Criminal Attorney’s Ineffective Representation Results in Defendant’s Definite Deportation

by Norris McLaughlin & Marcus, P.A.
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Jae Lee was born in South Korea and lawfully moved to the United States when he was 13 years old.  He was a “lawful permanent resident” or a “green card holder” and never naturalized to become a United States Citizen.  In 2008, 35 years after Mr. Lee came to the United States, he was charged in federal court on one count of possessing ecstasy with intent to distribute in violation of 21 U. S. C.§841(a)(1).

Mr. Lee hired a private attorney to defend him with the goal of minimizing the impact on his immigration status.  He asked his defense lawyer over and over again throughout the process about the possible immigration issues.

A few days before trial, the U.S. Attorney offered Mr. Lee a deal that would put Mr. Lee in federal prison for one year and one day.  Mr. Lee discussed the plea with his defense lawyer.  Mr. Lee asked about deportation should he accept the plea and the criminal defense lawyer assured him that he would not be deported.  Mr. Lee, found guilty, was sentenced and began serving his sentence, then, yes, a few months into his sentence, Immigration & Customs Enforcement (ICE) paid Mr. Lee a visit.  He was thrown into immigration court proceedings with ICE charging Mr. Lee, stating that he was deportable because he was convicted of aggravated felony, which, based on the immigration definition, basically means mandatory deportation and permanent banishment.

Mr. Lee filed a motion with the criminal court to reopen his case.  He argued that he would not have pled guilty if he was properly told of the immigration consequences of his plea and would have gone to trial, regardless of the possibilities of success.  The appeal reached the U.S. Supreme Court.  There, Mr. Lee again argued that deportation was such an important issue to him – more than jail – that he would have “rolled the dice” and “gambled on trial, risking more jail time for whatever small chance there might be of an acquittal, which would let him remain in the United States.”  The Government countered that Mr. Lee was so “obviously” guilty, so he would have “certainly” lost at trial and then received a longer prison sentence, followed by guaranteed deportation.  To take this risk with the longer jail sentence, the government argued, would be “irrational,” when offered a plea deal that would put Mr. Lee behind bars for a shorter time, followed by the same deportation consequence.

The Supreme Court agreed with Mr. Lee in a recently issued decision.  The Court found that “the serious implications of deportation from the United States,” a defendant in Mr. Lee’s shoes would have “rolled the dice” and went to trial:

common sense recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea.  When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive… Here Lee alleges that avoiding deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time. He says he accordingly would have rejected any plea leading to deportation – even if it shaved off prison time – in favor of throwing a ‘Hail Mary’ at trial.

The Supreme Court then vacated Mr. Lee’s conviction, holding that the Court could not

agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly. If deportation were the ‘determinative issue’ for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that ‘almost’ could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time.  Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.

The first question any criminal defense attorney should ask a client is “are you a United States citizen?”  If the answer is no, then it is absolutely necessary the client retain immigration counsel to advise throughout the proceedings and provide detailed opinion memorandums to assist in plea negotiations.  Do not be incompetent.

Any non-citizen charged with even the smallest of offenses must recognize that the offense, depending on its resolution, could impact their status in the United States.  It is imperative that immigration representation is immediately contacted to ensure proactive measures are taken to immediately limit immigration-related consequences.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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