Jae Lee, a permanent legal resident of the United States, came to this country as a child with his parents in the 1980s. He has never returned to his birth country of South Korea, and for two decades he lived in Memphis, Tennessee, where he built a successful restaurant business. In 2009, Lee was charged with possession of the drug ecstasy with intent to distribute it. He hired an attorney and began plea negotiations with the government. During those negotiations, Lee’s main concern was avoiding deportation, and his attorney assured him that he could not be deported if he accepted a plea deal being offered by the government. Acting on that advice, Lee pleaded guilty and was sentenced to a year in prison. Only after beginning his sentence did he learn that his attorney’s advice was wrong: the crime to which he had pleaded guilty requires automatic deportation, and the government was preparing to deport him after his prison term. Lee filed a motion to vacate his sentence, claiming that he was deprived of his Sixth Amendment right to the effective assistance of counsel, and that he would have taken his chances at trial if he had known that deportation was a consequence of pleading guilty.

When an attorney’s deficient performance causes a client to accept an unfavorable plea bargain, the Constitution requires that the resulting conviction be vacated. And in Padilla v. Kentucky (2010), the Supreme Court held, as we urged, that failing to inform one’s client about the immigration consequences of a plea bargain amounts to a deficient performance. In this case, Lee’s former attorney testified under oath, as Lee did, that “the key to his decision” to plead guilty was his attorney’s mistaken advice that doing so would not lead to deportation. Nevertheless, the U.S. Court of Appeals for the Sixth Circuit denied Lee’s motion, concluding that although his attorney performed deficiently, Lee was not prejudiced by the error. The court said that because Lee had only “slim” prospects of prevailing at trial, he would have taken the plea deal even if he knew that it required automatic deportation, because the deal shortened his prison sentence by a few years. According to the court, Lee had to prove that rejecting the plea deal would have been “rational,” and “no rational defendant” in his situation would proceed to trial rather than take a plea deal with a shorter prison sentence. Lee appealed to the Supreme Court.

On February 8, 2017, CAC filed a friend-of-the-court brief on behalf of Lee. We argued that Supreme Court precedent requires a court to consider whether Lee himself would have rejected the plea bargain but for his counsel’s errors, not whether a hypothetical “rational” person would have done the same thing. The Sixth Circuit’s categorical rule fails to acknowledge the severity of deportation, historically recognized as a harsh penalty akin to banishment. It thus fails to recognize that many noncitizen defendants, like Lee, will be more concerned with avoiding that fate than with any potential jail sentence, and will risk a longer sentence for even a small chance of remaining in this country. As we explained, a person like Lee, with deep familial and professional ties to the United States but no connection whatsoever to his birth country, had ample reason to risk a longer sentence by proceeding to trial. Therefore, as we argued, the Supreme Court should reject the Sixth Circuit’s categorical rule that holds that no one in Lee’s position could be prejudiced by their counsel’s ineffective assistance.

The Court heart oral argument on March 28, 2017. On June 23, 2017, the Court held, 6-2, that Lee sufficiently demonstrated a reasonable probability that he would have rejected the plea deal had he known it would result in his mandatory deportation. Writing for the majority, Chief Justice Roberts explained that, “common sense (not to mention [Supreme Court] precedent) recognizes that there is more to consider than simply the likelihood of success at trial,” and that Lee had “substantial and uncontroverted evidence” to support his claim that he would not have accepted a plea had his counsel correctly advised him that it would lead to deportation. The Court reversed the decision of the Court below and remanded the case for further proceedings.