Ojin Kim v. United States

In Padilla v. United States, 559 U.S. 356 (2010), the Court held that that the Sixth Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arising from a guilty plea. Defense counsel’s failure to so advise, or defense counsel’s misadvice regarding the immigration consequences of the plea, may constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The Court held specifically that when the risk of removal resulting from a guilty plea is “clear,” counsel must advise his or her client that “deportation [is] presumptively mandatory.” On the other hand, when that risk is less clear, counsel need only advise the defendant “that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 559 U.S. at 369. The Court acknowledged that a “[l]ack of clarity in the law . . . will affect the scope and nature of counsel’s advice.” Id. at 369 n.10. Petitioner and defendant Ojin Kim was convicted of a federal felony and faces probable deportation as a result. To address this harm, Kim moved for relief under 28 U.S.C. § 2255, and pursued his claim through the district court and the Fifth Circuit. He now presents the following question to the Court: Whether the real threat of deportation as a result of a federal criminal conviction establishes standing and a real case in controversy for federal courts to retain jurisdiction of a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255?