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Criminal lawyers must not misadvise on immigration risks

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Immigration law and procedure is multi-faceted when it comes to adverse consequences from particular criminal convictions and sentences. In 2010, the United States Supreme Court included correct advice about adverse immigration consequences from criminal cases within the Sixth Amendment’s Effective Assistance of Counsel clause. Padilla v. Kentucky559 U.S. 356 (2010).

On June 23, 2017, the Supreme Court expanded upon Padilla, by confirming that it is ineffective assistance of counsel under the Sixth Amendment for a criminal lawyer to misadvise his or her client that a particular conviction or sentence will not carry adverse immigration consequences. Jae Lee v. United States, ___ U.S. ___ (June 23, 2017).

Lee, who possessed permanent residence/a green card was charged with possession with intent to distribute ecstasy and marijuana. The search warrant of his home also turned up a loaded rifle and over $30,000 in cash.

Lee’s criminal defense lawyer advised him to enter a guilty plea agreement, counseling that his prospects at trial were dim. Lee told his criminal defense lawyer he has a green card. Lee repeatedly asked his criminal lawyer to assure that a conviction would not bring on deportation. The lawyer said no, pointed out that deportation was not mentioned in the plea offer, and would express irritation that Lee would repeatedly ask about deportation.

Before anyone expresses irritation at a question, the inquiree should assure that his or her answer is on terra firma, which Lee’s lawyer was not. Heck yeah Lee was highly risking deportation for a conviction for possession with intent to distribute a controlled substance, and his active prison sentence of one year and one day added fuel to the fire, in that any incarceration sentence — for the total of active and suspended incarceration time — of one year or higher is deportable as an aggravated felony for a conviction of marijuana or ecstasy.

Thanks to Lee’s plea lawyer for at least acknowledging at Lee’s habeas corpus hearing to having been ignorant that Lee risked deportation from pleading guilty. Ouch! Why did Lee’s lawyer then tell Lee he faced no deportation risk from a guilty plea.

My approach to getting my non-United States citizen clients advised about adverse immigration consequences from particular convictions and sentences is to tell them what I know (which is extensive, but not as extensive as if I were an immigration lawyer) and to advise when they need to consult with a qualified immigration lawyer schooled on such adverse consequences. Typically, I will be present on the phone for such an initial consultation with the immigration lawyer. By my being present during such a conversation, I can assure that the immigration lawyer has an accurate picture on what our case is about, its potential landmines, and what I am looking for in any advice letter my client wants drafted to assist us with case negotiations and any sentencing. Also by my participating in this consultation with the immigration lawyer, I can make sure that I am correctly relating that conversation, as needed, to any prosecution (for negotiations) and judge (for sentencing), and that I am on the same page with my client about potential immigration risks from their criminal case, and armed with the information needed to move to reduce those risks.

Praised be the Supreme Court for ruling 6-2 in Lee that his lawyer’s blundering assurance of no deportation risk thereby delivered constituted ineffective assistance of counsel under the Sixth Amendment, which is defined in Strickland v. Washington’s (466 U. S. 668 (1984) as deficient attorney performance that prejudices the case outcome for the defendant. Thanksfully, Lee declines the assertion that it is mere speculation about whether Lee would have rejected his plea offer had his lawyer not mis-advised him that deportation risks were absent by pleading guilty. It appears certain that Lee’s remedy will be to get his guilty plea and sentence reversed, and to get his case set for trial, if the prosecution still wants to prosecute him.