PORTLAND – In a case that could have a far-reaching effect on immigrants who were convicted of crimes in Maine from 1995 to 2000, a judge was asked Monday to vacate convictions against a Portland man whose family says he is stranded in his native country of Vietnam.

In 1996, 20-year-old Phu Truong pleaded guilty in Cumberland County Superior Court to charges connected to disputes with his wife, including assault and three felony counts of violating bail conditions.

The convictions were part of a plea agreement in which Truong was sentenced to the six months he had already served in jail.

Truong’s family says he never was advised by his lawyer or a judge that the plea would make him subject to deportation, or that he might not be able to return to the U.S. if he visited relatives in Vietnam.

Truong’s father, Chinh Truong, said his son has been stuck in Vietnam for the past two years, that he is being warehoused in an institution for the mentally ill, and that U.S. Immigration and Customs Enforcement will not let Phu Truong return to Maine because of the 1996 convictions.

Chinh Truong wants those convictions removed from his son’s record, based on a landmark U.S. Supreme Court decision handed down earlier this year.

In the case of Padilla v. Kentucky, the court ruled that defense lawyers have a constitutional obligation to issue warnings about any possible immigration consequences to clients who are considering plea agreements.

“Padilla really changes the legal landscape,” said Robert Levine, the lawyer representing the Truongs, during Monday’s hearing in Cumberland County Superior Court. “For every wrong, there is a remedy. That really is what this case is about.”

Levine argued that the Padilla ruling is meant to be retroactive to 1995, according to the language crafted by Justice John Paul Stevens in one of his final decisions before he retired.

In the mid-1990s, Congress passed a series of immigration laws that toughened the penalties against noncitizens who are convicted of crimes.

Phu Truong’s lawyer in 1996 had the responsibility to advise him about the immigration consequences of the plea bargain, and because he didn’t, Truong’s convictions should be vacated, Levine told Justice Robert Crowley.

Assistant District Attorney Bud Ellis contested Levine’s motion to vacate the convictions. Ellis said there is much debate nationwide about whether the Padilla ruling is retroactive, and to what date.

Ellis also questioned the Truong family’s contention that Phu Truong was unaware of his immigration trouble before he went to Vietnam in 2008.

Ellis defended the work done by Michael Scott, who was Truong’s lawyer in 1996. Scott should not have been expected to know that he should have advised Truong on immigration consequences, Ellis said.

“This has been an evolving process,” Ellis said of the obligations of the courts and defense attorneys regarding immigration. “Things were not crystal clear, as the defense has postured, in 1996 when the pleas were done.”

Scott said in a letter to Levine that he could not recall whether he advised Truong on immigration consequences. Scott could not find his file on that case, and the court didn’t keep a transcript of the Oct. 10, 1996, plea hearing, Levine said.

The most significant Maine law on the subject was passed by the Legislature in 2000. It requires judges, before they sign off on any plea agreements, to inquire whether the convictions could lead to deportation. If there is any confusion among the parties, the criminal hearings are continued until the immigration questions are answered.

If Crowley agrees that the Padilla ruling extends back to 1995, it could open the door to other motions to vacate convictions by noncitizens who entered into plea agreements in Maine from 1995 to 2000, and who were not advised of the implications of those pleas.

Levine said the challenges could come from defendants who have been deported, and defendants who have been “flying under the radar” but have recently applied, or will apply soon, to renew expiring green cards.

Levine said it’s impossible to know how many defendants might be affected by a favorable ruling for Phu Truong. The judge said he expects to issue a written decision on the motion by the end of August.

 

Staff Writer Trevor Maxwell can be contacted at 791-6451 or at: [email protected]