A legal U.S. resident facing deportation to South Korea has new hope after the Supreme Court last week allowed him to withdraw a guilty plea he took based on bad attorney advice that would have led to his removal.
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, was charged in 2009 with possessing ecstasy with the intent to distribute, an aggravated felony, according to court papers.
Conviction would result in mandatory and permanent deportation — a fact his then attorney was unaware of.
Owing to strong evidence against Lee, the attorney 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 that advice turned out to be wrong.
In a 6-2 vote, the court found that Lee was able to show he was prejudiced by the attorney’s faulty guidance, meaning that there was a “reasonable probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
As a result, the court reversed the decision of the 6th Circuit Court of Appeals, which along with a lower court had denied Lee’s request to vacate his conviction and sentence.
“Here Lee knew, correctly, that his prospects of acquittal at trial were grim, and his attorney’s error had nothing to do with that,” Chief Justice John Roberts wrote for the court. “The error was instead one that affected Lee’s understanding of the consequences of pleading guilty.”
Asian Americans Advancing Justice, which filed a friend-of-the-court brief on Lee’s behalf that was joined by other groups, welcomed the court’s decision.
“We elevated this case for Supreme Court consideration because we knew of the potential implications for thousands of legal permanent residents who might be at risk of deportation based on erroneous legal advice with regard to the immigration consequences of their decisions in criminal proceedings,” John C. Yang, president and executive director of Advancing Justice | AAJC, said in a statement.
The court’s ruling in Lee v. U.S. comes 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.”
The case was also important because it asked 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.
A message sent to the Justice Department seeking comment was not immediately returned. But in court papers filed in November, it had argued that the 6th U.S. Circuit Court of Appeals had ruled correctly in denying Lee’s request to withdraw his guilty plea.
To support a claim of ineffective counsel, Lee had to demonstrate that his then attorney’s representation “fell below an objective standard of reasonableness,” and that without his “unprofessional errors” there was a “reasonable probability” of a different outcome, the Justice Department had 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.’”
Justices Clarence Thomas and Samuel Alito dissented from the court’s ruling Friday.
Thomas wrote that based on the evidence, Lee would have been found guilty and faced deportation regardless of whether he took a plea. Because going to trial wouldn’t have made a difference, Thomas said Lee could not show that his then lawyer’s wrong advice had prejudiced him.
In a part not joined by Alito, Thomas also wrote he believes that the Constitution does not require attorneys to give accurate advice about possibly being deported because of entering guilty pleas.
Thomas predicted that the court’s ruling would lead to a great number of defendants challenging their plea agreements on the grounds of receiving ineffective help from their lawyers. This, he wrote, “will impose significant costs on courts and prosecutors."
Justice Neil Gorsuch was confirmed after arguments were heard in Lee v. U.S. and thus did not take part in the case.
As of Monday, Lee still remained housed in the West Tennessee Detention Facility in Mason, Tennessee, according to John J. Bursch, an attorney who argued Lee’s case in March before the Supreme Court.
“His trial lawyers are working diligently to have him released immediately, as one of his parents is in ill health,” Bursch told NBC News in an email.
After Lee is set free, Bursch said his attorneys will try to strike an agreement with the federal government.
“It would be unjust to send Mr. Lee to trial when he has already served 7½ years and given that his initial plea called for only one year and a day of imprisonment,” Bursch said.