By Mark Sherman
March 28, 2017
WASHINGTON — The Supreme Court is taking up the case of a longtime U.S. resident who is facing deportation to South Korea after pleading guilty to a drug crime based on his lawyer’s bad advice.
The justices are hearing arguments Tuesday in an appeal by Jae Lee, who has lived in the United States for 35 years and has never been back to South Korea since coming to the United States when he was 13.
The case has taken on increased importance because President Donald Trump has promised to step up deportations, with a special focus on immigrants who have been convicted of crimes. The American Bar Association has estimated that one of every 10 criminal defendants is not an American citizen.
Lee agreed to plead guilty to possession of ecstasy with intent to distribute after his lawyer, Larry Fitzgerald, assured him that doing so would not make him subject to deportation. The lawyer was wrong.
The issue in Lee’s appeal is whether the lawyer’s recommendation to take the deal offered by prosecutors was so bad that it amounts to a violation of Lee’s constitutional right to a lawyer.
Both sides agree that Fitzgerald’s performance was deficient in representing Lee. The Supreme Court ruled in 2010 that immigrants have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation.
But Lee almost must show that the bad lawyering mattered to the outcome of the criminal case.
The federal appeals court in Cincinnati ruled that the evidence against Lee was overwhelming and that he would have been convicted had he rejected the plea offer and taken his chances at trial. Other appeals courts around the country have sided with immigrants in similar circumstances. The Supreme Court is expected to set a national standard.
Fitzgerald lacked experience in immigration law, did not consult an immigration lawyer and was unaware that the charge Lee was facing would result in mandatory, automatic deportation, according to a magistrate judge’s finding.
Lee argued in court papers that a competent lawyer would have sought a better deal that preserved his options for fighting deportation. Failing a deal, Lee said he would have insisted on a trial. He has been in custody for seven years while trying to avoid being deported.
Alabama is leading 19 other states in backing the administration’s argument that the appeals court ruling should be upheld.
The Obama administration Justice Department had previously urged the Supreme Court to turn down the appeal and leave the lower court ruling in place. The new administration announced in February that any immigrant in the country illegally who is charged with or convicted of any offense, or even suspected of a crime, will now be an enforcement priority for deportation. Some 11 million immigrants are living illegally in the U.S.
Immigrant rights groups and the bar association are among those siding with Lee.
Jenny Roberts, a law professor at American University in Washington, said the case calls attention to the harsh consequences immigrants can face, despite their longstanding ties to the country.
“This case is about the unexpected people who are marked for deportation, about someone whose parents brought him here,” said Roberts, who helped write a legal brief from immigrant legal advocates in support of Lee.
The case is Lee v. U.S., 16-327.
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For more information, go to: www.beverlyhillsimmigrationlaw.com