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Matthew Kolken on Deportation And Removal

Padilla v. Kentucky used to fend of Deportation

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Last Friday
for the first time I used the new United States Supreme Court decision in Padilla
v. Kentucky
, 555 lace w:st="on">U. S.lace> ___ (2009), No. 08-651, to
fend off my client's deportation.  In Padilla, the Supreme Court held that
a non-citizen of the lace w:st="on">United Stateslace>
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 lace w:st="on">United
States
lace>
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 lace w:st="on">United Stateslace>
citizen children who
he works 40+ hours a week to support.
  My client is deathly afraid of returning to lace w:st="on">Vietnamlace> 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 lace w:st="on">United Stateslace>,
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.  >>

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