Memphis, Tennessee—A Memphis man who secured a groundbreaking win before the U.S. Supreme Court this summer has officially won his freedom after a nearly nine-year legal battle to avoid being deported. At the request of the U.S. Attorney for the Western District of Tennessee, the indictment against Mr. Lee was formally dismissed earlier this month, and his case is finally over.
In 2009, Mr. Jae Lee—a South Korean immigrant and successful Memphis restaurateur—was indicted for what the U.S. Court of Appeals for the Sixth Circuit described as “a relatively small-time drug offense.” Thereafter, Mr. Lee pleaded guilty based on the advice of his defense attorney, who assured Mr. Lee that he would not be deported if he did so.
Unfortunately for Mr. Lee, his attorney’s advice was wrong, and spectacularly so. Under federal immigration law, possession of ecstasy with intent to distribute is considered an “aggravated felony,” rendering Mr. Lee deportable immediately. Consequently, when the Government initiated deportation proceedings against him, Mr. Lee sought to withdraw his guilty plea, asserting that his attorney had ineffectively assisted him by misadvising him about the consequences of pleading guilty. Noting the strong evidence of his guilt, however, the District Court refused to allow Mr. Lee to withdraw his guilty plea, and the Sixth Circuit affirmed the District Court’s decision.
Ultimately, the United States Supreme Court agreed to hear Mr. Lee’s case in order to clarify the legal standard that governs ineffective assistance of counsel claims with respect to immigration-related plea bargaining. In a 6-2 opinion, the Supreme Court held that “Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.” As a result, the Supreme Court permitted Mr. Lee to withdraw his guilty plea and proceed to trial instead.
The two dissenting Justices who ruled against Mr. Lee—Clarence Thomas and Samuel Alito—held that Mr. Lee could not have been prejudiced by his attorney’s incompetent advice because Mr. Lee intended “to pursue a defense at trial with no reasonable chance of success.” As this author explained in his 2016 Harvard Latino Law Review article on the matter, however, this analysis is overly simplistic in several respects, and it significantly mischaracterizes the relevant prejudice inquiry.
Further, the notion that a weak defense necessarily means that a defendant will be convicted at trial is also quite simply wrong. Several reasons support this conclusion, including the fact that the Government retains discretion not to take a case to trial at all for any reason. As the above-mentioned article explains: “longstanding precedent entrusts to the Executive Branch’s ‘absolute discretion’ all decisions ‘not to prosecute or enforce, whether through civil or criminal process.’” See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 8 (2016). Accordingly, no matter how strong the evidence of a defendant’s guilt, all immigrants “are potentially eligible for relief from deportation [and from being criminally prosecuted at all] through the Executive Branch’s use of prosecutorial discretion.”
Mr. Lee’s case aptly proves this point. After the Supreme Court permitted Mr. Lee to withdraw his guilty plea back in June, the U.S. Attorney’s Office filed a motion to dismiss the indictment against him. No specific reason was offered to justify the Government’s decision, and because prosecutorial discretion is absolute, the Government is not obligated to provide one. If anyone were looking for a reason to support the U.S. Attorney’s decision to drop the charges, however, one need look no further than the Sixth Circuit’s opinion in Mr. Lee’s own case, which explained—in a ruling against him—that:
“[W]e should not be read as endorsing Lee’s impending deportation. It is unclear to us why it is in our national interests—much less the interests of justice—to exile a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small-time drug offense.”
Ultimately, the Government’s decision to drop the case represents a tremendous win for Mr. Lee and his new lawyer, Mr. Patrick McNally, who was part of Mr. Lee’s Supreme Court team and secured the final dismissal of his indictment. “[S]omeone finally understood the harm that his [first] lawyer’s advice caused him,” Mr. McNally told The Tennessean after the Supreme Court’s ruling in June.
 Lee v. United States, 137 S. Ct. 1958, 1961 (2017).
 Lee v. United States, 137 S. Ct. 1958, 1969 (2017) (Thomas, J., dissenting).
 Lee v. United States, 825 F.3d 311, 316–17 (6th Cir.), cert. granted, 137 S. Ct. 614 (2016), and rev’d and remanded, 137 S. Ct. 1958 (2017).