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Does poor legal advice prevent deportation? - II

Last week, our blog discussed how the Supreme Court of the United States recently wrapped up what proved to be an exceptionally demanding 2016-17 term. Indeed, the nation's high court was called upon to decide a host of important cases, several of which had the potential to dramatically alter the legal landscape in the area of criminal law.    

By way of example, we began exploring Lee v. United States, which examined whether an immigrant facing deportation because of substandard legal advice should be given a reprieve. We'll continue this exploration in today's post.

Lee v. U.S. -- the SCOTUS decision

To recap, the defendant, Lee, was charged with possession with intent to distribute and retained the services of an attorney who immediately entered into plea discussions with federal prosecutors.

Lee's primary goal was to avoid deportation. Unfortunately, he was repeatedly misinformed by his attorney that pleading guilty would have no impact on his ability to remain in the U.S. However, he soon learned after entering his plea that this was not the case and that he would be deported to Korea upon completion of his sentence.     

His motion to vacate the conviction and sentence on the grounds of ineffective assistance of counsel were subsequently denied by the district court and the U.S. Court of Appeals for the Sixth Circuit. Here, the Sixth Circuit held that he was not prejudiced by the poor performance of his attorney, as even if he had gone to trial based on his desire to avoid deportation, the case against him was so strong that he would have almost certainly lost and been deported.

In a 6-2 decision (Justice Neil Gorsuch did not participate), SCOTUS reversed and remanded the decision of the Sixth Circuit, finding that Lee did indeed demonstrate that he was prejudiced by the erroneous advice of his attorney. In other words, he should be permitted to reopen the case against him and proceed with throwing a "Hail Mary at trial."

According to Chief Justice John Roberts, who penned the opinion, if Lee's attorney had not made such a fundamental mistake, Lee would have known that a plea would "certainly lead to deportation," while going to trial would "almost certainly" result in deportation.

"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,” wrote Roberts.

The dissenting opinion, written by Justice Clarence Thomas and joined by Justice Samuel Alito, argued that the Sixth Amendment requires both proof of unsound advice and proof that the unsound advice harmed a defendant.

In Lee's case, Thomas argued, the second element was absent. Indeed, he argued the evidence against him was so strong that there was "no reasonable probability of any other verdict," such that deportation was inevitable regardless of whether he accepted a plea or went to trial.

"He is thus plainly better off for having accepted his plea: Had he gone to trial, he not only would have faced the same deportation consequences, he also likely would have received a higher prison sentence.”

It will, of course, be interesting to see what transpires now that Lee will have his day in court.

If you are a non-U.S. citizen facing deportation after having entered a guilty plea based on the flawed advice of a criminal attorney, consider speaking with a skilled legal professional as soon as possible

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