Kovacs v. U.S., 744 F.3d 44, 52 (2d Cir. Mar. 3, 2014) (petitioner showed reasonable probability he would have litigated an available statute of limitations defense if he had been unable to negotiate an immigration-neutral disposition, which was a sufficient showing of prejudice from counsels ineffective assistance in affirmatively misadvising him of the adverse immigration consequences of his plea).

The court stated:

Alternatively, Kovacs demonstrates prejudice under the standards set forth in Hill. Kovacs' petition alleges he would have litigated a meritorious statute of limitations defense. When a petitioner claims that he would have pursued an affirmative defense but for his lawyer's erroneous advice, the resolution of the prejudice inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. FN5 Hill, 474 U.S. at 59, 106 S.Ct. 366. At sentencing, Kovacs requested a downward departure for extraordinary acceptance of responsibility on the basis that he waived this potential meritorious defense, and the district court granted it. The request itself demonstrates Kovacs' awareness of the defense prior to the plea becoming final. See Fed.R.Crim.P. 11(d)(2). More importantly, the district court's grant of Kovacs' request in the course of a conscientious and searching sentencing process implicitly acknowledged that the defense had weight. As a result, Kovacs has shown a reasonable probability that he would have proceeded to trial.

(Id. at 53.)