Attorney General Phil Weiser has asked the U.S. Supreme Court to reject a deported man’s claim that his attorney failed to precisely describe the immigration consequences of his drug plea.

“This Court should decline petitioner’s request to disregard the many layers of advice he received (including from immigration experts),” Weiser wrote in a Dec. 14 filing with the court, that “accurately informed petitioner that the guilty plea made him deportable under the immigration laws at the same time as meaningfully conveying the risk of deportation.”

Alfredo Juarez, who is a Mexican national and lawful permanent resident of the United States, pleaded guilty to misdemeanor possession of a controlled substance in 2012 after police found cocaine on him. His own lawyer believed going to trial on the charges would result in a felony conviction for Juarez. Prior to the plea, Juarez spoke with an immigration attorney, who told him that he would likely be deported. 

With the exception of a small amount of marijuana, a misdemeanor possession offense would have the same effect under immigration law as a felony, the immigration lawyer said.

The federal government subsequently deported Juarez to Mexico after he violated his probation, where he challenged the constitutionality of his plea, alleging ineffective representation of counsel. Specifically, Juarez argued the lawyers should have told him the guilty plea would result in “automatic deportation” instead of probable deportation.

As to why the immigration attorney used the word “probably” in estimating Juarez’s immigration risk, he responded that in his 40 years of practice, “I learned there is nothing absolutely, certain or guaranteed with the immigration service.”

The Colorado Supreme Court decided unanimously to reject Juarez’s ineffective counsel appeal, finding his attorney went to “substantial lengths” to give correct information. Justice Richard L. Gabriel, agreeing with the outcome, nonetheless believed Juarez’s attorney gave him a “false sense of hope” that the law would someday change and a guilty plea for a misdemeanor would situate him better.

In the 2010 ruling of Padilla v. Kentucky, a majority of the U.S. Supreme Court held that lawyers must give their clients correct advice about whether their plea carries an immigration-related consequence. However, Juarez is now raising the question to the justices of whether defense counsel must explicitly say deportation will take place automatically, or merely that a plea will “probably” cause their client’s deportation.

“When a guilty plea will clearly trigger deportation as a matter of law, courts are sharply divided about whether defense counsel must at least warn noncitizen defendants that the law will require their deportation,” wrote Philip L. Torrey with the Harvard Immigration and Clinical Program in Juarez’s petition to the Supreme Court.

“This established conflict leads to deeply unfair results. For example, noncitizen-defendants in Massachusetts and Rhode Island are likely to have received different pre-conviction advice about the immigration consequences of a guilty plea, but they appear for removal proceedings in the same Boston immigration court,” Torrey continued. “Individuals with Massachusetts convictions will have been advised that a guilty plea clearly requires their deportation as a matter of law.”

Weiser, in opposing the request that the U.S. Supreme Court hear the case, argued that Juarez’s guilty plea was not what got him deported, but rather his probation violations.

“[E]ven if plea counsel had used talismanic words or couched the advice as ‘the plea would trigger deportation as a matter of law,’ rejecting the plea was not rational under the circumstances, because petitioner avoided a felony conviction, jail, and a higher risk of apprehension and deportation,” he wrote.

The case is Juarez v. Colorado.