News alert: SCOTUS, in Lee vs. U.S., 582 U.S. ____ (2017), ruled that a noncitizen can vacate their criminal plea, if their defense attorney advised the client to accept the plea in lieu of trial, but failed to also properly advise on the immigration consequences of taking such a plea.
On June 27, 2017, the Supreme Court of the United States decided that noncitizens can vacate their criminal pleas if they can show (1) their defense attorney provided ineffective assistance of counsel on the immigration consequences of taking a plea, and (2) but-for those errors, the noncitizen would have gone to trial. In Lee v. U.S., the defendant was charged with possession of drugs with the intent to distribute in 2008. He was a legal permanent resident who repeatedly asked his defense attorney if he would be deported if he plead guilty to the crime. The evidence was overwhelming against him, and his chance of success at trial was grim. However, Lee's defense attorney assured him that he would not be deported for this crime, and due to that assurance, Lee plead guilty. Before sentencing, Lee found out that his guilty plea did, in fact, lead to mandatory deportation under immigration law, and filed a motion to vacate his plea, based on ineffective assistance of counsel. The district court denied the motion, which denial was then affirmed by the 6th Circuit Court of Appeals, before Lee appealed to the Supreme Court.
At the Supreme Court, both parties conceded that the defense attorney had indeed provided ineffective assistance of counsel. Therefore, the Supreme Court focused its decision on whether Lee had been prejudiced by the ineffective assistance, and whether or not a reasonable probability existed that Lee would have gone to trial, if he had been given proper counsel. It concluded that a court must look at what a defendant would have done when knowing all the consequences post-trial or post-plea. The Court thus found Lee had sufficiently demonstrated that his decision to accept a plea was based solely on whether he was going to be deported.
"Deportation is an integral part, sometimes the most important part, of a penalty that may be imposed on a noncitizen defendant who plead guilty to crime," wrote the Court, citing, Padilla v. Kentucky, 559 U.S. 356 (2010). For this reason, the Court found that Lee’s low likelihood of success at trial was irrelevant, because, had Lee known his conviction would require mandatory deportation, he would have risked a "Hail Mary" at trial in hopes of an acquittal to avoid deportation. A noncitizen would likely risk trial, even if meant more time, if there was a chance of not being deported.
This decision firmly establishes a possible method of post-conviction relief for many noncitizens who face deportation, due to serious criminal convictions. In CA, the State enacted a law on January 1, 2017, under Cal. Penal Code section 1473.7, that allows for immigrants with old criminal convictions to seek post-conviction relief, due to ineffective assistance of counsel by their criminal defense attorney. It goes further to also allow relief if the defense attorney made no effort to mitigate would-be immigration consequences and/or failed to attempt to negotiate a different charge with less immigration ramifications. The Supreme Court's decision now bolsters Cal. Penal Code Section 1473.7, giving further aid to immigrants hoping to clean up past criminal records.
With new and much harsher regulations being enacted under the Trump Administration, it is imperative for noncitizens to handle their past convictions sooner, rather than later, and if at all possible, before being detained by immigration. Fixing your criminal record before I.C.E. comes knocking on your door can save you from possible fears of deportation. If you or a loved one is an immigrant and have criminal convictions, call our office today, at 818-253-1641, to consult with one of our attorneys on how best we can tackle your criminal record to protect yourself from possible deportation.