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His Lawyer Urged a Plea Bargain, Now He's Facing Deportation. Will He Get a Second Chance?

By Casey C. Sullivan, Esq. | Last updated on

Jae Lee immigrated to the United States from South Korea when he was just a teenager. Decades later, he was accused of dealing ecstasy in Memphis, Tennessee. At the urging of his attorney, he pleaded guilty and was sentenced to one year and one day in jail.

Here's the rub. Unlike his parents, Lee had never become an American citizen. And despite his concerns, his attorney assured him that a guilty plea would not result in his deportation, an assurance that turned out to be dead wrong. Now Lee will go before the Supreme Court tomorrow, arguing that his conviction should be overturned due to ineffective assistance of counsel. But will the fact that Lee was almost guaranteed to lose at trial keep him from prevailing?

Would a Trial Have Made a Difference?

Lee's case raises important issues over just when a defendant is prejudiced by ineffective assistance of counsel, particularly in the immigration context. Under the Supreme Court's 1984 Strickland v. Washington decision, a party looking to overturn a conviction because of their attorney's inadequacy must satisfy two prongs. First, that the attorney's performance was deficient, as all parties agree here. Lee's attorney had assured him that pleading guilty would not result in removal, apparently unaware that possessing ecstasy with the intent to distribute was an aggravated felony that could result in Lee's deportation.

But in addition to the lawyer's deficiencies, a party must also show that such failings prejudiced the defense. That is a harder requirement to meet in this case. Not only did Lee admit to possessing ecstasy and distributing it to his friends, the government found dozens of pills in his home and had a witness prepared to testify that Lee had sold him ecstasy repeatedly. Suffice it to say, Lee's odds at trial were not good.

Had Lee been properly informed of the deportation risks, he may have decided to go to trial no matter what. But, the Sixth Circuit ruled, such a decision would not be rational. "[B]eing denied the change to throw 'a Hail Mary,' at trial" the court wrote, "does not itself amount to prejudice."

What About the Right to Spend Years in Prison?

There is a chance, the Sixth noted, of jury nullification, whereby juries refuse to acquit, despite overwhelming evidence of guilt. Jury nullification, the court wrote, "is not a defect, but a feature of the jury system." Nonetheless, Lee did not have a right to roll the dice on "the luck of the lawless decisionmaker," the court concluded.

Circuits are split on whether an ill-informed decision to plead out is prejudicial when, like with Lee, a defendant has virtually no chance of winning at trial. The Second, Fourth, and Fifth Circuits, like the Sixth, say it is not. The Third, Seventh, Ninth, and Eleventh have come to the opposite conclusion.

Lee argues that, in the context of immigration, even a losing trial may be better than deportation. For example, Lee faced a sentence of two years or more, much longer than he received via his plea. But that sentence would have been served in the United States, closer to his friends and family. These arguments become even stronger when considering immigrants who face deportation not to South Korea, but war-torn nations, or places where they face significant risks of persecution or violence.

How the Supreme Court decides the issue could have broad consequences. More than 95 percent of criminal cases result in plea deals, while deportations of non-citizens with convictions for possession have dramatically increased in recent years.

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