Judge: Chinese man not advised of deportation

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Associated Press

Posted on December 25, 2012 at 3:01 PM

LOUISVILLE, Ky. (AP) — A federal judge has ruled that a man cannot immediately be sent to back China because he wasn't told of the risk of being deported when he pleaded guilty to illegally harboring immigrants.

The ruling from U.S. District Judge John G. Heyburn II in Louisville on Friday means 39-year-old Jian Tian Lin will be allowed to fight the guilty plea to charges that he knowingly hired at least 10 illegal immigrants at The Golden China Buffet in Radcliff.

Heyburn cited a 2010 U.S. Supreme Court decision that said an attorney failed his client by not warning of possible deportation for pleading guilty to an "aggravated felony."

Heyburn noted that, while Lin was convicted of a serious crime, his home life "illustrates the extraordinary circumstances he faces." Lin has lived in the United States for 19 years, has a wife who is seeking citizenship and two children who are United States citizens.

"Forced removal would tear apart the family and potentially have significant repercussions for (Lin)," Heyburn wrote.

In an affidavit filed with his motion seeking to overturn his guilty plea, Lin told Heyburn he wouldn't have pleaded guilty if the possibility of deportation had been made clear at the time.

"If I am returned to China, I would face imprisonment for leaving the country illegally, as well as being subject to a mandatory vasectomy for violating China's 'one child' policy," Lin wrote. "My wife and children would likely have to remain in the United States."

Lin initially pleaded guilty in December 2006 — about seven months after Immigration and Customs Enforcement agents raided the restaurant and found 10 people who were illegally in the country working there. Heyburn sentenced Lin to seven months in prison and two years of probation. Lin became aware of the deportation threat earlier this year after being denied asylum because he pleaded guilty to an "aggravated felony."

Several years later, in 2010, the U.S. Supreme Court handed down a decision in which an attorney's advice on whether someone could be deported after a guilty plea turned out to be wrong. The court found that failing to advise a client about possible immigration implications amounted to unconstitutionally bad representation. The case has made an impact on plea agreements and immigration cases around the country.

The high court at the time did not decide whether the ruling would apply retroactively, sending the case back to Kentucky for a determination about whether truck driver Jose Padilla would be allowed to benefit from the case.

The high court is now weighing another case to determine if the first ruling applies retroactively.

Prosecutors opposed Lin's efforts, saying he waited too long to challenge the plea and his attorney's advice. Heyburn turned away that argument, noting that no one would be harmed by allowing Lin to say in the United States while the high court considers the new case.

"The Court is concerned that Petitioner is subject to deportation while a reasonable likelihood exists that the Supreme Court may confirm belatedly that the relief he seeks is appropriate," Heyburn wrote. "The Court is also mindful of the possibility that the Supreme Court's decision will fall the other way."

A ruling in that case is expected in the spring

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Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP

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