A constitutional right to meaningful counsel

During its next term, the U.S. Supreme Court will decide whether to hear the case of Lee v. U.S.

Mr. Lee is a legal permanent resident who, based on incorrect legal advice by his lawyer, Board of Contributor

pleaded guilty to a crime and that plea now may result in his deportation to a country that he left when he was a child.

The issue for the Court to decide is whether the incorrect advice by the criminal defense attorney constituted “ineffective assistance of counsel.” The Supreme Court has held before that a person has the right to receive competent legal advice regarding the immigration consequences of a proposed plea agreement, and now the issue is whether, when the wrong advice is given, that person can have the plea vacated.

Courts around the country are divided on this issue, and there is a good chance the Supreme Court will decide to hear this case. The Texas Civil Rights Project has submitted a brief of amicus curiae along with other organizations urging the court to hear this case given the important issues at stake.

Our Founding Fathers enshrined in the Constitution the right to a jury trial, and courts have since upheld that criminal defendants have a constitutional right to competent, effective counsel. If that right is to be meaningful, it must mean that a person accused of a crime has the right to receive correct information about potential immigration consequences of a plea agreement.

Here in the Rio Grande Valley, the Texas Civil Rights Project has received numerous reports of local court staff encouraging defendants to enter into plea agreements without the advice of counsel. Although the plea agreement might seem otherwise straightforward and reasonable, unaware defendants — especially those who do not speak English and are not familiar with the interrelatedness between criminal and immigration laws — inadvertently lose out on immigration relief they may otherwise be entitled to.

People have found themselves losing eligibility for DACA (Deferred Action for Childhood Arrivals), or worse, legal permanent residents have unknowingly entered into agreements that rendered them deportable.

Whether such a plea is the right course of action for any one defendant depends on the circumstances of the case, but it is hard to dispute that the decision to take any one course of action should be based on complete, accurate information. Otherwise, our system of justice fails those accused of a crime and therefore fails our society as a whole.

In the interest of justice, we urge our local judges and court staff to ensure that all persons accused of a crime receive, as they are entitled by law, the advice of counsel, which for non-citizens includes advice regarding potential immigration consequences of any proposed plea deal. Failure to do so would be an affront to our Constitution, and would render the right to a trial by jury an empty promise.

Efrén C. Olivares is a senior staff attorney at the South Texas Civil Rights Project, based in Alamo, and is a member of The Monitor’s Board of Contributors.