In 2010, in Padilla v Kentucky, the Supreme Court reversed the conviction of a lawful permanent resident whose attorney failed to properly advice him of the immigration consequences of his guilty plea. The counsel’s performance was constitutionally deficient under the first prong of Strickland test. The question of prejudice (the second prong of Strickland) was sent back to the Kentucky court and left for another day by the Supreme Court. Today, the Supreme Court answered the question of prejudice in Lee v. United States. Lee’s attorney wrongly advised him many times that he would not be deported for pleading guilty to possession with intent to distribute ecstacy. Relying on this advice, Lee pled guilty. He was later subject to mandatory deportation for pleading guilty to an “aggravated felony” under the Immigration and Nationality Act.
The government conceded that the attorney’s performance was deficient under the first prong of Strickland but contended that Lee was not prejudiced by the wrong advice because his only hope for success was at trial, where he had no viable defense, according to the government. The Sixth Circuit agreed. The Supreme Court rejected the argument, explaining that “common sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial.” The Supreme Court concluded that Lee had “adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.” The Sixth Circuit decision was reversed and the case was remanded.