Defence lawyers play a vital role in the criminal justice system. So often in popular culture, that role is widely associated with trials. However, it is not only during trials that sound and skilled legal counsel is crucial. Most criminal processes end as a result of a negotiated plea agreement, where, in exchange for the accused pleading guilty, the prosecution recommends a prescribed punishment. The significance of pleading guilty may have special consequences for non-citizens, particularly, if the nature of the crime is considered serious enough. However, for some, if not many criminal defence counsel, there is insufficient awareness that pleading guilty to an offence may result or likely result in deportation proceedings upon completion of their punishment. The failure to properly advise a client of the immigration consequences of a guilty plea is of serious concern and may rise to the level of a constitutional violation (see e.g. Padilla v Kentucky, 559 US 356 (2010). Such was the case in a very recently decided judgment of the United States Supreme Court in Lee v United States.
Though the decision is set in the US legal context, the lessons that can be learned from this case pierce through many jurisdictional boundaries. The failures of counsel as discussed in this decision are not isolated moments – they can be and are easily replicated in many other countries. Furthermore, they may be in violation of legal rights in those other states, including the right to assistance of counsel. First, I examine the facts and holding of the decision. Second, I discuss what lessons may flow from it.
The Lee Case
Lee concerns a criminal defendant who is a South Korean national. Jae Lee was legally brought to the United States at the age of 13 and has lived in the United States as a lawful permanent resident for over 35 years. In addition to operating a legitimate restaurant business, he allegedly sold narcotics as well. He was arrested and charged with possession of a controlled substance (ecstasy) with the intent to distribute. When consulting with his lawyer, Lee asked about the possibility of deportation on several occasions if he pleaded guilty further to a plea agreement. His lawyer reassured him that he would not be in danger of being deported if he pleaded guilty. This advice was wrong. Furthermore, when pleading guilty before a federal magistrate judge, the court inquired as to whether the accused was aware that pleading guilty to the crime would likely result in his being subject to deportation. When Lee asked his counsel about this, the latter advised him that the judge’s question was merely a “formality”. It turns out of course that it was not. Following his conviction, Lee sought relief requesting that the plea deal be abrogated. The Federal District Court disagreed with Lee and the Federal Court of Appeals for the 6th Circuit affirmed the District Court’s conclusion that Lee was not denied his 6th amendment right to effective assistance of counsel.
In a majority judgment written by Chief Justice John Roberts, the US Supreme Court held that Lee was denied his 6th amendment right to effective assistance of counsel. The 6th amendment applies to all criminal prosecutions and commences where formal adversarial judicial proceedings attach to a particular crime. This includes advice and assistance concerning the entering of a guilty plea in furtherance of a plea agreement with the prosecution. The test to demonstrate that an individual was deprived of effective assistance of counsel as required by the 6th amendment is as follows: “a defendant must show that counsel’s representation “fell below an objective standard of reasonableness” and that he was prejudiced as a result” (Lee, slip opinion, p.5). In arguments before the Supreme Court, the government conceded that Lee received inadequate representation at the plea-deal stage. However, the real area of dispute concerned whether the impugned representation and erroneous advice prejudiced Lee. In order to prove such prejudice, the defendant must show a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” (Lee, slip opinion, p.5). It may be that there is a strong likelihood that an accused would be found guilty at trial but still decide to opt for a trial where a guilty plea would lead to an eventual mandatory deportation. The Lee Court stated that “where we are instead asking what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it would have affected his decisionmaking” (Slip opinion, p.9). Based on the record, the 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” (Slip opinion, p.10). Indeed, Lee had inquired numerous times from his counsel about the matter of deportation if he pleaded guilty. His lawyer failed to provide proper information and dismissed his concerns.
Based on the Court’s 6th amendment precedent, government lawyers argued to the Court that a defendant “must convince the court that a decision to reject the plea bargain would have been rational under the circumstances” (Lee, slip opinion, p.12). In the government’s view, Lee could not discharge this as he had very limited chance of success at trial. Had he proceeded to trial Lee would have merely received a longer sentence before being deported. The Court concluded that it would not be irrational in such circumstances to reject a plea offer in favour of litigating the matter. The Court observed (Slip opinion, p.12):
But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly. If deportation were the “determinative issue” for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time. Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so.
It is worth noting that were a non-citizen accused to plead not guilty for the very reason that doing so would result in their deportation, it may lead, at least in some cases, to prosecutors electing to charge such accused with a lesser offence in exchange for a guilty plea. The explicit purpose would be that it would prevent triggering deportation proceedings down the line. Furthermore, some conscientious prosecutors may recognize that the consequences of charging an individual with a more serious crime would lead to a far more disproportionate consequence. An individual like Lee who has lived in the United States for some 35 years, is presumably acculturated in the country. He is culturally more American than he is South Korean. But for Lee’s failure to naturalize and become a citizen earlier, he would likely have been eligible for citizenship. Removing him from the country would mean effective banishment from a nation that has been his home and where he has maintained substantial contacts for decades. Consequently, the failure of counsel to properly advise their non-citizen client may have a substantially detrimental impact.
Preventing Such Lapses
If a big part of the problem is the failure of some counsel to properly advise their non-citizen clients of the ramifications of pleading guilty, there are steps that can be taken to at least mitigate if not prevent such malpractice. Put simply, those engaged in the practice of defence-side criminal law work must be made aware of the consequences of pleading guilty for non-citizen clients and to advise them accordingly. But it goes beyond this. There may be an obligation for defence counsel to actively go about ascertaining the citizenship status of their clients. As I shall suggest below, this might require counsel to go more in-depth and to scrutinize clients’ statements even where they claim that they are citizens. Giving members of the practicing bar the tools and knowledge to meet their non-citizen clients’ needs also extends to prospective members of this class. Accordingly, there is a role for law schools to be a part of this process.
Certain courses in the law school curriculum are the best places to begin the process of educating future members of the bar regarding the needs of non-citizen criminal defendants. The most obvious place to acquire this would be courses that contain some element of criminal procedure. Most common law schools in North America contain a mandatory criminal law component in their first year curriculum. Some may focus purely on matters of substantive criminal law (this was the case for me when I attended law school in the US) while others contain both elements of substantive criminal law and procedure. Examples of law schools in Canada that follow a combined substantive law and procedure approach include (but are not limited to) the Robson Hall Faculty of Law at the University of Manitoba (where I teach) and the University of Victoria’s Faculty of Law. Most North American law schools provide the opportunity (and may make it mandatory in some cases) to enroll in courses where criminal procedure and constitutional questions are of significant focus. Building on these, law schools may provide advanced clinical and non-clinical criminal procedure courses.
Including some aspect of the right to (effective assistance of) counsel that incorporates the types of circumstances discussed in Lee could be brought forth in any number of the types of courses mentioned above. While one may argue that this particular subject matter should be incorporated in mandatory courses in order to ensure widest possible coverage, this might not be necessary. Furthermore, first year courses that involve both criminal law and procedure are particularly pressed for time and in some/many instances the procedure component may very well take a backseat to substantive criminal law subject matter - I speak from experience. Even where criminal procedure is covered, it may be limited to other areas of procedure deemed to be more essential (and not illegitimately so).
Many students who aim to pursue a career in criminal law practice (the ones who most likely need the information) will likely enroll in all or most criminal law/procedure related courses beyond the first year. Provided that the material is covered in a basic criminal procedure course, this may suffice. However, it may be advisable for the material to be covered in any specific upper year “criminal procedure” or similar course that includes a focus on rights of the accused in the criminal law process. Even if such a course is offered as an elective for the broader law school student population, it may serve as a pre-requisite or co-requisite for advanced clinical criminal law courses.
Clearly, there is an important role for members of the criminal defence bar to play. In addition to educating themselves about the consequences of a guilty plea and conviction for non-citizen clients, lawyers have to take steps to inquire about the citizenship status of their clients. Lee’s counsel was clearly made aware of his status as a permanent resident and failed to properly understand the significance of this. Other lawyers might not be aware or told. I shall suggest here that counsel must undertake certain steps to ascertain such status and to take adequate measures.
The most obvious first step is to ask their clients whether they are citizens. Lawyers should seek this information from each client - not just ones who they think look or sound like citizens. Why is that? Why each and every one? Simply put, people have unique life histories and stories that defy stereotypes. You cannot tell definitively by virtue of race, ethnicity, language, and/or accent whether a person is a citizen or not. There are individuals, who are White, speak fluent English and whose accents sound Canadian or generically North American, and yet are non-citizens. The case of Len Van Heest is illustrative of this fact. Van Heest was brought to Canada at the age of 8 months old and lived here his whole life but never became of a citizen. He was Canadian for all intents and purposes. Van Heest had mental health issues and also committed a string of crimes. He was deported to the Netherlands; the move has reportedly worsened his mental state. Van Heest doesn’t speak any Dutch. I use Van Heest’s example merely to illustrate the classes of persons whom one might readily consider a citizen of Canada (or the United States) is not so straightforward.
Equally, a person who presents, at least in the North American context as a visible minority and who bears a foreign accent may very well be a citizen. Such persons may have legally migrated, and subsequently became a citizen. They may also have been born in Canada, or have acquired Canadian citizenship by virtue of a parent’s citizenship but were raised in another country before deciding to settle in Canada.
Determining a client’s citizenship status may require more than just asking their client if they are citizens. Lawyers may seek to request documentation that proves their client’s citizenship, i.e. a birth certificate. Clients may lie about their status – perhaps because they are sensitive about feeling otherized; they may not see the relevance of the question regarding their citizenship or lack of it; and/or fear that they will not be properly represented if they admit that they are non-citizens. Of course, it may not be a knowing misrepresentation as opposed to a belief that they are indeed citizens based on what was told to them by relatives or other persons of trust. Individuals may assume that they are citizens because they have resided in the country for a lengthy enough period, and are unaware of the formal processes that must be undertaken to formalize one’s status. There may be no proper realization that living in a country for numerous years, if not decades, doesn’t automatically confer citizenship.
Even where clients furnish documentary evidence of citizenship, lawyers may need to take further steps to ascertain whether that citizenship is valid. Individuals may hold an otherwise valid birth certificate, provincial health care card and passport. However, there may be circumstances surrounding their birth that render them ineligible for citizenship. For instance, a child born to a diplomat or employee of a foreign state is not eligible for citizenship. In a particularly rare case, Deepan Budlakoti was born in Ottawa, held a Canadian passport, and had an Ontario health insurance card. He was also the son of Indian citizens who previously worked at the Indian High Commission in Ottawa before obtaining Canadian residency visa. Though this is disputed as the Government of Canada claims that Budlakoti's parents were employed as High Commission staff when he was born - thus making him ineligible for Canadian citizenship. The Immigration and Refugee Board of Canada determined that he was a foreign national and inadmissible because he was convicted of a crime. An application to the Federal Court for judicial review was rejected.
What Budlakoti’s case illustrates is that, however rare, there might be instances where legal counsel will need to undertake a deeper assessment of a person’s citizenship status despite the existence of documents that suggest they do possess it. A person’s situation may exempt them from being eligible from citizenship status but circumstances may be such that they fell through the cracks and they were given a birth certificate, health care and passports before it is later realized.
It is important to note too that ineligibility as a result of one’s parent working for a foreign country does not stop with a posting at an embassy, high commission or consulate. Case law indicates that a parent’s employment with even quasi-government agencies in foreign countries may be enough to render their children born in that foreign jurisdiction ineligible for citizenship – see e.g. Lee v Canada (Minister of Citizenship and Immigration).
Consequently, criminal defence counsel may need to not only enquire about their client’s citizenship status but take extra steps to ensure that despite the existence of a lawfully issued birth certificate and other documents accessible only to citizens, their client is not otherwise ineligible for that status.
The task of criminal defence lawyers is challenging enough. While I don’t seek to pile on this burdensome heap, for a portion of their clientele, defence lawyers need to exercise greater due diligence in verifying their clients’ citizenship status. Accused may be subject to a consequence worse than just the prison terms that they may serve. They will be sent to a country that they may have little or no connection with and may not be able to communicate effectively.
 In a separate proceeding before the Federal Court of Canada, Budlakoti sought a declaration that he is a Canadian citizen and not subject to the Immigration and Refugee Protection Act. The Court rejected this articulating that it did not possess the power to do so. Furthermore, it concluded that the responsibility to make such determinations was the duty of the Minister of Citizenship and Immigration or, potentially, a citizenship judge as set out by statute. The Court of Appeal has affirmed the Federal Court’s assessment and has the Supreme Court of Canada has dismissed Budlakoti’s leave to appeal.