The Ninth Circuits most recent case on withdrawing a plea, United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008), stated:



Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a defendant may withdraw a plea of guilty prior to the imposition of sentence if he "can show a fair and just reason for requesting the withdrawal." While the defendant is not permitted to withdraw his guilty plea "simply on a lark," United States v. Hyde, 520 U.S. 670, 676-77, 117 S. Ct. 1630, 137 L. Ed. 2d 935 (1997), the "fair and just" standard is generous and must be applied liberally. "Prior to sentencing, the proper inquiry is whether the defendant has shown a fair and just reason for withdrawing his plea even if the plea is otherwise valid." Davis, 428 F.3d at 806. See also, United States v. Ortega-Ascanio, 376 F.3d 879, 884 (9th Cir. 2004) ("The validity of Ortega-Ascanio's guilty plea was not the proper inquiry; instead, because Ortega-Ascanio had not yet been sentenced, . . . the proper inquiry was whether he had shown a fair and just reason for withdrawing his plea even if it was otherwise valid.) Among "fair and just" reasons, the McTiernan court observed is, "Erroneous or inadequate legal advice . . ., even without a showing of prejudice, when the motion to withdraw is made presentence." Id. The defendants "burden is to show that proper advice could have at least plausibly motivated a reasonable person in [McTiernan's] position not to have pled guilty . . ." Id, at 1168.



The critical nature of advice by defense counsel on immigration consequences is reflected in the Supreme Courts reference to the ABA Criminal Justice Standards on the Defense Function:



And the American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel "should fully advise the defendant of these consequences." ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed. 1982).



INS v. St. Cyr, 533 U.S. 289, n.48 ( 2001), and its further observation that "competent defense counsel" would be sure that his client was aware. Id., n. 50. See United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005).



Inaccurate advice about the probable immigration consequences is a "fair and just" reason to withdraw an otherwise legally valid plea. It is more than just a matter that could "plausibly motivate" a person in his position not to plead, as reflected in the efforts to address immigration consequences, beginning the day after his plea was entered.