Emigration Ordinance (XVII of 1979)

Citation Name : 2017 SCMR 1524 SUPREME-COURT-OF-UNITED-STATE
Side Appellant : JAE LEE
Side Opponent : UNITED STATES
Criminal trial---Ineffective assistance from counsel (lawyer)---"Strickland v. Washington, 466 U.S. 668", standard for ineffective assistance of counsel---Principles---Plea of guilty by accused based on counsel's erroneous advice---Effect---Prejudice caused to the accused---Appellant came to the United States (U.S.) from a foreign country as a child with his family and lived in the U.S. for thirty-five years legally, though he did not become a citizen---Appellant got involved in the drugs trade, and was arrested and charged with possession of drugs with intent to distribute---Government's case against the appellant was very strong, and on the advice of his attorney, appellant pleaded guilty in exchange for a lighter sentence---Appellant's attorney repeatedly assured him that he would not be deported as a result of pleading guilty, however the guilty plea by appellant constituted a conviction of an aggravated felony, which was a deportable offense under the (US) immigration and Nationality Act---When appellant learnt of his deportation, he moved to vacate his conviction, arguing that his attorney had provided constitutionally ineffective assistance under the standard established in Strickland v. Washington, 466 U.S. 668, which provides for a two-pronged test: whether the attorney's advice was deficient, and whether the deficiency prejudiced the defendant---Appellate Court below upheld appellant's conviction and determined that he could not satisfy the second prong of the Strickland test because there was not sufficient evidence that the outcome of appellant's case would have been substantially different had he known about the risk of deportation; [Per Roberts, C.J.], held, that the Sixth Amendment to the United States Constitution guaranteed a defendant the effective assistance of counsel at "critical stages of a criminal proceeding," including when he entered a guilty plea---To demonstrate that counsel was constitutionally ineffective, a defendant must show that counsel's representation "fell below an objective standard of reasonableness" and that he was prejudiced as a result [Strickland v. Washington, 466 U.S. 668, 692]---Under the Strickland test, when a defendant claimed that his plea was caused by ineffective assistance of counsel, the defendant could demonstrate that he was prejudiced by showing a reasonable probability that, but for his counsel's errors, he would have gone to trial rather than accepting a plea---Relevant question was not whether the defendant would have been acquitted at trial but whether, had the defendant been properly advised, he would have chosen to exercise his right to a trial---When a defendant alleged his counsel's deficient performance led him to accept a guilty plea rather than go to trial, the court did not inquire whether, had he gone to trial, the result of that trial would have been different than the result of the plea bargain---Court could not accord any presumption to judicial proceedings that never took place---Defendant's decision making may not turn solely on the likelihood of conviction after trial---Court could not say that it would be irrational for someone in appellant's position to risk additional prison time in exchange for holding on to some chance of avoiding deportation---Even if a defendant were highly likely to lose at trial, as was the position in the present case, inadequate assistance of counsel may still prejudice his ability to weigh his options and their potential consequences in deciding whether to take a plea---As said inquiry was necessarily a fact-specific one that must be conducted on a case by-case basis, the Court could not create a sweeping, per se rule---Appellant had successfully demonstrated that avoiding deportation was a determinative issue in his decision-making---Both the appellant and his counsel testified that deportation was the determinative issue to the appellant; his responses during his plea colloquy confirmed the importance he placed on deportation; and he had strong connections to the United States, while he had no ties to the foreign country he had immigrated from---Appellant in such circumstances met the standard to demonstrate that he suffered prejudice under the Strickland v. Washington, 466 U.S. 668, standard for ineffective assistance of counsel---Appellant had established that he was prejudiced by erroneous advice of his counsel, demonstrating a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial


Citation Name : 2017 PCrLJN 69 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUMTAZ HASSAN ZUBAIRI
Side Opponent : State
Ss. 498, 499 & 561-A---Emigration Ordinance (XVII of 1979), Ss. 17(2-b), 18(a) & 22(b)---Unlawful immigration , fraudulently inducing to emigrate, receiving money for providing foreign employment---Application for reduction of surety amount of bail---Accused was admitted to bail subject to furnishing of surety amount of Rs. 500,000 which was reduced by Trial Court to 300,000 but applicant failed to meet the said requirement---Subsequent application filed by accused before Trial Court for reduction of surety amount was rejected---Validity---Accused was too poor to arrange for his surety amount---Co-accused was required to furnish the surety amount of Rs. 50,000---Standing counsel had also conceded to the reduction of surety amount---Amount of surety bond was reduced from Rs. 300,000 to Rs. 50,000.

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