and restitution of $300,000 to the victims of her crimes-(a) "T.V.", Nguyen's sham bride; and (2) "A.V."

A Statement Regarding Acceptance of Responsibility and Apology to [T.V.] and [A.V.], written and signed by Phan as part of her plea agreement in the federal criminal case (R.R. at 90a), provides, in pertinent part:

I am writing this as my apology to [A.V] and [T.V.] as well as my Statement of Acceptance of Responsibility for the United States Probation Department. My attorney has explained to me that the "force" required by the law involved in this case can be mental as well as physical force and that in determining this element the individual circumstances and background of [A.V.] and [T.V.] must be considered. In light of this explanation, I fully accept responsibility and apologize to [A.V.] and [T.V.].

When I brought [A.V.] and [T.V.] to the United States from Vietnam I felt I was giving them a tremendous opportunity -- an opportunity which my parents and family gave up everything to obtain. I fully admit that I was wrong in bringing them to this country and, upon reviewing their statements and documents from the investigation, it became clear to me that they felt exploited and taken advantage of by my actions and even my attitude. I was particularly impressed by the diary kept by [T.V.] outlining how sad and depressed she was living and working with me and I now believe that both of these women were taken advantage of and exploited by me by working long hours with few vacation days and being required to do chores such as cooking and cleaning in the various places where they lived with me. I realize now that I was wrong in arranging for them to come to the United States and I hope they find the type of lives they really want when they return to Vietnam.

. . . I apologize and accept responsibility for improperly bringing [T.V.] and [A.V.] to the United States and for mentally exploiting them while they were living and working with me. (R.R. at 271a.)

The Board consolidated for hearing purposes only the actions against Nguyen and Phan. (R.R. at 59a.) Nguyen and Phan were represented by the same counsel in proceedings before the Board. The Commonwealth's evidence at the hearing consisted only of the pleadings in the administrative cases against Nguyen and Phan, including the Orders to Show Cause, responses thereto, and all attached exhibits (marked as C-1 through C-4). Without objection from Nguyen's and Phan's counsel, the hearing examiner admitted the exhibits into the record. (R.R. at 63a.) The Commonwealth then rested.

Nguyen did not testify.*fn2 Counsel for Nguyen and Phan, however, called Phan to testify.*fn3 In general, on direct examination Phan testified how and why her parents brought her from Vietnam to the United States when she was approximately 15 years old. She testified that she went to high school and college. Following graduation, she started her own business-a manicure, nail salon business. She owned three stores. She testified about how she returned to Vietnam and decided to bring A.V. (a distant relative) and, six months to one year later, T.V. (Phan's cousin) to the United States for better lives. She admitted to doing so in violation of immigration law by setting up sham marriages. She testified about how she treated them when they came to the United States and how they eventually came to work in her nail salons and lived in Phan's home so they could save money. She also testified how she compensated T.V. and A.V. for their work at the salon. She testified about a dispute between her and T.V and A.V. over money that both requested from Phan to help their families in Vietnam. She also testified about a relationship between A.V. and a Vietnamese boy who was interested in A.V. She testified that T.V. eventually moved out without her knowledge. In terms ...


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