Justices Set To Hear Immigrant’s Case On Bad Attorney Advice
The U.S. Supreme Court will hear arguments soon over when bad legal advice on the deportation consequences of taking a criminal plea rises to the level of prejudice, in the appeal of a permanent resident whose drug conviction could send him back to a country he left as a child.
The case, Lee v. United States, centers on a green card holder named Jae Lee, a restaurant owner who has been in the U.S. for 35 years, but who now faces the prospect of deportation after his attorney incorrectly told him his plea for a drug crime wouldn’t result in removal.
It’s a case that highlights just how crucial immigration advice can be for noncitizens in criminal proceedings. According to Manuel Vargas, senior counsel at the Immigrant Defense Project, faulty advice in these situations happens frequently.
“There’s been a lot of improvement over the years, I think, [to] the advice that criminal defense lawyers give to their noncitizen clients, but it’s still not where it should be,” Vargas said. “And there are, unfortunately, still many cases out there where immigrants accused of crimes haven’t been properly advised by their defense lawyers.”
Lee, a lawful permanent resident from South Korea, came to the U.S. in 1982 when he was 13, and as an adult he went on to operate two restaurants near Memphis, Tennessee. But he “started using ecstasy at parties,” according to his brief, and was eventually charged with ecstasy possession with an intent to distribute.
Lee pled guilty, with his trial attorney advising him that the plea wouldn’t lead to deportation, his brief says. But, as it turned out, that plea violation actually subjected him to “mandatory deportation,” and Lee has now been in detention for over seven years, according to the brief.
The dispute has wound its way through the courts, with a three-judge panel of the Sixth Circuit finding Lee should be deported following his conviction – even though the judges questioned the merits of sending him back to a country he had not seen for decades over a “relatively small-time drug offense.”
On appeal, Lee and the government have sparred over whether Lee was actually prejudiced in the case, with the government arguing Lee can’t show he was prejudiced by not having a trial.
The Supreme Court’s 1984 ruling in Strickland v. Washington looms large in the appeal. Under that decision, a defendant has been deprived of counsel when a lawyer’s performance falls “below an objective standard of reasonableness” and the performance adversely affects the defense.