Defendants who plead guilty based on bad advice about immigration consequences can show prejudice to set aside their pleas by showing a reasonable likelihood that they would not have pleaded guilty but would have gone to trial, even though they almost certainly would have been convicted at trial, the U.S. Supreme Court ruled June 23 in Lee v. United States.

Such defendants, to show prejudice, need not show that they likely would have obtained a favorable result at trial. 

Jae Lee lived most of his life in the United States as a lawful permanent resident, but was not a U.S. citizen. He was charged with one count of possession of drugs with intent to distribute.  He specifically asked his defense counsel if he would be deported if he pleaded guilty or was convicted, and was told no. Relying on counsel’s advice, Lee, who had no real defense to the charge, pleaded guilty so as to accept a lesser sentence. Lee’s attorney was wrong on the immigration advice.  Lee’s offense was an “aggravated felony” under the Immigration and Nationality Act which carried mandatory deportation as a consequence.

Lee sought federal habeas relief for ineffective assistance of plea counsel. The District Court ruled that counsel had performed deficiently by giving wrong immigration advice, but Lee could not show prejudice in light of overwhelming evidence of guilt.  The Sixth Circuit affirmed.

In a 6-2 opinion, the Supreme Court held that Lee need only show a reasonable probability that he would not have pleaded guilty if he had been given correct immigration advice.
“When a defendant alleges his counsel’s deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial ‘would have been different’ than the result of the plea bargain,” the Court said.  “That is because while, while we ordinarily ‘apply a strong presumption of reliability to judicial proceedings,’ we cannot accord any such presumption ‘to judicial proceedings that never took place.’”

The wrong advice on immigration affected Lee’s understanding of the consequences of pleading guilty, the Court said.  Lee was prejudiced by the denial of the trial to which he had a right.

Justices Thomas and Alito dissented.  They would have required that Lee prove that if he had gone to trial, he likely would have obtained a more favorable result