Friday, June 23, 2017

Breaking News: Supreme Court Decides Immigrant Ineffective Assistance of Counsel Case (Lee v. United States)


The Supreme Court has been busy with immigration cases in the 2016 Term.  (For a description of the six immigration cases, click here.).  The Court decided a denaturalization case (Maslenjak v. United States) yesterday and a criminal removal case (Esquivel-Quintana v. Sessions) in May. 

Today, the Supreme Court decided Lee v. United States, in an opinion by Chief Justice Roberts (and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Thomas, joined by Justice Alito, dissented.  Justice Gorsuch did not participate in the consideration or decision in the case. 

The  case involves the application of Padilla v. Kentucky (2010), a blockbuster decision that held that an ineffective assistance of counsel claim under the Sixth Amendment could be alleged by an immigrant who had not been advised of the removal consequences of a plea agreement.  Jae Lee, an immigrant from South Korea, had lived in the United States since 1982.  Lee was charged with possessing ecstasy with intent to distribute. His lawyer urged him to plead guilty because he would not be deported, and would receive a shorter sentence. As the Court bluntly stated, "Lee's attorney was wrong." "Dead wrong" is more like it.  Lee accepted the plea agreement.

The plea agreement in fact meant mandatory deportation for Lee; he had expressed concern about removal to his attorney and the court. When he learned that his plea would result in his removal from the United States, Lee moved to vacate his conviction on the ground that he received ineffective assistance of counsel. The U.S. government agreed that Lee had received ineffective assistance but argued that he also had to show that he was prejudiced by his attorney's bad advice.  The government further argued that Lee could not establish prejudice because he had no viable defense to the drug charges. Lee said that he would have gambled with a trial (and a possible lengthier sentence) if he had known about the removal consequences of a conviction.  Reversing the court of appeals' ruling, the Court held that Lee had adequately shown a reasonable probability that he would have rejected the plea if he had known he would be deported.  The majority applied generally applicable doctrine from its decisions on the elements of an ineffective assistance of counsel claim.
In his dissent, Justice Thomas at the outset emphasized that he believed that Padilla v. Kentucky was wrongly decided.  He proceeded to explain his disagreement with the majority's analysis of the prejudice prong of Lee's ineffective assistance claim.
Lee v. United States does not break new ground.   But it continues a trend in which the Court has shown a willingness to protect the rights of immigrants and to apply standard constitutional doctrines to protect the rights of immigrants, in this case the right to effective assistance of counsel.  We will see whether the trend continues in two immigration cases raising constitutional questions in which we are likely to see decisions on Monday, Jennings v. Rodriguez (immigrant detention) and Sessions v. Dimaya (constitutionality of criminal removal provision of the U.S. immigration laws). Three of the six remaining cases from the 2016 Term are immigration cases (the final one is Hernandez v. Mesa, a case involving a shooting by a border patrol office of a young Mexican man.
UPDATE (June 24):  Amy Howe's analysis of the Court's opinion in Lee v. United States  for SCOTUSBlog can be found here.

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