Immigrant to be Deported Seeks New Trial
I was listening to court proceedings in Judge Diane Moriarty’s case one day in late October, when out of the murk of the fairly routine business of the court, a lawyer actually cited the name of a case in his argument: Padilla vs. Commonwealth of Kentucky. This rarely happens in the arraignments session, so my ears perked up.
In 2001, Jose Padilla, a Honduran native who had lived in the U.S. for 40 years, pled guilty to a charge of marijuana distribution. However, when he found out that he would be deported after serving prison time, he asked to withdraw his guilty plea, arguing that he was denied effective assistance of counsel. The Kentucky Supreme Court didn’t agree, but the U.S. Supreme Court did.
Last March they ruled that immigrants must be told by their lawyers whether pleading guilty to a crime could lead to deportation.
Asking for a new trial
In the case at Quincy District Court, 39-year old Dung Minh Trinh had received in July 2010 a Continuance Without a Finding (CWOF) for one count of selling marijuana.
The CWOF is a confusing legal plea. The defendant offers to plead guilty, and then specifically requests: (1) that a guilty finding not be entered; and (2) that the case be continued to a specific date, at which time the judge will dismiss the case if they meet all the conditions set by the judge.
For U.S. citizens, the CWOF is a lighter plea than guilty, leaving only a “continuance” on their record, not a guilty plea. But for an immigrant, even a legal one, it can have dire consequences, as Trinh soon found out.
In March 2011, he was arrested and held by the U.S. Department of Homeland Security and told that his crime was considered an “aggravated felony” and that he was subject to deportation without bail.
Trinh is being held in Immigration and Customs Enforcement (ICE) custody. Through a new attorney Robert Carmel-Montes, he was asking Judge Moriarty to allow him to withdraw his guilty plea and grant a new trial.
He claimed ineffective assistance of counsel, saying that his previous attorney Keith James Nicholson told him that if he received the CWOF, he would not face deportation.
Trinh has been living legally in the States with a Green Card for the last 20 years and is the sole caretaker of his mother and daughter. His lawyer argued that he was a political refugee, who if deported, would be sent to Communist re-education camps in Vietnam, where he would be forced to “hoe fields and learn about Communist doctrine.”
Another factor in his argument is that Trinh would face discrimination as an Amerasian, a child of a U.S. GI from the Vietnam War and a Vietnamese woman.
He argued that if a new trial was granted, Trinh could offer to cooperate with the police in the drug investigation, in exchange for dismissing the charges.
The Assistant District Attorney argued that Trinh’s only proof that that he wasn’t told about the potential deportation consequences was his own word. Trinh wrote an affidavit stating that Attorney Nicholson told him that by accepting the CWOF, he could “avoid serious immigration consequences.”
Trinh’s attempts to reach Attorney Nicholson to confirm this statement were unsuccessful.
In Judge Moriarty’s written decision, she denied his motion for a new trial, saying that the only proof that the plea attorney failed to advise Trinh of the possibility of deportation was his own word. There was neither an affidavit from Attorney Nicholson nor a subpoena to get the plea attorney to appear and testify in the case.
On November 15, Judge Stephen Day at the Immigration Court in Boston denied Trinh’s claim that he shouldn’t be deported because he will face torture back in Vietnam. His lawyer Carmel-Montes said the five pounds of marijuana Trinh was caught with constituted too serious a crime to warrant protection. He is appealing that decision now, and plans to appeal Judge Moriarty’s decision as well.
Trinh is being held in federal immigration detention in the Suffolk County House of Corrections in Boston until his case is resolved.