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).

Ninth Circuit

ARTICLE " POST CON RELIEF " FEDERAL " VEHICLES " MOTION TO WITHDRAW PLEA BEFORE SENTENCE " COUNSELS FAILURE TO ADVISE CONCERNING MANDATORY DEPORTATION CONSEQUENCES CONSTITUTED FAIR AND JUST REASON TO WITHDRAW PLEA -- BONILLA SUMMARY
On Mar. 11, 2011, the Ninth Circuit decided United States v. Bonilla, ___ F.3d ___ (9th Cir. 2011), holding that criminal defense counsel rendered ineffective assistance of counsel by failing to advise the defendant concerning the immigration consequences of the plea in a criminal case. Bonilla pled guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. He has been a lawful permanent resident of the United States for over thirty years; his wife and two children are all U.S. citizens. When shortly after he had entered his plea Bonilla was for the first time informed that he would be deported on the basis of his plea, he moved to withdraw it, asserting that he would not have pled had he known about the immigration consequences. Judge Stephen Reinhardt, writing for the panel, held that the district courts denial of Bonillas pre-sentence motion to withdraw his plea was an abuse of its discretion. Bonillas wife had asked his defense lawyer, prior to plea, about the immigration consequences. Counsel said he would look into it, but never advised Bonilla of the mandatory deportation the plea would cause. Before sentence, Bonilla filed a motion to withdraw the plea, arguing his plea was not knowing or voluntary because he had not understood that pleading guilty would in all likelihood subject him to deportation. He said: Had I known that I would be deported as a result of my plea of guilty, I would never ha[ve] entered that plea to these charges; instead, I would have either sought a different type of plea (which would not result in my necessarily being deported) or, alternatively, I would have gone to trial. The district court denied the motion to withdraw his plea, in reliance on Ninth Circuit authority in effect at the time, which held that attorneys were not required to advise clients about immigration consequences of a plea because deportation was simply a collateral consequence of the plea. See United States v. Amador-Leal, 276 F.3d 511, 514-15 (9th Cir. 2002). The court held that even if Padilla v. Kentucky, 130 S. Ct. 1473 (2010), holding defense counsel rendered ineffective assistance by failing to give affirmative, accurate advice before plea concerning its immigration consequences, applied retroactively, Bonilla did not show prejudice. It reasoned: counsels failure to advise Bonilla did not give rise to a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). Specifically, the court found that Bonillas willingness to enter a plea without having received an answer to his wifes question demonstrated that he was not adversely affected by his counsels failure to inform him about whether pleading guilty carried a risk of deportation. Finding that the failure to receive proper advice from his counsel about the immigration consequences of pleading guilty did not prejudice his decision, the district court denied Bonillas motion to withdraw his plea. Id. (Bonilla, supra, at ___.) The court described the standard of review as follows: We review for abuse of discretion the district courts denial of Bonillas motion to withdraw his plea in accordance with the fair and just reason standard for withdrawal under Federal Rule of Criminal Procedure 11(d)(2)(B). As we have recently explained, the fair and just standard is generous and must be applied liberally. United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008). A defendant who moves to withdraw a guilty plea before a sentence is imposed is not required to show that he would not have pled, but only that the proper legal advice of which he was deprived could have at least plausibly motivated a reasonable person in [the defendants] position not to have pled guilty . . . . United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir. 2005). A presentence motion to withdraw a plea should be freely allowed if a defendant can show a fair and just reason for requesting the withdrawal. See United States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005). Erroneous or inadequate legal advice may . . . constitute a fair and just reason for plea withdrawal. McTiernan, 546 F.3d at 1167. Here, the reason Bonilla gave for withdrawal of the plea was inadequate legal advice concerning the immigration consequences of his guilty plea. (Bonilla, supra, at ___.) In reversing the district courts denial of the motion to withdraw the plea for abuse of discretion, the court reasoned: There can be no question that the immigration consequences about which Bonilla learned after entering a plea could have at least plausibly motivated a reasonable person in [the defendants] position not to [plead] guilty . . . . Garcia, 401 F.3d at 1011-12. As Bonilla stated in his declaration, he would at the very least have attempted to negotiate a plea to a lesser offense. In any event, if defense counsels failure to provide material advice plausibly could have motivated his decision to plead guilty[,] [n]othing in Rule 11(d)(2)(B) requires a defendant to show more in order to satisfy the fair and just reason standard. Davis, 428 F.3d at 808. Bonilla met this fair and just reason standard for pre-sentence withdrawal of his plea by virtue of his counsels failure to provide advice upon request, and would have done so even had no such request been made. The district courts failure to grant Bonillas motion to withdraw his plea constituted a failure to apply the rule generously and liberally and resulted in an abuse of its discretion. (Bonilla, supra, at ___.) The court continued: There can be no question that the immigration consequences about which Bonilla learned after entering a plea could have at least plausibly motivated a reasonable person in [the defendants] position not to [plead] guilty . . . . Garcia, 401 F.3d at 1011-12. As Bonilla stated in his declaration, he would at the very least have attempted to negotiate a plea to a lesser offense. In any event, if defense counsels failure to provide material advice plausibly could have motivated his decision to plead guilty[,] [n]othing in Rule 11(d)(2)(B) requires a defendant to show more in order to satisfy the fair and just reason standard. Davis, 428 F.3d at 808. Bonilla met this fair and just reason standard for pre-sentence withdrawal of his plea by virtue of his counsels failure to provide advice upon request, and would have done so even had no such request been made. The district courts failure to grant Bonillas motion to withdraw his plea constituted a failure to apply the rule generously and liberally and resulted in an abuse of its discretion. (Bonilla, supra, at ___.)

POST CON RELIEF " FEDERAL " MOTION TO WITHDRAW PLEA BEFORE SENTENCE " COUNSELS FAILURE TO ADVISE DEFENDANT CONCERNING MANDATORY DEPORTATION CONSEQUENCE OF PLEA CONSTITUTED FAIR AND JUST CAUSE TO WITHDRAW PLEA ON FACTS OF THE CASE
United States v. Bonilla, ___ F.3d ___, 2011 WL 833293 (9th Cir. Mar. 11, 2011) (counsels failure to advise defendant concerning mandatory deportation consequence of plea constituted fair and just cause to withdraw plea on facts of the case), following Padilla v. Kentucky, 130 S. Ct. 1473 (2010)(defense counsel rendered ineffective assistance by failing to give affirmative, accurate advice before plea concerning its immigration consequences).

POST-CON RELIEF - FEDERAL - MOTION TO WITHDRAW PLEA - GROUNDS - INNOCENCE
United States v. Ortega-Ascanio, ___ F.3d ___, ___, 2004 WL 1575244 *3 (9th Cir. July 15, 2004 (Noncitizen request to withdraw plea to violation of 18 U.S.C. 1326(a), illegal reentry, on the basis that Immigration Judge failed to inform noncitizen of possible relief under INA 212(c), and therefore initial deportation was improper, is essentially an assertion of actual innocence).

POST-CONVICTION RELIEF - FEDERAL - MOTION TO WITHDRAW PLEA - GROUNDS
United States v. Ortega-Ascanio, ___ F.3d ___, 2004 WL 1575244 (9th Cir. July 15, 2004) (defendant may withdraw guilty plea after district court accepts plea, but before sentencing if defendant can show fair and just reason for withrawal, including inadequate plea colloquy, newly discovered evidence, intervening circumstances, or any other reason for withdrawing plea that did not exist when plea was entered).