Deportation to Vietnam PreventedPublished: Apr 13, 2010 7:00 am By: Matthew L. Kolken
Last Friday for the first time I used the new United States Supreme Court decision in Padilla v. Kentucky, 555 U. S. ___ (2009), No. 08-651, to fend off my client’s deportation. In Padilla, the Supreme Court held that a non-citizen of the United States has an absolute right to being informed by counsel whether entering a plea carries a risk of deportation, and such failure renders such plea constitutionally deficient. The Court ruled that “the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”
My client, a citizen of Vietnam, was lawfully admitted to the United States as an AM-1 Amerasian Immigrant in the early 1990s. Since being admitted to the United States as a lawful permanent resident my client married a United States citizen, and has three United States citizen children who he works 40+ hours a week to support. My client is deathly afraid of returning to Vietnam where he fears that he will be tortured by police as a result of his race.
Unfortunately, in 1996 my client was convicted by plea of guilty to an offense that constitutes an aggravated felony under INA §237(a)(2)(A)(iii). My client advised me that his criminal defense attorney never explained to him that by entering a plea of guilty he would become subject to removal from the United States, and the nature of his conviction would render him permanently ineligible for virtually all forms of relief from removal.
Upon learning this I filed a motion to administratively close proceedings with the Immigration Court in Buffalo, New York in order to investigate my client’s plea agreement, and if appropriate to file a motion to vacate the underlying judgment. Thankfully, the Government’s attorney had no objection to my motion and my client lives to fight another day.