Post-Conviction Relief for Immigrants

In United States District Court, a non-citizen defendant can move to withdraw a guilty plea under to Rule 32(e) of the Federal Rules of Criminal Procedure, which allows for the withdrawal of a plea before sentence is imposed for any “fair and just reason.”[29]  The decision to grant this motion falls within the discretion of the court.[30]  The decision is reviewed for an abuse of discretion.[31]

After sentence has been imposed, Rule 32(e) precludes setting aside a plea except on direct appeal or by motion to vacate sentence under 28 U.S.C. § 2255.  This rule has severely limited the availability of a post-sentence plea withdrawal.[32]

[29] Fed. R. Crim. P. 32(e); United States v. Hyde, 520 U.S. 670 (1997); United States v. Burdeau, 168 F.3d 352 (9th Cir. 1999).

[30] United States v. Wade, 940 F.2d 1375, 1377 (10th Cir. 1991).

[31] See United States v. Reyna-Tapia, 294 F.3d 1192, 1196 (9th Cir. 2002); United States v. Ruiz, 257 F.3d 1030, 1032-33 (9th Cir. 2001) (en banc) (clarifying that “fair and just” rather than “manifest injustice” standard should be applied by district court); United States v. King, 257 F.3d 1013, 1022 (9th Cir. 2001); United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000); United States v. Turnipseed, 159 F.3d 383, 387 (9th Cir. 1998); United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995); United States v. Oliveros‑Orosco, 942 F.2d 644, 645‑46 (9th Cir. 1991). 

[32] See, e.g., United States v. Gavilan, 761 F.2d 226 (5th Cir. 1985) (counsel’s failure to advise defendant of the collateral consequences of a guilty plea did not require post-sentence withdrawal of that plea, since defendant failed to establish prejudice).