Professor Roberts and AUWCL Students Write Amicus Brief in Lee v. U.S. on Behalf of Three Immigration Law Organizations


Professor Jenny Roberts wrote an amicus brief in Lee v. U.S. on behalf of three national organizations that work at the intersection of criminal and immigration law, the Immigrant Defense Project, the Immigrant Legal Resource Center, and the National Immigration Project of the National Lawyers Guild. Three American University Washington College of Law students worked on the brief: Roberto Martinez ’17 and Christina Moehrle ’17, both in the Criminal Justice Clinic, as well as Aaron Garavaglia ’16. 

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

Background on the case: Mr. Lee came to the U.S. more than 20 years ago as a child, and has never returned to his country of origin, South Korea. Although his attorney assured him that his guilty plea to possession with intent to distribute ecstasy would not have immigration consequences, that advice was incorrect, and Mr. Lee’s conviction made him mandatorily deportable.

The Supreme Court will hear argument on March 28th on the issue of whether Mr. Lee’s attorney’s misadvice actually caused him prejudice, a requirement for demonstrating ineffective assistance of counsel in violation of the Sixth Amendment right to counsel. The government argues that, because the evidence against Mr. Lee was strong, he cannot show prejudice.  The amicus brief discusses how, even when evidence against a non-citizen is strong, competent criminal defense counsel can negotiate with the government to find an alternative plea that does not lead to mandatory deportation, even if it leads to similar or more incarceration than the deportable conviction. The brief offers a number of stories from actual criminal cases where defense counsel successfully bargained to avoid some or all immigration consequences.

A full account of the case can be found on SCOTUSblog.



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