In Padilla v. Kentucky, 559 U.S. 356 (2010), the United State Supreme Court held that an attorney representing a plea bargaining noncitizen criminal defendant must advise that client about the immigration consequences associated with the plea. Specifically, when the immigration consequences associated with the guilty plea are clear under federal immigration law, the attorney's advice must be equally clear as to those consequences.
Convicted noncitizen defendants facing those immigration consequences after a guilty plea may claim ineffective assistance on post-conviction review if the advice the attorney provided did not meet the Padilla standard. To obtain relief, the noncitizen to prove (1) that the attorney's performance was deficient and (2) the deficient performance harmed the defendant. The harm element requires the defendant to show, "a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." In other words, the defendant's decision to reject the plea bargain had correct advice been provided must be "rational under the circumstances."
In Lee v. United States, No. 14-5369 (6th Cir. June 8, 2016), the court, following circuit precedent, held the defendant cannot show harm when the government's evidence against him is overwhelming. This decision highlighted a circuit split the Supreme Court will now (possibly) resolve as the Court granted certiorari in December. Oral argument is scheduled for next Tuesday and a decision is expected by the term's end on June 30.
The Sixth Circuit's opinion in Lee is economical but very fair to both arguments. One argument against the Sixth Circuit's conclusion is that to the client, preserving the right to remain in the country (though under a harsher sentence) may be more important to the noncitizen than a shorter sentence and certain deportation. If such is the case, a properly advised defendant may choose to go to trial even when the chance of acquittal is very low. This possesses a certain power as the Padilla Court reached the conclusion it reached by highlighting the important choice principal at stake for noncitizens facing deportation..
Professor Maurice Hew (Thurgood Marshall) in a law review article cited below[*] stated an attorney representing a noncitizen defendant should, at a minimum, determine: (1) the immigration status and criminal history of the client; (2) immigration ramifications of a proposed plea; (3) the client’s wishes and plans for the near future; and (4) a criminal trial strategy to meet the client’s needs. The Sixth Circuit did not take into account this third element in Lee,