Raw Deal for Immigrant at U.S. Supreme Court

03/24/2017 01:59 pm ET

In 2009, Jae Lee’s life took a wrong turn. A long-time U.S. lawful permanent resident immigrant and the owner and operator of two Memphis-area restaurants, he was arrested after giving some ecstasy pills to an acquaintance who turned out to be a confidential informant. Mr. Lee occasionally used ecstasy, a stimulant commonly used at electronic music dance parties but listed as a federal controlled substance.

Even though Mr. Lee had no prior drug arrests and told police that he had the pills for personal use, he was charged with possession with intent to distribute a controlled substance. Mr. Lee disputed the distribution charge, but his criminal defense lawyer told him that, if he did not plead guilty, he risked a three to five year prison sentence if convicted after trial. But what worried Mr. Lee the most was not his criminal sentence but whether pleading guilty might lead to deportation.

Mr. Lee’s concern is not surprising given his deep and longstanding ties to this country. He was brought lawfully by his parents to the U.S. from Korea over three decades ago when he was only 13 years old, and has lived in the U.S. ever since as a lawful permanent resident. He grew up and went to school in Brooklyn, graduated from a business high school in New York City, and worked for several years in a restaurant in Memphis. He then opened his own restaurant, and, after 14 successful years with that restaurant, opened a second restaurant in Memphis. His parents are both U.S. citizens and he was engaged to marry a U.S. citizen.

Mr. Lee repeatedly asked his lawyer about the risk of deportation if he agreed to plead guilty. Again and again, the lawyer reassured Mr. Lee that he would not be deported given, as the lawyer put it, Mr. Lee’s “30 plus years of living in the U.S. and strong ties, in combination with a lack of prior criminal history and the small amount of drugs involved.” So, based on his lawyer’s advice, Mr. Lee agreed to plead.

Unfortunately, the lawyer’s advice was dead wrong. Under immigration laws enacted in 1996, long before Mr. Lee’s 2009 plea, a conviction of such a distribution offense makes a lawfully admitted permanent resident immigrant like him not only deportable, but mandates deportation regardless of extenuating circumstances or any other factors, including long residence, family, or other ties to the U.S., or even contributions to the country such as military service or employment of U.S. workers. Thus, if Mr. Lee pled to this offense, an immigration judge in later removal proceedings would almost certainly have no choice but to order him deported.

And, of course, deportation in a case such as Mr. Lee’s is even more sure to happen at this particular moment in time when the new President has issued Executive Orders that target immigrants who have had any contact in the past with the criminal legal system and restricts any prosecutorial discretion in the choice of whether or not to initiate removal proceedings against someone. Indeed, the harsh 1996 no-discretion deportation laws, combined with the no-discretion enforcement and prosecutorial practices ordered by the new President, virtually guarantee the tragic consequences for Mr. Lee and his family of the legal misadvice he received.

What makes Mr. Lee’s case particularly galling is that information about the mandatory deportation laws was readily available to defense lawyers in 2009 when his lawyer advised him to plead guilty. After these laws were enacted in 1996, several immigration law expert organizations, including my organization, produced written resources for, and trained, defense lawyers about the immigration consequences of criminal convictions and how to avoid them. And defense lawyers, recognizing the importance of this issue for their immigrant clients, responded. I remember one training held in the large jury room of a New York City courthouse just after the 1996 laws were enacted where hundreds of defense lawyers packed the room, lining the walls and spilling out into the hallways, to learn what they needed to know about the new laws for their immigrant clients.

Sadly, Mr. Lee’s lawyer did not appear to heed the call. The lawyer seemingly did not check the immigration statute to learn or inquire about the mandatory deportation implications of Mr. Lee’s guilty plea, nor did he consult the many written resources and free consultation services that existed in 2009 to figure out the harsh immigration consequences of such a plea and how they might have been avoided.

Mr. Lee is now asking the U.S. Supreme Court to reopen his criminal case to allow him to withdraw his ill-advised guilty plea. The government’s lawyers agree that Mr. Lee was incorrectly advised. Nevertheless, despite the fact that Mr. Lee has lived in the United States now for 35 years and faces deportation to a country that he has not been in since he was a small child, the government argues that Mr. Lee was not prejudiced by the incorrect advice. The government claims that no one in Mr. Lee’s shoes facing the evidence of guilt he allegedly faced could have rationally chosen to decline to plead guilty and risk a longer prison sentence if convicted after trial.

The government’s position completely ignores how important avoiding deportation can be to individuals like Mr. Lee with deep ties to this country. Indeed, showing just how paramount a concern avoiding deportation was and continues to be for Mr. Lee, he did not submit to deportation after completing his one year prison sentence, and instead has remained in federal custody for a total of seven years while fighting for permission to withdraw his plea. This is significantly longer than the three to five year term that he had been told he risked if his case had gone to trial and he lost. What more compelling evidence can there be of how important avoiding deportation can be to someone like Mr. Lee with deep roots in the United States?

Moreover, the government’s position ignores that there is a real possibility that someone like Mr. Lee, had he declined to plead guilty to the charged offense, might have been able to negotiate a different plea that would not have triggered mandatory deportation. Defense lawyers, aware or advised about relevant immigration law, often are able to work out alternative dispositions that satisfy prosecutors and avoid disproportionate immigration penalties in cases such as his. Or, failing that, Mr. Lee might have exercised his right to a trial and defeated the distribution charge.

The Supreme Court will hear argument in Mr. Lee’s case on Tuesday (March 28). All Mr. Lee asks of the Court is that it reopen his criminal case so that it can be resolved properly and fairly based on correct information regarding the critical immigration implications for him of different possible dispositions of his case. To give due respect to the Constitution’s important right to effective counsel, the Court should grant this modest request given the clearly inadequate counsel Mr. Lee received and the undeniable prejudice he has suffered as a result.

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