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Man Facing Deportation After Bad Legal Advice Makes Case to Supreme Court

Jae Lee's lawyer was unaware that a conviction for possessing ecstasy with intent to distribute would lead to deportation.
Image: Supreme Court building
The U.S. Supreme Court Building is seen in this March 31, 2012 file photo on Capitol Hill in Washington, DC.KAREN BLEIER / AFP - Getty Images file

The U.S. Supreme Court heard arguments Tuesday on whether a legal U.S. resident should be deported to South Korea because he pleaded guilty to a drug offense on bad advice from his attorney.

The case centers on Jae Lee, who emigrated with his family from South Korea in 1982 at the age of 13 and has lived legally in the U.S. ever since. Lee, a restaurateur in Memphis, Tennessee, was charged in 2009 with possessing ecstasy with the intent to distribute, an aggravated felony, according to court papers.

The U.S. Supreme Court Building is seen in this March 31, 2012 file photo on Capitol Hill in Washington, DC.KAREN BLEIER / AFP - Getty Images file

Conviction would result in mandatory and permanent deportation — a fact his then attorney, Larry E. Fitzgerald, was unaware of.

Owing to strong evidence against Lee, Fitzgerald told him to plead guilty for a shorter prison term, court papers said. He also said the government was not seeking to deport him, a main concern for Lee, according to court documents.

But soon after entering a plea in June 2009, Lee was sentenced to serve one year and a day at a correctional facility for federal inmates facing deportation. As it turned out, Fitzgerald’s advice was wrong, a point both sides concede, court papers said.

An excerpt of court documents filed by the team on Jae Lee detailing the background of the case.

Having no connection to South Korea, Lee said he would have taken his chances with a trial, according to his brief, if the alternative was being deported. Lee filed a motion to vacate his conviction and sentence, arguing that Fitzgerald provided ineffective assistance.

The Supreme Court takes up Lee v. U.S. at a time when the Trump administration has signaled its intent to deport undocumented immigrants convicted of violent crimes and serious misdemeanors, as well as those “with a chargeable criminal offense.”

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Between October 2014 and September 2015, 59 percent of the 235,413 people deported had criminal convictions, according to Pew.

The case is also important because it asks the Supreme Court to resolve conflicting decisions among federal appeals circuits over whether it is ever rational for defendants to go to trial on deportable offenses when evidence of their guilt is strong.

In papers filed in November, the Justice Department argued that the 6th U.S. Circuit Court of Appeals ruled correctly in denying Lee’s request to withdraw his guilty plea.

To support a claim of ineffective counsel, Lee had to demonstrate that Fitzgerald’s representation “fell below an objective standard of reasonableness,” and that without Fitzgerald’s “unprofessional errors” there was a “reasonable probability” of a different outcome, the Justice Department said in its brief.

“Because the evidence was overwhelming, petitioner could not show that it would have been rational to go to trial as a means of avoiding removal,” the brief reads. “Removal ‘would have followed just as readily from a jury conviction as from a guilty plea.’”

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Lee argues that Fitzgerald, who neither practices immigration law nor consulted a lawyer who did, misadvised him about deportation. His brief also cites certain appeals courts siding with immigrants in similar cases.

“It cannot be the case that ineffective assistance of counsel in some circuits results in mandatory and permanent deportation, while the exact same conduct in other circuits results in relief and an opportunity to negotiate a new plea or go to trial,” it reads.

Close to two dozen Asian-American organizations, from bar associations to community groups, have joined a friend-of-the-court brief submitted by Asian Americans Advancing Justice on Lee’s behalf. Others representing members of the the LGBTQ, Hispanic, and African-American communities have signed on as well.

Twenty states, led by Alabama, did the same in support of the government. Reversing the appeals court ruling, they say, would place heavy judicial and prosecutorial burdens on state resources.

An excerpt of an amicus brief by Asian Americans Advancing Justice|AAJC

John J. Bursch, Lee’s attorney who argued before the Supreme Court Tuesday, told NBC News he was very encouraged by the court’s reception of his client’s case.

“Numerous Justices criticized the government’s position that bad lawyering can deprive Mr. Lee of his constitutional right to assert a trial by a jury of his peers,” he wrote in an email.

The Justice Department declined to comment Thursday.

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