Court Finds IAC Prejudice in Case Where Defendant Was Misinformed of Immigration Consequences

US v. Swaby: Swaby was a Jamaican citizen, living in the US as a permanent resident along with his girlfriend. In 2011, they were charged with trafficking in counterfeit goods  and conspiracy. Appointed counsel immediately recognized that any guilty verdict could have immigration consequences, so he consulted with an expert immigration lawyer. She assured him that the statute under which the Government wanted Swaby to plead guilty would not be an aggravated felony that would lead to Swaby's mandatory deportation. Counsel informed Swaby, who pleaded guilty. However, counsel had given the immigration expert the wrong version of the applicable statute - the one to which Swaby pleaded guilty to violating was an aggravated felony. Swaby was sentenced to just under a year in prison. When he was released, immigration proceedings were begun against him. Swaby filed a pair of motions (one styled coram nobis, the other 2255) alleging ineffective assistance of counsel, which the district court denied because at the plea hearing it had still warned Swaby that his plea could lead to deportation.

On appeal, the Fourth Circuit reversed the district court. After concluding that it had jurisdiction to hear the issue, the court concluded that counsel's performance was deficient when he provided the wrong version of the statute to the immigration expert. Nor could the court find that the district court's generic warnings at the plea hearing corrected that ineffectiveness. Finally, as to prejudice, the court found that Swaby showed a "reasonable probability that he would have gone to trial" rather than plead to the mandatory deportation offense or, at the very least, would have negotiated a different plea bargain that correctly addressed the immigration issue. As for going to trial, it "is rational that a person in his situation, with such strong connections to this country, would rather risk a trial to reduce the loss amount than plea guilty and accept the certainty of deportation." That decision "does not need to be optimal and does not need to ensure acquittal; it only needs to be rational."