The Sixth Circuit weighed in earlier this week on an apparently growing Circuit split regarding ineffective assistance of counsel and failing to properly advise of immigration consequences. Jae Lee came to this country from South Korea with his family when he was a young child. He graduated high school. He became a successful restauranteur. But he never obtained citizenship like the rest of his family. But he did pass ecstasy around to his friends and a government informant.
In 2009, he was charged with possession of ecstasy with the intent to distribute. The Sixth characterized case against him as "very strong" with "overwhelming evidence of guilt." Jae Lee's attorney told him there would be no immigration consequences if he pled guilty, so he pled guilty in order to receive a shorter sentence.
Of course, deportation proceedings eventually commenced, and Jae Lee brought the instant action.
All sides agree defense counsel's performance was deficient. The issue then is did the deficient performance prejudice the defendant? Here lies the Circuit split: how much of a role should deportation play in evaluating prejudice? Is it the end-all, be-all, instant prejudice? Or is it just one of many factors to consider?
The Sixth provides an interesting history of jury trial rights in this country. It's worth a read. In the face of the eight gazillion Johnson petitions waiting for me, though, I will give you the bottom line: in the Sixth Circuit (and Second, Fourth, and Fifth), the risk of deportation is considered alongside the legal merits of the case against the defendant. Because the evidence against Jae Lee was otherwise overwhelming, his counsel's deficient performance in advising the plea was prejudicial. Jae Lee would have been found guilty anyway.
Also, the panel thinks it is dumb that we're deporting an otherwise productive member of our society, who has lived here since 1982.