U.S. Supreme Court ruling in 2010 ruled counsel must inform a client whether his plea carries a risk of deportation
By Frederick Melo
St. Paul Pioneer Press
ST. PAUL, Minn. (AP) — At the age of 18, while he was driving a van through St. Paul, an acquaintance in Ge Vang’s passenger seat pulled out a gun and waved it at a group of five young people.
Vang was later arrested and convicted by jury of aiding and abetting, a felony for which he was sentenced to the 83 days he had already served in jail. That was 25 years ago, and Vang, a construction worker, has since kept his record clean and gone on to raise four children as an active, law-abiding member of Ramsey County’s Hmong community.
But the past has never let him go.
In fact, until this summer, he’s spent much of his adult life fearing deportation to Laos, a corner of the world he left in infancy. It’s a situation that looms increasingly large for a number of refugees in the Twin Cities who face possible removal even decades after a criminal conviction, the St. Paul Pioneer Press reported.
St. Paul Mayor Melvin Carter, his former state lobbyist ThaoMee Xiong and multiple state lawmakers from St. Paul have advocated for loosening legal restrictions that make it difficult for immigrants facing deportation to seek post-conviction relief — essentially, revisiting old convictions with the hopes of overturning them, a key step toward ending removal proceedings.
It’s an issue with deep ties to a 30-year-old youth crime epidemic that largely subsided by the start of the new millennium. For many immigrants, potential penalties still linger overhead a generation after they’ve served their criminal sentence and built stable lives.
“There’s a large number of Southeast Asian boys, especially, who were incarcerated in the ‘80s and ‘90s,” Xiong said. “These removal orders are one of the consequences of that mass incarceration.”
Minnesota is home to 84,000 Hmong residents, one of the largest concentrations in the United States, and 13,000 Lao residents, the fourth-largest population in the country, with a heavy concentration of both groups in and around St. Paul. About 1 in 5 St. Paul residents is foreign-born.
Vang came to the U.S. with his siblings and parents from a Thai refugee camp in the late 1970s, when he was 8 months old. For his generation, Southeast Asia has been a smattering of colors on a map — almost as foreign as Africa or Europe. His father had been recruited to support America’s “Secret War” in Laos at the age of 15, and later fled for his life from his Laotian village when the U.S. war effort fell apart.
Vang, who chose not to comment for this story, and his peers grew up with the harrowing stories of the Vietnam War-era sacrifices of their parents, including a mass exodus of Hmong from Laos across the Mekong River to safer ground.
For nearly three decades, a federal removal order hovered over his head. For the past five years, as a result of negotiations between the U.S. and a growing number of nations throughout Southeast Asia, Vang and thousands of other refugees have faced the increased likelihood of being sent back to countries they escaped from decades prior, even as babies or small children.
About a year ago, “ICE (U.S. Immigration and Customs Enforcement) had asked him to apply for a travel document, which was an indication they may attempt to remove him,” said Evangeline Dhawan, an attorney with the Immigrant Law Center of Minnesota who worked on Vang’s case.
According to annual reports available from ICE, the vast majority of immigrants apprehended for deportation have criminal convictions or face criminal charges.
The St. Paul field office — which oversees a five-state area — made 3,100 arrests last year, including 2,100 immigrants with criminal convictions and 760 immigrants facing charges.
“We’re going to focus our resources on those bad apples — the worst of the worst offenders,” said Shawn Neudauer, a public affairs officer for ICE’s St. Paul field office. “(But) just because a person doesn’t have a criminal conviction doesn’t mean they’re not on our radar.”
The most common offense is driving under the influence of alcohol, but even a misdemeanor conviction in a county courthouse can trigger a federal removal order decades after the fact. It’s a consequence many refugees over the years were not informed of by their prosecutor, judge or even their own defense attorney at the time they were urged to accept a plea deal in court.
That changed in 2010, when the U.S. Supreme Court ruled in Padilla v. Kentucky that counsel must inform a client whether his plea carries a risk of deportation.
“Some of these crimes are 20 years old,” said Xiong, who recently left St. Paul City Hall to become deputy director of the Coalition of Asian American Leaders, a St. Paul advocacy organization that played a key role in Vang’s successful efforts to get his removal order lifted last July. “The majority are 5 to 10 years old. … Almost 100 percent of the time, the individual has served their time for their criminal conviction.”
Refugees are sometimes advised by their own attorneys that a guilty plea is the way to go because their home country isn’t accepting deportees from the U.S. But the international arena changes with time.
Under pressure from the Trump administration, Cambodia began accepting U.S. deportees by the dozens in 2018. Vietnam soon followed, opening its doors for the first time to longstanding refugees who had entered the U.S. before July 12, 1995, the date the U.S. and Vietnam resumed diplomatic ties. Around the same time, federal immigration authorities appeared to step up enforcement.
Among those caught in immigration raids, eight Cambodian men apprehended in 2016 became known as the “Minnesota 8” for their longstanding ties to the state. Advocacy groups, wives, siblings and others took up their cause, with mixed results. Of the Minnesota 8, five were deported and three were allowed to remain in the U.S.
“Most of the people on that list were pretty violent offenders,” Neudauer said.
For Ched Nin, a carpenter who came to the U.S. when he was 6 years old, “it was six months in detention,” said his wife, Jenny Srey, the founder of the Release Minnesota 8 campaign, which is now an advocacy organization. He was ultimately allowed to stay in the country. Nin’s criminal history included receiving stolen goods, interfering with a 911 call, assault and other offenses, most of them dating to 2006 to 2010.
Given Hmong efforts over the years to organize against the Communist regime that overthrew the Laotian monarchy in the 1970s, Laos has been more resistant than other nations toward accepting deportees from the U.S., but that could change. During the past three years, Laos has accepted 24 deportations from the U.S., compared to nearly 100 deportations to Burma, 125 to Thailand, more than 200 to Cambodia and nearly 300 to Vietnam.
“I think there’s a misconception that under President Biden, this will slow down,” Xiong said. “He’s not given any indication it will slow down. And I think there’s a global pandemic he’s been very focused on. There’s been no indication by the administration that anything is going to change. He’s been there a full year.”
During the past two years, CAAL has backed Vang’s efforts to have the courts reopen his 1996 case on the basis that the court’s jury instructions failed to properly explain the definition of aiding in an assault.
With the support of Ramsey County Attorney John Choi’s office and attorney Chang Lau from the Minnesota Public Defender’s Appellate Office, a coalition of advocates successfully petitioned Ramsey County Judge JaPaul Harris to vacate his convictions. The ruling came down July 19.
Following a request from the St. Paul-based Immigrant Law Center and approval by the U.S. Department of Homeland Security, an immigration judge then reopened his removal proceedings and terminated them. Usually, “the two systems don’t talk to each other,” said Xiong, calling Vang’s case a welcome victory.
“I feel like I can finally breathe because I no longer have to live in fear of being deported to Laos, a country I know nothing about,” said Vang, in a written statement forwarded by CAAL.
While not unheard of, getting Minnesota’s district courts to revisit decades-old convictions is the exception, not the rule.
For most conviction appeals, “Minnesota has this strict two-year time limit,” Xiong said. Most other states allow a larger window of time for defendants to seek post-conviction relief. A spokesman for the State Court Administrator’s office said Minnesota receives roughly 400 applications per year, but he said it was not clear how many of those applications result in convictions being vacated.
By state statute, Minnesota courts will consider post-conviction relief after the two-year time limit in five situations, such as in light of newly discovered evidence, bad legal advice or if the criminal defendant was mentally impaired and not competent to enter a plea. Since at least 2019, CAAL has advocated for a sixth exception to be added to state law, which would allow defendants who were not informed of potential immigration consequences to seek relief from wrongful convictions if they’re now facing deportation orders. The final decision over post-conviction relief would still rest with the courts.
In the past three years, legislative bills sponsored by state Rep. Carlos Mariani and Rep. Kaohly Vang Her, both St. Paul DFLers, have repeatedly passed out of committee in the House, with Carter — the St. Paul mayor — offering testimony on behalf of the city’s many immigrants during multiple hearings. “I think it’s a no-brainer,” said Her, the chief author this year.
Some lawmakers have expressed fear the bill could allow cover for illegal immigrants. Immigration attorney Linus Chan, testifying before a committee of House lawmakers in 2019, said that’s not how the bill is structured.
“They still must be able to claim that something else was wrong with their (conviction),” Chan said. “Just facing deportation is not enough. I have to be facing deportation and my original criminal conviction has to be legally suspect or unconstitutional.”
Mariani, addressing fellow members of the House Public Safety and Criminal Justice Reform Finance and Policy Division in 2019, said he was advocating for those “faced with exile from the only country that they’ve ever known — our country. ... It does happen. I’ve known individuals over the years where that situation has occurred.”
Carter at the time noted other immigrant groups, such as Somalis and Liberians, are also vulnerable.
“These new Americans came to our country to start a new life and to escape political and religious persecution,” the mayor told lawmakers. “After decades of making our country their homeland, we are now retraumatizing entire communities.”
The proposed legislation has not gained the same traction in the Republican-controlled Senate, despite some bipartisan efforts. Among Republicans, state Sen. Jerry Relph — a St. Cloud lawmaker and Vietnam veteran — had been a supporter. Relph died of COVID in December 2020.
Both locally and nationally, “we had a lot of strong allies who had connections to the Vietnam War, and as they’re dying or retiring, that history is not being taken into consideration when making very serious immigration policy,” Xiong said. “People always say ‘think globally, act locally.’ And this is a good example. ... This bill has allowed us to educate the Legislature about the intersection between our immigration system and our criminal courts.”
