The Supreme Court on Re-Opening Criminal Convictions to Prevent Deportation
While much attention has focused on the Supreme Court's decision regarding the travel ban, the Court also issued a decision on another immigration matter just days earlier on June 23, 2017: Jae Lee vs. United States. This decision has implications that are far more significant and wide-reaching than the travel ban because it affects individuals who are already in the U.S. and who may been long-term residents, even if undocumented.
Jae Lee vs. United States is about whether a person's guilty plea is valid when the criminal defense attorney wrongly advises a client that a guilty plea will not result in deportation. The issue is critical to people who are not U.S. citizens (i.e. undocumented, lawfully present on a non-immigrant visa, or a lawful permanent resident) because a removal order can make it extremely difficult and sometimes impossible to ever live again in the United States. Even those who can overcome the deportation order, the expense is significant and takes at least two years to complete.
Jae Lee's criminal defense attorney entered into plea negotiations with the prosecuting attorney. Plea negotiations are a very common strategy in criminal law and an opportunity for both parties to avoid the expense of a criminal trial. The vast majority of criminal cases are resolved through plea negotiations. Going to trial has become rare in the U.S. criminal justice system.
During Jae Lee's plea negotiations, he repeatedly asked if a guilty plea meant he would be deported. His attorney repeatedly reassured him that a guilty plea would not mean deportation. Based on his attorney's assurances that he would not be deported if he pleaded guilty, Jae Lee pleaded guilty to a drug trafficking offense. Unfortunately for Jae Lee, his attorney was wrong.
Jae Lee's guilty plea meant he was convicted of an aggravated felony. An aggravated felony is an automatic ground for deportation. The only individuals who might avoid deportation despite an aggravated felony conviction are those with convictions that happened before 1996. For everyone convicted after 1996 (and some convicted between 1990 and 1996), an aggravated felony conviction leaves them without any way to avoid deportation. A person with an aggravated felony conviction after 1996 does not even have the right to appear in front of an immigration judge. They are subject to administrative removal.
As soon as Jae Lee learned his guilty plea made him deportable, he sought to re-open his criminal case to have his conviction vacated. He argued that his attorney had provided ineffective assistance of counsel (bad advice) and that he never would have accepted the plea bargain had he known that meant automatic deportation. His attorney also acknowledged that had he understood the consequences of a guilty plea, he would have advised Jae Lee to go to trial, no matter how weak Jae Lee's case might have been because only an acquittal would allow him to avoid the immigration consequences of the crime.
In the Supreme Court's decision, the Court noted that "The decision whether to plead guilty also involves the respective consequences of a conviction after trial and by plea.....When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive.....When the inquiry is focused on what an individual defendant would have done, the possibility of a highly improbable result may be pertinent to the extent it would have affected the defendant's decision-making."
IMPLICATIONS
The decision means that individuals convicted of crimes through guilty pleas or pleas of "no contest" ("no contest" is the same as a guilty plea in immigration court) can have those convictions re-opened if they have evidence that they would have rejected the plea had they known about the consequences of a conviction. In practical terms, this means the individual must persuade the criminal court that the criminal defense attorney was aware the client was not a U.S. citizen and the defendant had made known to the attorney his or her concerns about the immigration consequences of pleading guilty.
If a criminal conviction is successfully re-opened and vacated because of this type of ineffective assistance of counsel, then the immigration consequences no longer happen because the individual is no longer convicted of the crime.
Jae Lee vs. United States is about whether a person's guilty plea is valid when the criminal defense attorney wrongly advises a client that a guilty plea will not result in deportation. The issue is critical to people who are not U.S. citizens (i.e. undocumented, lawfully present on a non-immigrant visa, or a lawful permanent resident) because a removal order can make it extremely difficult and sometimes impossible to ever live again in the United States. Even those who can overcome the deportation order, the expense is significant and takes at least two years to complete.
Jae Lee's criminal defense attorney entered into plea negotiations with the prosecuting attorney. Plea negotiations are a very common strategy in criminal law and an opportunity for both parties to avoid the expense of a criminal trial. The vast majority of criminal cases are resolved through plea negotiations. Going to trial has become rare in the U.S. criminal justice system.
During Jae Lee's plea negotiations, he repeatedly asked if a guilty plea meant he would be deported. His attorney repeatedly reassured him that a guilty plea would not mean deportation. Based on his attorney's assurances that he would not be deported if he pleaded guilty, Jae Lee pleaded guilty to a drug trafficking offense. Unfortunately for Jae Lee, his attorney was wrong.
Jae Lee's guilty plea meant he was convicted of an aggravated felony. An aggravated felony is an automatic ground for deportation. The only individuals who might avoid deportation despite an aggravated felony conviction are those with convictions that happened before 1996. For everyone convicted after 1996 (and some convicted between 1990 and 1996), an aggravated felony conviction leaves them without any way to avoid deportation. A person with an aggravated felony conviction after 1996 does not even have the right to appear in front of an immigration judge. They are subject to administrative removal.
As soon as Jae Lee learned his guilty plea made him deportable, he sought to re-open his criminal case to have his conviction vacated. He argued that his attorney had provided ineffective assistance of counsel (bad advice) and that he never would have accepted the plea bargain had he known that meant automatic deportation. His attorney also acknowledged that had he understood the consequences of a guilty plea, he would have advised Jae Lee to go to trial, no matter how weak Jae Lee's case might have been because only an acquittal would allow him to avoid the immigration consequences of the crime.
In the Supreme Court's decision, the Court noted that "The decision whether to plead guilty also involves the respective consequences of a conviction after trial and by plea.....When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive.....When the inquiry is focused on what an individual defendant would have done, the possibility of a highly improbable result may be pertinent to the extent it would have affected the defendant's decision-making."
IMPLICATIONS
The decision means that individuals convicted of crimes through guilty pleas or pleas of "no contest" ("no contest" is the same as a guilty plea in immigration court) can have those convictions re-opened if they have evidence that they would have rejected the plea had they known about the consequences of a conviction. In practical terms, this means the individual must persuade the criminal court that the criminal defense attorney was aware the client was not a U.S. citizen and the defendant had made known to the attorney his or her concerns about the immigration consequences of pleading guilty.
If a criminal conviction is successfully re-opened and vacated because of this type of ineffective assistance of counsel, then the immigration consequences no longer happen because the individual is no longer convicted of the crime.
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