Editorial: Bad legal advice shouldn’t lead to deportation

Jae Lee suspected that criminal charges the government had filed against him could lead to deportation, something he desperately wanted to avoid.

Born in South Korea, Lee had moved to the United States in 1982 at age 13 and had never returned. He received lawful permanent resident status, which allowed him to live and work in the United States legally, and as an adult, he forged a career as a successful restaurateur in Tennessee. But he never sought U.S. citizenship. So when he was arrested in 2009 on felony charges of possession of Ecstasy with intent to distribute, one of his top concerns was whether the charges could lead to his deportation to a country he barely knew.

Lee repeatedly expressed this concern to his lawyer. But even though the lawyer had more than two decades of criminal law experience, he knew little of the separate and arcane civil immigration codes. Federal prosecutors were not seeking deportation as part of the deal, the lawyer told Lee — so he had nothing to worry about. The lawyer persuaded Lee to plead guilty to an aggravated felony and serve a year and a day in prison, rather than go to trial and face a possible three-to-five year sentence if convicted. What the lawyer didn’t know was that under immigration law, the guilty plea made Lee ineligible to remain in the country. When Lee entered the plea, the judge asked Lee if he understood he could face deportation. Lee expressed confusion, but the lawyer again told him not to worry about it — he had been in the country for three decades and the government couldn’t deport him. So Lee took the deal.

Lee only learned the lawyer was wrong when he arrived at a prison for inmates who face deportation once their sentences are up. Lee filed a legal challenge seeking to rescind his guilty plea, arguing that his lawyer’s erroneous understanding of immigration law had led him to accept a plea deal he otherwise would have rejected.

It seems obvious that a lawyer should be required to explain to his client the full ramifications of such a decision. But a federal district court and the 6^th Circuit Court of Appeals both rejected Lee’s argument under the U.S. Supreme Court’s 1984 Strickland vs. Washington decision, which said that such “ineffective counsel” appeals must clear two hurdles: They must prove that the legal counsel was ineffective, and that the ineffectiveness affected the outcome of the case. The lower courts — and the prosecution — agreed that Lee’s lawyer had failed to give him the information he ought to have received, but they also said that the evidence against Lee — that he sold Ecstasy to a government informant, and that agents armed with a search warrant found 88 pills at his home — meant he likely would have been convicted anyway, at which time he would have become ineligible to stay in the country. Given that, the courts concluded that a reasonable person would have taken the plea bargain because it meant less prison time before deportation.

The Supreme Court, which hears oral arguments in Lee’s case Tuesday, should overturn those decisions. The decisions hinge on speculation about what would have happened at trial if Lee had rejected the plea bargain. Lee rightly argues that anything can happen in court — evidence could be suppressed, witnesses could change stories, fickle juries may not believe a prosecutor’s narrative. Lee, fearing deportation more than a few additional years of prison, argued that if he had understood the certainty that his guilty plea would lead to a deportation order, he would have either held out for a better plea bargain that wouldn’t have affected his legal status or rolled the dice at trial. His lawyer’s lack of legal knowledge meant Lee was unable to make the best decision for his defense, as is his right in a criminal proceeding.

In the Supreme Court’s 2010 Padilla vs. Kentucky decision, Justice John Paul Stevens said that “deportation is an integral part — indeed sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes,” and that obtaining accurate legal advice “has never been more important.” Lee’s lawyer failed to perform that fundamental function, and Lee should not be held to a decision he made based on demonstrably wrong legal advice.

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