Post-Conviction Relief for Immigrants

The court must grant the withdrawal of the plea if it finds “fair and just reason” to do so, which is a liberal, equitable standard.  It is broad enough to include the ground that the defendant did not learn of the adverse immigration consequences until after the plea had been entered.[33]  In the First Circuit, the court explained that  “[it] can readily imagine that a court might be willing to grant leave to withdraw under this circumstance [of post-plea realization of mandatory deportation].”[34]  Misadvice by defense counsel concerning the adverse immigration consequences of a plea can also constitute sufficient grounds to grant a pre-sentence motion to withdraw a guilty plea under Rule 32(e).[35]

[33] Nunez-Cordero v. United States, 533 F.2d 723 (1st Cir. 1976); United States v. Russo, 386 F.Supp. 165, 166 (S.D.N.Y. 1974); cf. Kercheval v. United States, 274 U.S. 220, 224 (1927).

[34] Nunez-Cordero v. United States, 533 F.2d 723, 725 (1st Cir. 1976); see United States v. Gomez-Orozco, 188 F.3d 422 (7th Cir. 1999) (defendant demonstrated a fair and just reason to withdraw a guilty plea entered six months earlier since he discovered he might in fact be a United States citizen and moved promptly after discovery of the evidence). 

[35] United States v. Couto, 311 F.3d 179 (2d Cir. 2002) (affirmative misrepresentation by counsel concerning mandatory deportation consequences constituted ineffective assistance of counsel where it was reasonably probable that the defendant would not have pleaded guilty absent the error).